What to expect in the national elections next month

This set of predictions from my colleague, Professor Michael Brogan of Rider University's Political Science Department:

As of 9/29/10, this year’s Congressional forecast estimates indicate the Democrats would likely hold control of the Senate and lose the House of Representatives. Forecast estimates for the Senate indicate the Democratic Party would maintain approximately 52 Senate seats (based on a forecast uncertainty estimate of plus or minus 2 seats for this election and an overall historic uncertainty estimate of plus or minus 3.6 seats). Overall, the party has a 70.1% probability of holding the chamber.

For House races, I am predicting the Republican Party would end up with approximately 221 seats (based on a forecast uncertainty estimate of plus or minus 4 seats and an overall historic uncertainty estimate of plus or minus 10 seats). The party has approximately a 60.4% probability of controlling the chamber.

As you can imagine it is very difficult to have my “Blackbox” provide definitive answers as to where we will end up in November. However, if historical structural factors and current political and economic indicators remain similar to today, it is very likely that we will be back in the midst of divided government come January 2011.

No worries for Democrats as to the results of the upcoming 2010 midterm election and what it will mean for 2012 (there is a scant relationship between mid-term elections and presidential elections; in fact I have not found any statistical evidence of a link). For Republicans, here is your moment in the sun (based on anecdotal evidence, I suspect that an ideological shift to the right as a result of new GOP members entering into the caucus, may in fact benefit the president two years from now). In any event, if voters’ economic perceptions remain negative going into 2012, it will be very difficult for the president to win reelection, as well as for his party to retake control of Congress....

If you doubt its validity, please feel free to do so. My philosophy with forecasts is to have a healthy dose of skepticism. The minute predictions are generated they tend to be wrong. Therefore success is not measured by how correctly you predict the future but rather how far off the mark you are from it.

Brazilian Shock Art: Kisch or Krap?

In the words of the Daily Telegraph newspaper:

Oh, the dullness of artists who try to outrage. Gil Vicente is the Brazilian artist who’s desperately tried to garner publicity and higher commission prices by displaying a series of pictures of assassination attempts on the Queen, George W Bush and the Pope....
The sad thing is, he’s rather a skilled artist – his figures are well-drawn – unlike so many of the shock merchants....
But the problem is that artistic skill doesn’t necessarily go with intelligence. Vicente’s justification for his message is straight out of the GCSE school of politics: “Because they kill so many other people, it would be a favour to kill them, understand? Why don’t people in power and in the elite die?”
Mmmm, good luck with that analysis, Gil. Who’ll run countries, religions and monarchies in their place? Dim artists with schoolboy opinions?

"Gold to Go" in our age of uncertainty

This from my brother, who works in banking:

A German firm that installs and manages gold vending machines aims to introduce them into the United Statesthis year as it expands rapidly to take advantage of demand for bullion in times of economic uncertainty.

Thomas Geissler, creator of the Gold to Go brand and chief executive of ExOriente Lux, told Reuters on the sidelines of the London Bullion Market Association conference that the company aims to issue a "couple of hundred" machines next year.

Gold to Go launched its first ATM in Abu Dhabi's Emirates Palace hotel in May. They are now operating in luxury hotels in Abu Dhabi, Bergamo and Madrid as well as around Germany.

"This year we will issue around 35 machines, and for next year we are looking for bigger numbers," Geissler said on Monday, standing in front of one of the ATMS, which was coloured and shaped like a giant gold ingot close to 2 metres tall.

The machines, which update the gold price every 10 minutes to match international markets, take cash or credit cards and dispense small bars—including 1 gram, 5 gram, 10 gram and 1 ounce units—as well as coins such as South African Krugerrands, Australian Kangaroos and the Canadian Maple Leaf.

The company's plans include expansion into the United States this year, first in Florida and then in Las Vegas, Geissler said.

As for major gold consumers India and China, that will have to wait for next year, he said. "We have large interest in these countries," he said. "This is the task for next year."


Leo Castagnera

BSA/Security Officer

The First National Bank of Palmerton

610-824-2326

DId Israel Launch a Cyber Attack on Iran?

Here's what one news source says about the virus infecting an Iranian nuclear facility:

*

* Published 01:11 28.09.10
* Latest update 03:33 28.09.10

'Computer virus in Iran actually targeted larger nuclear facility'
New analysis contradicts earlier assessments that Stuxnet worm was targeted at nuclear reactor in Bushehr.
By Yossi Melman Tags: Israel news Iran nuclear

Experts on Iran and computer security specialists yesterday voiced a growing conviction that the worm that has infected Iranian nuclear computers was meant to sabotage the uranium enrichment facility at Natanz - where the centrifuge operational capacity has dropped over the past year by 30 percent.

The new analysis, based on the characteristic behavior of the Stuxnet worm, contradicts earlier assessments that the target was the nuclear reactor at Bushehr. Iranian spokesmen, led by the director of the Bushehr facility, had confirmed that Bushehr's computers were infected by the virus. But the director added that while senior staffers' computers were affected, the damage to the reactor's functioning was very limited and would not delay its launch, set for next month.

Is Sarah Palin an alien?

I just watched a 2009 film called "The Fourth Kind." It purports to be the true story of alien abductions in Nome, Alaska in 2000.
This could explain a lot about Sarah Palin, notably her meteoric rise to international fame... despite her legendary ignorance during the 2008 election of almost any world history or geography, or international affairs. If she were an alien, planted among us to facilitate her civilization's conquest of the planet, might she not initially have had only limited knowledge of things human? And where did her rise to world notoriety begin? Alaska. Think about it.

