Federal prosecutors rested their weapons and conspiracy case Wednesday against three members of a Fairbanks militia after defense attorneys sought to raise doubts that the men planned to harm anyone.
In their lengthy cross examinations of the lead investigator in the case, FBI Agent Richard Sutherland, the defense attorneys portrayed militia leader Schaeffer Cox and his followers as radical theorists who should be protected by the Bill of Rights, not prosecuted for crimes.
The cross-examinations are likely to be previews for what is still to come as the trial enters its 15th day Thursday.
With the defense preparing to open, U.S. District Judge Robert Bryan said Wednesday he planned to query each of the defendants to ensure they understood their right to testify on their own behalfs or to remain silent, as they choose. Bryan said he wouldn't pressure them to make or announce a decision yet but wanted them to make an informed choice.
The jury has already heard plenty from them, in particular Cox, whose speeches are all over YouTube. Several YouTube excerpts were played in court over the last two days by federal prosecutors as they sought to show Cox as more than just radical, but also a threat to the lives of law enforcement officers, judges and child welfare workers.
"There are 3,500 armed, well-trained men under my command in Fairbanks right now, and they are rip-roaring ready to go," Cox told a cheering crowd in Hamilton, Mont., in January 2010.
Four months later, in Missoula, Mont., he said, "We are right on the edge of having blood in our streets in Fairbanks. Revolutions are not instigated, they are provoked -- and they are provoked by government. They push and they push and they push and they push."
Both YouTube clips were played to the jury Wednesday by Assistant U.S. Attorney Yvonne Lamoureux, in part to counter cross-examination by Cox's attorney, Nelson Traverso, that nothing Cox said posed an "imminent" threat of violence.
An "imminent" threat is one way that someone's freedom of speech can become secondary to the government's lawful duty to maintain security.
Without directly referencing the FBI's checkered history with citizen rights, Agent Sutherland, based in Fairbanks, said the agency takes extra precautions when the first or second amendments get tied up with a criminal investigation, as they have in the Cox case. The FBI classifies such an investigation as a "SIM" -- a sensitive investigative matter, he said.
To pursue a SIM, Sutherland said, the FBI must determine that a subject is "not just exercising those rights but going beyond those rights and participating in criminal activity."
In this case, it was threatening the lives of judges, law enforcement officials and an investigator with the state's Office of Children's Services, and possessing the weaponry to carry out an attack, according to the government's case.
The defense attorneys sharply questioned Sutherland about his confidential informant, Gerald "J.R." Olson, who at one point appeared to agitate for a more extreme attack on officials than Cox himself was suggesting. That occurred in a meeting of the high command of the Alaska Peacemaker Militia, when Cox suggested the now infamous "241" plan -- two officials would be killed for every militia victim.
Wearing a hidden recorder, Olson, so successful at disguising his undercover role that Cox promoted him to sergeant in the militia, suggested upping the stakes to "541."
Sutherland testified he understood why Olson said that -- he needed to blend in with the rest of the militia members -- but doing so was a mistake.
"He needed to be reminded he couldn't be caught up in situations -- he needed to be careful that he wasn't the one who was pushing it," Sutherland said.
At the same, he and Olson had a dual role. Not only were they investigating, and then building, a criminal case, they were also gathering intelligence about possible threats so they could prevent an attack. In that role, Sutherland said, he kept pushing Olson to find out more about "241," including what would trigger the militia to invoke the plan. He also pushed Olson to find the names of the officials targeted by the militia, Sutherland said.
That's why Olson was often heard on recordings talking about "241" and about lists, Sutherland said. It wasn't that Olson was pushing the militia to act -- it was that he was trying to determine the nature of the threats, Sutherland said.
"There are certainly numerous times he brings it up at my direction," Sutherland said.
Reach Richard Mauer at firstname.lastname@example.org or 257-4345.