Judi Bari Wins a Round in FBI Suit
Nicholas Wilson
Judi Bari Wins a Round in FBI Suit
by Nicholas Wilson
12/11/96
In an Oakland, California, federal courtroom filled to capacity with
supporters and reporters, Earth First! activist Judi Bari won a round
in her false arrest and conspiracy suit against the FBI and Oakland
Police Department. At a November 22 pretrial hearing, Judge Claudia
Wilken started by denying the FBI's latest attempt to dismiss the suit,
then ordered any further challenges to be consolidated for hearing all
at the same time, and set up a timetable to move the case toward
trial.
Bari and fellow Earth First! activist Darryl Cherney are suing FBI
agents, Oakland Police officers, the Oakland Police Department, and the
City of Oakland for violating their constitutional rights by false
arrest, unlawful search and seizure, denying equal protection of the
law, and conspiracy to defame and discredit them and Earth First! by
smearing them as terrorists.
Bari emphasized the significance of the case, telling reporters, "This
case is not just about me or Darryl or Earth First!. This case is about
the rights of all political activists to engage in dissent without
having to fear the government's secret police. This is a much larger
case than any of us as individuals." The case has survived repeated
challenges by the FBI and OPD since it was filed in May, 1991, and Bari
says there is no way that the suit could have survived five and a half
years in court unless it were a strong case.
Judge Wilken surprised both sides by immediately tossing out the FBI
motion to dismiss without hearing any evidence or oral arguments, based
only on the written briefings. She then said she had a few problems
with parts of the latest revision of the suit by Bari's attorney, but
said she would resolve them by "red penciling" the document herself.
Once that is done, the defendants (FBI agents and OPD) will have only
three weeks to file any further motions to prevent the suit from coming
to trial. The judge also addressed the issue of repeated appeals by the
FBI against her rulings in the case, saying she interpreted the law as
allowing "only one bite at the apple." FBI attorney Joseph Sher
disagreed, saying he believed new case law allows multiple appeals.
Background
Six and a half years ago Bari and Cherney were arrested and accused of
knowingly transporting explosives after a bomb exploded in Bari's car
in Oakland, maiming and nearly killing her. News of the explosion and
of police and FBI accusations made headlines and garnered national TV
coverage, with police saying the bomb was in the back of Bari's car,
where she must have known it was there, and that it must have exploded
accidentally while she was on her way to plant the bomb somewhere.
Bari later discovered through FBI and police files obtained through her
suit that the FBI had determined within hours of the explosion that the
bomb was triggered by a motion device, and OPD photos of the bombed car
clearly showed that the blast damage was centered directly under her
driver's seat. Bari says these facts were known to the FBI and police
at the time they decided to arrest Bari and Cherney and make false
charges against them in the press.
Nevertheless the two forestry activists were branded as terrorists and
held on $100,000 bail, and authorities spent two months making
statements to the press about finding more and more evidence linking
Bari to making the bomb. The Alameda County District Attorney
eventually refused to file any charges, citing a lack of evidence. This
was reported only in the local press.
When the bomb exploded, Bari and Cherney were on a tour of college
campuses recruiting for their 1990 "Redwood Summer" of nonviolent
logging protests, inspired by the Mississippi Summer civil rights
campaign of the 1960s. Bari and other forestry activists in Mendocino
and Humboldt Counties received oral and written threats of violence and
death from timber industry supporters in the months before the bombing,
and Bari reported them to the police and turned over the written ones
as evidence. A Mendocino County Sheriff's officer told Bari, "we don't
have the manpower to investigate. If you turn up dead, then we'll
investigate."
A year before the bombing Bari's car had been rammed from behind by a
log truck in an incident reminiscent of the Karen Silkwood case. Her
car was totaled, and three adults and four of their children ended up
in the hospital with minor injuries. The police refused to investigate
it as anything but a traffic accident, even though Bari had photos
showing that the same truck had been delayed by an Earth First!
blockade less than 24 hours earlier.
Interview
In an interview following the brief Oakland court hearing, Bari
declared Judge Wilken's ruling a victory, "because now we get to
present the whole context at once; they don't get to slice it up."
Regarding the issue of multiple appeals Bari said "Joe Sher actually
has bragged to us that his plan is to make this case take 20 years, and
indeed he has a history of doing that."
Although Bari expected to present some of the 14,000 pages of evidence
she has obtained from FBI and police records and from sworn testimony
taken in depositions, she was pleased with the hearing's outcome,
saying, "at least we got the case put into a more sane kind of
presentation, where when we do come back, we'll be able to argue the
whole case at once, and hopefully there will be a limited number of
times they can appeal."
The FBI and OPD claim the doctrine of "qualified immunity" protects
them from being sued for actions in the line of duty. Bari explained
that in order to overcome that barrier she has to show that their
actions were not simply mistakes made in good faith but were conscious
and deliberate efforts to frame her and Cherney in order to smear and
discredit them and Earth First! in the public mind. Bari said she has
strong evidence to that effect, and that, "they didn't make a mistake
when they arrested us, they lied. They told a conscious and deliberate
lie, in writing. They said the bomb was in the back seat; they knew it
was hidden under my seat. They said that nails in the bomb matched
nails in the car; they knew they weren't even similar."
