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Preface to web version: This document, informally called the "Motion For Justice," is formally titled "Plaintiffs Status Report and Motion for Revision of Orders," filed July 2, 2001. This web version does not maintain the line numbering, pagination, or footnote style of the original document. It also does not include small last minute changes made in the document as filed. Footnotes in the original appear here as endnotes that are hyperlinked in both directions to the point where they are invoked. 

Links to Main Sections
I.  Dismissal of the Supervisors
II. Secrecy of the "Heavy Hitters" Informant
III. Complete Disclosure of the Evidence
Appendix A: Statement of Howard Zinn re the history of FBI political repression
Appendix C: Statement of former FBI Special Agent John Ryan re informant fraud

Dennis Cunningham   #112910

3163 Mission Street

San Francisco, CA 94110

415-285-8091 / FAX 285-8092


J. Tony Serra, #32639

Pier 5 North, The Embarcadero

San Francisco, CA 94111

415-986-5591; Fax: 415-421-1331


William H. Goodman, Legal Director

Michael E. Deutsch

Center for Constitutional Rights

666 Broadway

New York, NY 10012

212-614-6464; Fax: 614-6499


Attorneys for Plaintiffs

                                                UNITED STATES DISTRICT COURT

                                           NORTHERN DISTRICT OF CALIFORNIA

Estate of JUDI BARI and                                                                    No. C-91-1057-CW (JL)






F.B.I. Special Agent FRANK DOYLE, etal.,   )

And the UNITED STATES,                             )

)                                   Date: July 27, 2001

Defendants.      )                                   Time: 10:00 a.m.

____________________________________)                                     Judge WILKEN


Plaintiffs report the status of the case as not really ready for trial, unless the Court will take extraordinary measures to rectify its posture and content beforehand, according to the extraordinary motions submitted herewith, and the truth which lies behind them.  Plaintiffs regret any consternation which may arise from the form or timing of this challenge to the Court’s disposition of matters previously before it, but for plaintiffs those rulings have left matters so out of kilter that the trial threatens to become a real miscarriage of justice.  If that is a strong characterization, the feelings behind it, like the facts, are also very strong; I only hope that both will also be clear. 

The undersigned does represent and declare that, with respect to the numerous factual averments within for which documentary support is not included, everything so asserted has been previously shown in the record, to my knowledge, and can and will be verified on request.

There are other matters of status which need attention, without doubt, notably including the shared desire of counsel to have a number of in limine matters settled by the Court well in advance of the pre-trial conference; these will be articulated at a later time.  This pleading has been rushed in to meet the schedule set for ‘dispositive’ motions, so it can be included in those penultimate proceedings.

It is not plaintiffs’ impression that granting the relief they seek would necessitate postponement of the trial, except, of course, if the Court were to restore the absent defendants to the case, they would undoubtedly appeal.  Regrettable as that would be, better now than after a grueling trial, or half-trial, which fails to resolve the main issue.  


This action derives from the triple trauma the plaintiffs experienced at the hands of Law Enforcement, on top of being bombed by unknown murderous adversaries:  They were denied any normal and proper police effort to catch those who set the bomb, and put them behind bars; instead they were themselves preposterously but sensationally arrested by defendants, without grounds and on fabricated evidence; and finally, in fomenting their false arrest and the wash of headlines around it, and basically maintaining the unfounded charges ever since, the FBI has made plaintiffs the targets of a frightening smear campaign, and the symbols of its larger defamation of the Earth First! movement, by branding them as bombers.[1]

The gravamen of the case at bar is that this was done knowingly and deliberately, as matter of regular FBI policy, after the model — and with the same illegal means and purposes — of FBI “counterintelligence” programs, and particularly the infamous COINTELPRO of the 50s and 60s, exposed by the Church Committee of the U.S. Senate in 1975.

