Punishing dissent

“It’s often said of the Trump era that the Republic has drifted into uncharted waters, but the more damning estimation is that we are mindlessly revisiting some of the darker regions of our historical map.” Jelani Cobb

Jelani Cobb’s December 2017 article in the New Yorker Magazine compares this era with one a hundred years ago, soon after the founding of the FBI, when that agency was, Cobb writes,  “obsessed over all manner of ‘radicals,’ but particularly those African-Americans whose meekest protests of racism were regarded as subversion. African-American newspapers that reported on lynchings were deemed destructive to wartime morale, and the Post Office threatened seizure of subscription copies. This narrowing of free expression had wide-ranging implications, especially for civil-rights organizations and activists.”

Cobb goes on to compare the 1919 Military Intelligence Document titled “Final Report on Negro Subversion” which portrayed the civil-rights movement as “potentially Bolshevik-inspired” and suggested that black discontent “might easily turn into support for Communism” with the August 2017 F.B.I. report titled Black Identity Extremists Likely Motivated to Target Law Enforcement Officers. When Attorney General Jeff Sessions appeared before the House Judiciary Committee to testify about potential contacts between the Trump campaign and representatives of the Russian government, Representative Karen Bass (CA) asked Sessions about the report. Sessions replied that he hadn’t read it, but he supported its argument.

The 2017 FBI report constructs the category of “black identity extremists”—a mythological category that will, based on history, have material consequences for black people in the US. While Sessions worries about the rise of this phantom group, better thinkers are mindful of facts about domestic terrorism. In a report issued in April 2017, the Government Accountability Office noted that since September 12, 2001, “fatalities resulting from attacks by far right-wing violent extremists have exceeded those caused by radical Islamist violent extremists in 10 of the 15 years, and were the same in 3 of the years since September 12, 2001. Of the 85 violent extremist incidents that resulted in death since September 12, 2001, far right-wing violent extremist groups were responsible for 62 (73 percent) while radical Islamist violent extremists were responsible for 23 (27 percent).”

Silencing climate activists

Racism, and specifically the repression of Black Lives Matter activists is alive and well and supported by the Trump administration. So too, is the repression of activists aiming to slow and even halt the ongoing production and use of fossil fuels.

In an October 23, 2017 letter to Jeff Sessions, 84 members of Congress (all but 4 of them Republicans, and all of them beholden to oil and gas companies for election contributions) asked the DOJ to address four questions:

• Do existing federal statutes, including the Patriot Act and Pipeline Safety Act, adequately arm DOJ to prosecute criminal activity against energy infrastructure at the federal level?
• Has the DOJ taken any prosecutorial or investigative actions against those involved with the highly publicized October 11, 2016, attempted sabotage of four major crude oil pipelines in multiple states? If not, please explain the DOJ’s reasoning for not pursuing this case.
• Does the DOJ intend to pursue prosecutorial or investigative action against of any individuals who knowingly and willfully damaged or destroyed interstate or international pipeline infrastructure?
• Do the attacks against the nation’s energy infrastructure, which pose a threat to human life, and appear to be intended to intimidate and coerce policy changes, fall within the DOJ’s understanding of 18 U.S.C. Section 2331 (5)?

Section 2331 (5) defines domestic terrorism. “Terrorist” and “ecoterrorist” were terms used by the prosecutors in the North Dakota trial of valve turner Michael Foster and Sam Jessup, who attempted to live stream that action. Both men will be sentenced in February for felony and misdemeanor convictions related to the action.

History repeats itself: corporate-induced silence

At the same time the newly formed FBI was investigating black activists, they were also investigating labor organizers. In new book called Red Baiting and the Birth of Modern Conservatism, Kathryn Olmstead argues that two key things contributed to the demise of the New Deal and the rise of conservatism. First, business leaders lobbied hard at state and local levels to outlaw picketing and imprison union leaders. Second, they worked in a concerted way to persuade the public that “labor organizers were part of an extensive Communist conspiracy to overthrow capitalism” and they “used their economic clout to stoke public paranoia.”

