REBUTTAL TO NPPA BY THE PELTIER LEGAL TEAM^*

April 22, 2005

The Select Committee to Study Governmental Operations with Respect to Intelligence Activities, also known as the Church Committee, investigated the counterintelligence activities of the Federal Bureau of Investigation (FBI) over a 25-year period, from 1956 to 1971. The fact is that, with regard to its COINTELPRO operations, the Church Committee found the Bureau responsible for violating and ignoring the law; exceeding its powers with regard to domestic intelligence activity; using excessively intrusive techniques against United States citizens; using covert action to disrupt and discredit domestic groups; abusing intelligence information for political purposes; and having inadequate controls, as well as no accountability.

The FBI conducted more than 2,000 COINTELPRO operations before the programs were officially discontinued in April of 1971, after public exposure, in order to "afford additional security to [its] sensitive techniques and operations."  While the programs themselves were discontinued, the practices that the Church Committee found so objectionable were not. The FBI's intent was/is to continue such practices as deemed necessary and completely at its own whim. That intent was clearly stated by the FBI in April 1971. It's a matter of public record.

The Church Committee had intended to investigate the American Indian Movement (AIM) as another dissident group targeted by the Bureau. Witnesses had been investigated by congressional staff and called to provide testimony. However, one day after the incident at Oglala, the Church Committee cancelled the hearings. That's why official misconduct against AIM and regarding Wounded Knee is not part of the Committee's findings and could not be highlighted in our essay.

That's also why we've repeatedly requested that Congress complete the work of the Church Committee. A thorough congressional investigation is long overdue, don't you think?  If you're truly interested in the truth, your organization might join with us in calling for congressional hearings into these matters. Together we might bring closure to what was perhaps the most turbulent era in U.S. history.

I have challenged numerous mainstream media and other purveyors of fiction to come to my office to review the facts of this case and examine primary documents. No one has ever taken up my offer. Why?  Are they afraid to find out the truth? 

Without getting into all of the instances of government misconduct, let's visit the undisputed facts in Leonard Peltier's case.

1. When Mr. Peltier was arrested in Canada, Frank Blackhorse was also arrested. Blackhorse was listed in FBI documents as a key suspect in the shoot-out. Yet, while Leonard Peltier was extradited and tried, Mr. Blackhorse was allowed to disappear never to be heard from again. A warrant had already been issued for Blackhorse's arrest in connection with Wounded Knee II. Despite this, Blackhorse disappeared into the sunset.

2. The U.S. government had informants in the Wounded Knee Legal Defense/Offense Committee (WKLDOC) during the mid-70s, we now know. Documents also reveal that the FBI had informants in the WKLDOC at or about the time of Leonard’s capture–a critical time, i.e., while a defense was being mounted. We suspect that if the government were required to produce the names of these informants and fully reveal the information they provided, that the evidence would show that Leonard Peltier’s defense team was infiltrated and the prosecution received first-hand information concerning the defense, a clear violation of Leonard's constitutional rights. (See the status of the Buffalo, NY, Freedom of Information Act (FOIA) lawsuit and the FBI's continued efforts to conceal such information.)

3. The U.S. government conspired with Canadian authorities to extradite Leonard Peltier to the United States. The extradition was based on fraudulent affidavits of Myrtle Poor Bear, an individual with a history of mental health issues. The U.S. attorneys, together with Paul William Halprin (the U.S. prosecutor in Canada) conspired with the FBI to coerce Myrtle Poor Bear to sign affidavits stating she was Leonard Peltier’s girlfriend and a witness to Leonard’s shooting of the agents. In fact, three affidavits were prepared. The U.S. attorneys and Halprin chose to submit only two of the three affidavits and deliberately chose not to submit an affidavit in which Myrtle Poor Bear indicated she was not present, but that Leonard had only told her he had shot the agents. The affidavits were coerced by Special Agents Gary Adams and David Price who held Myrtle Poor Bear in a hotel room for a lengthy period and threatened her by, among other things, showing her photos of the severed hands of Anna Mae Pictou Aquash. The government has since admitted that Poor Bear didn't even know Leonard Peltier.