Ned McAdoo and the Molly Maguires, Chapter Six

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CHAPTER SIX (Now)
The 1987 trip out West had so enamored my Old Man to mini-vans, that when we got home he had traded in his old Caddy for one of our very own, and he had stayed with vans ever since then. The one in which we careened north on Route 476, alias the Blue Route in Philadelphians' parlance, toward Norristown now was a '06 Ford Windstar. It was a bright --- some unkind soul with a measure of good taste might have said "garish" (precisely what my wife Judy had said when she first laid her eyes on it)--- shade called "electric blue." There was a bright yellow stripe down the length of each side. And Pop loved it.
But this morning he took none of his usual pleasure in driving it. Instead, he maneuvered it rather erratically back and forth, crossing and re-crossing the three northbound lanes, weaving in and out of the tail end of the Monday morning rush. He steered with his left hand, while flipping channels on the AM/FM radio with his right, trying to pick up some news about John Larkin's arrest.
"Arch, maybe you ought to let me handle the radio. All right?" My pulse rate had barely returned to normal from my jog over to my ancestral home from the office a few minutes earlier. Now it was starting to race once again as a result of Archie's rather wild driving, which the distraction of the radio dials only aggravated.
"Okay," replied Pop. "See if WKYW has anything. It's almost 9:30. Do they do headlines on the half hour?" Archie was perspiring profusely, his face a shiny moon, his big, watery blue eyes having become virtual pools. I was wondering how he could even see well enough to navigate the Windstar when, sure enough, he swept the back of his now free right paw across both eyes and blinked a couple of times as if to clear his vision.
I had no luck getting any further news from the radio concerning our client. In another five minutes the big, blue Windstar, still traveling at warp speed, blasted off the Blue Route onto the exit ramp, where Archie had to hit the brakes hard to avoid hitting the line of traffic waiting at the light to turn left and head toward Norristown.
"Better take it a little easy, Arch," I ventured. "He'll still be there whenever we arrive."
Archie turned his head and looked at me. He seemed to be so distracted he was having trouble processing my simple suggestion. Finally he said, "Yeah, you're right. Don't want to be arrested too, huh? The media would really love that. 'Accused terrorist and his attorneys share jail cell.' Can you imagine?"
As if the very thought of it had magic powers, a cop was conjured up at that exact instant, his lights flashing as he came up the exit ramp and stopped right behind us. Just then the light turned green. Nobody on the exit ramp moved, all of us expecting (hoping?) the state trooper would swing around the line and proceed ahead. Instead, after a few seconds, the policeman gave a short blast of his siren. Archie looked into his rear view mirror.
"I think he's signaling us to pull over," Archie observed ruefully.
"Better pull over, then," I replied, noting that the rest of the traffic must have reached the same conclusion as Archie, since the cars in front of us began proceeding through the light.
Archie maneuvered the Windstar onto the right shoulder. Sure enough, the police car pulled off behind us and the trooper got out of his vehicle, allowing the lights on its roof to continue flashing. The officer was a tall, powerfully-built man of about my age. His hat, similar to what Smoky the Bear wears, was cocked forward, nearly covering his forehead. The rim cast a shadow across the upper half of his face, making him seem somewhat sinister.
Archie's agitation, seemingly somewhat abated a few moments before, was now visibly headed toward its all-time high of the morning. He was not sufficiently composed to open the window. So when the officer reached the front of the Windstar, he had to tap on the pane to get Archie to open it. Meanwhile, what my Dad had done absent-mindedly was shut off the engine. Since the electric windows won't work without the power being on, nothing happened when Archie fumbled with the window button.
"Open the window, sir," the young officer said, loudly enough to be heard through the closed pane.
Archie nodded, sweating and looking sort of guilty, I guess. His right hand went to the steering column, intending no doubt to turn the key the one notch needed to engage the electrical power from the van's battery, so that he could operate the power windows. Instead he turned the key all the way. The van's almost-new engine leaped to life. A little startled, the cop stepped briskly back from the side window.
"Turn off the engine and open the window, sir," he said, his voice considerably louder and less even now than a moment before.
Eager to comply, Archie took hold of the keys again and turned off the engine. Turning them all the way in the opposite direction again, he discovered to the mutual chagrin of himself and the policeman that the window still would not open. I thought I saw a little steam coming out of the cop's ears.
Reaching over, I turned the key the single notch necessary to engage the battery.
"Try the window again, Dad," I instructed in a rather firm voice.
This time the windows worked. But Archie, being still overwrought, opened only my window. Seeing this, and probably thinking he was dealing with either a wise guy or someone whose profuse sweating indicated a mind under the influence of something, the patrolman's disposition grew visibly worse with each passing second of continuing delay.
"Other button, Dad," I coached.
"Oh, yeah, right," replied Archie.
At last the driver's side window came down. Struggling to maintain control, the 'statey', whose Monday may well have started off as rocky as my own had, asked, "May I see your driver's license, owner's card and insurance certificate, sir?"
"Oh, yeah. Yeah, sure you can," said Archie, struggling in his seat belt to shift his fat fanny so that he could get at his wallet. When his meaty left hand finally fought its way between his large left buttock and the car seat, he discovered that he had left the house in such hurry that he'd forgotten his wallet.
"Umm... I don't have my billfold, officer," Archie stated, shifting around to face the impatient policeman.
"You don't have your billfold," the officer repeated. "How about the owner's registration? Or maybe your insurance card."
"Aren't they in the glove compartment, Pop?" I inquired, loudly enough for the trooper to hear me, and in a tone that I hoped sounded cooperative and friendly.
"What? Oh, yeah, Ned. Yeah. Try the glove compartment," said Archie, who had begun, more or less randomly, to search the pockets of his coat and suit jacket, places where we both knew he never carried his wallet. Whether this was for the cop's benefit, Archie hoping to underline his innocent surprise at not finding the wallet where it normally would have been, or whether he was so distraught that he rather madly imagined he might have put it into some other pocket, I don't know.
For my part, I squeezed the stainless steel buttons and opened the Windstar's glove compartment. And out fell a pair of big leather winter gloves. These were succeeded by a pair of pliers, several pens, a pocket calculator and some Jolly Rancher candies. The whole mess landed on the floor between my feet.
Having vomited forth all this stuff, the compartment still contained a pile of papers large enough to fill it halfway up. I extracted the whole batch with my left hand, painfully aware of the policeman's eyes boring into the side of my head. As I flipped through the pile, I tossed things onto the floor, figuring that some more debris at my feet wouldn't matter much.
Owner’s manual... road maps for Pennsylvania, New Jersey, and (incongruously) Colorado... a set of hand written directions to heaven only knew where... a ticket for a free carwash at the White Glove on West Chester Pike (which I absently noted was already expired)... and at last, an auto insurance card.
I handed it to Archie, who passed to out the open window to the officer, neither the Old Man nor I looking at it very closely. The officer took the card in his right hand and held it up to his face, as if he were perhaps a little bit farsighted. He starred at it for a full ten seconds, then said, "I'm sorry, sir, but your insurance seems to have expired last month."
"What?" replied an incredulous Archie McAdoo. "That's not possible. Karen always keeps it current." Turning to me as if seeking some support, he said, "Your mother always keeps the car insurance current."
"Well, sir, maybe so," said the 'statey.' "But this card is not current." His studied self-restraint was evident, and under the circumstances, rather admirable, I thought.
Working a bit now at keeping calm myself --- after all, this Monday had gotten off to a particularly rocky beginning, especially for people like Pop and me, who usually make a very serious effort to ease ourselves into a new week's labors --- I continued to flip through the Archie archives which had been stacked like fossil layers going back to the Jurassic Age in the glove box. I wondered, as I tossed a 1993 Philadelphia Phillies schedule onto the van floor, how such ancient junk could have migrated into an almost brand new car. I found the van's original registration form for last year, apparently provided by the dealer, but not the new one needed for 1997.
"All I've got is this, Dad," I gave him my most sympathetic look as I handed across the '96 registration. Archie proffered it to the policeman as if it were a rain-check to the wrong make-up game, demonstrating by his demeanor that he did not really expect it to be accepted.
And, of course, it wasn't.
"Sir... Mr. McAdoo, is it?" Archie nodded mutely. Despite the chilly air which now filled the van from the open window, I noted that he continued to sweat profusely. I realized that he was, far more than me, in an agony to get to the courthouse and learn what had occurred with his client. Instead we seemed to be caught in a set of rather silly circumstances calculated now to keep us from our destination for quite awhile. "Well, Mr. McAdoo, I'm afraid you're in a little bit of trouble here. First, and foremost," the trooper explained in patronizing tones, as if to a small boy, "I have you clocked going 81 in a 55 zone. Second, you're driving without a license... or any ID for that matter. And third," he continued, as he looked at the two expired documents --- the outdated auto registration and the expired insurance card --- in his right hand, "you are not carrying the vehicular information required by law."
"Look, officer," Archie began, sounding genuinely contrite, but with a note of urgency in his voice. "I'm sure the new registration and insurance card are at home. Karen, that's my wife... his mother," he added, rather irrelevantly, jerking a thumb in my direction, "no doubt forgot to put them in the compartment, as she normally does.
"As for my driver's license, well, this is something of an emergency, and I'm afraid I ran out in such haste that I just forgot to bring my wallet. So why don't you just write your ticket and let us get to where we are really needed. Okay?"
Although Archie's voice had started out humbly enough, the mix of anxiety and frustration swirling up inside him apparently caused the rise in volume, which at the end of his statement must have come across somewhat arrogantly to the police officer.
"And just what sort of emergency are you involved in, Mr. McAdoo?" the officer inquired, his voice not quite so polite as a moment ago.
"I have a client who's in trouble. He needs me," retorted Archie in a tone which I thought sounded somewhat self-important. I wanted to nudge the Old Man in the ribs and warn him he was heading into deeper, darker waters. But all I could do was sit holding the last of the glove compartment archives in my lap and let Pop call his own plays, if you'll forgive me for mixing up my metaphors.
"Oh, yeah?" responded the policeman, his professional politeness, impeccable up to now, beginning to slip like a mask from his face. "What kind of client?"
Archie must have decided --- unwisely in the event --- to try playing a trump card. (Whoops... the metaphors really are becoming mixed here. But, after all, I was upset, too. In fact, I get upset all over again just remembering that morning, which seems still new and fresh in my recollection.)
"John Larkin, the Elephant Man, is my client," Archie revealed with more than a hint of self importance.
The trooper stepped back, as if Archie had started up the engine again. He looked at my Father long and hard. There was brief moment of silence, while the cop considered his next move and Archie and I waited tensely.
Then: "Get out of the car." The command was curt and abrupt. Obviously Pop's revelation hadn't helped the cause.
Another longish moment elapsed while the trooper's order sank into Pop's perspiring skull.
Then: "What? Look, just give me my ticket and let us get out of here." My Pop was one of the few people I knew who could go from contrite resignation coupled with high anxiety to a state of righteous indignation in a mere heartbeat. But I'd seen it before in court, and now it was happening here. I personally wished it wasn't.
This often worked well with judges and juries, sometimes even with opposing counsel. But the blond, six foot three trooper with the now-beet-red face was having none of it.
"Sir, I am asking you again. Please exit your vehicle," he said, his voice a study in controlled rage.
Sensing that the situation was about to get irretrievably out of hand, I muttered into my Dad's other ear, "Better get out, Arch." And to try and set a good example, I pulled the handle of my door and started to swing the door open, even though the policeman hadn't asked me to "exit the vehicle."
"Stay right where you are, Ned," said my father in a voice emanating an amount of controlled anger equal to the state trooper's.
My father then pressed the button which raised his window, virtually in the trooper's face.
For a third time the officer took a startled step backwards. But he immediately regained that 12 inches of ground and said in a loud and ominous voice, "For the last time, sir, open your door and exit your vehicle."
"For heaven's sake, Dad," I chimed in, my voice rising an octave in real alarm now, "Do what the officer is telling you."
Archie was clutching the steering wheel and staring straight ahead. To my ever-increasing horror, the officer now took out his night stick --- a long black monster --- with his right hand and a little black canister that he carried on his belt with his left. In two frighteningly quick motions, he shattered the driver-side window with the night stick and squirted something --- it proved to be not mace but some sort of pepper juice --- in my Father's face from the little black aerosol can.
As Pop's hands reflexively left the wheel and covered his eyes, the trooper dropped the canister, deftly reached inside the window and unlocked the door, and swung it open with his right hand. His night stick now almost magically back in his belt, the officer hefted Archie's two hundred and fifty pound bulk out of the driver's seat and sprawled him on the shoulder of the road, face down. Whipping a set of handcuffs from the endlessly-supplied black belt, he had Archie's hands cuffed behind his back before I could collect my wits, exit my side of the van and come round to gaze in horror at my Pop, the prisoner.
"Oh, my God!" I gasped. Cars exiting the highway drove past at a snail's pace, not I think out of concern for the safety of the officer and his prisoner, but to rubber neck at the unusual drama that was unfolding there by the side of the road. Had the drivers known that it involved two rather prominent, and at the present time highly unpopular, local lawyers, they might have stopped to cheer the state policeman.
Looking me squarely in the eyes, the officer intoned, "Sir, I'd like you to get into the vehicle and move it off the ramp."
"What are you going to do with my Dad?" I asked, sounding not like an attorney, but like some teenage kid having his first scrape with the law.
"I intend to take him to the Montgomery County Jail and charge him with obstructing an officer in the performance of his duty," he replied. "Plus several motor vehicle violations."
"I'll be the last man you ever charge with anything," my father threatened from his prone position, his eyes squeezed shut and shedding great big tears.
The last I saw of Archie that morning he was riding away in the back of the state policeman's car, as I climbed into the driver's seat of his van and followed the police car as closely as I could in the morning traffic. By the time I found a parking place a couple of blocks from the county jail and walked to the main entrance, I was advised by the turn-key on duty that I'd have to take up the matter of Pop's release on bail with the court administrator a couple of more blocks down Swede Street at the county courthouse.
I confirmed that our client, John Larkin, was also locked up inside the jailhouse, then headed on foot down to the courthouse.
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Is George Tenet a war criminal?

As the seven-year war in Iraq winds down, this is a question that might well be asked. Here's what Wikipedia says of Tenet:

"According to a report by veteran investigative journalist Bob Woodward in his book Plan of Attack, Tenet privately lent his personal authority to the intelligence reports about weapons of mass destruction (WMDs) in Iraq.[27] At a meeting on December 12, 2002, he assured Bush that the evidence that Iraq had WMDs amounted to a "slam dunk case." After several months of refusing to confirm this statement, Tenet stated that it was taken out of context. He indicated that it was made pursuant to a discussion about how to convince the American people to support invading Iraq.[28] The search following the 2003 invasion of Iraq by U.S., British and international forces yielded no significant WMDs."

I am just about finished with an audio version of "Legacy of Ashes: The History of the CIA," which seems to conclude on very strong evidence that Tenet did indeed mislead the president about what the CIA knew --- and, more importantly, actually didn't know --- about WMDs in Iraq just prior to the invasion.


According to Weiner, a review of the CIA conducted at the president's behest concluded that the facts fell short of criminal conduct. But perhaps that's something a federal jury should have decided... and perhaps still could decide? Perhaps it's not just terrorists who should come to trial.

A little bit different take on terrorism... from WIlliam Gibson

"She remembered him telling her how terrorism was almost exclusively about branding, but only slightly less about the psychology of lotteries...." (p. 285)

Getting our priorities straight

This item was forwarded to me by my brother, Leo Castagnera. I'm not sure who has pride of authorship, but the point is well worth pondering in a world still threatened by terrorists and other "clear and present dangers."

The cover of The American Scholar quarterly carries an impertinent assertion: “The Earth Doesn’t Care if You Drive a Hybrid.” The essay inside is titled “What the Earth Knows.” What it knows, according to Robert B. Laughlin, co-winner of the 1998 Nobel Prize in Physics, is this: What humans do to, and ostensibly for, the earth does not matter in the long run, and the long run is what matters to the earth. We must, Laughlin says, think about the earth’s past in terms of geologic time.

For example: The world’s total precipitation in a year is about one meter—“the height of a golden retriever.” About 200 meters—the height of the Hoover Dam—have fallen on earth since the Industrial Revolution. Since the Ice Age ended, enough rain has fallen to fill all the oceans four times; since the dinosaurs died, rainfall has been sufficient to fill the oceans 20,000 times. Yet the amount of water on earth probably hasn’t changed significantly over geologic time.

Damaging this old earth is, Laughlin says, “easier to imagine than it is to accomplish.” There have been mass volcanic explosions, meteor impacts, “and all manner of other abuses greater than anything people could inflict, and it’s still here. It’s a survivor.”

