war on the rocks

Books as Contraband: The Strange Case of ‘The Anarchist Cookbook’

September 13, 2018

In a federal prosecution in Maryland, Ali Saboonchi was charged with violating U.S. export restrictions on trade with the Islamic Republic of Iran. After his smartphones and flash drive were seized at the U.S.-Canadian border on July 18, 2013, Saboonchi moved to “suppress the fruits of warrantless forensic searches” at the border. This motion required U.S. District Judge Paul W. Grimm to address the American practice of border searches of incoming passengers:

[I]n practice, officers are expected to use their discretion to focus on more likely evidence of contraband or criminality — to ensure that what appears to be a diary is not actually The Anarchist Cookbook, and to move on.

To people versed in radical literature, The Anarchist Cookbook is well-known. Written by a 19-year-old anti-war activist named William Powell and published by a controversial New York house in 1971, it became a bestseller in radical circles and is still available on the internet. It contains diagrams and instructions on how to construct various explosive devices, and (based on its content) was apparently aimed at people interested in conducting guerilla warfare in the United States.

Powell died recently, but not before a documentary filmmaker caught up with him in France, where he had been based for several decades while doing good things around the world. The footage of his interview indicated that Powell had not read or touched the book since he wrote it almost 50 years ago and that he had renounced it and its ideas, hoping it would go out of print. The problem for Powell is the sense that his book inspired several notorious terrorists, both right- and left-wing, over the last several decades. Powell was visibly pained by this realization, and died shortly after the interview.

The Anarchist Cookbook is unique. Grimm’s statement showed awareness that this book holds a special place in the minds of American law enforcement. If border officials come across it during a search, they are expected to confiscate it because — in Grimm’s parlance — it is “evidence of contraband or criminality.” The same is not true of a passenger’s personal diary, which, according to Grimm, border officials could not examine line-by-line without reasonable suspicion of wrongdoing. Powell’s book is another story. When authorities see it, they should seize it.

Should law enforcement censor certain books by treating them as contraband? With certain unique books like The Anarchist Cookbook, maybe they should, in the cause of public safety. However, maybe there is a less dramatic alternative to reduce the harmful impact of such books, like American intellectuals stepping up to the plate and thoroughly criticizing them for what they are and explaining that they should not be followed. This, however, did not happen with Powell’s book, leaving the problem up to cops and prosecutors.

Search and Seizure

Does American law enforcement treat The Anarchist Cookbook as “contraband”? One definition of contraband is an item that is not permitted in prison. It seems that the book is generally not permitted in American prisons, judging by cases in which individual prisoners unsuccessfully litigated their right to possess the book in their cells. Another common definition of contraband is something that has been imported or exported illegally. If, as Grimm suggests, border officials can be expected to seize the book during searches, The Anarchist Cookbook might qualify.

It is not illegal for Americans who are not incarcerated to possess the book, nor to buy it or download it. It might not be “contraband” in this sense. However, if you are suspected of being involved in some crime involving guns or explosives or drugs, it is very dangerous to have a copy of The Anarchist Cookbook at your house or on your computer. If you do, it could well be seized by law enforcement and used against you in your criminal trial. In this sense, literate criminals are prosecuted in part for their particular reading habits, if those habits include this particular book.

Indeed, not a single American court opinion has taken issue with law enforcement’s seizure of The Anarchist Cookbook during a raid, even when judges are reluctant to ultimately admit the book into evidence. Courts have consistently blessed the practice of seizing this book during an investigation, almost as if The Anarchist Cookbook qualified as contraband.

One criminal defendant complained when authorities seized his copy of the book. Steven J. Parr, after he was indicted by a federal grand jury for the crime of threatening to use a weapon of mass destruction, complained about the July 2001 search of his house. The search warrant was issued upon probable cause to believe that Parr had been involved in marijuana sales. In the course of the search, the investigating officers seized The Anarchist Cookbook. Parr contended that the book and the other articles taken were not properly seized under the warrant issued in 2001 and that they did not constitute contraband. The court rejected this claim, noting that the seizure of the book — which contains instructions on growing marijuana, as well as other drugs — was appropriate because it was related to what was being investigated. However, the Seventh Circuit Court of Appeals said that the judge should have only allowed the jury to see limited, relevant portions of the book, not the entire book.

