William Cottrell admits he doesn't like SUVs. He even admits to spray-painting "smog machine" onto some SUVs. And he was convicted of being part of a now-infamous San Gabriel Valley arson spree that caused nearly $2.5 million in property damage to SUVs at private residences and dealerships in August of 2003. But is he a terrorist?
Cottrell has the USA Patriot Act to thank for the extra three years and four months he may serve in federal prison for that night of indiscretion. On April 18, U.S. District Judge R. Gary Klausner ruled that the former CalTech graduate student had engaged in "domestic terrorism" by targeting the fuel-inefficient vehicles, since his actions were seemingly meant to intimidate a civilian population, namely SUV-buyers. Cottrell's defense expected the judge to give the physics genius the mandatory minimum sentence of five years. With the sentence enhancement, Cottrell could end up wasting in prison for nearly eight and a half years.
"The section of the U.S. Sentencing Guidelines under which they were looking is probably unconstitutional in the way it's framed," says Cottrell's lawyer, W. Michael Mayock.
That particular section of the guidelines was amended in 2002 in response to the Patriot Act. Previously, Cottrell could only have faced additional years in prison for terrorism if the court decided that his crime was meant to "influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." Under the new guideline, his supposed intent to "intimidate or coerce a civilian population" was enough to qualify as terrorism.
While the government proved beyond a reasonable doubt that Cottrell damaged a lot of property, Mayock points out that they never did prove to the jury that his motive was to "intimidate or coerce a civilian population." The judge made this determination on his own. Mayock believes that recent U.S. Supreme Court decisions require the government to prove to a jury that Cottrell actually did intend to influence a civilian population if they want to use the domestic terrorism sentencing enhancement.
Timothy Edgar, a legislative counsel at the ACLU, is familiar with these cases, particularly U.S. v. Booker, which he says will change the way sentencing enhancements are applied for all crimes. "For a very long time, everyone was laboring under the assumption that sentencing enhancements could be determined by a judge without a jury ... under basically a lower standard of proof," says Edgar. "What Booker said, what the Supreme Court said, is that no, because people have a right to trial by jury you have to prove facts that are relevant to sentencing enhancements before a jury."
Assistant U.S. Attorney Beverly Reid O'Connell concedes that the prosecution did not address Cottrell's intent in committing his crimes. "The intent element in the government's case was whether or not he intended to commit arson," she says. "His motivation for doing that was not an element of the government's burden." But she doesn't think that Booker affects sentencing practices in this case and also points out that the defense admitted in its own position paper that Cottrell's actions were "intended to influence the consumer's choice of types of vehicles to purchase."
While Booker advises that matters relevant to sentencing should be proven to a jury, the Patriot Act, in its definition of domestic terrorism, only requires that crimes "appear to be intended" to coerce and intimidate either a civilian population or the government to qualify as terrorism. Seeking to redress this and other disturbing elements of the Patriot Act, civil liberties groups are supporting the "Security and Freedom Ensured Act of 2003" (a.k.a. the "SAFE Act"), which would make intent "something you have to prove, not that you have to prove that they appeared to intend," says Edgar.
Cottrell does not deny that he vandalized SUVs on the night in question by spray-painting them with slogans such as "SUVs suck" and "smog machine." But he insists it was his accomplices, Tyler Johnson and Michie Oe, who threw the molotov cocktails that ignited at least 15 SUVs, including Hummers, and a dealership building. He says he retreated to his car in protest when their actions grew violent.
Cottrell also blames the two fugitives for scrawling "ELF," the acronym for the militant environmental group Earth Liberation Front, on the vehicles. ELF itself claimed responsibility for the firebombing on their website, but Cottrell maintains that he is not affiliated with the group.
That tag in particular sparked the FBI's interests in the case as a crime of domestic terrorism. The bureau considers ELF and its sister organization the Animal Liberation Front (ALF) "the most active criminal extremist elements in the United States." Last year, Deputy Assistant Director John E. Lewis of the Counterterrorism Division bemoaned the difficulty of apprehending these groups in testimony before Congress, citing Cottrell's arrest as evidence of recent progress.
Cottrell's attorney believes that the government is trying to make an example out of him. Asked if she received any pressure from higher-ups to prosecute Cottrell with unusual vigor, O'Connell laughs. "I'm not going to comment on any inside conversations that may or may not have occurred," she says.
Some worry that the Bush administration is more interested in going after militant leftists as domestic terrorists than their right-wing counterparts. In late March, Congressional Quarterly got hold of a Department of Homeland Security document that listed threats to national security. Left-wing groups like ALF and ELF made the list, but, according to the Quarterly, "anti-government groups, white supremacists, and other radical right-wing movements" were nowhere to be found.
James Lafferty, director of the National Lawyers Guild in Los Angeles, finds this alarming. "What does it say that certain kinds of property crimes and crimes aimed at certain elements of corporate America will get you on the Homeland Security domestic terrorist list, but not ... bombing abortion clinics?" he asks. "What are the corporate interests involved there?" He adds that violent left-wing groups tend to target property, whereas violent right-wing groups, while perhaps less active in recent years, often have human targets in mind.
"In this climate, to label something an act of terrorism -- as opposed to simply a heinous crime or a serious crime or a felonious crime -- is to give it a certain political panache under cover of which you can have these enhanced sentences," says Lafferty. "It's just part of this whole hysteria around terrorism in this country, as though somehow the whole country was being infected with terrorists, which is not the case." Cottrell plans to appeal his case. His lawyer will argue, among other things, that the court was remiss in excluding Asperger's Syndrome, a mild form of autism from which Cottrell suffers, as a possible mitigating factor. "He is doing OK," Mayock says of his client, who is still contending with his recent Asperger's diagnosis. During the sentencing, the prosecution played a tape of Cottrell telling his mother that "the whole field of psychology is a myth." Ironically, his reluctance to accept a label that could well secure his freedom provides compelling evidence that he suffers from the disorder, which lists a stubborn adherence to perceived truth among its symptoms.