Manufacturing dissent

Nine years ago this month, a SWAT team arrested Eric McDavid and two of his buddies in a Kmart parking lot in Auburn. The trio were nabbed with shopping bags containing cleaning supplies and a Pyrex bowl—all bomb-making supplies according to the FBI. McDavid, 28, and his friends Lauren Weiner and Zachary Jenson, both 20, were accused by the government of planning a bombing spree through Northern California, targeting power stations, a forest genetics lab in Placerville, and even the Nimbus Dam—all in the name of the Earth Liberation Front.

The arrest happened January 13, 2006. Jenson and Weiner pleaded to lesser charges and avoided further jail time. In 2008, McDavid was convicted of conspiracy and sentenced to 20 years in prison.

But it’s hard to imagine that there would have been any conspiracy without the care and feeding provided by the FBI’s paid confidential informant in the case, a woman identified in court records only as “Anna.”

Anna was trawling for radicals at an anarchist convention in Iowa in 2004 when she first met McDavid and Jenson. There was some romantic tension there, or at least McDavid thought there was. The boys met Anna again in Philadelphia, joined this time by Lauren Weiner, and the group started to talk about the possibility of some “direct action.” It might have remained talk, if not for Anna’s coordination, cajoling and checkbook.

According to court documents, it was Anna who bought the plane ticket for Weiner to travel to California. It was Anna who came up with the recipe for a homemade incendiary bomb. It was Anna who rented the cabin near Auburn where the group made their plans, or failed to.

Transcripts of the conversations Anna secretly recorded show that the anarchists were, well, unorganized and indecisive. “You guys seem like you don’t want to do it at all,” Anna sulked. “I wish one day we could keep the damned plan. I wish one day you guys could stick to a list.”

McDavid’s defense lawyer, Mark Reichel, argued entrapment. But often when Reichel requested documents, he was told by the government that no such records existed. “We knew then it was bullshit,” says McDavid’s partner and advocate, Jenny Esquivel.

McDavid was sentenced in 2008, his appeal in 2010 failed. But Esquivel and other friends kept filing Freedom of Information Act requests, trying to track down the missing evidence.

And ultimately, the government did admit it had the records, thousands of pages in fact. There are documents showing emails and love notes between McDavid and Anna, and evidence that Anna’s FBI handlers wanted to give their informant a polygraph, then changed their minds.

“The correspondence tells us further that Anna created the conspiracy. She used a variety of emotionally manipulative tactics,” says Esquivel.

Federal prosecutors say the missing evidence was “not exculpatory,” and the withholding of the documents was inadvertent.

Whether it was a mistake or deliberate, it was a very big deal. Last week federal prosecutors and the judge in McDavid’s case, Morrison England, agreed that McDavid’s sentence should be vacated because of the government’s failure to turn over evidence. McDavid went home to Auburn on January 8.

He did have to make a deal and plead to a lesser conspiracy charge in order to get out. He also had to agree to give up his right to sue the government.

So, here you’ve got to ask: Who did the government just release? Was he a terrorist, who’s now gone free because of a government mistake? Or was McDavid a guy whose radical politics and big talk—and maybe his desire to impress a girl—made him an easy target? A sucker that the government could trot out to show it was winning the war on terror.

Which one did Judge England think that McDavid was, when he signed the release order last week?

McDavid’s release is remarkable. But the way he ended up in prison is more common than you might think. There are stories all around the country of the government going to extraordinary lengths to initiate and help along “terrorist” conspiracies that would otherwise never materialize. (See “Conspiracy of Dunces” by Cosmo Garvin; SN&R Feature Story; July 27, 2006, for the anatomy of the McDavid sting.)

If you don’t find McDavid’s story troubling, go find the mind-boggling This American Life episode “Arms Trader.” Or Trevor Aaronson’s story “The Informants” in Mother Jones, a close-up look at how the FBI blurs the line between pre-empting terrorist plots and manufacturing them. There are, of course, actual terrorists out there, plotting murders like in Boston or Paris. But these informant-driven cases seem focused on talkers, not killers.

“There are a lot of people in prison who are not guilty, who were targeted for their religion or their politics,” says Esquivel. “Unfortunately, it’s pretty normal for this to happen. We just got lucky.”