A Courtroom Classic

Law enforcement knows The Anarchist Cookbook well. In fact, the book is so recognizable to them that some cops have even used the title of the book as a generic category for incriminating literature, sort of like how Kleenex (the name of a particular product) has become kleenex (a generic term for a paper tissue). In 1976, for instance, a Florida state judge in a narcotic prosecution summarized the government’s investigation:

More incriminating material was mined from the desk, including an altered twenty dollar bill, a Columbian license plate, appellant’s passport, an “anarchist cookbook,” a “Mafia Contramafia” newsletter and a green envelope which was shown, by search under yet another warrant, to contain cocaine.

It seems the term “anarchist cookbook” referred generally to crime-related instructions, rather than the actual book that bears that title.

More recently, in 2010, members of the Gulf Coast Violent Offenders Fugitive Task Force arrived at Gary Lynn Ellis’ home to serve a felony warrant. This is how the court described the raid:

When the officers returned with the search warrant, the Secret Service had arrived. As one officer observed the Secret Service searching a garbage bag, he noticed several pieces of wire and clothespins. He later determined that these were the makings of a trip wire for a bomb. In searching the house, officers found what they described as a “trip wire,” gunpowder, pellets, and adhesive tape, all of which appeared to be homemade bombs. The officers also found marijuana seeds and a book entitled, More Forbidden Knowledge, which one officer described as an “anarchist cookbook.”

Similarly, in a Utah aggravated murder case, the court quoted the testimony about the defendant by the victim’s father: “This man is a terrorist. He deals with anarchist cookbooks. He looks at how bombs are built.”

It seems The Anarchist Cookbook has taken on such mythic status that it has become a generic description for any dangerous literature.

So it is fair to predict that cops investigating a crime who come across a suspect in possession of The Anarchist Cookbook will immediately seize the book (almost like contraband) and endeavor to use it against the suspect. For suspects prone to cry foul, it does not help that the book is often seized along with guns, drug-manufacturing paraphernalia, and bomb components. When this happens, the book has greater relevance than merely showing the suspect’s eclectic reading habits. It becomes evidence of the crime.

Moreover, authorities who come across The Anarchist Cookbook are almost compelled to act as if the possessor of the book is dangerous. Failure to do so can have professional and personal consequences.

Consider the case of 14-year-old Michael Carneal, a student at Heath High School in McCracken County, Kentucky, who brought several guns to school on Dec. 1, 1997. The civil court opinion described what happened: “After inserting earplugs, he removed a .22 caliber pistol from his backpack and opened fire into a prayer group, killing three students and injuring five more.” The parents of the three students killed sued several school officials, including Assistant Principal Barbara W. McGinty, who had confiscated The Anarchist Cookbook from Carneal after he had been caught selling sections of the book for $1.00 per page. The plaintiffs alleged that, despite confiscating the book, McGinty had “failed to recognize and act upon the warning [signs]” Carneal displayed. Although she was dismissed as a defendant in the case because of official immunity, the very fact of the civil lawsuit was undoubtedly very painful for her.

Some criminals have even referenced The Anarchist Cookbook when committing their crimes. Stephen Michael Long was convicted of the federal crimes of threatening to use a weapon of mass destruction, mailing threatening communications, and transmitting threats by wire. Several months after the 2001 anthrax attacks, Long sent threatening letters to addresses around Lafayette, Louisiana. The envelopes were filled with white baby powder — which looks like anthrax spores — and the letters mentioned al-Qaeda, bombs, The Anarchist Cookbook, and the drug prescribed to people infected with anthrax disease. It is probably no surprise that Long’s attorney tried to show that he was insane at the time.

The government has also tried to use The Anarchist Cookbook at sentencing. A state trooper convicted of placing a bomb in his wife’s car came up for sentencing. The government sought to apply the specific sentencing guidelines enhancement that deals with “special skill,” arguing that the defendant had received expertise in demolitions through reading The Anarchist Cookbook.

Judicial Caution

If this book’s legal history is disturbing to bibliophiles, they might be comforted by what American courts typically do when prosecutors seek to offer the item into evidence. Courts are mindful of defendants’ First Amendment rights, and know that most Americans are uneasy with the idea of being prosecuted for their reading habits or the books they own. This makes courts reluctant to admit The Anarchist Cookbook as evidence, at least in whole and in the absence of proof tying the book’s content to a particular crime the defendant is charged with committing.