Laughlin acknowledges that “a lot of responsible people” are worried about atmospheric concentrations of carbon dioxide from burning fossil fuels. This has, he says, “the potential” to modify the weather by raising average temperatures several degrees centigrade and that governments have taken “significant, although ineffective,” steps to slow the warming. “On the scales of time relevant to itself, the earth doesn’t care about any of these governments or their legislation.”

Buy a hybrid, turn off your air conditioner, unplug your refrigerator, yank your phone charger from the wall socket—such actions will “leave the end result exactly the same.” Someday, all the fossil fuels that used to be in the ground will be burned. After that, in about a millennium, the earth will dissolve most of the resulting carbon dioxide into the oceans. (The oceans have dissolved in them “40 times more carbon than the atmosphere contains, a total of 30 trillion tons, or 30 times the world’s coal reserves.”) The dissolving will leave the concentration in the atmosphere only slightly higher than today’s. Then “over tens of millennia, or perhaps hundreds” the earth will transfer the excess carbon dioxide into its rocks, “eventually returning levels in the sea and air to what they were before humans arrived on the scene.” This will take an eternity as humans reckon, but a blink in geologic time.
About what is done to or for it.

It seems, Laughlin says, that “something, presumably a geologic regulatory process, fixed the world’s carbon dioxide levels before humans arrived” with their SUVs and computers. Some scientists argue that “the photosynthetic machinery of plants seems optimized” to certain carbon dioxide levels. But “most models, even pessimistic ones,” envision “a thousand-year carbon dioxide pulse followed by glacially slow decay back to the pre-civilization situation.”

Laughlin believes that humans can “do damage persisting for geologic time” by “biodiversity loss”—extinctions that are, unlike carbon dioxide excesses, permanent. The earth did not reverse the extinction of the dinosaurs. Today extinctions result mostly from human population pressures—habitat destruction, pesticides, etc.—but “slowing man-made extinctions in a meaningful way would require drastically reducing the world’s human population.” Which will not happen.

There is something like a pathology of climatology. To avoid mixing fact and speculation, earth scientists are, Laughlin says, “ultraconservative,” meaning they focus on the present and the immediate future: “[They] go to extraordinary lengths to prove by means of measurement that the globe is warming now, the ocean is acidifying now, fossil fuel is being exhausted now, and so forth, even though these things are self-evident in geologic time.”

Climate change over geologic time is, Laughlin says, something the earth has done “on its own without asking anyone’s permission or explaining itself.” People can cause climate change, but major glacial episodes have occurred “at regular intervals of 100,000 years,” always “a slow, steady cooling followed by abrupt warming back to conditions similar to today’s.”

Six million years ago the Mediterranean dried up. Ninety million years ago there were alligators in the Arctic. Three hundred million years ago Northern Europe was a desert and coal formed in Antarctica. “One thing we know for sure,” Laughlin says about these convulsions, “is that people weren’t involved.”
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Terror victims win another round in effort to attach Iranian assets

United States District Court,
District of Columbia.
Jenny RUBIN, et al., Plaintiffs,
v.
The ISLAMIC REPUBLIC OF IRAN, et al., Defendants,
and
The United States of America, Intervenor.

Civil Action No. 01-1655 (RMU).
Sept. 8, 2010.

David J. Strachman, McIntyre, Tate, Lynch & Holt, Providence, RI, Bennett J. Bergman, Pawtucket, RI, for Plaintiffs.

MEMORANDUM OPINION
Denying the Proposed Intervenors' Motion to Intervene; Denying as Moot the Proposed Intervenors' Motion for an Extension of Time to File A Notice of Appeal
RICARDO M. URBINA, District Judge.

I. INTRODUCTION
*1 In 2001, the plaintiffs sued the Islamic Republic of Iran and related defendants under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602 et seq., for injuries sustained as a result of a terrorist attack in 1997. The defendants neither appeared in court nor responded to the complaint. Thus, in 2003, the court issued a default judgment in favor of the plaintiffs for $71,500,000.

As part of the plaintiffs' efforts to enforce their judgment, they initiated attachment proceedings in other districts against the University of Chicago, the Field Museum of Chicago, Harvard College and the Museum of Fine Arts in Massachusetts (collectively, “the Museums”). According to the plaintiffs, the Museums possess artifacts belonging to Iran that the plaintiffs may attach to satisfy their judgment.

The Museums have moved to intervene in this action to seek reconsideration of and potentially to appeal a June 3, 2008 order of this court authorizing the plaintiffs to attach property belonging to Iran to satisfy their judgment. Because the Museums assert no valid justification for waiting until after the order was issued to move for intervention, the court denies the motion to intervene as untimely.FN1

FN1. The Museums have also filed a motion for an extension of time to appeal the court's June 3, 2008 order. Because, as discussed below, the court denies the Museums' motion to intervene in this action, their motion for leave to late-file an appeal of the order is moot.


II. FACTUAL & PROCEDURAL BACKGROUND
On July 31, 2001, the plaintiffs filed a complaint against the defendants for injuries sustained as a result of a terrorist attack in Jerusalem in 1997. Comp.; Mem. Order (June 3, 2008). The defendants did not appear in court or respond to the complaint. Mem. Order (June 3, 2008) at 1 n. 1. Thus, on March 6, 2002, the Clerk of the Court entered default against the defendants. Id. The Court then conducted several evidentiary hearings, still without the participation of the defendants, which resulted in the court issuing a default judgment for the plaintiffs totaling $71,500,000 on September 10, 2003. Id. As of July 29, 2008, the plaintiffs had collected only $400,000 against the judgment. Pls.' Opp'n at 4.

As part of the plaintiffs' continuing efforts to enforce their judgment, they have attempted to attach certain artifacts, allegedly belonging to Iran, which are housed at the Museums. Id. at 5-10. These attachment proceedings are being litigated in the United States District Courts for the Northern District of Illinois and the District of Massachusetts. Id. The two central issues in the attachment proceedings are whether the artifacts belong to Iran and whether Iran's sovereign immunity prevents the plaintiffs from attaching those artifacts. Id.

Under the version of the FSIA in force at the time the default judgment was entered, plaintiffs were not permitted to attach property owned by foreign sovereign nations to satisfy judgments against those nations. See 28 U.S.C. § 1609 (providing that “property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter”). Subsequently, however, Congress amended the FSIA by enacting the National Defense Authorization Act (“NDAA”), which broadened the rights of individuals seeking to obtain and enforce judgments against foreign sovereigns arising out of terrorist acts. See generally Pub.L. No. 110-181, 122 Stat. 3 (2008). The NDAA established a new cause of action for victims of state-sponsored terrorism, and removed sovereign immunity protection for sovereign property owned by states responsible for terrorist acts. 28 U.S.C. §§ 1605A, 1610(g)(2). The NDAA further provided that judgments entered under the old version of the FSIA “shall, on motion made by plaintiffs to the United States district court where the action was initially brought ... be given effect as if the action had originally been filed under” the amended version of the FSIA. 28 U.S.C. § 1605A(c)(2). Pub.L. No. 110-181, § 1083(c)(2).

*2 The plaintiffs filed such a motion on March 28, 2008. See generally Pls.' Mot. for Order Pursuant to § 1083(c)(2) of the Nat'l Defense Authorization Act (“Pls.' NDAA Mot.”). The Museums, concerned that granting the motion would adversely affect them in the ongoing attachment proceedings, mailed a letter to the Clerk of the Court on May 30, 2008, explaining why they believed the motion should not be granted.FN2 Museums' Reply at 5 n. 1. They also faxed the letter to chambers on June 3, 2008. Museums' Mot. at 4-5. They did not, however, move to intervene, and the court granted the plaintiffs' motion. See generally Mem. Order (June 2, 2008); Mem. Order (June 3, 2008). FN3

FN2. As the Museums point out, their May 30, 2008 letter was not received by the court until June 2, 2008, the date on which the court granted the plaintiffs' NDAA motion. See Museums' Reply at 5 n. 1.


FN3. The court granted the plaintiff's motion in a memorandum order issued June 2, 2008. See generally Mem. Order (June 2, 2008). The court issued a corrected version of that memorandum order on June 3, 2008. See generally Mem. Order (June 3, 2008).


On June 16, 2008, two weeks after the court granted the plaintiffs' motion, the Museums moved to intervene “for the purposes of seeking reconsideration of this Court's Memorandum Orders of June 2, 2008 and June 3, 2008 and preserving an appeal.” Museums' Mot. at 1. The Museums assert that they are entitled to intervene as a matter of right under Rule 24(a) and, in the alternative, that they are entitled to permissive intervention under Rule 24(b). Museums' Mot. at 1; Museums' Mem. at 12. The plaintiffs filed an opposition on July 29, 2008, claiming, inter alia, that the Museums have no legally cognizable interest in the action and that the motion to intervene is untimely. Pls.' Opp'n at 2, 17. With the Museums' motion fully briefed, the court turns to the applicable legal standards and the parties' arguments.

III. ANALYSIS
A. Legal Standard for a Motion to Intervene
Federal Rule of Civil Procedure 24 sets forth the requirements for intervention as of right and permissive intervention. Fed.R.Civ.P. 24; Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C.Cir.2003). Rule 24(a) provides for intervention as of right, stating that

[o]n timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Fed.R.Civ.P. 24(a).

This Circuit has identified “four prerequisites to intervene as of right: ‘(1) the application to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an adequate representative of the applicant's interests.’ “ Karsner v. Lothian, 532 F.3d 876, 885 (D.C.Cir.2008) (quoting Sec. Exch. Comm'n v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C.Cir.1998)). In addition, an applicant must demonstrate that it has standing. Jones v. Prince George's County, Md., 348 F.3d 1014, 1017-18 (D.C.Cir.2003).

*3 Alternatively, Rule 24(b) authorizes permissive intervention for an applicant who timely files a motion when a federal statute confers a conditional right to intervene or the applicant's claim or defense has a question of law or fact in common with the main action. Fed.R.Civ.P. 24(b). In considering a motion for permissive intervention, a court must determine whether the proposed intervention “will unduly delay or prejudice the adjudication of the rights of the original parties.” FN4 Id.

FN4. In this Circuit, “there is uncertainty over whether standing is necessary for permissive intervention.” In re Vitamins Antitrust Class Actions, 215 F.3d 26, 31 (D.C.Cir.2000).


Timeliness is a threshold question for both permissive intervention and intervention as of right. NAACP v. New York, 413 U.S. 345, 365 (1973). “Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of both Rule 24(a) and Rule 24(b), that the application must be ‘timely .’ If it is untimely, intervention must be denied.” Id.; see also United States v. British Am. Tobacco Austl. Servs., Ltd., 437 F.3d 1235, 1238 (D.C.Cir.2006) (holding that “[a]s a threshold matter ... Rule 24 requires prospective intervenors to file a ‘timely application’ ”); Acree v. Republic of Iraq, 370 F.3d 41, 49 (D.C.Cir.2004) (noting that “[u]nder either [Rule 24(a) or Rule 24(b) ], the prospective intervenors' motion must be ‘timely’ ”), abrogated on other grounds sub nom., Republic of Iraq v. Beaty, 129 S.Ct. 2183 (2009); Mass. Sch. of Law v. United States, 118 F.3d 776, 783 n. 5 (D.C.Cir.1997) (noting that “untimeliness in seeking intervention may justify its denial without consideration of the merits”).

