The $4.4 million damages award in June against FBI agents and Oakland police for violating the constitutional rights of environmental activists Darryl Cherney and Judi Bari, wrongly accused of terrorism in 1990, represents more than the culmination of a twelve-year struggle for vindication. The case also highlights the risks of today’s antiterrorism measures and offers lessons both daunting and encouraging about the years ahead.
In May 1990, an explosion tore through the car carrying Earth First! organizers Bari and Cherney. Bari suffered a fractured pelvis; Cherney, less serious injuries. They assumed the bombing was the work of antienvironmentalists, meant to disrupt planning for the Redwood Summer of civil disobedience against the logging of old-growth forest.
The FBI Joint Terrorist Task Force jumped to quite a different conclusion. As soon as Bari and Cherney were identified, the FBI informed the local police and leaked to the press that the pair were terrorists. The authorities claimed that Bari must have made the bomb herself and that it had accidentally exploded while the two were carrying it to an unknown target. Bari was placed under arrest in her hospital bed. Police and FBI agents searched houses in Oakland where Bari and Cherney had stayed and questioned their fellow activists. Over the next two months, until the government announced it would not charge the two environmentalists, the local police and the FBI continued to call them terrorists.
Only after years of litigation did the truth emerge: The FBI, before the bombing, had been investigating Bari and Cherney because of their political activism. When the bomb went off, the FBI shaded the facts to fit an ideological presumption of guilt. It was also revealed that the FBI, even after Bari and Cherney had been cleared, collected data nationwide on hundreds of individuals and groups merely on the basis of their association with the two Earth First! activists.
The case demonstrates how the truth will come out when the judiciary fulfills its constitutional role. With patience, skill and funding, committed activists and lawyers can bring accountability to the FBI. Just as Bari and Cherney won, just as the secret evidence cases brought after the 1996 antiterrorism law melted in the face of judicial challenges, so the material witness detentions and other rights violations of today will ultimately be held unconstitutional. But the FBI and the Justice Department will resist oversight and use secrecy and delaying tactics to evade accountability, prolonging personal and political damage. Justice was too late for Judi Bari. She died of cancer in 1997.
The most sobering lesson of the Bari-Cherney case may be this: The FBI’s focus on politics over hard evidence meant that the real bomber was never captured. In the same way, the Attorney General’s recent announcement that the FBI can monitor meetings and groups with no prior suspicion of criminal conduct is likely to take the FBI down the path of investigations based on politics, ethnicity or religion, while real terrorists escape detection.