The historical context is crucial.  The proven existence of the illegal, secret, political policy and historically consistent practice — elaborately articulated in the COINTELPRO days, but constant throughout the history of the Bureau, according to plaintiffs’ expert, Professor Howard Zinn — is indispensable proof of the motivating force behind the concerted dishonesty, fabrication of evidence, deception of magistrates and like actions which took place in this case, and which are hard to believe.  Americans on a jury — even in these days of the FBI’s disgrace — can be expected to resist the idea that it was deliberately subverting the Constitution, trampling on basic rights in a sinister, organized way, through channels, with an entire squad of special agents assigned to pursue a conspiracy as part of their regular work in the field, etc. 

One doesn’t want to believe it, and is skeptical; if it was an isolated incident, that might be a reasonable response.  If it was said to be a ‘rogue’ operation, carried on by some weird secret cell of fanatical vigilante agents, secretly engaged in ‘a frolic of their own’, one would be right to be dubious.  But where in fact it’s ‘business as usual’ for the FBI, and an example of something they have always done, the plausibility factor is changed utterly.  No matter how shocking the conduct, history shows it is likely to have occurred, because it is their policy to do such things.[2]  Thus, the structural aspect, the way the policy gets implemented along the chain of command in regular work, through orders, suggestions, tacit understandings, ‘meetings of the minds’, etc., is also crucial to the plausibility of plaintiffs’ case.  The unpalatable, unlikely ‘rogue’ interpretation is debunked, and the traditional FBI mission: to “expose, disrupt, mis-direct, discredit or otherwise neutralize” the political target, by whatever underhanded, vicious, illegal means can be found, is revealed as the driving force.  As J. Edgar Hoover himself so plainly put the matter, in 1964,

Over the years our approach to investigative problems in the intelligence field has given rise to a number of new programs, some of which have been most revolutionary, and it can be presumed that with a continued aggressive approach to these problems, new and productive ideas will be forthcoming.  These ideas will not be increased in number or improved upon from the standpoint of accomplishments merely through the institution of a program such as COINTELPRO which is given another name, and which, in fact, only encompasses everything that has been done in the past or will be done in the future.[3]

                                         **                   **                    **                    ** 

But, how can this be called an exercise in regular FBI policy and practice, carried out through channels, if the division commanders and their headquarters liaison man have been dismissed from the case?  The Court said plaintiffs had “not made any showing that SAs Webb, Held (and) Appel... participated in the investigation of Plaintiffs or harbored any animus towards them”; (Order of 10/15/97, p.64), but these defendants’ participation was shown, with each playing his specific part at his specific position -- and the animus is reflected in what they did to plaintiffs by way of the conspiracy.  This includes Horace Mewborn, whose body may have been far away at Washington, D.C., but whose will and ideas, oversight and permission-giving, etc., as liaison with the high command for implementation of the policy, obviously operated here in California.  The long-arm dismissal reflects an aversion of the Court’s eyes from this most unsettling reality, and the larger, still more frightening truth of headquarters-level sanction for and complicity in this wretched, vicious, anti-Constitutional activity.  Plaintiffs’ brought this case precisely to raise the cry against this policy of repression by the national police, and the impunity with which they carry it on.

Likewise, the SAC, Richard Held, played his part also, as local commander,  and there was ample evidence of this, including his own bravura discussion of approving the purported “predication” for the bombing investigation — which was in reality this illicit CoIntel caper against plaintiffs and Earth First!, pursuant to policy, as shown by the evidence in plaintiffs’ Best Light — and Appel’s and especially Reikes’ accounts of talking to Held about it.  There is, factually, no question that, as SAC, Mr. Held knew what was going on, from the beginning.  And if the conspiracy existed as plaintiffs have shown it in Best Light, as CoIntel, pursuant to policy, he obviously had to be in charge of it.  If this was a ‘rogue’ operation, it would have to be secret from the supervisors.  But the activities of the terrorist squad agents and their OPD cutouts in this case were anything but secret; quite the opposite: big publicity was the whole point.[4]                

A supervisor is liable for “his own culpable action or inaction in the... supervision or control of his subordinates; for his acquiescence in the constitutional deprivation...; for conduct that showed a reckless or callous indifference to the rights of others,’ ”  Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1997); or if “he set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known would cause others to inflict the constitutional injury.”  Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).  If what was going on was in fact illegal CoIntel disruption of protected political activities, through a monstrous frame-up, where the FBI controlled the evidence — which sat on “the boss’s table” for a week, while headlines raged -- Held’s involvement easily meets this standard.