B. The Court Denies the Museums' Motion to Intervene as Untimely
The Museums assert that their motion to intervene is timely because it was filed “within the 10 business days for filing a motion for reconsideration under 59(e) and well within the thirty days permitted for filing a notice of appeal.” Museums' Mot. at 6-9. The plaintiffs respond that the Museums' motion to intervene is untimely because the Museums had the opportunity to file it before the court granted the plaintiffs' motion but chose not to do so, instead submitting a letter opposing the plaintiffs' § 1083(c)(2) motion and waiting until after the motion was granted to move to intervene. Pls.' Opp'n at 17-18. They also assert that sending the letter was improper and sanctionable. Id. The Museums respond by asserting that they decided to send the letter instead of moving to intervene because they were “driven by a desire to present important arguments to the Court in as timely a fashion as possible.” Museums' Reply at 5-6. They also state that they sent the letter as soon as they determined that the plaintiffs had misconstrued the NDAA because they “feared that the Court might soon rule on Plaintiffs' request ... without the benefit of adversarial briefing.” Id.

The timeliness of a motion to intervene “is to be judged in consideration of all the circumstances, especially weighing the factors of time elapsed since the inception of the suit, the purpose for which intervention is sought, the need for intervention as a means of preserving the applicant's rights, and the probability of prejudice to those already parties in the case.” British Am. Tobacco Austl. Servs., 437 F.3d at 1238 (quoting United States v.. Am. Tel. & Tel. Co., 642 F.2d 1285, 1295 (D.C.Cir.1980)). This Circuit has, however, made clear that “[a] motion for ‘intervention after judgment will usually be denied where a clear opportunity for pre-judgment intervention was not taken.’ “ Associated Builders & Contractors, Inc. v. Herman, 166 F.3d 1248, 1257 (D.C.Cir.1999) (quoting Dimond v. Dist. of Columbia, 792 F.2d 179, 193 (D.C.Cir .1986)).

*4 In Associated Builders, the proposed intervenor filed a motion to intervene several weeks after the district court had ruled on the parties' cross-motions for summary judgment. 166 F.3d at 1254. In reviewing the district court's denial of the motion, the Circuit noted that the proposed intervenor “offered no reason, and no reason [was] apparent from the record, why it could not have sought intervention prior to judgment.” Id. at 1257. In light of this failure, and “given the presumption that post-judgment motions to intervene will be denied,” the Circuit affirmed the district court's denial of the motion, observing that “any motion for intervention must be ‘timely.’ “ Id. (citing Fed.R.Civ.P. 25) (emphasis added); see also Mass. Sch. of Law, 118 F.3d at 783 n. 5 (denying permissive intervention and holding that when “would-be intervenors ... inexcusably neglect to try to enter the proceedings before judgment, at a time when notice of their arguments would have enabled the district court to avert the alleged errors ... post-judgment intervention for the purpose of challenging those supposed defects on appeal would rightly be denied as untimely” (citing NAACP, 413 U.S. at 366-68)); Moten v. Bricklayers & Plasterers, 543 F.2d 224, 227-28 (D.C.Cir.1976) (denying a motion to intervene as of right and holding that “cases in this Circuit permitting post-judgment intervention should not be controlling where clear opportunity for pre-judgment intervention ... was not taken”).

In this case, the Museums were aware long before the court granted the plaintiffs' motion in June 2008 that their interests were implicated in these proceedings. See Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir.1996) (noting that the relevant inquiry for determining timeliness of a motion to intervene is the point at which the proposed intervenor knew or should have known that an action could affect his interests). By February 2005, the plaintiffs had initiated attachment proceedings against the Museums in both the Northern District of Illinois and the District of Massachusetts seeking to enforce the default judgment issued in this case. See Museums' Mot. at 11; Pls.' Opp'n at 5-10. The Museums must have been aware early in the course of those proceedings that their interests were implicated in this action.

Moreover, the Museums had reason to intervene beginning on March 28, 2008, when the plaintiffs filed their motion for retroactive application of the NDAA. The Museums, however, did not move to intervene at that point, and indeed, took no action for two full months, when, instead of moving to intervene, they sent a letter to the court expressing their views on the merits of the plaintiffs' motion. See Museums' Reply at 5 n. 1. Although the Museums assert that they sent the letter as soon as they determined that the plaintiffs had misconstrued the NDAA, Museums' Reply at 5-6, they offer no explanation for why they waited two months after the plaintiffs filed their motion regarding the NDAA to raise their arguments to the court. See generally Museums' Mot.; Museums' Reply. Moreover, the Museums offer no explanation for why they chose to submit a letter FN5 rather than filing a motion to intervene, in which they could have referenced their substantive grounds for opposing the plaintiffs' motion and requested that the court delay ruling on the plaintiffs' motion pending resolution of the motion to intervene. See generally Museums' Mot.; Museums' Reply. Instead, the Museums submitted a letter, with the apparent hope that the court would consider arguments submitted by a non-party to the litigation. This hope, however, was unfounded and does not justify their failure to seek formal intervention in a timely fashion. Thus, the Museums had a clear opportunity to intervene in this action prior to the resolution of the plaintiffs' motion but chose not to do so.

FN5. Even if the court had been inclined to consider the substantive arguments raised by the Museums, who were non-parties to this action, the Museums' letter did not arrive at the court until the day the court issued an order granting the plaintiffs' motion. See Museums' Reply at 5 n. 1.


*5 The Museums rely on United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977), to assert that motions to intervene are timely as long as they are filed within the time period for filing an appeal or seeking reconsideration. See Museums' Mot. at 6. Yet in McDonald, the post-judgment motion for permissive intervention was granted because “there was no reason for the [intervenor] to suppose that [the named plaintiffs] would not take an appeal until ... after the trial court had entered its final judgment.” McDonald, 432 U.S. at 394. Indeed, the Court noted “the critical fact” that “as soon as it became clear to the [intervenor] that the interests of the [nonparties] would no longer be protected by the named [parties], she promptly moved to intervene .” Id.

In construing the holding of McDonald, this Circuit has required that motions to intervene be filed before the entry of judgment unless the proposed intervenor does not know until after judgment is entered that the named parties will not protect its interests. See Smoke v. Norton, 252 F.3d 468, 471 (D.C.Cir.2001) (granting a post-judgment motion to intervene as of right because “the potential inadequacy of representation came into existence only at the appellate stage” (quoting Dimond, 792 F.2d at 193)); Associated Builders, 166 F.3d at 1257 (noting that in McDonald, “the necessity of intervention did not arise until after judgment had been entered” (citing McDonald, 432 U.S. at 393-94)). In this case, the Museums knew that intervention would be needed to protect their interests long before the plaintiffs' motion was granted, given the defendants' failure to participate at any point in this action. At the very least, the Museums must have been aware of the need for intervention when the deadline for opposing the plaintiffs' NDAA motion passed without any action from the defendants. Accordingly, the exception for post-judgment intervention set forth in McDonald does not apply. See Associated Builders, 166 F.3d at 1257 (citing McDonald, 432 U.S. at 393-94); Moten, 543 F.2d at 227-28.

The Museums also rely on Acree v. Republic of Iraq, 370 F.3d 41 (D.C.Cir.2004), in which this Circuit held that the district court abused its discretion in denying a post-judgment motion to intervene. Museums' Mot. at 6. In Acree, however, the Circuit stated that it was making an exception to the established rule due to the “unique circumstances of [the] case,”-namely, that it was “a case with undeniable impact on the Government's conduct of foreign policy.” Acree, 370 F.3d at 50. Indeed, the Circuit explicitly grounded its holding on the foreign policy implications of the case, stating that although “[c]ourts are generally reluctant to permit intervention after a suit has proceeded to final judgment, particularly where the applicant had the opportunity to intervene prior to judgment ... in light of its clear foreign policy interests, the United States was entitled to intervene as of right.” Id. at 49-50.

*6 The motion to intervene now before the court has not been brought by the United States based on its foreign policy interests in the action, but instead by a group of museums. See generally Museums' Mot. Moreover, the United States has already intervened in this action to assert its foreign policy interests. See Minute Order (July 15, 2004); see generally United States' Motion to Quash Pls.' Writ of Attachment (Aug. 2, 2004). The Museums' motion to intervene, therefore, does not merit the exception that was applied in Acree.FN6

FN6. The Museums also rely on Benzman v. Whitman, 2006 WL 3771014 (S.D.N.Y. Dec. 15, 2006). Museums' Mot. at 6. Yet Benzman concerned a case in which the motion to intervene had already been denied, and the motion to reconsider that denial was found to be timely. 2006 WL 37710014, at * 1, 3. Accordingly, the Museums' reliance on Benzman is misplaced.


In short, the Museums have offered no explanation for their failure to seek intervention prior to the court's resolution of the plaintiffs' motion, despite the fact that they had a clear opportunity to do so. Accordingly, their motion to intervene is untimely and must be denied.

IV. CONCLUSION
For the foregoing reasons, the court denies the Museums' motion to intervene and denies as moot the Museums' motion for an extension of time to appeal. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 8th day of September, 2010.

D.D.C.,2010.
Rubin v. Islamic Republic of Iran
--- F.Supp.2d ----, 2010 WL 3501554 (D.D.C.)


