When Protest Becomes Crime

Front matter

Politics and Law in Liberal Democracies

CAROLIJN TERWINDT

Anthropology, Culture and Society

PART II: WHEN PROSECUTORS RESPOND: NARRATIVES IN ACTION ETA cases in Spain

6 Casting the Net Wider by Calling the Armed Group a Network 7 Narrating Praise for ETA Prisoners as Humiliation of Victims

“Mapuche conflict” cases in Chile 8 Vacillating between Criminalization and Negotiation 9 Responding to Allegations of Racism and Repression against the Mapuche People

“Eco-terrorism” cases in the United States 10 Shifting from Reactive to Proactive Prosecutions 11 Drawing a Boundary between Raising Awareness and

Intimidation

23 46

66 88 vi When Protest Becomes Crime

References Interviews

Trial Transcripts Index

247 263 267 271

Series Preface

As people around the world confront the inequality and injustice of new forms of oppression, as well as the impacts of human life on planetary ecosystems, this book series asks what anthropology can contribute to the crises and challenges of the twenty-first century. Our goal is to establish a distinctive anthropological contribution to debates and discussions that are often dominated by politics and economics. What is sorely lacking, and what anthropological methods can provide, is an appreciation of the human condition.

We publish works that draw inspiration from traditions of ethnographic research and anthropological analysis to address power and social change while keeping the struggles and stories of human beings centre stage. We welcome books that set out to make anthropology matter, bringing classic anthropological concerns with exchange, difference, belief, kinship and the material world into engagement with contemporary environmental change, the capitalist economy and forms of inequality. We publish work from all traditions of anthropology, combining theoretical debate with empirical evidence to demonstrate the unique contribution anthropology can make to understanding the contemporary world.

Jamie Cross, Christina Garsten and Joshua O. Reno

Preface

During the research for this book, 1 closely followed three different political struggles in three different countries. I studied the grounds for the disputes and looked at the various groups and individuals involved on either side: the mainstream and fringe activists, their political opponents and the targets of actions. I looked at protest tactics as well as actions of defense against such protest, and ensuing confrontations with law enforcement agents. These formed the context for my real interest: the way in which criminal law and criminal justice measures and institutions were used, called upon, legitimated and criticized in the course of those interactions.

Ultimately, we are dealing with the grand subject of justice and injustice. During my research I have often been outraged by particular cases of injustice. I could not be indifferent when listening to someone who recently lost his father because he was a prosecutor in Madrid. I found it impossible to be unconcerned about the issue of living continually with personal bodyguards, a necessity for many in the Basque Country. And I was deeply disturbed when I learned that the Spanish state had colluded with paramilitaries to kill its own citizens. I was moved listening to four elderly Mapuche men living in the utmost poverty, who did not understand the legal reasoning in the Chilean criminal proceedings when they were convicted. I was affected when I saw the pictures of the inundated area for a hydroelectric dam where only a year before a Mapuche woman had proudly shown me her land. I was not indifferent either to the fear of a young Chilean child growing up in his parents’ house in the countryside who felt unprotected against attacks by a neighboring Mapuche community. I was profoundly sad when Eric McDavid was sentenced to 18 years in a US prison, with the full weight of a terrorism enhancement upon his alleged crime of conspiracy, turning him into an example for others. And in the course of my research, I have come to care for the struggle against cruelty inflicted upon animals.

The list of past and current cases of potential injustices is inevitably long and they form a core part of each of these political conflicts. Whereas each of the examples may have been moving when taking the point of view of

Preface ix the suffering person, this does not mean that what happened was “unjust” by all standards. The common feature in each of the episodes studied was that opponents held different standards, which was the starting point of my research. These diverging standards for justice are embedded in different worldviews. As a researcher 1 continuously switched between these worldviews in order to learn and describe their constitution, features and differences. These competing worldviews at times fit the cliché “One man’s terrorist is another man’s freedom fighter.” So I have spoken with people who consider ETA (Euskadi Ta Askatasuna) militants to be terrorists, and with people who consider them to be freedom fighters. But worldviews are more complex than that simple juxtaposition and to do them justice requires an in-depth understanding of a wide range of issues.

As Howard Becker pointed out in his essay “Whose side are we on?” (1967), by taking seriously the standards of justice as advocated by a group like ETA, for example, I run the risk of being suspected of taking their side. My interest in this project was not, however, in any of these conflicts or their actors in particular. I am an outsider to each of them, even though I feel more closely involved after having spent much time listening to the people who have a real stake in them. And, of course, I also developed my own opinions regarding the disputes at hand. Instead of supporting a particular position, though, the goal was to go beyond any of these episodes and to obtain a better understanding of the way in which criminal justice systems in liberal democracies work.