The same thing is happening with climate activists. In a blog post on the site Desmog, Steven Horn documents collaboration between oil and gas companies and members of Congress responsible for the letter to Jeff Sessions. Horn’s article includes an extensive set of links—for example, a May 2017 letter from the American Petroleum Institute to Kevin Blanco, Acting Assistant Attorney General, Criminal Division, US Department of Justice. The letter essentially previews the case made in the October letter to the DOJ, and links to a new database called the Energy Infrastructure Incident Reporting Center, sponsored by the Energy Equipment and Infrastructure Alliance (EEIA), which according to the EEIA website, is “dedicated to tracking and exposing attacks on critical energy infrastructure.” 

Ratcheting up the pressure: enter ALEC

Local and state lobbying to criminalize and prosecute pipeline activists just got easier. The American Legislative Exchange Council (ALEC), which drafts and circulates sample legislation for conservatives, released its version of the “Critical Infrastructure Protection Act,” a model policy, on December 7, 2017. After defining critical infrastructure in very broad terms, the model policy moves into punishments:

• For trespassing or entering a critical infrastructure facility without permission, a misdemeanor punishable by a fine, jail time, or both. If it is determined that “the intent of the trespasser is to willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the facility, the person shall, upon conviction, be guilty of a felony punishable by a fine of not less than {dollar figure}, or by imprisonment in the custody of the {Department of Corrections [or substitute the appropriate State equivalent thereof]} for a term of {length of time}, or by both such fine and imprisonment.”
• “Any person who shall willfully damage, destroy, vandalize, deface or tamper with equipment in a critical infrastructure facility shall, upon conviction, be guilty of a felony punishable by a fine of {dollar figure}, or by imprisonment in the custody of the {Department of Corrections [or substitute the appropriate State equivalent thereof]} for a term or not more than {length of time}, or by both such fine and imprisonment.”
• “If any organization is found to be a conspirator with persons who are found to have committed any of the crimes described in subsection A or B of this section, the conspiring organization shall be punished by a fine that is {number} times the amount of said fine authorized by the appropriate provision of this section.”

The valve turners in ND were charged with conspiracy, a term defined for the jury as knowing about and not stopping. Under ALEC’s model policy, any organization that knew acts of civil disobedience or other forms of protest were planned and didn’t try to stop them could be fined.

Washington state’s chilling dissent bill still pending

Senator Doug Ericksen (R-Whatcom County), short-term employee of the Trump administration–long-time advocate for the gas and oil industry and, according to Sightline.com, a major beneficiary of campaign contributions from those industries, put forth his Preventing Economic Disruption Act (PEDA) last year. The bill didn’t get out of committee, but Ericksen filed to have the bill stay on the docket for the upcoming legislative session.

Ericksen’s PEDA demonstrates a current version of stoking paranoia and fighting communism. Here’s the official summary of the bill: “The Legislature recognizes and supports the ability of individuals to exercise their rights of free speech, press, and peaceful assembly. A prosecuting attorney may file a special allegation alleging that a person committed a criminal offense to cause economic disruption. If the defendant is convicted of the underlying criminal offense and the court finds, by a preponderance of the evidence, that the offense was committed to cause economic disruption, the following mandatory periods of total confinement are added to the underlying sentence…”

The real rhetorical hook comes in the definition of economic disruption, which includes committing a crime to influence the policy of a government:

“Economic disruption means to commit a crime intending to: influence the policy of a government by intimidation or coercion by obstructing, hindering, or delaying the passage of any train, truck, car, ship, boat, aircraft, or other vehicle or vessel engaged in the carriage, hauling, transport, shipment, or delivery of goods, cargo, freight, or other item, in commerce; or interfere with, tamper with, damage, or obstruct any pipeline facility, bulk oil terminal, marine terminal, tank car, waterborne vessel or barge, or power plant.”

Jelani Cobb is right. This administration isn’t clueless. Where I differ from Cobb’s analysis, however, is that based on the evidence we have, the journey back into the parts of our historical map where the rights of capital ascended and dissenters were fined and imprisoned is deliberate.

Emily Lardner is a regular contributor to Works in Progress.