Motions, Pleadings and Filings (Back to top)

• 2008 WL 5327656 (Trial Motion, Memorandum and Affidavit) Reply of Proposed Intervenors the President and Fellows of Harvard College, the Museum of fine Arts, the University of Chicago, the Oriental Institute, and the Field Museum to Plaintiffs' Opposition to the Motion to Intervene (Aug. 21, 2008) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
• 2008 WL 5327655 (Trial Motion, Memorandum and Affidavit) Plaintiffs - Judgment Creditors' Memorandum in Support of Their Motion to Strike and in Opposition to Non-Party Garnishees' Motion for an Extension of Time to Appeal (Aug. 18, 2008) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
• 2008 WL 5327654 (Trial Motion, Memorandum and Affidavit) Plaintiffs - Judgment Creditors' Opposition to Motion to Intervene (Jul. 29, 2008) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
• 2008 WL 680582 (Trial Motion, Memorandum and Affidavit) Memorandum by the United States in Further Support of its Motion to Vacate Plaintiffs' Writs of Attachment and Execution and to Vacate the Court's Opinion and Order of March 23, 2005 (Feb. 8, 2008) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
• 2006 WL 1780811 (Trial Motion, Memorandum and Affidavit) Motion by the United States to Vacate Plaintiff's Writs of Attachment and Execution and to Vacate the Court's Opinion and Order of March 23, 2005 (May 16, 2006) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
• 2001 WL 36080078 (Trial Pleading) Complaint (Jul. 31, 2001) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
• 1:01cv01655 (Docket) (Jul. 31, 2001)
Judges and Attorneys (Back to top)
Judges | Attorneys
Judges
# Urbina, Hon. Ricardo M.
United States District Court, District of Columbia
District of Columbia
Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler

Attorneys
Attorneys for Plaintiff
# Bergman, Bennett J.
Pawtucket, Rhode Island
Litigation History Report | Profiler

# Strachman, David J.
Providence, Rhode Island
Litigation History Report | Profiler

END OF DOCUMENT

(c) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Rubin v. Islamic Republic of Iran and related litigation is covered in depth in my 2009 book:

Protesters targeted by Pennsylvania for Monitoring

An NPR story this morning reported that protesters opposed to natural gas drilling in Pennsylvania were the targets of surveillance by a private organization under contract to the Commonwealth. Governor Rendell has apologized and promised to terminate the contract. The governor is right to do so. However, as pointed out in my 2009 book, "Al Qaeda Goes to College," environmentalist and animal rights activists on the extreme side of the spectrum have repeatedly broken both federal and state laws in their zeal to protect the environment and establish animal rights. It is understandable that law enforcement might take an interest in peaceful protests from the standpoint of trying to gain some insights into the criminal side of the movement, such as ELF and ALF, as well as SHAC, which currently has key players serving hard time in federal prison, following their 2006 convictions in a federal criminal trial in Trenton. Given the "Leaderless Resistance" philosophy of such shadowy extremist organizations, it is difficult if not impossible to ascertain where the line is drawn between peaceful protesters exercising their legitimate First Amendment rights and those espousing, and even engaging in, illegal activities. SOme activists walk that tightrope and even cross that line, as the SHAC7 convictions illustrated amply
Here is my chapter on extremist animal-rights activists:
Chapter Three: Domestic Terrorists (II): The Animal Advocates

On June 12, 2008, the New Jersey Office of Homeland Security and Preparedness issued the following “Intelligence Assessment”:

Escalation of West Coast Animal Rights Extremist Activity
and Implications for New Jersey

Key Findings
• There has been an increase in the intensity and overall number of violent
criminal acts perpetrated by animal rights extremist groups against university
researchers on the West Coast.
• Animal rights extremist groups represent the most active, single-issue domestic
terrorism group in New Jersey.
• Given the apparent connectivity between animal rights groups and the extent of
their travel between coasts, the use of violence and intimidation against
university researchers on the West Coast is likely to spread to New Jersey.

Threat Overview
Over the past ten months, there has been an increase in the number of violent criminal incidents perpetrated by animal rights extremists against university researchers on the West Coast. The majority of the violent incidents have occurred in California, with a limited number also occurring in Oregon. In roughly eighty percent of the incidents the targets were university researchers involved in primate research.

Historically, animal rights extremist groups in the United States have carried out direct actions against university laboratories and not individual researchers. Such actions have included criminal trespassing, vandalism and the release of laboratory animals. However, since approximately June 2007, extremists have begun escalating the violence and using more intimidating tactics against individual university researchers, including: death threats, bomb threats, the mailing of suspicious packages and letters stuffed with razor blades, attempted home invasions, attempted arson, intentional flooding of a home, and the placement of incendiary devices under cars and at residences. These incidents have been carried out by ALF (Animal Liberation Front), Animal Liberation Brigade, UCLA Primate Freedom Project, SHAC (Stop Huntingdon Animal Cruelty) and their affiliates. This shift in tactics coincides with an overall increase in threats and acts of violence by the animal rights extremist movement against a wide variety of targets, including biotech, life-sciences, pharmaceutical and biomedical research companies.

While animal rights extremist groups have not publicly announced a change in their targeting tactics, there are several reasons for such a shift. Targeting individual researchers at their residences results in greater fear and intimidation, as extremists “personalize” their attacks by directly threatening the individuals and their families. In addition, by targeting individuals at their homes extremists avoid having to deal with security impediments that might exist at the university laboratory or employment facility. This change in modus operandi enables the extremists to carry out their attacks with fewer resources. Animal rights groups are also increasingly using the Internet to access public records and identify university researchers, and then posting their names and addresses online.

This shift in targeting tactics coincides with a growing sentiment among members of the animal rights movement that researchers, businesses, and the general public have been sufficiently warned and violence can now be rationalized in order to permanently end animal abuse. Violent rhetoric is expressed in extremist communiqués, literature and threat letters. For example, in a June 2007 communiqué, the Animal Liberation Brigade alluded to the need for more violent tactics, asserting that “demonstrators need to realize that just demonstrating won’t stop this kind of evil.” Similarly, Jerry Vlasak, co-founder of the North American Animal Liberation Press Office and leader in the US animal rights movement has stated on several occasions that the notion of murdering medical researchers in order to save laboratory animals is a “morally justifiable solution.” While these statements may simply be aimed at motivating followers, it might also portend a shift toward greater violence.

Outlook for New Jersey
Animal rights extremist groups represent the most active, single-issue, domestic terrorism group in New Jersey where they have historically focused their campaigns on biotech, life-sciences and pharmaceutical companies. However, since 2003, these groups have branched out, conducting direct actions against “tertiary targets,” including financial and technology-based companies and attacking the employees of targeted companies at their residences. Looking forward, the increased use of violence and intimidation perpetrated against university researchers on the West Coast is likely to be emulated on the East Coast, especially given the apparent connectivity between animal rights groups throughout the country and the extent of their travel between coasts. This type of connectivity has been exemplified in New Jersey through “Days of Action,”
direct action campaigns organized by animal rights groups which are attended by supporters from across the US. These events reveal a willingness to travel long distances to protest and target businesses, laboratories and individuals in New Jersey. While there is currently no intelligence indicating that animal rights extremists are planning to target university researchers or other New Jersey facilities involved in animal research, the nature of this threat warrants ongoing situational awareness within university, private sector and law enforcement
communities.

For additional information and GIS mapping of New Jersey companies targeted by animal rights groups, please refer to the December 2007 OHSP Assessment: Animal Rights Extremism: Current Trends and Implications for New Jersey, available on the OHSP secure Web site, through http://www.state.nj.us/.

Suspicious activity involving animal rights extremist groups should be treated as having a possible nexus to terrorism, and should be reported immediately to the New Jersey Office of Homeland Security and Preparedness (OHSP) at 866-4-SAFE-NJ and to local law enforcement authorities.



Author of Report:
Caroline Vassallo, Intelligence Analyst: Caroline.Vassallo@ohsp.state.nj.us (609-588-0996)


For further information on this document or other OHSP analytical products,
please contact the OHSP Intelligence Bureau at
OHSPINTEL@ohsp.state.nj.us or 609-588-4000, ext. 7




Even a cursory survey of stories published in The Chronicle of Higher Education over the past two years drives home the severity of the threat posed to higher education by animal rights activists, who may be the most serious domestic-terrorism threat posed to campuses in the United States.
• Animal-Rights Groups Fight Colleges Over Access to Research Records

By JEFFREY BRAINARD

The Ohio Supreme Court has ruled that Ohio State University is not required to release videotapes of animal research sought under the state's open-records law by an advocacy group opposed to such studies.
• UCLA Professor Halts Monkey Research

By SAMANTHA HENIG

Responding to pressure from animal-rights activists, Dario Ringach, an associate professor of neurobiology at the University of California at Los Angeles, has abandoned his research on monkeys. In an e-mail message with the subject line "You win," Mr. Ringach wrote to a news office for animal-rights groups that he would no longer conduct animal research, and asked that the groups leave him and his family alone.
• UCLA's Acting Chancellor Takes Steps Against Animal-Rights Extremists
By PAUL FAIN
The acting chancellor of the University of California at Los Angeles has announced plans to push back at animal-rights groups, which he says have recently stepped up harassment of faculty members.
In a letter to the campus, Norman Abrams, who became acting chancellor on July 1, said "illegal and often violent" acts by activists, who are protesting research conducted by university scientists on nonhuman primates and other animals, had "culminated this summer in an incident involving a powerful incendiary device placed on the doorstep of a neighbor of one of our faculty members."
• The Growing Field of Animal Law is Attracting Activists and Pragmatists Alike
By PETER MONAGHAN
Portland, Ore.
In the Pacific Northwest, many young people say they want to liberate animals from human subjection, so much so that defending activists who break into research laboratories to set loose animals is now a cottage industry.

Here at Lewis & Clark College School of Law, students of "animal law" are learning another way to change social practices that involve animals. They are just as passionate as animal-liberation advocates. And they may become more influential.
Animal law is the study of all laws relating to animals, whether they enable harsh treatment of animals or encourage kind treatment. "It's a lot like where environmental law was in the 1970s," says Laura Ireland Moore, founder and executive director of the National Center for Animal Law, based at Lewis & Clark.
• Animal Researchers' Homes Are Attacked
As protests intensify, colleges take steps to protect scientists
By RICHARD MONASTERSKY
When six masked people pounded on the front door of a scientist's home in Santa Cruz, Calif., and allegedly struck her husband late last month, the echo was heard by biomedical researchers and universities around the country. The intrusion represents an apparent escalation in the level of violence used by animal-rights protesters, who until now have not physically attacked academic scientists.
"We're facing a national movement," says George Blumenthal, chancellor of the University of California at Santa Cruz, where the biologist works. Other universities, he says, are going to have to face "individuals who are prepared to use potentially violent tactics that have a terrorizing effect on researchers."








• New Front in Battle Over Studies of Animals

Activists take aim at non-research colleges

By JEFFREY BRAINARD

Far from the front lines of the nasty fight over laboratory-animal experiments at large research universities, activists are strategically drawing some teaching-oriented institutions into the same battle.
Amherst College, Fairfield University, Francis Marion University, and 10 other institutions, none of which are known for conducting animal experiments, recently signed a pledge not to subject any research animals to "severe" unrelieved pain or distress. The pledge was written by the Humane Society of the United States, which has sent it to a total of 301 presidents at similar institutions.
• New Attacks on Animal Researchers Provoke Anger and Worry
By LILA GUTERMAN