How can the body of the agency be working if the head is not involved?  The dismissal of the supervisory defendants has made a conundrum of the case as a whole, which is about to come into play again by way of the Government’s in limine challenge to testimony by Prof. Zinn, and other plaintiffs’ evidence, showing the long history of FBI activities designed to “neutralize”  protest groups by all means, including illegal means, as they attempted to do here.  They will argue that none of that bad history can be shown to have involved any of the individual defendants still before the Court, and therefore it is irrelevant, and prejudicial.  There are strong grounds for its admission, in any case, but it is certainly true that Richard Held’s exit from the case robbed plaintiffs of their best solid, personal link of defendants to the policy and practice of FBI ‘counterintelligence’ — and specifically the fine art of political frame-up by fabrication of false evidence, as in the Geronimo Pratt case, which Held worked on. 

But the main reason Held, et al. belong in the case for trial, if it is to be a fair and rational test of these most serious claims, and the serious evidence plaintiffs have marshaled in support, is that he, and they (Mewborn, Appel, as alter ego, and Webb, at the bomb scene and the briefing, and as terrorist squad chief after Reikes left), were in charge of what was done.  With Reikes, they were in command of the actions and concerted conduct the plaintiffs complain of, and have made out in the summary judgment evidence; each of them is directly implicated, by fact and law.  To exonerate them in advance is to reject the central meaning of the case, and the evidence, in advance.  What remains is thereby stunted, distorted, stultified, and no outcome of the trial will lay it to rest.  To force plaintiffs to proceed with such a vexed, empty space at the heart of their proof is not right.  The Court should put the commander and other conspiring supervisors back in the case.  


A different but similarly disruptive anomaly which plagues the plaintiffs’ efforts to prepare for trial arises from the Court’s pro tanto disposition of the contest over their attempts to develop the crucial evidence relating to the so-called “heavy hitters” purported informant’s tip.  After 18 months of litigation in 1995 and ‘96, the Court denied plaintiffs’ various motions for disclosure, forbade them to take the deposition of the apparent ‘source’, Linda Hall, or seek other discovery on the subject.  It did first order that the federal defendants would not be permitted to assert the existence of the tip at trial -- if its existence was not supported in their file records -- unless the tipster were offered for cross-examination.  Tentative Ruling, 7/7/96 (Dkt.#225).  Thereafter, this Order was set aside, but the prohibition on plaintiffs’ discovery was left in force — and this burning question thus left hanging fire, where it is today.  Order of 8/13/96 (Dkt.#235).

The Court will recall, plaintiffs originally asserted that the federal defendants Reikes, Sena and others (including Richard Held) knowingly manipulated, misrepresented and distorted information in order to concoct this purported tip, that “heavy hitters” from Earth First! would be carrying a bomb to Santa Cruz; and they pretended this referred to the bomb in Judi Bari’s car.  The FBI’s supposed receipt of the supposed tip -- paired with their equally false representation that the plaintiffs were known terrorist suspects (and Earth First! itself a nest of terrorists) -- was revealed to the Oakland defendants by Reikes and Sena, evidently to reassure the detectives that the sensational arrest, which the co-conspirators were busy together fabricating the false grounds for, would hold up.  Sgt. Chenault testified he omitted any reference to the tip or the informant in his warrant affidavit at the agents’ request, so the informant — who they said was “close to the leadership” of Earth First! — would not be compromised. 