During the hearing FBI attorney Sher argued against Bari's charge of
denial of equal protection of the law, saying that a person can't sue
the police for failing to catch the bad guys. Afterward Bari said
"We're not going after them for failing to catch the bomber, we're
going after them for failing to LOOK for the bomber. And that's really
the distinction. We're not saying this was a failed investigation,
we're saying this was a PHONY investigation. In fact, any lead that
could have led to the bomber, they avoided. The death threats that I
received before the bombing are still sitting in their evidence room,
untouched, unfingerprinted, unexamined. Any lead that seemed to lead
anywhere except for Earth First! or Darryl or me was very deliberately
ignored by them. That's the point. It's not that they didn't succeed,
it's that they didn't TRY."
Bari says evidence from another court case shows that the FBI was
engaged in covert operations targeting Earth First! in Arizona just
before the bomb exploded under her driver's seat on May 24, 1990. In
the Arizona case the FBI infiltrated a small Earth First! group with
agents provocateur for about two years during which they repeatedly
tried unsuccessfully to get them to use explosives, and offered to
provide the explosives. Finally the FBI settled for getting them to use
acetylene torches to sabotage a power line from a controversial power
plant, drove the activists to the scene, then arrested them in the
act.
A hidden tape recorder worn by an FBI undercover agent in the Arizona
case was accidentally left running when he was speaking with other FBI
agents, and recorded the agent saying that Earth First! founder "Dave
Foreman is the one we need to pop in order to send a message." A
transcript of the tape was obtained by lawyers for the defendants in
that case.
"What happened when they arrested Darryl and me in 1990 was really a
continuation of the FBI's already existing attempt to discredit Earth
First! by trying to associate us with explosives," said Bari. "And in
case anybody doesn't know, Earth First! has never been associated with
explosives in any way shape or form, except as victims, in our entire
history."
When asked about the Oakland Police Department's role, Bari had this to
say: "Most of you have probably seen the photos (of the bombed car)
taken by the OPD. Any idiot, or as Dennis (my lawyer) wrote in his
brilliant brief, Ray Charles or Stevie Wonder could have seen where
that bomb was. So it's not just that the OPD were deceived, the OPD
were willing collaborators. They looked at physical evidence that
somebody had tried to kill me, and because the FBI said to them, 'We
know these people; they're terrorists; they're the kind of people who
would be involved in something like carrying a bomb...' well, even if
the FBI said that, the OPD, who actually made the arrests, had the
responsibility as a police agency to check out the facts for
themselves.
"In fact the Oakland police have a very long history, dating back to
the days of the Black Panthers, of cooperating with the FBI in
COINTELPRO (so-called counterintelligence) operations. In fact (Oakland
officers) testified in sworn testimony in depositions in this case that
the OPD themselves conducted spying operations on Earth First! and on
300 environmental and political activist groups and individuals in the
Bay Area, which the FBI is forbidden to do by the Attorney General's
guidelines. The OPD comes and takes pictures of our demonstrations,
writes down our names, all that kind of political spying, that the FBI
is prohibited from by the Attorney General's guidelines. We asked them
what they did with this information, and the OPD said they share it
with the FBI."
Rally
Many of Bari's supporters were unable to get into the courtroom, which
held only about 85 people, but they stayed for the noon support rally
held in the courtyard of the massive Oakland Federal Building. Bari was
interviewed by CNN and several radio reporters, including one from
Pacifica Network News, and several other TV cameras photographed the
rally. More than half of the 250 people at the rally were from outside
the Bay Area, and some had come from as far away as Oregon.
A light drizzle and rain showers did not dampen the spirit of the
rally, which featured inspirational songs by a number of singers,
including Bari and Cherney, a singer/songwriter who has been called the
Woody Guthrie of the environmental movement. Banners proclaimed
"Justice for Judi Bari" and "Save Headwaters Forest." Bari spoke to the
crowd briefly about her own case, then yielded the microphone for
updates about other instances of alleged FBI and police abuse,
including the cases of Leonard Peltier, Mumia Abu Jamal, and Geronimo
(Pratt) Ji Jaga, all of whom are political activists said to have been
framed directly by or with the involvement of the FBI.
The next hearing in the case will probably be scheduled no sooner than
March, 1997. Asked if he could make a motion to expedite the case due
to the fact that Bari has inoperable cancer, attorney Dennis Cunningham
replied, "I think that one is developing here, and we'll try to make it
at the appropriate time. We're facing a strategy that is based on
delay and nothing else."
Attorneys for the FBI and the City of Oakland did not return calls
requesting comment.
__________________________________
Author's Notes: This article was written for the Albion Monitor a fine
progressive publication on the internet at
http://www.monitor.net/monitor/
This article may be freely distributed for non-profit use with credit to
Nicholas Wilson and the Albion Monitor.
The Monitor's version of this story, with photos and links to lots more
information about the Bari case may be found at:
http://www.monitor.net/monitor/bari/jb-oakland.html