After firebomb attacks this month set the home of a neuroscientist at the University of California at Santa Cruz aflame and destroyed a car parked in the driveway of another university researcher's home, researchers and academic leaders were shaken. The attacks are believed to be the work of animal-rights protesters.
The Roots of the Animal Rights Movement
In his novel of 17th century England, Quicksilver, author Neal Stephenson has members of the Royal Society “starving a toad in a jar to see if new toads would grow out of it,” draining “all the blood out of a large dog and putting it into a smaller dog minutes later,” and removing “the rib cage from a living mongrel.” Since Stephenson’s representations appear to be historically accurate, little wonder that the “first significant animal rights movement began in nineteenth-century England, where the impetus was opposition to the use of unanaesthetized animals in scientific research.” The only wonder is that it took so long for social mores to rise to the level of repugnance for this practice that the “movement inspired protests, legislative reforms in the United Kingdom, and the birth of numerous animal protection organizations….”
The rise of such sentiments paralleled the changing views of England’s leading philosophers (including so-called “natural philosophers”) toward animals. While Rene Descartes considered animals to be “organic machines,” David Hume wrote in the 18th century, “Next to the ridicule of denying an evident truth, is that of taking much pains to defend it; and no truth appears to me more evident, than that beasts are endow'd with thought and reason as well as men. The arguments are in this case so obvious, that they never escape the most stupid and ignorant.” Jeremy Bentham, the early-19th century father of Utilitarianism added, “Other animals, which, on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things. ... The day has been, I grieve it to say in many places it is not yet past, in which the greater part of the species, under the denomination of slaves, have been treated ... upon the same footing as ... animals are still. The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may come one day to be recognized, that the number of legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps, the faculty for discourse?...the question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?... The time will come when humanity will extend its mantle over everything which breathes... ."
Although the anti-vivisection movement was birthed in the early 19th century alongside the significant scientific activity which characterized that period, and despite its long history of opposition to animal research, the movement cannot be credited with stopping a single scientific experiment until 1977, when the movement’s outcries ended NIH funding of certain grizzly and notorious cat experiments that the federal agency had funded for some 17 years at New York’s Museum of Natural History.
In fact, not until the 1960s did a robust animal-rights movement emerge in the United States, part and parcel of the socio-cultural revolution which swept through American society in such varied forms as the Hippy Movement, the anti-war protests, the sexual revolution and the drug culture. An early victory was the 1966 Laboratory Animal Welfare Act. In 1971 NIH issued its policy on the “Care and Treatment of Laboratory Animals.” This was replaced by Public Health Service Regulations in1973.
In 1981 Johns Hopkins University established its Center for Alternatives to Animal Testing, which describes itself as follows:
The Johns Hopkins Center for Alternatives to Animal Testing (CAAT) has worked with scientists since 1981 to find new methods to replace the use of laboratory animals in experiments, reduce the number of animals tested, and refine necessary tests to eliminate pain and distress.
We are an academic, science-based center affiliated with the Johns Hopkins University Bloomberg School of Public Health. We believe the best science is humane science. Our programs seek to provide a better, safer, more humane future for people and animals.
We provide a variety of resources, including grants for scientists developing non-animal methods workshops on alternative methods, books, newsletters, and other publications.
We also manage Altweb, an international online clearinghouse of alternatives news and resources.

Despite these pioneering efforts and all the subsequent advances in the regulation and humane treatment of laboratory animals, animal rights activists’ targeting of scientific, including university, laboratories has increased in recent years. To understand why, it’s worth noting the several levels of animal activists in terms of philosophical orientation.
Animal Activist Philosophy and Tactics
DeGrazia identifies three gradations of standards subscribed by activists:
• Sliding-scale model: “Animals may be used in research only where their use is consistent with giving their interests appropriate moral weight in view of the animals’ cognitive, emotional, and social complexity.”
• Utilitarianism: “Animals may be used in research only where their use is likely to maximize the overall balance of benefits --- factoring in likelihood of success --- over harms, where all parties’ (including animals’) interests are impartially considered.”
• Strong animal-rights view: “Animals may be used in research only where (1) their involvement does not harm them or (2) their involvement is in their overall best interests (therapeutic research). This view might also permit animals to be used in research where (3) their involvement poses only minimal risk to them.”
Clearly, the third level is the most demanding. Indeed, the definition proffered by DeGrazia masks the extreme nature of this last position. The devil, as they say, is in the details. For example, whether what a scientist does to his animals harms them or not depends entirely on the definition of the word “harm.” If one includes under harm the mere caging of an animal, then it is virtually impossible for a research scientist to work with animals in his lab. Similarly, if one deems the anxiety caused to an animal by the mere handling of that animal to be “harm,” then, once again, the definition would make it well-nigh impossible for a researcher to work with any such animals.
If these interpretations seem far-fetched, then consider the following:
PETA: People for the Ethical Treatment of Animals
Animal Exploitation

Every year, more than 3 million dogs, cats, birds, rabbits, and other animals are euthanized because they were born into a world that does not have enough homes for them. For every one companion animal who lives indoors with a human family and receives the attention, health care, and emotional support that he or she needs, there are thousands just barely surviving. Millions of domestic animals never know a kind human touch and live hard lives on the street before dying equally hard deaths.

Others suffer at the hands of an unfit guardian who deprives them of veterinary care and other basic necessities: Social birds are left alone in tiny, barren cages for years as decorations; rabbits, guinea pigs, and hamsters are kept in filthy cages and only paraded out as a source of entertainment now and then; cats are left outside and often become victims of cruel people; dogs are left chained outside or kept in waste-strewn pens with only a metal barrel to protect them from the elements.

Every animal deserves a chance to thrive in a responsible and permanent home. Sadly, breeders, pet stores, and people who fail to sterilize their companion animals have created a tremendous overpopulation problem that forces animal shelters to put millions of dogs and cats to death every year.


Those who subscribe to such anthropomorphic sentiments, as those reflected in this statement, also tend to deny that --- to borrow from George Orwell’s Animal Farm --- some animals are more equal than others. Thus, for example, a recent essay by two biologists rejects all of the following arguments for distinguishing among phyla and species in according animals rights:
• The evolutionary argument
• Variations in awareness of self
• Variations in memory and planning skills
• Animal intentionality
These writers conclude that, “given our present state of knowledge of the needs and capabilities of classes of animals, let alone individual species, we feel, as biologists, that we first and foremost ought to guard against, or at least be very cautious about, the temptations of creating a scale of lesser or greater value of one species over another.”
From such philosophical/ethical tenets the distance to radical tactics is short. Consider the cartoon below, taken from the Animal Liberation Front website.

In close proximity with this cartoon on the site is the “ALF Credo”:
The Animal Liberation Front (ALF) carries out direct action against animal abuse in the form of rescuing animals and causing financial loss to animal exploiters, usually through the damage and destruction of property.

The ALF's short-term aim is to save as many animals as possible and directly disrupt the practice of animal abuse. Their long-term aim is to end all animal suffering by forcing animal abuse companies out of business.

It is a nonviolent campaign, activists taking all precautions not to harm any animal (human or otherwise).

Because ALF actions may be against the law, activists work anonymously, either in small groups or individually, and do not have any centralized organization or coordination.

The Animal Liberation Front consists of small autonomous groups of people all over the world who carry out direct action according to the ALF guidelines. Any group of people who are vegetarians or vegans and who carry out actions according to ALF guidelines have the right to regard themselves as part of the ALF.

The last paragraph of this credo springs from the broader radical tradition of “leaderless resistance.” “Leaderless resistance (or phantom cell structure) is a political resistance strategy in which small, independent groups (covert cells) challenge an established adversary such as a government. Leaderless resistance can encompass anything from non-violent disruption and civil disobedience to bombings, assassinations and other violent agitation. Leaderless cells lack bidirectional, vertical command links and operate without hierarchal command.”
The term "Leaderless Resistance" was popularized by the white supremacist Louis Beam, who published an essay on Leaderless Resistance in 1983 and again in 1992. Beam advocated Leaderless Resistance as a technique for fighting an incumbent government using self-organizing clandestine cells; he attributed the strategy to Col. Ulius Loius Amoss, allegedly a U.S. intelligence officer who was fearful that Communists were about to seize control of the U.S. in the early 1960s.
In his essay, Beam argued that traditional liberation armies employing pyramid-style organization are "extremely dangerous for the participants when it is utilized in a resistance movement against state tyranny":
"Especially is this so in technologically advanced societies where electronic surveillance can often penetrate the structure revealing its chain of command. Experience has revealed over and over again that anti-state, political organizations utilizing this method of command and control are easy prey for government infiltration, entrapment, and destruction of the personnel involved. This has been seen repeatedly in the United States where pro-government infiltrators or agent provocateurs weasel their way into patriotic groups and destroy them from within."
A more workable approach, argued Beam, is to convince like-minded individuals to form independent cells that will commit acts of sabotage or terrorism without coordination from above, and while minimizing communication with other cells:
"The so-called "phantom cell" mode of organization, developed by Col. Amoss, or Leaderless Resistance, is based upon the cell organization but does not have any central control or direction. In the Leaderless Resistance concept, cells operate independently of each other, but they do not report to a central headquarters or top chief, as do the communist cells ...
[P]articipants in a program of Leaderless Resistance through phantom cell organization must know exactly what they are doing and how to do it. This is by no means as impractical as it appears, because it is certainly true that in any movement, all persons involved have the same general outlook, are acquainted with the same philosophy, and generally react to given situations in similar ways. As the entire purpose of Leaderless Resistance is to defeat the enemy by whatever means possible, all members of phantom cells will tend to react to objective events in the same way, usually through tactics of resistance and sabotage."
Despite exhorting the adoption of a resistance without a leader, it is likely that Beam was advocating Leaderless Resistance in an attempt to cement his position as a leader and thinker in the white separatist movement. Indeed, Leaderless Resistance is taken by some to be a technique of splitting an organization into an above-ground wing that primarily deals in propaganda, and an underground wing that actually carries out terrorist attacks.

Substantial evidence of Al Qaeda’s reliance on leaderless resistance is extant. Incidents in the United States over the past 16 years or so, which are likely examples of leaderless-resistance actions, include:
• January 25, 1992: Two CIA employees are shot and three others wounded outside the agency’s Langley headquarters by Mir Aimal Kasi.
• March 1, 1994: Rashid Baz boards a bus in Brooklyn and opens fire on Jewish Yeshiva students.
• February 25, 1997: Ali Hassan Abu Ali Kamal fires on tourists on the observation deck of the Empire State Building.
• July 31, 1997: Lafi Khalil and Ghazi Ibrahim Abu Mezer are arrested in their New York restaurant after police find five pipe bombs, which the pair planned to set off in the NYC subways.
• July 4, 2002: Hesham Mohamed Hadayet attacks the El Al ticket counter at Los Angeles International Airport, killing two and wounding four.
• September 6, 2002: German police arrest an American woman and her Turkish fiancée in Heidelberg, alleging they planned to detonate pipe bombs in the nearby U.S. military base.
• May 9, 2007: Six radical Islamists are arrested in Cherry Hill, New Jersey, and are charged with plotting to bomb the Fort Dix Army Base.
Examples of the Leaderless Resistance credo among animal-rights and eco-terrorist organizations include:
• Stop Huntingdon Animal Cruelty (SHAC), a Worcestershire, England, organization targeted in particular Huntingdon Life Sciences, among the world’s largest animal-testing laboratories. Founded in 1999, SHAC’s main website states under “Who we are”:
SHAC is a worldwide campaign, and the first of its kind, with SHAC groups in the UK, USA, Holland, Germany, Italy and many other countries all uniting to target HLS and the companies that support them globally.
SHAC is an innovative campaign, and has received worldwide media coverage for the success of its methods, the intelligence of its tactics and the determination of its supporters.
Please note that SHAC does not encourage or incite illegal activity.
• Earth Liberation Front (ELF) modeled itself after the Animal Liberation Front (ALF) (see above). Its adherents claim credit for numerous acts of vandalism against such targets as logging companies, luxury real estate developments and SUV dealerships, as well as the freeing of animals. With regard to the latter, ELF affiliates joined with Alf affiliates in November 1997 in Burns, Oregon, to cause a half-million dollars in damage to the office, barns and other facilities of a horse and burro breeding company.
• Also available on the web are such “leaderless resistance” tools as “ARSON-AROUND with Auntie ALF: ALF’s Arson Guide,” which two Long Island teens, who pleaded guilty in February 2001 of burning down housing currently under construction, had accessed.
Harassing scientists at home: a case study in animal-rights leaderless resistance
On Sunday, February 24, 2008, a U.C.-Santa Cruz breast-cancer scientist and her family were enjoying a birthday party, when a loud knock came from their home’s front door. The researcher’s husband responded and was greeted by six masked visitors, one of whom smacked him on the hand before they got back into their car and drove off. This was not the first such incident at Santa Cruz, where the cancer researchers use mice in their labs. Earlier intrusions included graffiti, such as “murderer” and “torturer,” and strewn garbage in front of other scientists’ homes. Similar assaults were reported in Los Angeles and Salt Lake City.
UCLA’s Dr. Edythe D. London, who uses primates to study addiction, has been a particular target of ALF adherents. Her house has been both firebombed and flooded.
UCLA’s Center for Neurovisceral Sciences and Women’s Health describes Dr. London’s work as follows:
Dr. London's research has advanced the study of substance abuse and the development of new approaches and probes for studies of brain function. She has edited several books and authored over 200 original research articles and over 60 reviews. Her most recognized accomplishments involve PET scanning of human subjects who suffer from addictions. Dr. London's group was the first to show a relationship between drug craving and activity of brain regions that link memory with emotion. She also showed that drug abusers have structural abnormalities in prefrontal cortex and deficits in decision-making tasks that depend on prefrontal cortex function. Her work influenced other researchers to look toward the frontal lobe for an understanding of the compulsive self-administration of drugs despite detrimental effects, which characterizes drug addiction. Most recently, she and her colleagues have developed new probes for external imaging of those receptors in the brain where nicotine binds to produce its behavioral actions.