A striking contradiction arose, however, when Chenault and his boss and co-defendant, Lieut. Mike Sims, both insisted that the tip information given them by Reikes and Sena contained no reference to a bomb; rather, they said, the “action” referred to in the tip was unspecified.  Sims testified that, as it was described to him, the tip did not even confirm that the “action” would be illegal.  “They had no information,” he said, about what was supposed to happen.  Yet the two agents, for their part, insisted that the tip was about a bomb, and that their disclosure of it to the Oakland officers had included that fact; and several uncharged, co-conspiring other agents -- and, strikingly, the then-OPD “intelligence” officer, Kevin Griswold -- have subsequently affirmed that they too had some prior knowledge of a supposed informant’s tip to the terrorist squad about a forthcoming ‘action involving a bomb’.[5]

The one relevant document the FBI defendants could point to as a supposed record of this, however -- after the Court required them to disclose the previously ‘redacted’ pertinent paragraph in it -- had in it a passage possibly providing the substance of the supposed tip, reported at a time before the bombing of plaintiffs, but it contained no mention of a bomb, or of Earth First!, and no hint that the “action” would be illegal.  See Appendix B.[6]   Needless to say, there was no sign of any of the normally required documentation reflecting the existence of and contact with an action informant, as set out in the FBI Manual, and the agent’s prose made his own agenda of political set-up crystal clear. 

The Court made its orders after accepting a quantity of ex parte, in camera information from the FBI defendants, about the informant and/or the tip, in support of their defense against disclosure (i.e., confirmation) of the informant’s identity, and production of the deleted contents of file documents supposedly relating to it; but it denied, without prejudice, their request for a secret hearing to determine factually for purposes of the case whether the tip was genuine.  Order of 8/13/96.  Plaintiffs were ordered not to proceed further until further notice from the Court.  There matters have rested since.

**                     **                    **                    **

The fabrication of this purported tip by defendants, both as part of their assurance to the Oakland defendants that plaintiffs were “the type of people who would be carrying a bomb”, and should be arrested, and as part of their present defense of the supposed reasonableness of their actions in the conspiracy charged by plaintiffs, is a key part of plaintiffs’ proof of the conspiracy in this case, and of the animus of defendants towards plaintiffs and Earth First! which is an essential element of their First Amendment claim.  The Court’s apparent inclination to extrude the matter from the case entirely, reflected in the now-vacated ‘sword and shield’ order, would not have solved the problem in any event.  Plaintiffs, in the first place, are obviously unwilling to forswear such important evidence of defendants’ illegal operations against them, and conspiracy, even if they have to fly blind to some extent to put it forward. 

More to the point, it is apparent that the tip information will be raised by the Oakland defendants, as part of their defense that their actions were reasonable, in light of what they were told by the FBI.  Either way, it appears beyond doubt that the tip, in its conflicting versions, the informant herself in all her flakiness — where it may be recalled that she denied to the undersigned and an investigator (in 1996?) that she had talked to the FBI at all — and the document showing the apparent germination of the tip in Ms. Hall’s bloviations to SA Sena after the toppling of the Santa Cruz power lines — along with the other tendentious political “intelligence” he ascribes to her (Appendix B) — will come before the Court in the trial.[7]

Moreover, the known facts clearly encompass the possibility that terrorist squad members did, truly, receive a tip about a bomb, but that it came in a form, and/or by a means, and/or from a source, which gave them reason to know it would be used against the plaintiffs, or Judi Bari, or possibly other Earth First!ers — and that this information was later blended with the Linda Hall ruminations to comprise the purported tip that was revealed to Oakland.[8]   One shudders at the implications of this point, of course, but we must not ignore the strong congruence of the FBI’s elaborate, sustained effort to support the sensational arrest of plaintiffs, as terrorists, with the evident purposes of the bombers themselves — who obviously would not have been satisfied, and from the evidence did not intend, to make Judi Bari into an inspiring martyr for the environmental cause...

This circumstance only underscores the critical importance of getting to the bottom of — rather than succumbing to the impulse to paper over — the web of contradiction and mystery which has grown up around the allegations and representations about the “heavy hitters” tip.[9]   At this point, however, the Court has left the matter up in the air, but the trial must be down to earth.  In addition, the record shows the Court has yet to fairly considered the actual balance of the plaintiffs’ interest in disclosure, or confirmation, as to Ms. Hall, and de-redaction of the many deletions said to be needed to protect her identity (even though it is known),[10] against the alleged need of the Government — separate from the uses of cover-up — to be afforded the privilege of non-disclosure in these circumstances, at this late date. 