This reluctance is displayed when applying the evidentiary rule that requires courts to weigh the probative value of proposed evidence against the possible prejudicial impact on the jury. Where prosecutors offer a seized copy of The Anarchist Cookbook into evidence, courts have been very careful to follow this rule, considering the possible prejudice of implicating someone in a crime because they own or read books that many find distasteful.

For example, John W. Rogers was convicted in Chicago of possessing an unregistered firearm, based in part on the admission of his copy of The Anarchist Cookbook and his statements that he relied on the instructions in the book when retrofitting the weapon in question. This evidentiary issue went up on appeal, with the Seventh Circuit writing:

There is no problem, under either the law of evidence or the first amendment, in presenting to the jury written material in the defendant’s possession that shows how to commit the crime, for this makes it more likely that the defendant rather than someone else was culpable. … But the judge had an obligation to keep the prosecutor from suggesting that Rogers should be convicted because he owned seditious literature, that anyone who would read a book called The Anarchist’s Cookbook must hold his legal obligations in contempt, or that possession of the book implied that Rogers wanted to become a sniper. Still, given the weight of evidence against Rogers, and the proper use at trial of the construction plans in this book, plain-error doctrine does not support reversal.

Similarly, in Oregon, Randy Ellis was convicted of receiving stolen explosives in 1997. He argued on appeal that the court had been wrong to admit The Anarchist Cookbook into evidence — that the book “contains a lot of irrelevant and inflammatory material about such things as drugs, revolutionary politics, sabotage and inflammatory material that just don’t go to any issues in the case.” The Ninth Circuit agreed, reversing Ellis’ conviction based on the crime with which he was charged:

Ellis was charged with mere receipt and possession of the stolen explosives. Intent was not an element of the charge; Ellis either knowingly had the explosive devices in his possession or did not. His possession of The Anarchist Cookbook was simply not relevant to the charge he faced … If the government had prosecuted Ellis under 18 U.S.C. § 844(d), then intent would have been an element of the crime and perhaps portions of The Anarchist Cookbook might have been relevant to demonstrate the defendant’s intended use of the explosives. However, Ellis was not being prosecuted under 18 U.S.C. § 844(d). Here, any probative value of the The Anarchist Cookbook [sic] was substantially outweighed by the danger of unfair prejudice from what the government concedes is a “revolutionary” text, and is therefore likely to elicit a response from jurors that causes them to reach a conclusion based on emotion rather than the evidence presented.

The care with which courts treat evidentiary issues involving The Anarchist Cookbook extends to state courts. Calvin McKelton was convicted in Ohio state court of murdering his girlfriend, Margaret Allen. The prosecutor introduced a copy of The Anarchist Cookbook that police had found in Allen’s master bedroom. The prosecution argued that the book was relevant to establishing McKelton’s residence in Allen’s house, but it did not introduce evidence that McKelton owned the book. The appellate court found that, “While the book appears to be at least partly satirical, given its title, the book should not have been admitted. But given the overwhelming evidence of McKelton’s guilt, its admission did not rise to the level of plain error.”

The Tougher Cases

For some civil libertarians, this might not be sufficiently comforting. Some argue that any prosecution that presents a defendant’s reading habits in court is punishing those habits, thereby violating the First Amendment. Helen A. Anderson of the University of Washington Law School, for example, advocates higher standards for admissibility of evidence of the accused’s taste in art or reading habits.

These reformers, however, have to deal with those unique cases in which The Anarchist Cookbook clearly facilitated a particular crime. For example, Robert John Collins was convicted in Nevada of crimes relating to the mailing of a destructive device to a trooper’s home. A copy of The Anarchist Cookbook was found in Collins’ home. A co-conspirator then testified that he and Collins had followed the book’s instructions to build three previous “destructive devices” before they mailed one to the trooper’s house.

Similarly, the 1983 autopsy of a murder victim in Michigan indicated she was killed by strangulation. Stephen Adams was ultimately arrested and convicted for the murder, based in part on his copy of The Anarchist Cookbook, in which a paragraph concerning how to strangle a person was underlined.

Is there anyone who could claim that the book was irrelevant to the execution of these crimes?

