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Declaration of Anabel L. Dwyer in the case of Marion Küpker charged with trespass and destruction of property

District Court, Cochem, Reference No. 2010 Js 60922/18

Anabel L. Dwyer, upon information and belief, declares:

Introduction and Summary of Declaration

I have been asked to give my opinion on the fundamental unlawfulness (illegality and criminality) of planning, preparation, possession, deployment, threat or use of 20 B61s (50-170 kiloton) U.S. nuclear bombs at Büchel Air Force Base, Germany, and the right or duty of citizens to nonviolently or symbolically resist such violations of the rules and principles of humanitarian law or the Nuremberg Principles.

This Declaration shows and concludes:

  1. The United States (U.S.), Germany and NATO know that each and every B61 nuclear bomb is designed and intended to unleash uncontrollable and indiscriminate heat, blast and radiation. Therefore, any planning, preparation, possession, deployment, threat or use of any variant of the B61 nuclear bombs, as a matter of known and intended fact, violates peremptory rules of law including the laws of war, the rules and principles of humanitarian law or the Nuremberg Principles.
  2. The U.S. and Germany breach the Nuclear Non-Proliferation Treaty (NPT) Article VI disarmament obligation and NPT Articles I and II prohibitions against “nuclear sharing” by continuing planning, preparation, possession, deployment/threat or use of B61 nuclear bombs at Büchel Air Force Base.
  3. It is my opinion that Marion Küpker correctly asserts that the charges in this case should be withdrawn, dismissed or that she should be found not guilty of the offenses charged because all citizens of U.S., Germany, or other NATO countries who know of the planning, preparation, possession, deployment/threat or use of the indiscriminate and uncontrollable B61 nuclear bombs at Büchel Air Force Base, have a right or duty to nonviolently or symbolically resist complicity with violations of the intransgressible principles of international customary law inherent in those nuclear bombs.

Qualifications to make this Declaration:

I hold a J.D., am a member of the State Bar of Michigan and its International Law Section and for 30 years have studied, taught law school seminars, and lectured widely on nuclear weapons and the rule of law. I am a Member of the Board of Directors of the Lawyers’ Committee on Nuclear Policy. I was a member of the International Association of Lawyers Against Nuclear Arms’ Legal Team for the World Court Project during the 1995 oral arguments before the International Court of Justice (ICJ) on the “Legality of the Threat or Use of Nuclear Weapons” and rely on the Advisory Opinion of the ICJ and the Individual Opinions and Declarations of the Judges as the most authoritative statements of the law and legal obligations regarding nuclear weapons.[1] I was on the drafting committee for the Model Nuclear Weapons Convention. I hold a Certificate in Public International Law from The Hague Academy of International Law, and have conducted extensive research at the Peace Palace Library in The Hague as co-counsel for the Michigan Nuremberg Campaign. I have served as a defense attorney in six Plowshares cases and other civil resistance to nuclear weapons cases in the U.S., and was lead author of an exhaustive Brief in Support of a Citizens’ Petition to State and Federal Authorities entitled, “In re: Request for Investigation/Prosecution of Officers and Directors of Williams International Corporation and Commanders of Wurtsmith Air Force Base (Headquarters of the Strategic Air Command 40th Air Division, 379th Bombardment Wing) in Oscoda, Michigan.”[2] A fuller resume follows below.

Questions

I. The U.S., Germany and NATO know that each and every B61-3 and B61-4 nuclear bomb is designed and intended to unleash uncontrollable and indiscriminate heat, blast and radiation. The B61-3 is a 170-kiloton nuclear weapon. The B61-4 is a 50 kiloton weapon.[3] Therefore, any planning, preparation, possession, deployment, threat or use of any variant of the B61 nuclear bomb, as a matter fact, violates peremptory rules of law including the laws of war, the rules and principles of humanitarian law or the Nuremberg Principles. [Read more…]

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The Bomb Behind a Wall of Silence

Federal Appeal Courts Agree: Facts About Nuclear Weapons Can be Hidden from Juries in Protest Cases

Spring Quarterly 2020
By John LaForge
Painting of Kings Bay Plowshares 7 by Rosie Davila.