The rule is that the privilege abates where disclosure is essential to fair resolution of the plaintiffs’ claims — regardless of any resultant embarrassment to the source or weakening of the Government’s position.  See, Roviaro v. U.S., 353 U.S. 53 (1957); Hampton v. Hanrahan, 600 F.2d 600, 620-624 (7th Cir. 1979); etc.  Notwithstanding any horrific predictions which may have been essayed in the materials the Court received in camera, plaintiffs aver that the information is crucial, because it will help bear out the fact that the tip was fabricated, as described above; and there is no imaginable reason, besides the most abstract, absolutist version of the confidentiality principle — and the need for cover-up, of course — why the Government still should be permitted to withhold these materials.  At all events, another five years having passed in the meantime, the Court must make clear its rule as to how the parties may and may not handle this evidence.



This last point is an extension of the one before, protesting the Court’s permission for the Government to hold back important evidence in aid of its cover-up of what the FBI defendants did to the plaintiffs, and the evil motives behind it, by the elusive process of “redaction”.  There is much more that has been held back, when all of it should be revealed — or at least independently audited for additional evidence supporting plaintiffs’ allegations of CoIntel repression, and cover-up.

The investigation files disclosed to plaintiffs by the FBI contain myriad “redactions”, which are deletions of germane portions of the materials disclosed, on various grounds involving purported privilege, asserted by the Government in circumstances where the privileges have no reasonable subsisting basis — and where there is every reason to believe the true basis for the ‘redactions’ is, precisely, cover-up.  Specifically, in addition to informant or “confidential source” matters, plaintiffs are still being denied access to significant amounts of material in the files on the basis of Grand Jury secrecy (“D” deletions), where there was never any case before any Grand Jury; possible “jeopardy” to alleged ongoing investigations (“G” deletions), where those investigations are long since discontinued if not closed (if they ever existed); possible “compromise to the effectiveness of an investigative method or technique” (“H”), hardly a fair basis for withholding matters of substance; and, in a highly selective and prejudiced way, privacy (“P”), where much more privacy is violated than is preserved.  In addition, numerous discovery requests have been stonewalled and fudged, and a large number of legitimate questions were blocked by counsel in defendants’ depositions. 

Some of the withholding was misguidedly sustained by Judge Hamilton in 1996, and more particular items are at issue in plaintiffs’ motion to compel, set to be heard by Judge Larson on August 15 if not resolved before then.  But there is a larger question of the proper balance of disclosure and secrecy across the board — with larger implications for the quality of justice to be done or expected in the case as a whole — which the Court should meet before the trial.

**                     **                    **                    **  

The great bulk of the materials being withheld are said to contain information, “the disclosure of which would tend to reveal the identity of an informant” (“B” deletions), or of “a source of information where confidentiality is expressed or implied” (“E” deletions).  Literally dozens of pages and parts of pages of various documents have been omitted or blacked out pursuant to this alleged need for secrecy.   Plaintiffs believe the purported need is purely self-serving; there is no cover-up privilege. 

The contradictions surrounding the legitimacy of defendants’ deletions from pages and documents relating to Linda Hall have been analyzed.  There is a equally pressing question reflected in “B” deletions from two memos by defendant Sena in the San Francisco THERMCON file.  The Court may recall that the last part of that file covers activity occurring long after the arrests in Arizona, and many months after completion of the tasks assigned to the defendant agents in that case, but before the Oakland bombing; yet the memos show SA Sena pursuing active contact with an informant in the San Francisco division during that time.  Strangely, both memos bear the same serial number; even more strikingly, a page between them contains an anonymous, undated notice that sixteen documents from that exact time period were missing when the file was reviewed.  See Appendix D.

