Justice For Judy
A free speech victory
Catherine Komp

On June 11, 2002, a federal jury in Oakland, California awarded $4.4 million to Darryl Cherney and the Estate of Judi Bari in an historic lawsuit brought against the FBI and the Oakland Police Department (OPD). The lawsuit challenged the way the FBI and OPD handled the 1990 car bombing of the two Earth First! activists. Bari, who died of breast cancer in 1997, sustained near-fatal injuries from a motion-activated nail-studded bomb that was placed under the driver’s seat of her car. Investigators on the scene discounted any possibility of an assassination attempt and instead arrested Bari while she was in surgery for planting the bomb herself. Cherney, who suffered only minor injuries, was also arrested. They were accused of transporting the bomb for use in their logging protests.

Bari and Cherney were in fact traveling to college campuses to organize for Redwood Summer, a nonviolent campaign to stop logging of ancient redwoods in California. Neither of them had any history of violent activity and both advocated a strict philosophy of nonviolence. While the charges against the two environmentalists were dropped due to lack of evidence, the complete neglect to investigate the real bomber, and the ensuing two-month long smear campaign by the FBI and OPD, led Bari and Cherney to file a federal civil rights suit one year later. The lawsuit charged the FBI and OPD with violating the plantiffs’ First and Fourth Amendment rights. More specifically, they accused the defendants of interfering in their political organizing, publicly labeling the two as known violent terrorists, falsely arresting and conspiring to frame them, unlawful search of their homes and seizure of their property, falsifying evidence, ignoring evidence that may have led to the true bomber, and covering up wrong-doing. To this day, the FBI and OPD have neither retracted nor apologized for accusing Bari and Cherney of the bombing, nor has there been an investigation of the real bomber.

This case is significant on many counts and, while adequately covered by local and left media, was largely neglected by the mainstream. After 12 years of painstaking work, a team of environmentalists and activists finally brought the powerful and well-financed FBI and OPD in front of a civilian jury – for only the third known time in U.S. history. This is a story that should resonate with all activists targeted by the FBI, especially those now falling under the category of “eco-terrorists” for their work defending the planet’s disappearing resources. This is a story even more poignant in the post-September 11 climate of the USA PATRIOT ACT, Operation TIPS, and Homeland Security. This is a story about our basic constitutional rights as Americans, those “democratic freedoms” used by the Bush Administration to justify the “war on terrorism,” freedoms that are no longer guaranteed.

Shaking the Foundations

Alicia Littletree, paralegal for the plaintiffs, met Bari through Earth First! in 1991. They became close friends and after Bari’s death, Littletree committed herself to seeing the trial to its end. She believes a reason for the trial’s lack of attention is fear. “This case doesn’t go along with our society’s current obsession with the war on terrorism,” Littletree said. “This [trial] challenges the value system, it challenges the power structure, it challenges people’s mass psychosis around law enforcement and it’s not something they want to talk about because it really shakes the foundations of the whole establishment.” Despite their strong witnesses and compelling evidence, Littletree admitted that she didn’t feel optimistic about the trial. “Maybe if it had been before September 11, this wouldn’t have been such a hurdle. But people really want to believe that we live in a democracy and that our government isn’t involved in this sort of thing.”

Many people familiar with the case do believe the FBI was using COINTELPRO (the federal counter intelligence program to “neutralize” political activists) tactics to thwart the growing movement against logging ancient redwoods that Bari helped to build. Bari was in the midst of galvanizing support for California’s Proposition 130, an initiative to stop the logging that would have cost area timber companies Georgia Pacific, Louisiana Pacific, and Pacific Lumber billions of dollars. According to a report on COINTELPRO presented at last year’s World Conference Against Racism, FBI files show that the agency began spying on Earth First! shortly after organization started in 1981. Other evidence unearthed by the Bari legal team links the FBI directly to the timber companies. The report, written by Paul Wolf and compiled with the help of Noam Chomsky, Ward Churchill, Cynthia McKinney, and Howard Zinn, states that a board member of Pacific Lumber sent a “chummy” letter to then director of the FBI William Sessions. The FBI and OPD also never investigated the numerous death threats received by Bari immediately after announcing plans for Redwood Summer. Bari and others strongly believed that the threats came from the timber companies. Additionally, a lead defendant, Special Agent Frank Doyle, conducted FBI bomb school on the property of Louisiana Pacific in Eureka just four weeks before the bombing. Doyle, who arrived on the crime scene less that an hour after the explosion, made the original statement that the bomb was definitely on the back seat floor, even though the first OPD sergeant on the scene said the bomb was clearly under the driver’s seat. Because of Doyle’s position as the FBI’s explosives expert, subsequent investigators repeated his account as fact. Members of Doyle’s bomb school also arrived on the scene to investigate, with one student proclaiming, “This must be the final exam.” Interestingly, the bomb used in Bari and Cherney’s car was identical to one of the bombs studied at the neighboring FBI bomb school.

Despite the apparent connection, Judge Claudia Wilken refused to let witnesses discuss COINTELPRO saying it was irrelevant to individual defendants in the case. In 1997, Wilken dismissed defendant Richard Held, the FBI COINTELPRO specialist who was the head of the San Francisco FBI at the time of the bombing. Held said under oath that he had no interest in the Bari case. However, other FBI agents said they briefed him on the issue daily and an FBI document shows that officials in Washington requested weekly reports on the Bari case to meet a constant string of inquiries. Held resigned from the FBI shortly after this contradicting evidence surfaced. The plaintiffs plan to appeal his dismissal from the trial.