By contrast, on March 13, 2008, the ALF website posted the following anonymous notice :
At the start of last week, in Irvine, CA, a van owned by UCLA went up in flames. For all of those affected you have the UCLA primate vivisection program to blame.

It is unacceptable for us to see, hear, and know what is going on in our animal labs without taking action. Every time we pass someone like Arthur in the hallways and have to witness his stomach churning grin or watch Joaquin double checking the door locks on his little red Mercedes we have to choke back a crippling amount of disgust and hatred. It is becoming almost impossible to hold back. Then we hear the monkeys wailing and screaming and we find the strength to stay put.

We are driven to show the world the compassionless support that UCLA gives to these monkey killers and to do anything we can to end the needless suffering that the primates are forced to face.

The end of UCLA vivisection is coming. We urge you to start switching over to non-animal protocol without haste.

-LA ALF

Inevitably, these illegal actions and the attendant property losses, increased security costs, and human anxiety, have led the above-ground parties to clash in court. A leading advocate for ALF is Christine L. Garcia of the Animal Law Office in San Francisco. She describes her specialty as follows:
Animal Law includes any type of legal action, whether it be transactional or litigation, that affects the rights, standing and/or welfare of an animal. It is a new area of the law where sparse pro-animal case and statutory law exists in terms of defining, establishing and protecting the welfare of animals.

Animal Law varies from litigation issues involving incidents of wrongful death, veterinarian medical malpractice, animal activist Constitutional Rights protections, defense at vicious dog hearings, products liability litigation against companies that kill animals through the "proper" use of the product, and transactional issues such as drafting estates & trusts and facilitating the non-profit organizational governance.

In 2006 Garcia represented SHAC USA in a classic case of leaderless resistance. The action was initiated by Valent USA Corporation, maker of insect and weed control products. Valent sought injunctive relief against SHAC USA, which defended itself under California’s SLAPP statute. A special motion to strike Valent’s complaint as a meritless SLAPP suit was filed by SHAC USA under section 425.16 of the California Code on October 29, 2004, and was originally set down for hearing on December 16, 2004. SHAC USA's core position was that the claims asserted in Valent’s complaint centered around SHAC USA's “primar[y]” existence as a website and “informational newsletter” supporting the activities of animal activists in their 18-country effort to shut down Huntingdon Life Sciences (HLS), a laboratory and product development company that, as noted above, performs product testing for clients on live animals. SHAC USA conceded that this campaign also involved pressuring HLS's clients to end their business relationships with HLS, and that the activities of SHAC USA included the “occasional[ ]” organization of “legal public demonstrations regarding HLS and its clients and affiliates.” These actions include activities against Valent, an HLS customer.
However, in making these concessions, SHAC USA distinguished itself from the animal rights movement known as Stop Huntingdon Animal Cruelty (SHAC) and SHAC UK, claiming also that SHAC USA had no members and that it could not be held liable for the acts of individuals who attended demonstrations “that were organized by other persons or groups.” It also contended that the activities attributed to SHAC USA, as complained of by Valent, were all protected by freedom of speech guaranteed by the First Amendment of the federal constitution.
The California court closely considered the state’s SLAPP statute:
As explained in Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604 ( Tutor-Saliba ), “Section 425.16, commonly referred to as the anti-SLAPP law, provides in relevant part: ‘(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. [¶] (b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. [¶] (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.... [¶] (e) As used in this section, ‘act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” [¶] ‘Under the statute, the court makes a two-step determination: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1)....)” ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88....) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” ( [ Id.] at p. 89.)'' ( Tutor-Saliba, supra, 136 Cal.App.4th at pp. 608-609, citing Thomas v. Quintero (2005) 126 Cal.App.4th 635, 644-645, italics omitted.)”

The evidence taken into account by the court was described in the opinion as follows:
“This limited record reveals that the SHAC USA website postings contain no home addresses, telephone numbers, e-mail addresses, or any other personal information regarding Demouth or Zisook, other than identifying their employer. The only mention of these two appellants describes the following demonstration in front of their homes: ‘Received from CA activists: [¶] On the night of July 2 we decided to give some animal torture profiteers a visit. We were haunted by the clashing images of those who profit from animal torture sleeping soundly in their beds and the image of four month old beagle puppies being punched in the face and sleeping in their own excrement. [¶] First on our list was Robin Denmouth [ sic ] who is General Counsel and Secretary for HLS customer Valent Corporation. Robin appeared to be in for the night. With our trusty bullhorn and a personal alarm we let them know that their [ sic ] is no time for puppy killers to relax. [¶] We then hopped on over to Leslie Kvasnicka's house. Leslie is Valent's Manager of Quality Assurance and Corporate Safety. Leslie apparently has a soft spot for manatees judging by her manatee shaped mailbox. Too bad she has no soft spot for the animals that linger inside the walls of HLS. Give her a call and let her know what scum she is. (work) 925-[----]-[-----]. Last, but not least on our list was Elsa Zisook. Let them know there is no rest for the wicked! [¶] We're just getting started Valent. Cut your ties with HLS!’

“In James K. Schmidt's declaration, he described the investigation he conducted to determine to whom the Internet domain name “www.hlscustomers.com” was registered. Schmidt determined it was registered to SHAC USA. The attorneys' declarations primarily authenticated documents, most of which were not admitted except as discussed above.”

Dismissing Valent’s case, the court concluded, “This record is plainly inadequate to show a likelihood that appellants' would prevail on any of their causes of action against SHAC USA.”
When UCLA sought injunctive relief in 2008 on behalf of Dr. London and her colleagues, Attorney Garcia represented the defendants. Garcia’s immediate response was to contend that the university’s action was retaliation against a suit she had earlier brought against the Santa Monica Police Department and two UCLA employees earlier.
Whether that accusation was true or not, on February 21, 2008, Superior Court Judge Gerald Rosenberg signed a temporary restraining order in UCLA’s favor against the Animal Liberation Front, the Animal Liberation Brigade, the UCLA Primate Freedom Project and five protesters believed to be affiliated with those groups. The judge’s order “forbids the activists to engage in acts of harassment and threats of violence, and requires that they stay away from anyone known to be a university employee involved in animal research, UCLA's attorney John C. Hueston said. It also ordered the activists and their groups to remove the researchers' personal information from Web sites that name them as targets of their protest.”
Spokesman Jerry Vlasak of the North American Animal Liberation Press Office responded to this suit and subsequent efforts to enact protective legislation, commenting, “If someone’s willing to risk 20 years of prison by … burning a building used for animal torture, I don’t think they’re going to worry about a silly restraining order that UCLA cooks up. The same goes for AB 2296 [the proposed statute].” Sadly, Vlasak may be dead right. A federal statute, upon which California’s legislature seeks to model its new law, has been on the books since 1992:
Animal Enterprise Protection Act of 1992.

Public Law 102-346--Aug. 26, 1992

102nd Congress
An Act To Protect Animal Enterprises.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Animal Enterprise Protection Act of 1992".

SEC. 2. ANIMAL ENTERPRISE TERRORISM.

(a) IN GENERAL.--Title 18, United States Code, is amended by inserting after section 42 the following:

"§ 43. Animal enterprise terrorism

"(a) OFFENSE.--Whoever--
"(1) travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility in interstate or foreign commerce, for the purpose of causing physical disruption to the functioning of an animal enterprise; and

"(2) intentionally causes physical disruption to the functioning of an animal enterprise by intentionally stealing, damaging, or causing the loss of, any property (including animals or records) used by the animal enterprise, and thereby causes economic damage exceeding $10,000 to that enterprise, or conspires to do so; shall be fined under this title or imprisoned not more than one year, or both.

"(b) AGGRAVATED OFFENSE.--

"(1) SERIOUS BODILY INJURY.-- Whoever in the course of a violation of subsection (a) causes serious bodily injury to another individual shall be fined under this title or imprisoned not more than 10 years, or both.

"(2) DEATH.--Whoever in the course of a violation of subsection (a) causes the death of an individual shall be fined under this title and imprisoned for life or for any term of years.

"(c) RESTITUTION.-- An order of restitution under section 3663 of this title with respect to a violation of this section may also include restitution--

"(1) for the reasonable cost of repeating any experimentation that was interrupted or invalidated as a result of the offense; and

"(2)) the loss of food production or farm income reasonably attributable to the offense.

"d) DEFINITIONS.-- As used in this section--
"(1) the term 'animal enterprise' means--

"(A) a commercial or academic enterprise that uses animals for food or fiber production, agriculture, research, or testing;
"(B) a zoo, aquarium, circus, rodeo, or lawful competitive animal event; or
"(C) any fair or similar event intended to advance agricultural arts and sciences;

"(2) the term 'physical disruption' does not include any lawful disruption that results from lawful public, governmental, or animal enterprise employee reaction to the disclosure of information about an animal enterprise;

"(3) the term 'economic damage' means the replacement costs of lost or damaged property or records, the costs of repeating an interrupted or invalidated experiment, or the loss of profits; and

"(4) the term 'serious bodily injury' has the meaning given that term in section 1365 of this title.

"9e) NON-PREEMPTION.--Nothing in this section preempts any State law.".

(b) CLERICAL AMENDMENT.--The item relating to section 43 in table of sections at the beginning of chapter 3 of title, United States Code, is amended to read as follows:

"43. Animal enterprise terrorism.".

