During her trial at the Union Station Courthouse in Tacoma, Waters sat straight in an oversize leather chair, her hair pulled back in a rubber band. She wore gold wire-rimmed glasses and sometimes bit her nails as she listened to the proceedings.
In his opening statement before the jury, Assistant U.S. Attorney Friedman described how Rodgers, the unofficial leader of the University of Washington arsons, organized a series of instructional and strategizing meetings, which took place in five different cities. The group shared information on lock picking, reconnaissance, and the construction of devices that could ignite a fire. They also used the meetings to select targets and gather recruits for their "actions." They called their gatherings Book Club meetings because they communicated with coded messages, using passages from a book as the key. (At one meeting it was Ursula Le Guin's portentous novel "The Dispossessed"; at another, "The Only World We've Got," by environmental philosopher Paul Shepard.)
Waters and the other members of the group took "extraordinary measures," Friedman told the jury, to conceal their identities and their movements: adopting aliases, meeting in public places not associated with any of them, building their incendiary devices in a "clean room" to eliminate DNA evidence. The ELF activists were "organized in cells so if some are discovered the others can continue," Friedman explained. "It's a classic structure for a terrorist or a guerrilla organization."
The government's case against Waters rested heavily on the testimony of two informants, a radical journalist named Lacey Phillabaum and a yacht-racing aficionado with a master's degree in astrophysics named Jennifer Kolar. Both testified Waters was the lookout on campus that night. Phillabaum testified that Waters had borrowed the car that was allegedly used to drive to the scene, and that the incendiary device was built in a garage on the property where Waters was staying at the time.
Phillabaum and Kolar also testified that Waters had met with the arsonists in a Seattle bar on the night of the crime. Phillabaum said they met "early evening"; Kolar said it was "probably around 9 at night, 8 at night." Defense lawyers presented a bank card receipt that shows Waters made a purchase at 7:12 p.m. in Olympia, 60 miles away, which would have made it difficult for her to have been in Seattle at the described times.
On the witness stand, Waters denied the accusation about the car. She declared that she was not at the Seattle bar that night, never had an alias, never attended the clandestine Book Club meetings, and never saw any fire-starting device being built in or anywhere near her house.
As Waters' defense attorneys pointed out, the informants' initial statements to the FBI about the University of Washington fire contradicted one another. Kolar, who worked in high-tech jobs in Seattle and used her expertise to teach encryption at the Book Club meetings, apparently did not identify Waters as a co-conspirator the first time she was interviewed by the FBI in December 2005; instead, she named four others, giving their aliases. Neither did she identify Waters the next four or five times she spoke with the authorities, according to Waters' defense attorneys.
It was in early January 2006, weeks after Kolar's first FBI interview, during the time she was seeking to trade information for an advantageous plea deal, that she told her lawyer that she suddenly "remembered" Waters had been at the Center for Urban Horticulture that night. During the trial, FBI special agent Anthony Torres acknowledged that Kolar had been shown a photo of Waters in mid-January, and had identified her by name. But at the time, she did not say that Waters had been involved. The trial revealed that it wasn't until early March 2006 that Kolar directly told government officials that Waters was involved.
A third cooperating defendant, Stanislas Meyerhoff, who had earlier implicated Phillabaum, his own fiancée, in the fire, told investigators that he was "familiar" with Waters but that she was "not involved" in the arson.
During the tense three-week trial, Waters' lawyers accused the prosecution of misconduct, including falsification of FBI reports to conceal evidence favorable to her defense. (The judge dismissed the claim.) Documents produced in court reveal that FBI agents taking notes during their first conversation with Kolar dutifully recorded that she specifically named four collaborators. None of the four was Waters. A typed version of that interview, admitted into evidence in the trial, says only that Kolar identified "Avalon" (the code name of Rodgers) and "some others."
The jury was unconvinced that these inconsistencies constituted reasonable doubt. Although the jurors could not reach a unanimous decision on several counts -- including a "destructive device" charge -- they convicted Waters on two counts of arson, each of which carries a minimum sentence of five years (running concurrently) and a maximum of 20. She could spend as much as two decades behind bars for allegedly holding a walkie-talkie.
"Obviously we were thrilled by the verdict," says First Assistant U.S. Attorney Mark Bartlett. "There is a price for people to pay for not showing any remorse, for not accepting responsibility. It will be up to the judge to determine how big a price that is."
Waters' lawyer, Robert Bloom, remains outraged. Prosecutors "used scare-mongering to get the jury to convict an innocent person," he says. "This is really a study in American prosecution. It was an absurdly slanted American prosecution."
If Waters encounters the full force of the government's anti-terror zeal, it will be when she is sentenced on May 30. Prosecutors have not yet decided whether to seek a "terrorism enhancement" -- a sentencing rule that was written into the federal sentencing guidelines in 1995, after the bombings in Oklahoma City and at the World Trade Center, and would allow the judge to add up to 20 years to her prison term if her crime can be construed as a terrorist act.
Prosecutors sought the enhancement for six of the 10 Operation Backfire arsonists, who have been sentenced already, a significant departure from legal convention. (Meyerhoff, despite his cooperation, received a 13-year sentence.) If Waters spends more than the minimum of five years in prison, her sentence would be disproportionate to punishments received by other arsonists. "That would be a far harsher standard than fits the crime in a lot of arsons," says Heidi Boghosian, executive director of the National Lawyers Guild. James King, for example, a seasonal firefighter, set two fires in California's Cleveland National Park in the summer of 2001 in order to score some extra paydays. More than 50 acres of pristine wilderness were razed. King received a jail term of 30 months and a fine; he was also ordered to retire from the firefighting profession.
Today, as Waters sits in the Federal Detention Center in Seattle, awaiting sentencing, environmentalists and civil libertarians worry that her conviction may beat a path to more convictions, including of nonviolent protesters. In recent years, a number of states have passed laws aimed at eco-sabotage that could implicate law-abiding groups along with the lawbreakers. The American Legislative Exchange Council, a right-leaning, corporate-backed association of state legislators, has written legislation that defines any act of destruction aimed at protecting animal rights or punishing ecological despoilers as terrorism. At least 14 states have introduced bills since 2001 based on this model, and they have passed in Arizona, Ohio and Pennsylvania. The problem with such laws, says David Willett of the Sierra Club, is they can be used "to crack down on environmental groups engaged in legitimate activities as well."
Nonviolent protesters have already felt the heat. Documents obtained in 2005 by the ACLU reveal that the FBI has been surveying animal rights and environmental groups like People for the Ethical Treatment of Animals and Greenpeace, sending undercover agents to activist conferences and cultivating inside informants. Some of the documents suggest that the bureau was also attempting to link those groups with the ELF and ALF. The National Lawyers Guild reports that it receives calls regularly from environmental and animal-rights activists all over the country who had been contacted by the FBI after attending political events. "It has a chilling effect on free speech," says Guild director Boghosian, "and that's where the real damage to the Constitution is happening."
On March 3, while jurors in the Waters trial were deliberating, three luxury houses for sale in a suburban Seattle cul-de-sac called "Street of Dreams" -- a plot of land surrounded by wetlands -- were destroyed by fire. A banner at the scene pointed to the culprit: the Earth Liberation Front. The FBI immediately announced that the fire "is being investigated as a domestic terrorism act."
This story has been corrected since it was originally posted.
About the writer
Tracy Tullis is a freelance writer from Brooklyn, N.Y.
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