Amanda E. Lee, Pro Hac Vice lee@sgb-law.com Jeffery P. Robinson, Pro Hac Vice robinson@sgb-law.com ScHROETER, GOLDMARK & BENDER 810 Third Avenue, Suite 500 Local Counsel: Kelly R. Beckley, OSB #74031 kbeckley@beckleyandlongtin.com P.O. Box 11098 Eugene, OR 97440 (S41) 683-0888 Seattle, WA 98104 (206) 622-8000 Fax: (206) 682-2305 Fax: (541) 683-0889 Attorneys for Defendant McGowan UNITED STATES DISTRICT COURT DISTRICT OF OREGON UNITED STATES OF AMERICA, Case No. CR 06-60124-AA Plaintiff, v. MEMORANDUM IN OPPOSITION TO APPLICATION OF THE. DANIEL GERARD MCGOWAN, TERRORISM ENHANCEMENT, USS.G. §3 Al4 Defendant 1. Introduetion In Terre Haute, Indiana, there is a federal prison unit just for inmates designated as terrorists. It is located in what used to be death row. The Bureau of Prisons began operating the unit late last year. A prisoner designated as a terrorist and incarcerated in the D-wing at Terre Haute is not allowed to interact with others in the institution. He is allowed only one hour of, phone time per month. Every call is subject to live-monitoring and is recorded. He is permitted just four hours of visiting time each month. None of those visits include physical contact of any MEMORANDUM OPPOSING SCHROETER, GOLDMARK & BENDER APPLICATION OF THE a ud nr Sen WA ON TERRORISM ENHANCEMENT - 1kind. All visiting is subject to live-monitoring and all visi gis recorded. All mail of the inmates in the terrorist wing is read by prison staff, and inmates report weeks of delay before their mail is sent or received. Terre Haute is not for the most dangerous of prisoners. Men who have committed mass murder ~ such as Ramzi Yousef, who participated in the bombing of the World Trade Center in 1993 and Terry Nichols, who conspired with Timothy MeVeigh to bomb the Murrah Federal Building in Oklahoma City — are incarcerated in the ADX or “supermax” facility in Florence, Colorado, Terre Haute is reserved for prisoners who are designated as terrorists, yet who are classified at a lower security risk. Among the prisoners housed there currently are several of the so-called Lackawanna Six, convicted of providing support to a designated terrorist organization, and Rhafil Dhafir, who was convicted of a variety of offenses related to a charity that operated in violation of sanctions against Iraq. Daniel McGowan and nine other defendants have entered pleas in these related cases to charges of conspiracy, arson, attempted arson, and other crimes. So far as we are aware, in every one of these cases, the government and the defendant have negotiated a resolution that incorporates an anticipated recommendation by the government as to the defendant's sentence. In Mr. MeGowan’s case, for example, we anticipate that the government will recommend a sentence of 96 months, regardless of whether the Court holds that the terrorism enhancement applies. ‘Thus, the issue of whether the Court imposes the terrorism enhancement will have no effect on the government's recommended s tence. It is possible that the enhancement will have no ultimate effect on the sentence the Court imposes, considering the advisory nature of the Guidelines. MEMORANDUM OPPOSING SCHROETER, GOLDMARK & BENDER APPLICATION OF THE 5 ane rg IO Tir rue» Sant, WA 98108 (arg er ‘TERRORISM ENHANCEMENT - 2Sentencing is about more than time in prison, however. The advisory guideline calculation, the presentence report, the Court’s statement of reasons in support of its judgment all ‘make up the set of documents that dictate an inmate’s life for the months and years he serves to pay the price of crime. The terrorist enhancement is not merely a useful statistic for the Department of Justice in its War on Terror, itis a label inscribed on the prisoner himself for the duration of his sentence, his supervised release, and potentially beyond. It is an inscription uniquely associated with evil intent, ‘The label alone may serve as justification within the BOP to severely limit contact with the outside world, in spite of the reality that such treatment would serve no useful purpose and would likely produce serious unwarranted consequences. ‘As both a matter of law and fact, the terrorism enhancement does not apply in Mr. McGowan’s case. As explained in this memorandum, neither the factual statement supporting Mr. McGowan’s plea nor the elements of the crimes of conviction support its application. Il. Factual Background In Jate 2008, Mr. McGowan was arrested and charged along with a number of other environmental and animal rights activists. A second superseding indictment issued in July of 2006 charged thirteen individuals in 65 counts, including conspiracy, destruction of a federal energy facility, and numerous counts of arson and attempted arson. In December of 2006, Mr. MeGowan entered guilty pleas for his role in the two specific arsons in which he participated. One was at the Superior Lumber Company on January 2, 2001, where Mr. McGowan was a lookout. The other was the arson at Jefferson Poplar Farm on May 21, 2001. In that incident, Mr, McGowan placed incendiary devices near the main office building and assisted in setting the fire at other parts of the facility. The devices he placed at the MEMORANDUM OPPOSING SCHROETER, GOLDMARK & BENDER APPLICATION OF THE ‘500 Contra Buti ug Tg ee See, Wk 95108 TERRORISM ENHANCEMENT - 3