4. Documents released through FOIA requests unequivocally establish that Hultman, together with Halprin, was involved in choosing two of the three affidavits to submit to the Canadian court. In denying he had involvement with the creation of the Poor Bear affidavits, U.S. Attorney Evan Hultman intentionally misled the U.S. Court of Appeals for the Eighth Circuit. Hultman’s behavior constitutes a fraud on the court and should be sanctioned. Instead, Hultman has suffered no repercussions whatsoever for his fraudulent conduct.

5. The FBI had analyzed the Robideau-Butler trial and determined what would be needed in Peltier’s trial so as to win a conviction. The FBI met secretly and exparte with Judge Benson prior to trial. There are no notes of these meetings but, not surprisingly, all the FBI could wish for came to fruition during the trial. Judge Benson's rulings were made almost always in favor of the prosecution. The FBI should never have been allowed to have exparte communications with the judge trying the case. This is outrageous conduct and not justified by the FBI's alleged security precautions in connection with the Peltier trial. Somehow the government permitted this to happen with impunity. We believe a full investigation of this occurrence should be conducted.

6. Three teenagers involved–Michael Anderson, Norman Brown and Wilford Draper–were indisputably intimidated by the FBI and consequently provided false testimony against Leonard Peltier that was key to the prosecution's theory of the case.

7. Contemporaneous FBI transmissions indicate that the FBI was following a red pickup on to the Jumping Bull Compound. Agent Gary Adams’ testimony in the very beginning of Peltier’s trial revealed that Coler and Williams were following a red pickup onto the Jumping Bull Compound because Jimmy Eagle was supposedly in a red pickup. Somehow the government turned that red pickup into a "red and white van" and claimed that it was Leonard Peltier’s van. Comparison of FBI 302 reports that were accepted into evidence at the Robideau-Butler trial (but not permitted in the subsequent trial except in a very few instances) to FBI agents' testimony given at the Peltier trial shows that these agents committed perjury at trial.

8. One of the falsehoods introduced at the trial of Leonard Peltier was Fred Coward’s testimony that he was able to see Peltier at the site of the shoot-out, some 700 feet away, using the telescopic lens on his rifle. Judge Benson would not allow for any actual test of that claim. Any gun expert would have been able to testify, however, that Coward could not have identified any person from a distance of 700 feet. Yet, Coward's testimony was allowed into evidence and was used as a basis to support Peltier’s conviction.

9. The lynchpin of the case as indicated by the Eighth Circuit was a link between a mysterious casing found a few days after the shooting in the trunk of Agent Coler’s vehicle. The FBI lab purportedly linked this casing to an AR-15 alleged to have been wielded by Leonard Peltier (although there was no testimony presented that linked Peltier to the weapon). After Leonard’s conviction, FOIA documents released by the FBI unequivocally showed that the FBI lab had in fact conducted tests early on which demonstrated that there was absolutely no link between the casing and the AR-15. This withheld evidence meant that the government had no proof of Peltier's direct connection to the shooting. Nevertheless, despite acknowledging that the withheld evidence casts serious doubts on the government’s case, the Eighth Circuit refused to provide Leonard Peltier a new trial.

10. In the same Eighth Circuit decision, however, the court acknowledged there was clear evidence of FBI misconduct. The court refused to grant Leonard Peltier a new trial because it preferred not to impute further misconduct to agents of the FBI. The bottom line here is that the court decided it was better to keep Leonard Peltier in prison than to risk exposing further FBI misconduct in this case.

11. In addition, during trial, the FBI produced approximately 3,500 documents and claimed that these were all the documents in existence. After the trial, through a FOIA request, the Peltier attorneys discovered that some 12,000 documents had been withheld. Six thousand documents were then released. More recently, despite the FBI's claim that only 6,000 full documents related to this case remained undisclosed–and that these are merely "administrative" documents, of no use to the defense team–we discovered that the government continues to withhold, [over] 30 years after the FBI opened its file, over 140,000 documents concerning the Peltier case.

12. There also is evidence that the FBI has destroyed documents. Specifically, the FBI has destroyed key field office documents in San Francisco, Portland and Pittsburgh. Other field offices, such as that in Manhattan (New York), claim to have been unable to “locate” documents though they do claim the documents have not been destroyed. These are documents that should have been produced over [30] years ago. In light of the fact that continuing misconduct is being found with the further production of documents, the spoliation of evidence documents compels the conclusion that the government has destroyed documents which could prove Peltier’s innocence.