This matter is also in the pending Motion to Compel, but needs to be known as part of this context also, because it also indicates chicanery and cover-up.  What informant “coverage” of Earth First! did defendants need, or could they have been maintaining, legitimately, in March 1990, when the second of these memos was block-stamped?  What could be in the 16 missing documents if not reports of illicit spying and skullduggery against the righteously non-violent, legitimate mass movement Earth First! was trying to build, in that exact period leading up to the ghastly bombing of Judi Bari, the prime organizer and maximum leader of Earth First!, and plaintiffs’ ghastly arrest?  Clearly, the plaintiffs are entitled to know the full contents of these memos, and the identity of those they were reporting about.

There is more, which can be detailed if the Court is willing; a final example — so aggravated the FBI (and their counsel) had to rectify it themselves, rather than let the Court learn of it — perhaps best reflects the untrustworthiness of the “redaction” process defendants have followed.  There were four tantalizing deletions in three of the earliest reports and memos found in the bombing investigation file, all justified under Code “G”, where disclosure supposedly would “tend to jeopardize an ongoing investigation.”   Since the context for each document was to announce the onset and the nature of the bombing case — and since defendants Reikes and Sena had insisted under oath they had no knowledge of plaintiffs and no interest in Earth First! prior to the bombing, particularly in connection with the Santa Cruz power lines case — the nature of the “ongoing investigation” to be jeopardized by disclosure of these passages was a matter of some curiosity, to say the least.

When the un-deletions came, just before the hearing on the motion to compel, the origin of the frame-up was plain to see: “JUDI BARI and DARRYL CHERNEY are the subjects of an FBI investigation in the terrorist field; and, “[Members of Earth First are suspected as being responsible for the sabotage of power lines in Northern California”; and, “San Francisco notes Bari and Cherney were already considered potential suspects” in the Santa  Cruz power lines case; and, “San Francisco is coordinating with ATF regarding ATF investigations of criminal acts possibly committed by members of Earth First in Wyoming, Montana and Washington State.”  So the fact was, they had a big interest in the plaintiffs and Earth First! before the bombing, on zero legitimate grounds, and they knew it was illegal, so they made bogus deletions, and coolly lied about it in the depositions.

In the end, however, exposing such fairly serious lying under oath by Reikes and Sena was evidently seen as preferable to taking the blow to their credibility with the discovery judge which would have come from an attempt to defend those deletions.  One wonders if this Court did not have a little of the same feeling about their removal of the paragraph about “:heavy hitters” from the Linda Hall document...  In any case, here, the depositions were past, the trial off in the future, and they could expect to stonewall the re-opening of the two defendants’ depos, for plaintiffs to get the two defendants’ explanations, as they are now doing.  What is exposed is a new set of illicit maneuvers, cooked up to cover up the old...

The Court should impound the entirety of the original files in this case, or these cases, set comprehensive, appropriately remedial and cover-up-defeating criteria for disclosure, and have the corpus and the deletions audited by the magistrate or a special master, tout d’suite, so that plaintiffs may have fair access to all the evidence showing defendants’ violation of their rights, to present at the forthcoming trial.



The repressive attentions of the FBI embodied in CoIntel operations like this one were first turned to the environment protection movement almost as soon as it arose.  Their malign surveillance of Earth Day, 1970, was identified by no less an Establishment personage than U.S. Senator Edmund Muskie, then a prominent presidential hopeful, as “a dangerous threat to fundamental constitutional rights.” 

Their political “neutralization” purposes were then evident, in much more developed form,  in the manipulations and entrapment they practiced in THERMCON, and they are manifest in the machinations of the conspiracy here, ten years ago, as the evidence shows; and they continue, in ongoing FBI public smears of Earth First!, and the defense of this case.