A Diametric Defense

Ben Rosenfeld, another attorney for the plaintiffs, agrees that the defendants’ testimonies were rife with contradictions, each agency putting distortions on the other. “One of the most significant developments in the trial,” said Rosenfeld, “was that we really began to impeach their honesty and credibility. Oakland said ‘Don’t blame us, we were just deferring to the dashing expert G-men from the FBI. They came in with all the experience, they told us these were terrorists, they told us where the bomb was, and we just listened to them.’ The FBI said, ‘Don’t blame us, we didn’t make the arrests, we told them that we would have taken more time, and we would have gone more slowly.’ Well, there’s no evidence on the record that suggests they made any such caveat.”

One of the most contentious parts of this case was the issue of the location of the bomb in Bari’s car. FBI and OPD have steadfastly maintained that the bomb was on the backseat floorboard, a location that would have supported the accusation that Bari and Cherney were terrorists, transporting a bomb for use in logging protests. But the car, which was shown to the jury, clearly showed a gapping hole under the driver’s seat. And, according to Wolf’s COINTELPRO report, in the weeks following the bombing, explosive experts issued reports stating that all evidence pointed to the bomb being positioned under the driver’s seat. Nonetheless, the FBI continued to perpetuate the lie that the bomb was in the backseat. “Repetition is a fundamental of the ‘Big Lie’ propaganda technique,” the report states, “Maintaining a drumbeat of false information until it is accepted by the media and the public as the truth.” On the witness stand 12 years later, Doyle changed his story, stating that he never said the bomb was on the backseat floor but that it was instead on the “axis of the backseat.” Doyle also testified that Judi’s guitar case, which was on the back seat, was blown to pieces. However, a photo presented to the jury showed a mostly intact guitar case.

Protecting Dissent

Describing the trial as a meteor shower, Cherney, also a singer and songwriter who recorded songs about the bombing with Bari, confesses to making radical statements in the past. But, he says, that doesn’t make him a terrorist. “There’s a big difference between making a radical statement or having a radical opinion,” said Cherney the day of his testimony, “And committing the crime of blowing something up. There’s a very large leap between those things.” Even members of the establishment admit this. Cherney said that on the stand, Phil Sena, one of the Special Agents found to have violated the plaintiffs’ First Amendment rights, said “If I had to investigate every group in northern California that threatened violence, I’d have to investigate the Republican Party, the Democratic Party, the Sierra Club . . . ”

Medea Benjamin, founding director of Global Exchange and former Green Party candidate for U.S. Senate, is part of the Judi Bari solidarity coalition. The group helped to plan weekly events in conjunction with the trial to discuss the larger implications of this case and civil rights. Benjamin said she feels this case is essential for standing up for the rights of activists to dissent. “This is one of those lessons where you see in history that while free speech is protected, it’s protected only as far as we’re not being very effective,” Benjamin said. “When we start to get effective as a movement, which is really the case of Judi and Darryl, where they started to make alliances with workers and really build a very strong movement modeled after the civil rights movement, that the weight of the FBI comes down on us.”

Littletree says that first and foremost, Bari would have wanted vindication that she was falsely charged and vindication that the FBI participates in the suppression of law abiding political activists. “I think Judi really wanted this case to serve as a symbol for all of the groups and individuals that have been targeted and all of us that will be targeted,” said Littletree. “I think she wanted to shine a light on their covert activities and their anti-activist activities so that we could have a foothold to challenge them and to stop them.” Littletree said this is not just about justice for Judi Bari, “This is about Leonard Peltier, Geronimo ji Jaga [Pratt], Assata Shakur, AIM, the anti-Globalization movement, and all social movements because we threaten the power structure, because we threaten the FBI’s control and the corporate control of our society.” Littletree is hopeful that this case will serve as an impetus to activists everywhere, saying, “If we can back them down, we can make some of the social change that is desperately needed to save the ecosystems of our country and our planet. I think that’s what this case is about, just a tiny step toward backing them off and making it so we can actually achieve the change that needs to happen in this country.”

Victory for All

Whether or not Bari and Cherney will ever receive total vindication through an investigation of the real bomber is still a question. Nonetheless, the plaintiffs had much to celebrate the day of the victory. After more than a decade in preparation, six weeks in trial, and 17 days of deliberations, the 10-person jury handed down a verdict that exacts accountability from law enforcement agencies. Delivering unanimous verdicts on all but one claim, the jury awarded 80 percent of the $4.4 million in damages for First Amendment violations, the largest award in such a case.

While appeals are expected from both sides, the afternoon of June 11 still resounds with the din of victory. A definitive statement has been made on behalf of all environmentalists, all social activists, and all U.S. citizens concerned about their constitutional rights. Even under the duress of this so-called war on terrorism, people are refusing to permit the perversion of civil liberties. Voices of opposition — constitutionally protected voices — are speaking out against the extensive history of political repression in this country. And, this time, they are being heard. In a song paying tribute to Bari and her untiring work in the face of adversity, Cherney wrote, “But we’ll answer with nonviolence,‘cause seeking justice is our plan. And we’ll defend our wounded comrade, as we defend the ravaged land.”

For a wealth of information on the trial including verdict details, appeal updates, and audio files of Bari’s deposition and speeches, visit www.judibari.org.

Paul Wolf’s report on COINTELPRO presented at the World Conference Against Racism is found at www.cointel.org.