In July 2017, Jessica Reznicek and Ruby Montoya, two activists from the Catholic Worker Movement, held a press conference to announce that they were responsible for acts of vandalism against the Dakota Access Pipeline. Their acts of civil disobedience caused no physical injury. “We are speaking publicly to empower others to act boldly, with purity of heart, to dismantle the infrastructures which deny us our rights to water, land, and liberty,” they said.
Facing nine charges that carried up to 110 years in federal prison, Jessica Reznicek pleaded guilty to a single count of damaging an energy facility. Their case has arisen amid an oil and gas industry-driven campaign to impose harsher punishments on activists who “impede” pipelines. A major player in the effort is Energy Transfer, the $25 billion company that operates the Dakota Access Pipeline. Kelcy Warren, CEO of Energy Transfer said whoever damaged the pipeline “needs to be removed from the gene pool.”
In June 2021, Ms. Reznicek was sentenced to eight years in federal prison and ordered to pay $3,198,512.70 restitution. The judge granted the prosecution’s request to impose a terrorism enhancement, which increased her sentence by 50-59 months, even though Ms. Reznicek had not even been charged with terrorism. Judge Rebecca Goodgame Ebinger said such a sentence was needed to deter others from engaging in similar acts.
Now Ms. Reznicek is appealing her sentence. The Center for Constitutional Rights has teamed up with Dean Sudha Setty of Western New England University School of Law, an expert in national security and the rule of law, to submit an amicus brief supporting the appeal. The brief is part of the Center for Constitutional Rights’ long-standing effort to support victims of human rights abuses committed by the U.S. government in the name of fighting terrorism. It also dovetails with the organization’s support for activists as they oppose hazardous pipelines in the face of “lawfare” waged by the oil and gas industry and corporate power more broadly through groups like the American Legislative Exchange Council (ALEC) and so-called critical infrastructure laws that, like terrorism enhancements, apply steep penalties to acts of civil disobedience.
The brief puts Jessica Reznicek’s case in historical context, tracing the development of the U.S. government’s multi-tentacled, counterterrorism legal apparatus. It explains why the application of the terrorism “enhancement” in this case is not only unjust but also dangerous for all activists who engage in civil disobedience.
The “terrorist” label brings harsher punishments, diminished rights protections, and social stigma. Governments all over the world have deployed it to crack down on activists. A foundational problem, the brief says, is the lack of an agreed-upon definition of terrorism. Since the 1960s, the U.N. General Assembly has tried and failed numerous times to define terrorism. But nearly all nations agree that “terrorism” is an effort to harm civilians, and the partial definition in U.N Resolution 1566 reflects this consensus, describing terrorism as a criminal act “committed with the intent to cause death or serious bodily injury.”
Far from intent to cause death or serious bodily injury, Reznicek went to lengths to ensure that her acts would not harm anyone. “If Jessica Reznicek's acts can be punished as terrorism,” the brief says, “the United States will have moved so far past the international consensus as to be operating in a completely different realm.”
In the United States, the definition of terrorism is especially murky — and growing murkier. Federal law now contains about two dozen different definitions, and some states have passed their own anti-terrorism statutes. Laws passed since 9/11 provide harsher punishments and fewer safeguards. For example, the 2001 Patriot Act, which gave the federal government sweeping new powers, inherited its definition of terrorism from the 1978 Foreign Intelligence Surveillance Act (FISA) but did not include FISA’s protections against rights violations.
To underscore the dangers of vague terrorism defintions as well as the corrective capacity of the courts, our brief in Ms. Reznicek’s appeal discusses People v. Morales, in which Edgar Morales was convicted under New York State’s anti-terrorism law for a 2002 gang-related shooting and sentenced to 40 years to life in prison. An intermediate appellate court, however, modified the sentence based on its finding that the shooting did not qualify as terrorism. The court of appeals went even further, ordering a new trial, reasoning that “the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act.”
The same reasoning, the brief says, should be applied to Jessica Reznicek’s case. The history of the terrorism “enhancement” indicates that Congress intended to target broadscale attacks on civilians. Following the 1993 World Trade Center bombing, the 1994 crime bill directed the Sentencing Commission to provide an “enhancement” for crimes that involve “international terrorism.” Following the 1995 Oklahoma City bombing, the Antiterrorism and Effective Death Penalty Act of 1996 changed “international terrorism” to “federal crime of terrorism.” Following 9/11, in 2002 the Sentencing Commission increased the offense level for a “federal crime of terrorism.”
Also in 2002, however, the Sentencing Commission offered yet another definition of terrorism, describing it as “an offense that is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” This can be read to cover crimes not intended to harm civilians, such as vandalism of government property. Particularly problematic is the word “coercion,” which has no definition in the federal code.
The malleability of the term “coercion” gives the government far-reaching ability to categorize activism as terrorism, with ominous implications for dissent. The natural and unacceptable result of this mission creep is that traditional means of civil resistance will have a terrorism enhancement wrongfully applied: from here it is all too conceivable that a sit-in style protest near train tracks, a demonstration at a military exercise, or opposition to government immigration policies at airports around the country might next be subject to the label of terrorism.
The government is using the anti-terrorism legal apparatus against a person who is not a terrorist under any reasonable definition of the term. The appeals court should reject this chilling abuse of the “terrorism enhancement” provision and reduce Jessica Reznicek’s sentence.
For more information, visit the case page.
