By the time a US District Court judge in Oregon sentenced the last of ten convicted eco-arsonists in August, federal prosecutors had long touted the case as evidence of bold progress in the "war on terror." The Justice Department called the Earth Liberation Front "the top domestic terrorism" threat when it announced the indictment of alleged members in December 2005. Their crimes: torching such things as a Vail ski lodge, SUVs and a wild horse slaughterhouse in Oregon. Federal prosecutors repeatedly invoked terrorism during court hearings. And the Justice Department claimed it had stopped a "broad campaign of domestic terrorism" after seven of the ten defendants were designated terrorists by the court.

How could crimes committed before September 11--crimes that would normally qualify for routine felony sentences--become terrorism after the fact? Simple: Alberto Gonzales's Justice Department applied the USA Patriot Act retroactively, disregarding the Constitution's prohibition of such maneuvers. In particular, prosecutors invoked post-9/11 sentencing guidelines that say a criminal defendant can be designated a terrorist if a judge is persuaded that the crime was intended to coerce, influence or intimidate the government. Defense attorneys protested the terrorism enhancement as unnecessarily punitive, pointing out that the defendants would be unable to get passports, bank accounts, driver's licenses or decent jobs once they left prison. Civil libertarians, meanwhile, noted that once the terrorism penalty was successfully stretched to apply to the accused vandals in this case, it could readily be used against people engaged in mild civil disobedience, from longshoremen instigating a slowdown at a government port or members of Plowshares pouring blood on a nuclear missile silo.

Federal prosecutors insisted that they used the "terrorist" label only to insure that the accused would receive tough sentences. But if that was the only concern, there would have been no need to apply the Patriot Act retroactively. All but two defendants faced mandatory life sentences under a little-used statute prohibiting transportation or possession of an incendiary device. (In the end, complex plea bargains produced sentences ranging from three to thirteen years.) In truth, this is a numbers game. The Justice Department can claim seven more convictions when it makes its mandatory annual report to Congress on domestic terror. Considering how many of the much-ballyhooed terrorism prosecutions have faltered in court, more convictions are a pressing need.

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