If you thought confronting nuclear weapons in the United States would be easier now that the United Nations General Assembly has approved a treaty outlawing them, think again.

The 2017 Treaty on the Prohibition of Nuclear Weapons will come into force after 50 countries have ratified the law. This may occur in 2020, since 36 nations have already done so.

However, the U.S. court system has constructed a seemingly impenetrable fortress of legal precedent that provides nuclear weapons systems a heavy blanket of judicial security. Like a palace guard that keeps an emperor safe from all foes, U.S. Courts of Appeal have placed the bomb and its producers on a throne of the highest order where the mere mention of its status under law is forbidden.

Motion in limine— do not discuss the facts

Between 1980 and 2005, seven separate United States Circuit Courts of Appeal have decided that federal judges may — and in one case must — prevent juries in nuclear weapons protest cases from hearing a “defense of necessity” or expert testimony about international law, even if such law forbids nuclear weapons by name.

Map of the geographic boundaries of the various U.S. Courts of Appeal and U.S. District Courts.

The First, Second, Seventh, Eighth, Ninth, Tenth, and Eleventh U.S. Circuit Courts of Appeal have all agreed that in political protest cases, keeping juries in the dark concerning the outlaw status of nuclear weapons is legitimate. 1(1) Beginning with the most recent: the Tenth Circuit, U.S. v. Platte, 401 F.3d 1176 (2005); Seventh Circuit, U.S. v. Urfer, Sprong, 287 F.3d 663 (2002), and U.S. v. Haynes, 143 F.3d 1089 (1998); First Circuit, U.S. v. Maxwell, 254 F.3d 21 (2001); Ninth Circuit, U.S. v. Komisaruk, 885 F.2d 490 (1989) [as well as U.S. v. Cottier, 759 F.2d 760 (9th Cir. 1985), and U.S. v. Aguilar, 756 F.2d 1418 (9th Cir. 1985), and U.S. v. May, 622 F.2d 1000 (9th Cir. 1980)]; Eighth Circuit, U.S. v. Kabat, 797 F.2d 580 (1986); Eleventh Circuit, U.S. v. Montgomery, 772 F.2d 733 (1985); and the Second Circuit, U.S. v. Allen, 760 F.2d 447 (1985). These seven federal U.S. circuits are the controlling and precedent-setting tribunals for all federal trial courts in 38 of 50 states.

Most recently, in the October 2019 trial of the Kings Bay Plowshares 7 in Brunswick, Georgia, Federal District Judge Lisa Godbey Wood granted the government’s “motion in limine” 2 Black’s Law Dictionary defines “motion in limine” as “[a] written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements.” Black’s Law Dictionary 914 (rev. 5th ed. 1979). or gag order, agreeing with the government’s wish to silence the defendants and quash their attempt to argue a “crime prevention” defense based on international law. Judge Godbey Wood even ridiculed the controversy over the legal status of nuclear weapons in her October 18 order granting the motion, writing, “… whether nuclear weapons are actually illegal under international or domestic law (a doubtful proposition) is not relevant or an appropriate issue to litigate in this case.”

The judge’s order, issued 60 hours before the trial, kept the defendants and their lawyers in a state of pre-trial overwork, unable until then to finalize their defense arguments, witnesses, and exhibits. Judge Godbey Wood’s order denied the defendants’ right to fairly and fully defend their actions in the context of a lawful excuse that turns ordinary criminal “trespass” and “damage to property” into justified intervention or crime prevention (as when a firefighter breaks in a door to save someone).