13. The Bureau of Alcohol, Tobacco and Firearms destroyed whatever records it had on Peltier. Again, these documents should have been produced at trial.

14. The South Dakota Highway Patrol and the State Attorney General possess records on AIM and Leonard Peltier. These documents are being withheld because South Dakota has no Freedom of Information Act which would allow Peltier and his attorneys access to these documents.

There was NO witness testimony that Leonard Peltier actually shot the two FBI agents. There was NO witness testimony that placed Leonard Peltier near the crime scene before the deaths occurred. Those witnesses placing Peltier, Robideau, and Butler near the crime scene after the killing were coerced and intimidated by the FBI. There was NO forensic evidence as to the exact type of rifle used in the shootings. Several different weapons present in the area during the shoot-out– evidence now shows that there were other AR-15 rifles in the area–could have caused the fatal injuries. In addition, the AR-15 rifle claimed to be Leonard Peltier’s weapon was found to be incompatible with the bullet casing allegedly found at the scene. Also, although other bullets were fired at the crime scene, no other casings or evidence about them were offered by the prosecutor in this case. In short, there was NO reasonable evidence that Leonard Peltier committed the crimes for which he was tried.

This is just a microcosm of the egregious misconduct in Leonard Peltier’s case.  It does not even begin to address the misconduct by the government on the Pine Ridge Indian Reservation as recognized as recently as November 2003 by the Tenth Circuit Court of Appeals:  "Much of the government’s behavior at the Pine Ridge Reservation and in its prosecution of Leonard Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed." 

Given the pattern of misconduct against a whole array of dissident groups as revealed by the Church Committee investigation, why wouldn't one find it at all plausible that the same disruptive methods–including media manipulation–have been employed against AIM?  We suggest that people take the guess work out of this discussion. Do your homework. Review the pertinent government documents, as we have, from the time the Movement was first targeted by the FBI.  

But why depend solely on the FBI's own documents?  Or on congressional findings? 

The detail our essay lacked would fill a book. But why would we write such a book when one already exists?  You may have disdain for "In the Spirit of Crazy Horse" by Peter Matthiessen, but the fact is that this definitive work on AIM and the Peltier case was successfully defended against lawsuits brought by former Governor and Congressman Wm. Janklow from South Dakota (recently convicted of criminal charges, jailed, and forced to resign his congressional seat in disgrace) and FBI Special Agent David Price in three different states, surviving an eight-year litigation. As acknowledged by the courts, Matthiessen's reputation for not being sensationalistic or scandalous is well known. He is a highly respected author and his works have received wide acclaim.

We find it interesting how a fine author like Peter Matthiessen is impugned, while mainstream America remains ignorant of the true facts of this case.  Why is that? Who controls the mainstream media?  We believe that to be a rhetorical question.

Moreover, the deposition of Agent Price in his lawsuit is entirely inconsistent with the facts as they have since come to light.  Did Agent Price believe the facts would never come out?  Did he believe he could speak with impunity without regard to the truth? The fact he lost the case probably says it all.  

The Church Committee uncovered a 25-year pattern of media manipulation by the FBI against political activists and dissident organizations, but some would have the public believe that this mode of operation suddenly ceased in 1971 and/or that AIM was somehow the exception to the rule.

Washington has been feeding "packaged news" to the American people for decades. It's called propaganda. Just such behavior on the part of the White House has been revealed to the American public within the past year.  Further, government agencies routinely employ staff to create a positive image of the agency and present issues in a certain light. The FBI is no exception.

Early FBI press releases regarding the incident on June 26, 1975, spoke of bunkers that didn't exist and the need for heavy military force (reminiscent of Wounded Knee II, government strategy which was subsequently ruled unconstitutional). Then the government's propaganda campaign blamed the incident on "rogue" Indians despite AIM members having been invited onto the reservation to protect traditionals against vigilantes sponsored by our government.  

