The bill would exempt fires set in the course of agricultural work from a federal arson charge that can trigger enhanced sentences under a draconian terrorism act. It is the delivery of a promise that Walden first made on the floor of Congress just three days after the start of the armed occupation of Oregon's Malheur National Wildlife Refuge headquarters in January 2016. With this bill, Walden is trying to make a "carve-out" for a group that is largely white and right wing from unfair mandatory minimums that affect many people, especially people of color and Muslims. The bill entrenches the notion that certain groups of people can be sentenced under a wide-ranging "terrorism" act that subjects them to brutal heightened sentences -- while exempting others, who are white and firmly installed on the far right end of the political spectrum.
The Malheur Refuge occupation itself emerged out of a protest over an unusual prison sentence given to Dwight and Steven Hammond, two members of a ranching family in Burns, Oregon, near the Malheur Refuge. After decades of conflict with authorities over their grazing permits on federal lands, including alleged death threats against federal employees, in 2012 the Hammonds pled guilty to two counts of arson. They accepted a five-year mandatory minimum sentence and in return, other charges were dismissed. The judge, however, gave them reduced sentences (three months for Dwight, and a year and a day for Steven), which they served. The Justice Department appealed this sentence on the basis that ignoring the mandatory minimum was illegal. The courts upheld the original five-year sentence, and the Hammonds were ordered back to prison to serve the remainder of their time. The Bundy-led armed occupation of the refuge headquarters on January 2, 2016, splintered out of a protest against the Hammonds returning to prison.
Here's where things get even stranger. The five-year minimum was required due to the 1996 Antiterrorism and Effective Death Penalty Act, because the fires that the Hammonds had set had burned federal land. This act was passed in the wake of the 1993 World Trade Center and 1995 Oklahoma City bombings -- both of which involved mass casualty scenarios to further political goals. The act specifies mandatory minimums, adds to the length of prison sentences, and can be the basis for harsh prison conditions: It's a brutal law.
The publicity the case received, alongside the Hammonds' history of right-wing activism, caught Ammon Bundy's attention, leading ultimately to the Malheur takeover. But while the paramilitaries were freezing on a remote plateau in January, Walden championed many of the same militant right-wing talking points in a fiery speech on the floor of Congress. While perfunctorily denouncing the armed action, Walden noted that he had known the Hammond family "probably close to 20 years," and spent most of his speech attacking federal land ownership. It was such a sympathetic rendering that two Patriot movement paramilitary groups, the Oath Keepers and the Pacific Patriots Network, promoted Walden's speech on their websites. Referring specifically to the 1996 Terrorism Act, Walden promised "we can change that law, and we should, so that nobody ever is locked in like that for a situation like this" -- if that is, by "nobody," one actually means no white ranchers.
Despite his promise to alter the 1996 Terrorism Act itself, the current bill is actually a legal workaround to achieve the same effect -- the bill would alter one of the specific charges the Hammonds were convicted under. If ranchers can't be charged under this federal arson charge, they can never receive enhanced sentences under the act.
The Hammonds' original sentencing judge, Michael Hogan, had reportedly refused to implement the minimum, because it would be "grossly disproportionate to the severity of the offenses here," and "this sort of conduct would not have been conduct intended" to be covered by the 1996 Terrorism Act.
It's clear that many people have been sentenced under conduct that was not originally intended to be covered by the 1996 Terrorism Act. It has been applied to cocaine dealers, fundraisers for a Palestinian charity, and environmental and animal rights activists who only destroyed property. It has allowed officials to deport resident immigrants who have been convicted of minor crimes, and HSBC Bank is even being sued under it.
However, it is rarely applied to those on the right, such as abortion-clinic assassins, militia members, white supremacists or Islamophobes. The Hammonds had the act applied to them after two fires they were charged with setting had burned federal land. (Despite their plea bargain, the Hammonds have stuck to their story that both were fires set in the normal course of ranching work -- one to burn off invasive species, and the other a "backfire," set to stop an incoming fire. The government, however, said the first fire was to cover up poaching, and the second was set illegally and threatened nearby firefighters.)
Indeed, the Hammonds' sentence was "grossly disproportionate," but this is true of mandatory minimums in general, which disproportionately impact people of color. The United States has become a vast prison archipelago, which is one of the pillars by which structural racism is translated into practice. Walden -- instead of seeking equality across the board -- seeks to entrench racial and political inequality by making a carve-out for those who look like him and believe what he believes.
Walden's own statements over the years clearly show his bias. In 2002, he compared the 1997 burning of an empty building by animal liberation activists to the thousands of lives lost on 9/11. The action, which took place in the Hammonds' hometown of Burns, harmed no one. Walden called those who set the fire "terrorists," and declared, "They destroy private and government property. They teach others how to conduct dangerous and illegal acts. And they try to intimidate those who speak against them.... Terrorism is terrorism whether it is international, domestic, economic, religious, social or environmental."
Yet, when it came to the armed Malheur Refuge occupation -- which destroyed government property and cost federal agencies $6 million overall -- Walden refused to use the word "terrorism." Instead, he ran interference for the occupiers, and is now introducing this bill as a direct reward for the takeover.
Will Potter, author of Green is the New Red, says Walden's bill is "a legislative dog whistle." He notes, "Greg Walden has been one of the most vocal supporters of labeling environmentalists as 'terrorists.'" Walden, and many other supporters of right-wing armed groups, actively support the wide-ranging application of mandatory minimums to left-wing activists.
It was wrong for the Hammonds to be sentenced under the 1996 Terrorism Act. The answer to unequal treatment under the law is neither to impose draconian penalties on more people (by extending it to cover armed militants like the Bundys), nor to exempt privileged groups from its reach (like the Hammonds). Instead, both mandatory minimums in general and the 1996 Antiterrorism Act in specific should be abolished. The solution proposed by Walden is a symptom of a larger problem with the criminal legal system, which carves out exceptions for privileged racial, economic and political groups. For Walden, "terrorism is terrorism" -- unless, it seems, it involves white guys with guns, and politics which match his. In the coming months and years, we must remain vigilant about the ways in which overt racism is showing up in public policies.
Author: Spencer Sunshine