Courts seem to have it about right these days, recognizing that The Anarchist Cookbook is not just some other book. Like law enforcement and the public, courts display familiarity with this particular work. Shortly after 9/11, for example, after the Patriot Act was passed, an independent bookstore in Thornton, Colorado, sued the city police, arguing that a search warrant for customer records in a drug investigation violated the state constitution. The Colorado Supreme Court ruled that the warrant could not be enforced, and its reasoning was telling. Justice Matthew L. Bender, for the majority, wrote:

To take a simple example, one could imagine a situation where law enforcement officials might have probable cause to search a bookstore for all records relating to any purchases of the book The Anarchist’s Cookbook. The requirement that the police describe the materials to be seized with “scrupulous exactitude” could be easily met in this situation by limiting seizure to those records involving sales of the specific book. We agree that, depending on the exact factual circumstances, such a seizure might be necessary and appropriate. However, the substantial chilling effects that could occur if this hypothetical search warrant were executed mean that there might also be circumstances where the police should be entirely precluded from executing the warrant.

Notably, the court chose The Anarchist Cookbook to illustrate the point that law enforcement could legitimately seek customer sales records from bookstores.

Courts today are, in some ways, more exacting than in years past when it comes to admitting defendants’ reading habits in criminal trials. In January 1973, explosives detonated at two military recruiting offices in Portland, Oregon. Investigators quickly began to focus on Franks Stearns Giese, a professor of French at Portland State University. Giese owned a bookstore called the Radical Education Project, and was involved in book exchanges and discussion groups at a local prison.

At Giese’s trial, the prosecution asked its first witness to identify and describe several publications. The witness identified The Anarchist Cookbook, which he said was “part of the group’s library.” Giese and the other conspirators were convicted, despite the fact that the prosecution was unable to show that Giese had any connection with the books it had offered in evidence.

It is doubtful that courts today would permit a prosecution largely based on books stocked in the bookstore owned by one of the defendants, the concerns of civil libertarians notwithstanding. Instead, recent cases show modern courts will dive more deeply into the relevance of specific portions of a book to the defendant’s guilt, and the prejudicial impact of admitting those portions against the defendant.

Conclusion

Where does this leave those of us who might be worried about the government’s prosecuting people for their reading tastes? After delving into the strange legal history of The Anarchist Cookbook, I have no problem putting the book into a separate category from almost all others. This book, it can be said, helps criminals, and is fair game for law enforcement when they come across it. This brings us back to the late William Powell.

Does Powell deserve the condemnation that was apparent in the questions asked by the documentarian in his last interview? Yes — his work played a role in the death of innocent people. However, he was merely an author, which is to say an artist. He was never hounded by law enforcement even after it became clear that The Anarchist Cookbook was a dangerous book, although he was undoubtedly helped by the fact that he chose to live in exile in France. This might have been small consolation to him, because he appears in the documentary as a haunted 65-year-old man. He knew what he did, and what he was responsible for unleashing. He seemed to have spent his life working for redemption. It is a very sad story.

I tend to embrace the First Amendment view that the best response to ugly speech is not censorship, but rather better speech to drown it out in the “marketplace of ideas.” If this view is correct, perhaps the real fault lies with society’s intellectuals, who had a civic responsibility to explain to the world the ugliness of what the young Powell seemed to be advocating. Because The Anarchist Cookbook was a leftist book, this responsibility really fell on fellow leftists, who were in the best position to renounce political violence and urban guerilla warfare in the United States. (I maintain that real criticism of The Anarchist Cookbook would have been far more effective in the marketplace if it came from someone like Angela Davis rather than William F. Buckley.) The problem was the radical left itself at the time was not renouncing violence. Then, in the 1990s when right-wing extremists started relying on the book, it should have been renounced by conservatives. None of this seemed to happen, on either side. Perhaps the legacy (and resonance) of The Anarchist Cookbook really was the fault of people on a higher intellectual plane than a 19-year-old kid who was able to put together the book from information available to anyone at the New York Public Library. The moral responsibility of artists for the negative impact of their works is an interesting issue for further discussion. Had the marketplace of ideas worked in this case, the book might have been lost, or discredited by the cacophony of educated consumers who should have condemned it once it became publicly available, and it might not have emerged as a law enforcement problem. My civil libertarian friends might think about that.

 

Jeff Breinholt is an adjunct professor at the George Washington University Law School, where he teaches a course on trying terrorists. The views in this article are the author’s own and do not necessarily reflect those of the Department of Justice.

Image: Netflix