The cozy relationship between the FBI and the Guardians of the Oglala Nation (GOON) squads was verified by the U.S. Commission on Civil Rights shortly after the incident. The Commission's report was highly critical of the FBI’s paramilitary operations in Indian Country. Was this report taken seriously by the media?  Obviously not, because they failed to expose or prevent the continued official misconduct on the Pine Ridge Reservation.

What Americans were not told (and still are not told) is that the FBI sent two young and relatively inexperienced agents to their deaths. Why?

Let's not pretend that official misconduct on the part of the FBI is a thing of the past either. In recent years, landmark civil rights lawsuits against FBI agents have been won in Boston, Chicago and Oakland, CA, to name only a few.

We did "leap ahead some twenty-plus years to President Clinton and the clemency issue" to make our case. With good reason… the instances of media manipulation were so overt so as not to be ignored.

The Washington Post ad?  We disagree that the ad simply stated the salient facts surrounding the deaths of Agents Coler and Williams.

• The third paragraph of this ad stated as fact that Leonard Peltier was in the vehicle pursued onto the Jumping Bull Ranch the day of the tragic shoot out, and that he and the other passengers abruptly stopped their vehicle and began firing at the FBI agents. This isn't explained as an unproved prosecutorial theory and Leonard Peltier has always insisted that he was already on the ranch when the shooting broke out. At Peltier's trial, despite descriptions of the vehicle as a pick-up truck for a nearly two-year period following the shootings, the description of the vehicle suddenly changed to that of a "red and white van". There is no untainted evidence to establish that Leonard Peltier was pursued onto the ranch, or that the pursued vehicle was the red and white van he sometimes drove. To make such a flat assertion of "fact" without reference to the conflicting and contradictory information is prejudicial and deceptive.

• In the fifth paragraph of the paid ad, the FBI agents wrote:  "Three shots were fired from Peltier's rifle… Williams, kneeling, was shot in the face... Coler, still unconscious, was shot twice in the head at close range."  It is important to note here that U.S. Attorney Lynn Crooks has stated on several occasions that no one knows who in fact fired those close-range fatal shots. This admission was inevitable in light of the clear language of Mr. Hodge's ballistics report stating that the bullet casing used as evidence in Peltier's trial was simply incompatible with the firearm claimed to have been Leonard Peltier's weapon. The agents responsible for composing this ad knew or should have known about these matters. The highly inflammatory language was intended to misinform and confuse the public, to cover up for former FBI misconduct, and to deprive Leonard Peltier of fair consideration of his legal claims. We believe that serious legal and ethical questions were raised by this language.

• In paragraph six of the paid ad, it is claimed that Mr. Color and Mr. Williams had only fired five shots, while the AIM members fired 125 rounds at them. First, several eyewitness accounts suggest that the agents in fact fired more than five rounds. Also, from the record, it appears that several of the weapons belonging to the agents were taken by persons fleeing the ranch and were only recovered long afterwards by the FBI. The weapons may have been fired, reloaded and fired several times again since that day. We also understand that the casings recovered at the crime scene did not account for all of the shots fired. How, then, is the number of rounds fired on that particular day–and by whom–known? 

• This paid ad also stated as fact a number of instances in which Mr. Peltier allegedly carried out violent actions. Many of these cited instances are highly suspect, and appear to be but one more example of government distortion of the evidence against Leonard Peltier. They also make reference to former criminal charges of which Leonard Peltier was acquitted. We noted the claim of Canadian Officer Golden Doll that Leonard Peltier stated that he would have blown the arresting Canadian officers "out of their shoes". It is significant that such a violent statement was not included in Mr. Golden Doll's report at the time of the arrest or even during the extradition hearings. Mr. Golden Doll made no mention of this alleged statement until Leonard Peltier's trial nearly one year later. Given the repeated instances of FBI coercion of witnesses and use of tainted witnesses in other AIM cases, this late statement is highly suspect. Mr. Golden Doll's testimony was also uncorroborated despite the presence of other officers at the time of Peltier's arrest. It was improper to present this statement as a fact while never mentioning the surrounding circumstances.