Criminal proceedings in each of the episodes studied became a major site of political mobilization and contention. In this project, I attempted to unearth what that means, both in terms of the overall dynamics of political contention and for the liberal promise of criminal justice through proceedings according to the rule of law. While this book may not necessarily offer new information to those familiar with a particular episode, my hope is that the comparative approach and novel analytical framework will enable readers to view the development and operation of prosecutorial narratives in those episodes in a new light. The analysis calls for a heightened awareness of the critical role played by narratives promoted by interest groups. As prosecutorial choices are based on such narratives, the choice of a prosecutorial narrative and contextualization of an alleged crime is far more political than the common proclamation of a simple application of the law would make it seem.

Acknowledgments

When Protest Becomes Crime is a book that has been many years in the making and Iam immensely grateful to the many people who have played a role in its development. I am indebted to all who have helped point me toward relevant information, enriched my understanding through interviews, and sharpened my analyses through discussion and feedback. Research involving fieldwork inevitably becomes deeply personal. In the months I spent in the countries where the analyzed criminal prosecutions took place, I spent many hours with people involved as defendants, victims, prosecutors, lawyers, or supporters for one of the parties. My deepest gratitude, therefore, goes to all of those who were willing to share their experiences with me. I also want to thank the friends who offered me a place to stay during my travels to prisons, trials and interviews, especially those who became sparring partners in thinking through my research. For the inspiring and rich discussions, 1 would particularly like to thank Pedro, Myka, Iñi, Eneko and Jaime.

The research for the book was conducted with the support of my doctoral dissertation committee at Columbia University: Jeffrey Fagan and Daniel Richman from the Law School and Elizabeth Povinelli from the Anthropology Department. Thank you all for opening up intellectual doors and the many engaging discussions. My writing further benefited from the Contentious Politics Workshop initially led by the late Charles Tilly from Columbia and then by Jim Jasper and John Krinsky from CUNY (City University New York), which fostered a unique vision of and dedication to collective scientific enterprise. I am also grateful for the grants that made my field research possible. A Columbia grant enabled my US travels, while a Marie Curie Fellowship permitted my stay at Deusto University in Bilbao and a fellowship from the International Institute for the Sociology of Law in Oñati allowed a return research visit to the Basque Country. Thanks also go to the Max Planck Institute for Comparative and International Criminal Law in Freiburg, Germany, where I received a scholarship to support my writing and joined the International Research School on

Retaliation, Mediation, and Punishment.

Acknowledgments xi

Finally, I thank Daniel Augenstein, Mark Barenberg, Gur Bligh, Hanspeter van den Broek, Ruben Cañadas, Christian Davenport, Jolle Demmers, Zoltán Fleck, Mario Fumerton, Laura Gasiorowski, Daniel Gregor, Csaba Györi, Wolfgang Kaleck, Sun Chul Kim, Javier Martin, Matthijs Nelemans, Suzanne Nievaart, Phil Parnell, Patricia Richards, Richard Rottenburg, Christian Schliemann, Claire Tixeire, Wouter Veraart, Matija Vlatkovic, Vera Wriedt as well as the anonymous reviewers for commenting on my research design, fieldwork results and draft chapters. Indispensable for the process of turning the dissertation into a book has been my work with Allison West, who provided valuable substantive suggestions and thorough editing of the entire book. Her encouragement and insightful proposals made everything better.

Carolijn Terwindt Berlin, May 2019

AEPA AETA ALF AVT BVE CAM

CONADI CORMA ELF EPPK ETA FARC FBI

GAL HLS IACHR MLNV PETA PNV SHAC SOFO

Abbreviations

Animal Enterprise Protection Act

Animal Enterprise Terrorism Act

Animal Liberation Front

Asociación Víctimas del Terrorismo

Batallón Vasco Español

La Coordinadora de Comunidades en Conflicto Arauco-Malleco

Corporación Nacional de Desarrollo Indígena Corporación de Madera

Earth Liberation Front

Euskadi Ta Askatasuna

Fuerzas Armadas Revolucionarias de Colombia Federal Bureau of Investigation

Grupos Antiterroristas de Liberación Huntingdon Life Sciences

Inter-American Commission for Human Rights Movimiento de Liberación Nacional Vasco People for the Ethical Treatment of Animals Partido Nacional Vasco

Stop Huntingdon Animal Cruelty

Sociedad de Fomento Agrícola

Mapuzugun (Mapuche language)

Lonko

Winka/ huinca

Community chief Pejorative word for “Chilean” — literally: thief