  Now the case is finally at the point of trial, just about seven years past the time where, if full disclosure had been required from the outset, true justice might have been done; still today it is set against a backdrop of further, ever-more-shocking episodes of brutal institutional dishonesty and crookedness of the type that has been shown — or tried to be shown — in this case.  Thus it is admitted that Bureau agents all over the country withheld documents from McVeigh, and Nichols, apparently showing information inconsistent with what the Government wanted the public to believe about the Oklahoma City bombing.  Bureau agents in Boston were shown to have left a man, Joseph Salvi, in prison for murder for 30 years when they knew he wasn’t the killer, to protect one of their ‘informants’, and when one of the agents was asked about it, he said, “What do you want, tears?”  The frame-up of Geronimo ji jaga (Pratt) — deliberately engineered by our own defendant, Richard Held, and other Los Angeles FBI “Racial Matters” squad members as part of COINTELPRO — has also been confirmed, not least by a multi-million dollar payment to settle his civil claim after 27 years of wrongful imprisonment.  Perhaps most shocking, agents in Alabama were just recently shown to have kept hidden, for decades, the evidence which put the bombers of the Birmingham church, murderers of four young girls at Sunday School, behind bars.  Think of the crime lab scandal, Wen Ho Lee, Richard Jewell, Randy Weaver’s dead wife and son, 60 adults and 20 children immolated at Waco.  These are only the most recent episodes; where is an end to it?

Think, of these cases, how many involved deliberate withholding of documents and crucial information, and the manipulation of informants; think of the roles of the supervisors, working behind the scenes, in an institution where no one ever admits a mistake -- let alone crimes of perjury,  obstruction of justice, and worse.  Where is an end to it?

Plaintiffs are not so naive as to think they can reverse the course of this bitter history by proving their own case, but they are entitled to have their own case taken for what it is, and to have the historical and institutional context of repression it arose in — shown by the surrounding history, as in these cases, and the background exposed by plaintiffs’ experts — taken into account by the Court in deciding the terms on which their claims are to be recognized, and put to trial.  That is not what has occurred so far in this case; instead, plaintiffs face trial with half a loaf, or half a baby...

We have said it before: there should have been a Special Prosecutor in this case, or a Congressional Investigation, disposing of legions of lawyers and helpers, and unlimited funds, with the Courts standing firm in the enforcement of the right to all the evidence, and no effort spared to bring it forth.  Then there would have been no question of allowing the culprits to hold back critical evidence, or letting the higher-ups off the hook.  There should be no such questions now.

WHEREFORE, THIS HONORABLE Court is respectfully asked to ignore any perceived unorthodoxy in the way the within matters are presented, and act forthrightly:

Respectfully submitted,

DATED: June 29,

       as of July 1, 2001.

Dennis Cunningham

Attorney for plaintiffs (once and again).



 I certify that I served the within Status Report and Motion for Revision, etc. on defendants by handing copies to their counsel in a deposition room on Monday, July 2, 2001, at 10:00 a.m. 


Dennis Cunningham


[1]    As recently as 1999, an FBI Special Agent DeLong, on a recruiting visit to the campus of Humboldt State University, in Arcata, CA, when asked a question about Earth First! by someone in a group of students she was talking to about joining up, stated positively that Earth First! was a proven terrorist group, and that Judi and Darryl were ‘definitely carrying the bomb’ that exploded in Oakland in 1990.  Agents of the Sacramento Division also went out of their way in public statements to suggest that the infamous so-called ‘Unabomber’ was part of Earth First!

[2]    The history of the policy in action is briefly and cogently traced by Prof. Zinn in his Expert Report for plaintiffs, at Appendix A.

[3]   Airtel of July 15, 1964, Director to SACs, New York, Chicago and the Washington Field Office, ccs to the high command including William Sullivan, the FBI CoIntel maven.  From “Counter-intelligence: A Documentary Look at America’s Secret Police,” Volume One;  National Lawyers Guild, Revised and expanded, 1980. 

[4]     Here again, this Court said “there is no evidence that SAIC (sic) Held had any duty to supervise the day-to-day activities in any given investigation.”  (Order, p.65) But where an “investigation” was secretly transformed into an illegal CoIntel enterprise, the supervision issue is quite different.  Clearly from the publicity it received — and Held’s extraordinary public responses to charges of FBI wrongdoing reported in the media — this was not just any given case, in any event. 