• The ad also oversimplified the judicial history of this case in an inappropriate manner. Noting that Leonard Peltier lost his appeals, the ad stated that there are no new facts. "The old facts have not changed and Peltier is guilty as charged." Again, this statement, together with its serious omissions, was highly deceptive and therefore improper. There were indeed many new facts, including but not limited to the discovery of the concealed ballistics test and the revelations of coercion by various witnesses. The accurate version of the judicial history is that Leonard Peltier was denied a new trial despite the new information, as a result of the strict Bagley standard set by the courts in previous opinions. It should also be noted that Judge Heaney, who wrote the denial in Peltier's appeal, also wrote to support clemency for Leonard Peltier. And one can't forget that over 100,000 FBI documents remain concealed to this day. We believe those documents contain many new facts of importance to this case.

• The ad also claimed that Leonard Peltier "openly states he feels no guilt or remorse or even regret for the murders."  Once again this statement was intentionally inaccurate, inflammatory and self serving. Leonard Peltier has in fact on a number of occasions stated that he regrets the loss of life and the pain caused to the agents' loved ones, even as he maintains that he is not the one who committed the killings. The FBI statements in this ad placed Mr. Peltier in the untenable position of either admitting to a crime he did not commit, or else being vilified as a remorseless brute.

• Lastly, one of the final paragraphs stated that "Leonard Peltier is a vicious, violent and cowardly criminal who hides behind legitimate Native American issues. Leonard Peltier was never a leader in the Native American community. He is simply a brutish thug and murderer with no respect or regard for human life."  Not only are these statements intentionally geared to promote fear and confusion, they once again omit key facts. The FBI and other officials have long recognized Leonard Peltier as an AIM leader, as is reflected in their own investigation files and other statements. More importantly, Mr. Peltier has enormous support from many Native American communities.

The Peltier March in New York City on December 10, 2000?  Members of the The Peltier Legal Team were present at the march–as were many mainstream, concerned citizens–and we can assure you that the number of participants has not been at all exaggerated. (Refer to the photographic evidence on the Internet.)  Again, we urge you to do your homework and deal in facts.

We, too, marched in a dignified manner–unless one finds traditional American Indian songs, drums, and prayers not to be so–albeit not in business suits, but then it wasn't a business day, was it?  And, surely, no one would suggest that a former Attorney General of the United States or Lakota elders from the Pine Ridge Reservation were anything other than dignified.

December 10th was International Human Rights Day. Even more reason to question why a demonstration that partially shut down the streets of New York City and a well-attended rally that took place in front of the United Nations building was not covered by the media. Not one sound byte appeared on network news broadcasts. How curious is it, in particular when New York City is one of the top three media centers in the U.S., that there was not one mention of this event. No black out, you say?  It is essential that all of the Church Committee's documentation be read before people make judgments about what is or isn't possible where the FBI is concerned.

The FBI's demonstration on December 15, 2000?  The venue itself made the event unprecedented–and apparently much more worthy of the media's attention, too. And we're talking about a march on the White House. You can't get much more political than that.

The march was performed on the tax payers' dime, too, wasn't it?  It's great agents took annual leave to attend, but who pays for that benefit? 

Federal workers engage in political activities all of the time, as you yourself pointed out, but never in their official capacity as government employees whether in their free time or not (so as to avoid the appearance of expressing the views of an entire government agency, partisan or otherwise). Active agents didn't march as private citizens that day, but as current members of the FBI. We stand by our assessment that this was an abuse of power and a violation of our client's Due Process rights.

Of course, we are aware that the debate over clemency did not take place in a courtroom. However, clemency involves a legal process and confers a legal status– why else does the Pardons Attorney's office operate under the auspices of the Department of Justice?  It's not so dissimilar to parole in that regard. These are constitutionally protected elements of our justice system, too.

"[Clinton], an attorney himself, listened to reasoned counsel and understood the facts. He recognized Peltier's guilt and decided that he was not worthy of clemency."  How can one know that?  This is not fact, but speculation.  And logic suggests that, if this were true, Clinton would have denied clemency, when in fact he didn't officially decide one way or the other.