SEC. 3. STUDY OF EFFECT OF TERRORISM ON CERTAIN ANIMAL ENTERPRISES.

(a) STUDY.-- The Attorney General and the Secretary of Agriculture shall jointly conduct a study on the extent and effects of domestic and international terrorism on enterprises using animals for food or fiber production, agriculture, research, or testing.

(b) SUBMISSION OF STUDY.-- Not later than 1 year after the date of enactment of this Act, the Attorney General and the Secretary of Agriculture shall submit a report that describes the results of the study conducted under subsection (a) together with any appropriate recommendations and legislation to the Congress.

Approved August 26, 1992.

What has been the effect of this federal statute? In the words of a scientist who says that he himself has been victimized by animal-rights activists,
After accepting the responsibility to write this article, I immediately plowed into the subject expecting to find myself awash in information about the Act on the internet. Having been detoured there on many occasions, I was nervous about the task of ferreting the relevant from the extraneous, so I fired up my favorite search engine and browsed the web for information on two items, the "Animal Enterprise Protection Act" and the "Animal Welfare Act," fully anticipating both searches to yield the standard mega-response that typically goes with such unsophisticated search strategies. To my amazement, the phrase "Animal Enterprise Protection Act" yielded less than 40 hits. This simple test set the stage for a remarkable discovery. Unlike the Animal Welfare Act, a topic that yielded more than 1,600 hits on my global search of the internet, no one seemed to care very much about the Act that offered such hope for so many just seven years ago.

I immediately picked up the phone and began calling colleagues who I knew could help me understand how this potentially important piece of legislation, written to protect honest users of animals from animal rights terrorists, had suffered such undignified rejection at the hands of the federal prosecutors it was designed to energize. I was then stunned to learn that no one has been prosecuted under the provisions of the Act. No one. Not a single soul since the Animal Enterprise Protection Act became the law of the land.

While there may be many explanations for the dormancy of prosecutors in the use of this legal tool, we can all be certain that the failure to exercise the Act in the courts is unrelated to the level of animal rights activity during the period since its enactment. On the contrary, a strong case can be made that the overall level of animal enterprise terrorism in the US has dramatically increased since 1992. Numerous laboratory break-ins have occurred during this time frame, violence and vandalism at fur farms are on the rise, as are animal releases from research and animal husbandry facilities around the world. During this period, death and bomb threats have continued to flow from activists as freely as small talk at the local tavern, and animal rights leaders continue to egg on their foot soldiers with inflammatory talk of revolution.

The author criticizes the act for carrying penalties that are too light to deter, as well as for failing to forbid or punish the many minor acts of humiliation, such as “pies in the face,” that fall short of anything a federal prosecutor would care to handle. He notes that two attempts to pursue private actions fell flat, dismissed because the courts held that the act was a purely criminal statute that accorded no such right to a civil suit. The writer concludes, “The question that I pose as central to this discussion and the one that I had to grapple with as I wondered about my decision to write this essay is, ‘Can the handful of philosophers, lawyers, and political activists among us who are promoting the idea that ethical distinctions cannot be made among members of the animal kingdom ever truly hope to win this extreme argument that they wage?’ I seriously doubt it. But if they were successful, those other human tragedies to which I refer would be compounded by the Alice in Wonderland atmosphere that would have consumed us.”
Dr. Walsh’s article was published in 2000. With the September 11, 2001, terrorist attacks, it was not only Uncle Sam’s attitude toward Islamic terrorists that changed. In the words of an Alf adherent:
Like the amorphous category of domestic terrorism, a keystone in the USA PATRIOT Act attack on civil liberties, the frightening thing about the AEPA is its strategic vagueness that subsumes any and every form of protest and demonstration against exploitative industries to a criminal act “ specifically, a terrorist act. Thus, the actions of two or more people can be labeled terrorists if they leaflet a circus, protest an experimental lab, block a road to protect a forest, do a tree-sit, or block the doors of a fur store. On the sweeping interpretations of terrorism in such legislation, Martin Luther King, Mahatmas Gandhi, and Cesar Chavez would today be vilified and imprisoned as terrorists, since the intent of their principled boycott campaigns was precisely to cause economic damage to unethical businesses. And since the AEPA, like the legal system in general, classifies animals as property, their theft. (


The catalyst for this diatribe against the federal statute was the 2006 trial of seven SHAC supporters under the Animal Enterprise Protection Act. Bringing this chapter full-circle, the trial took place in Trenton, New Jersey.
On March 3, 2006, a federal jury in Trenton, New Jersey convicted six members of SHAC of "terrorism and Internet stalking," according to the New York Times, finding them guilty of using their website to "incite attacks" on those who did business with HLS. In September 2006, the so-called "SHAC 7" received jail sentences of 3 to 6 years. Originally, seven individuals were charged, along with Stop Huntingdon Animal Cruelty USA. The individuals were Kevin Kjonaas (former president of Stop Huntingdon Animal Cruelty USA), Lauren Gazzola, Jacob Conroy, Joshua Harper, Andrew Stepanian, Darius Fullmer, and John McGee. McGee was later dropped from the case. The defendants were charged with conspiracy to violate the Animal Enterprise Protection Act, in the first application of the 1992 statute. Kjonaas, Gazzola, Conroy, and Harper were also charged with conspiracy to harass using a telecommunications device (sending black faxes). Kjonaas, Gazzola, Conroy, and SHAC USA were charged with conspiracy to commit interstate stalking and three counts of interstate stalking via the Internet. The case first went to trial in June 2005, but ended in a mistrial when one of the key defense attorneys fell ill during the opening statement. It resumed on February 6, 2006. The defense of the SHAC 7 rested largely on the 1969 case Brandenburg v. Ohio, in which the Supreme Court of the United States ruled that political speech is legal unless it can be shown that a defendant has told specific individuals to commit specific, imminent acts of violence. On March 3, 2006, the defendants were convicted and sentenced to an aggregate of 24 years in prison, and ordered to pay a joint restitution of $1,000,001.00.

The New York Times reported the trial as follows :
Six Animal Rights Advocates Are Convicted of Terrorism
By DAVID KOCIENIEWSKI


An animal rights group and six of its members were convicted of terrorism and Internet stalking yesterday by a federal jury that found them guilty of using their Web site to incite attacks on those who did business with or worked for a British company that runs an animal testing laboratory in New Jersey.

The case was the first test of the Animal Enterprise Terror Act, enacted in 1992 to curb the most aggressive tactics used by activists. The verdict, which came after 14 hours of deliberation, was called an insidious threat to free speech by some activists, but was cheered by research scientists, some of whom are lobbying Congress to tighten restrictions on protesters.

During the three-week trial, defense lawyers acknowledged that a Web site run by Stop Huntingdon Animal Cruelty posted home addresses and other personal information about animal researchers and others. But the activists said they were simply trying to shame their targets into dissociating themselves from the company, Huntingdon Life Sciences, and they disavowed any involvement with the vandalism, death threats, computer hacking and pipe bombs against those on the Web site.

Although federal prosecutors presented no evidence that the defendants directly participated in the vandalism and violence, they showed jurors that members of the group made speeches and Web postings from 2000 to 2004 that celebrated the violence and repeatedly used the word "we" to claim credit for it.

Prosecutors also produced telephone records indicating that the president of Stop Huntingdon Animal Cruelty, Kevin Kjonaas, called a man charged with bombing a California biotech lab shortly after the explosion.

Jurors were also shown a videotape of the group's director, Lauren Gazzola, at a protest in Boston, making reference to the previous acts of violence and warning a target, "The police can't protect you!"

The defendants showed little emotion as the jury foreman announced that they had been found guilty on all counts, but after jurors left the room, Ms. Gazzola wept and Mr. Kjonaas turned to the 20 supporters in the courtroom and offered a wan smile and a shrug.

They face prison terms of up to 23 years, but are likely to serve no more than 7 under federal sentencing guidelines, according to Michael Drewniak, a spokesman for the United States attorney's office.

Pam Ferdin, who became president of the group after Mr. Kjonaas was indicted, called the verdict an insidious curb on free speech and said she was "ashamed of the jury."

"Anyone who writes anything on an e-mail or on a Web site is being treated like we're in a fascist state," said Ms. Ferdin, a former child star who played Felix Unger's daughter on "The Odd Couple" and was the voice of Lucy in the "Peanuts" cartoons. "Our forefathers fought for the right to fee speech."

But the prosecutor, Charles B. McKenna, praised the decision, saying that jurors had correctly found that the First Amendment does not protect speech that is likely to incite violence.

Although Ms. Ferdin said that the verdict would most likely lead the group to disband, the group's campaign has succeeded in causing substantial economic damage to Huntingdon, where, the group claims, 500 animals a day are killed and dissected as part of drug and cosmetic research. By concentrating on a wide range of people who invest in, and do business with, Huntingdon, the campaign led many companies to sever their ties with the lab, including insurance companies like Aetna and Marsh and major financial institutions including Goldman Sachs and the Bank of America.

One group of researchers, Americans for Medical Progress, warned that the verdict would lead to more violence and called on federal lawmakers to strengthen the laws against animal rights extremists.

"We've seen a dramatic rise in the number of criminal actions against research over the past five years," said Dr. John Young, a veterinarian who is chairman of the research organization. "There's no doubt today's guilty verdicts will provoke still more acts of harassment, intimidation and violence. That is terrorism, and it must be stopped."

Ms. Ferdin vowed that the campaign against animal testing would continue, despite the verdict against her group.

Nate Schweber contributed reporting from Trenton for this article.



Little wonder, then, that in 2008 the New Jersey Office of Homeland Security and Preparedness issues its “Intelligence Assessment.”
That Which Does Not Kill Us…
How, then, does this terrorist threat benefit higher education? First, enhanced security measures aimed at protecting research facilities from animal-rights terrorists inevitably spill over into added protection for institutions’ intellectual property and enhanced alertness, beyond what might occur in a context of anti-Al Qaeda measures, this latter appearing to be far more remote than threats posed by the “crazies” discussed in Chapter Two and the animal-rights crowd, as outlined here.
Second, by forcing us to consider how we run the animal-related aspects of our research programs, the ALFs and SHACs push the advance of research and testing techniques which may be more efficient, more accurate and/or more safe and sanitary than animal experimentation. Stated in its broadest terms, the War on Terror in all its forms --- like any major war in American history --- pushes technological advances. Higher education, as much or more than any other sector of the American economy, reaps the benefits of this technological imperative.
The FBI has contended that ALF and ELF “have become the most active criminal extremist elements in the United States.” While the threat, thus, has greatly increased, so too has official interest in these groups. One might credibly claim that the escalation of violent confrontation --- such as a willingness to harass researchers in their homes --- is in direct correlation to society’s unwillingness to tolerate these organizations’ positions and activities and the increased pressure placed upon them by legislators and law enforcement agencies in the wake of Nine-Eleven. Bundled in with Islamic extremists after the World Trade Center attack, they find themselves social pariahs. They are likely to discover that their more strident speech and terrorist tactics will backfire, as our industry and the criminal justice system combine to confront the enhanced threat with improved tactics and technologies.