[5]      It will be recalled that both OPD Intelligence and the FBI involved themselves in the arrest of a band of Earth First!ers, including Darryl Cherney, who attempted to hang a banner on the Golden Gate Bridge in the wee hours of April 26, 1990, just a day or so after the power poles were cut in Santa Cruz County, triggering the FBI’s “Domestic Terrorism” investigation.  Griswold testified that OPD Intelligence kept files on some 300 groups, including Earth First! And other environmental groups — handy for the FBI in San Francisco, which is forbidden to keep such files — and that he had an ongoing relationship with agents from the Terrorist Squad.

[6]    A second document also designated by defendants as referring to the informant and her tip proved — again after a key ‘de-redaction’ was ordered by the Court — to refer to an alleged report of the tip to defendant Sena three weeks after the bombing.  This report also stated that the alleged source has supposedly been told about the bomb by someone named “RICO.”  There was a character in the story named Rico, Edward “Ted” Rico, a friend of Linda Hall.  He categorically denied ever having told Ms. Hall he knew anything about any bomb, or any “action” plans by Earth First! or the plaintiffs, and he was clearly not in a position to have known any such information if it had existed.  Rico also testified that Linda Hall was completely unreliable, and given to prevarication and flights of fancy, in addition to having no connection to the plaintiffs or Earth First! 

[7]    Playing fast and loose with informants and their information is another time-honored tradition in the FBI, as vividly shown in the testimony of another plaintiffs’ expert, former FBI special agent John C. Ryan, who was fired “for refusing a direct order to investigate “non-violent peace groups as saboteurs/terrorists.”  His report is at Appendix C.

[8]    It should also be recalled that the supposed connection to the defendants’ nascent “domestic terrorism” investigation of the power lines case in Santa Cruz, and particularly the purported existence of this purported informant, who emerged in that case, and her purported tip, which supposedly related to the Oakland matter, was said by Richard Held to have provided the necessary “predication” which allowed him to approve the terrorist squad’s participation in the investigation of the Oakland bombing.  CITATION

[9]    Of a piece is the strongly perplexing fact that, after counsel for the government first did so — and apparently also after the Court was given secret materials to inspect in camera — the Court in the 1996 Orders took to referring to the informant in question in the plural.  See, e.g., Order of 7/17/96, p.1:Ls.17, 25, 27, p.2:6-7; Order of 8/13/96, p.1:L.13.  Plaintiffs are aware of at least one other person, (name withheld *), also on the fringe of the circle of Santa Cruz activists supposedly under suspicion in the power lines case, whose name has come up as one who possibly talked to local police, FBI agents or OPD Intelligence about those people, and whose information may also have been manipulated as part of defendants’ actions, the cover-up, or both.  Plaintiffs naturally also seek any information from or about (name withheld *) which may have been ‘redacted’ from the various files...  

(* Webmaster's note: The person's name is included in the original document filed with the court. The name is deleted here to protect the innocent, because we have no reason at all to believe the person really is a police informant. Accordingly, we have modified the web document as of 1/7/03.)

[10]    As noted earlier, the two deletions which were disclosed pursuant to the Court’s original Order on this subject, on July 13, 1995 (Dkt.#169), from the report of Agent Sena’s pre-bombing interview with Ms. Hall, and the later report of the June 12 conversation that mentioned Mr. Rico, obviously had no bearing on the identity of this “informant” and were not properly subject to redaction in the first place.  Plaintiffs find that the context shown in the former document strongly suggests that several more of the deleted passages are similarly, obviously, unconnected to Ms. Hall’s identity, even if it were proper to keep it “secret”.  This provides an additional, separate basis to reject some if not all defendants’ claims of privilege.

Link to Appendix A: Letter from Prof. Howard Zinn on the FBI's history of political repression

Appendix B: (Redacted FBI informant-related files) not available online at this time

Link to Appendix C: Statement of former FBI Special Agent John C. Ryan on routine fraud by FBI agents in informant matters