The Bill of Rights and the fact that Bill Clinton designated December 15th, the day of the FBI march on the White House, as Bill of Rights Day?  No accident there although an occurrence certainly open to interpretation. But let's talk about the Bill of Rights for a moment. As regards Clinton's awards of Executive Clemency when leaving office, former President Carter availed himself of his right to free speech and used "disgraceful" to label the actions and the man. Yet, you object to Peltier's comment at the time. Peltier used a more colloquial yet synonymous term–understandable given the fact that White House sources had led us to believe that an award of Executive Clemency was imminent. Besides that, criticism of public officials–even the President of the United States–about how well or badly they carry out their official duties, strikes at the heart of the First Amendment. It is this form of speech which the framers of the Bill of Rights were most anxious to protect. Criticism of government is entitled to the maximum protection of the First Amendment.

We respectively suggest that the FBI’s (and the NPPA's) primary goal has been and will continue to be to prevent Peltier's release from prison. Given the fact that, since 1985, the prosecutors in this case have admitted that they do not know who shot Agents Coler and Williams and they did not and cannot prove Peltier's guilt, we believe such actions to be based on vengeance and not on the precepts of equal treatment, fair consideration, or reasonable doubt–in short, not on justice at all.

In regard to:

"But these examples are merely a prelude to an immense leap of faith the [The Peltier Legal Team] expects from its adherents.  They excoriate the federal prosecutors in last year's trial of Arlo Looking Cloud who was convicted for his participation in the gangland style murder of AIM activist Anna Mae Aquash in December, 1975.  They complain that the trial was more about the denigration of AIM and Peltier than it was about the specific facts relating to Looking Clouds' complicity.  Much of the testimony resulted in media attention that they believed was unfavorable to AIM and Peltier…" 

In a statement made in February 2003 and again in the above referenced essay, we wrote concerning this debacle because it was clear that the mainstream media wanted only to focus on inadmissible hearsay and irrelevant testimony rather than the issue at hand.

In regard to:

"If the so-called ranting of all the members of Peltier's legal team on this issue really point to some multifaceted conspiracy to 'destroy support for Peltier and prevent his release on parole in 2008,' they failed to prove their case.  These obviously mature, experienced, and educated attorneys have careened down the slippery slope of uncontrollable paranoia (while perhaps surrounded in their offices by dark shadows), but neglected to bring with them some facts…"

As Barry Goldwater once said, "…extremism in the defense of liberty is no vice… moderation in the pursuit of justice is no virtue." 

The Peltier Legal Team will continue to fight unknown and unseen forces that have and will continue to deny Leonard Peltier justice. We refuse to submit to unjust practices and, in the face of the failure of government and other official agencies to act, yes, we will take direct action against injustice because as Martin Luther King, Jr., once wrote:  "Injustice anywhere threatens justice everywhere." 

The problem is that Peltier’s Legal Team is fighting shadows and windmills created by the government's propaganda puppets–mainstream media and purveyors of fiction.

In addition, the federal government refuses to produce all of the documents related to this case or conduct hearings by which Leonard Peltier’s Legal Team could put form to those shadows.

For the sake of the open government recently extolled by President Bush and the integrity of the nation's system of justice, we urge you to support our FOIA actions and ask your former agency to release all of the documents related to this case.

Also urge Congress to hold hearings on the events on the Pine Ridge Reservation during the 1970s.

Only then can the truth–the whole truth–be revealed.

In the Spirit of Crazy Horse and Leonard Peltier,

Barry Bachrach, Esq.

The Peltier Legal Team

^*This is a response made to the No Parole Peltier Association (NPPA), managed by a former agent of the Federal Bureau of Investigation (FBI) and also alleged to be funded by the FBI. NPPA argued against the attorneys' assertions in the essay, Injustice Against Leonard Peltier: The Role of Media Manipulation.

"These obviously mature, experienced, and educated attorneys have careened down the slippery slope of uncontrollable paranoia (while perhaps surrounded in their offices by dark shadows), but neglected to bring with them some facts," the NPPA claimed.

In the above rebuttal, the Peltier attorneys invited the NPPA to join in the search for the truth about their client's case and events that occurred on the Pine Ridge Reservation during the 1970s. To date, the NPPA has not accepted the challenge.

Please also note that, shortly after this rebuttal was made, proof of FBI media manipulation was discovered by the Peltier attorneys.

Originally published in SPIRIT Touch, Vol. 1, No. 5, 2005.

Reprinted with permission. Revised to include hyperlinks.

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