In his detailed Stanford Law Review history and analysis of the government’s use of the motion in limine, Hofstra University Assistant Professor of Law, Douglas Colbert explained, “If the court grants the government’s motion, the accused’s right to present a full and complete defense is placed in jeopardy, and the jury’s role as a trier of fact is severely undermined.” The government’s motion in limine, “when successful in eliminating an entire defense, seriously erodes (if not completely nullifies) the crucial role of the jury as judge of fact…[T]he motion in limine represents a direct attack on the accused’s right to a trial by jury,” Colbert wrote.3Douglas L. Colbert, “The Motion in Limine in Politically Sensitive Cases: Silencing the Defendant at Trial,” Stanford Law Review, Vol. 39, No. 6 (Jul., 1987), pp. 1271-1327 (page count 57). DOI: 10.2307/1228848; [https://www.jstor.org/stable/1228848]

Judge Godbey Wood had plenty of legal precedent to rely on in her glib, last-minute court order. In U.S. v. Montgomery (1985), the Court of Appeals for the 11th Circuit which covers Brunswick, Georgia and controls Judge Godbey Wood’s court, “the majority” said the trial court was right to keep exculpatory evidence from the jury. “Defendants’ most interesting claim,” the majority found, “is that the trial judge erred in excluding evidence offered to establish the affirmative defenses of necessity and international law… Other federal courts have considered the availability of an international law defense in cases like this one and have uniformly rejected it.”4U.S. v. Montgomery, 772 F.2d 733 (11th Cir. 1985), where the majority instructed the parties to in part, “See U.S. v. Lowe, 654 F.2d 562, 566-67 (9th Cir. 1981); U.S. v. May, 622 F.2d 1000, 1009 (9th Cir. 1980); U.S. v. Shiel, 611 F.2d 526, 528 (4th Cir. 1979).”

In a nutshell, the Plowshares’ argument is that because nuclear weapons are so hideously poisonous and indiscriminate, and their effects so vast and uncontrollable, that threatening their use (deterrence), like the U.S. Navy practices using U.S. Trident submarines out of Kings Bay, is a criminal conspiracy to commit war crimes. Therefore, nonviolent interference with this ongoing criminal conspiracy is a justifiable form of crime prevention, or a kind of citizen’s arrest.

Trial court judges have regularly granted government motions in limine excluding evidence about international law, the effects of nuclear weapons, and the nature of the U.S. nuclear arsenal. When the inevitable convictions have been appealed, U.S. Circuit Courts of Appeal have declared, like the Second Circuit did in a 1985 case, that defendants “should not be excused from the criminal consequences of acts of civil disobedience simply because the acts were allegedly directed at international law violations.”5U.S. v. Allen, (2nd Cir. 1985)

Later, and as if anticipating the new Treaty on the Prohibition of Nuclear Weapons, the Seventh U.S. Circuit Court of Appeals wrote in 2002, “Even if it were contrary to international law for a nation to possess nuclear weapons, domestic law could properly and does make it a crime ‘to correct a violation of international law by destroying government property.’”6U.S. v. Urfer and Sprong (7th Cir. 2002). These 18- and 35-year-old decisions appear now to be an attempt to proactively and permanently shield nuclear weapons from legal scrutiny, making them sacrosanct forever on a pedestal above the law.7The in limine tactic of excluding testimony helpful to defendants in political cases was used in prosecuting Tim DeChristopher who mucked up an unlawful timber auction. At trial, the judge prevented the jury from finding out the auction was illegal. See the documentary, “Bidder 70.”

Sister Jackie Hudson (left), Sister Carol Gilbert (center), and Sister Ardeth Platte (right) at a disarmament action at a Minuteman nuclear missile launch site in Colorado. Submitted to the Colorado Springs Gazette.

After their October 6, 2002 symbolic disarmament action at a Minuteman nuclear missile launch site in Colorado,8The prosecutorial tactic of excluding testimony helpful to defendants in political cases was also used in the federal prosecution of climate activist Tim DeChristopher, who outbid competitors for drilling rights at an unlawful BLM auction. Never intending to pay, he was prosecuted in federal court and at trial the judge’s grant of a motion in limine prevented the jury from learning that the BLM auction was illegal. See the documentary “Bidder 70” (Mountainfilm 2012), as well as PeacefulUprising.org and ClimateDisobedienceCenter.org. Sr. Ardeth Platte, Sr. Carol Gilbert, and the late Sr. Jackie Hudson, all members of the Dominican Order of Preachers, were convicted of “sabotage” and of “depredation against government property.” Before trial, by court order, the nuns’ convictions were guaranteed and made inevitable by the trial court’s granting of the government’s motion in limine — turning the courtroom drama into a version of a Kabuki dance — that formulaic Japanese stage play with elaborate costumes, caricatured roles, and a never-altered conclusion. Srs. Ardeth, Carol and Jackie were prohibited from presenting evidence — or jury selection questions, jury instructions, or opening or closing statements — regarding the effects of nuclear weapons detonations or the legal obligations of citizens under international law. The trial court in Denver — evidently having scoured every previous nuclear weapons protest case for any potential defense — forbade the three nuns from:

“Any defense based on necessity or violation of international law or that impugns the … legality … of the Minuteman III missile system, including” the defenses of “necessity; duress; choice of evils; privilege; justification; ‘Nuremberg’; mistake of law; international law violations; U.S. Army Field Manual violations; International Court of Justice judgment violations; Treaty violations; UN Charter violations; Vienna Convention violations; … Geneva Convention violations; and/or Tokyo Judgment violations.”

 

[Read more…]

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International Action Camp – Come to Germany July 13-22, 2020

Remove the Old and Cancel the New US Nuclear Bombs in Europe – the B61-12 – CANCELLED

Spring Quarterly 2020
Civil resistance at Büchel Air Base, June 28, 2019

 

Please join the German campaign to get rid of the remaining 20 US nuclear weapons deployed at the Büchel Air Base, and to halt the proposed deployment of a new B61-12 nuclear bomb, scheduled to begin production in the US by 2022.

We invite peace, anti-nuclear, climate, human and animal rights activists to Peace Camp July 13 to 22, 2020, near the main gate of the Büchel Air Base in west-central Germany. International Action Camp is part of 20 weeks of action at the base that goes from March 26 to August 9. The camp is in a beautiful rural area and includes camp-cooked organic meals, running water, internet access, and housing of all kinds including camping. Participants will enjoy international networking, vigils, films, workshops, nonviolence training, civil resistance, and one or two excursions in the picturesque volcanic Eifel Region of the Mosel River Valley. Camp fees are about 25 Euros per day for three meals and camping amenities. Rooms in nearby cabins or hostels are an additional 25-30 Euros per night.

International Week 2020 will be the 4th time that US nuclear resisters will join European activists to confront the US nuclear weapons at Büchel.

Political, Military, & Corporate Background

Despite the end of the Cold War, about 20 US nuclear bombs are still deployed in Germany. German pilots are both trained and obligated to take off with these bombs in their Tornado jet fighter-bombers and, if the orders come from a US president through NATO, to use them on their targets. This terrifying NATO war plan is part of the “nuclear sharing agreement” between the US and Germany, and includes a first-strike option. NATO calls this nuclear proliferation “Power and Burden Sharing.” In addition nuclear exercises next to the East-European Russian border — the latest was code-named named “Steadfast Noon” — with tens of thousands of soldiers and major movements of heavy military equipment.

These thermonuclear weapons are scheduled to be replaced by an expensive, new, precision-guided nuclear bomb called the B61-12. Three National Laboratories — Los Alamos and Sandia in New Mexico; Lawrence Livermore in California — designed the B61-12, and parts are being made at the Y12 complex in Tennessee, the Kansas City Plant in Missouri, and at Sandia. Final assembly will take place in Pantex, Texas. Major contractors are Boeing, Lockheed-Martin, Honeywell, and Bechtel. The Federation of American Scientists reports that the roughly 150 B61-12s planned for Europe will cost at least $25 million apiece.

[Read more…]

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Stop the New Nuclear Arms Race Conference

The Nuclear Resister, Nukewatch, and the Oak Ridge Environmental Peace Alliance invite you to an international conference May 22-25 in Maryville, Tennessee.
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Nuclear Resister
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SEVENTY-FIVE YEARS after Hiroshima and Nagasaki, nuclear weapons are still an existential threat; the Doomsday clock is set at 2 ½ minutes til midnight; nuclear weapons states are investing trillions of dollars to upgrade their weapons systems.

At the same time, peace movements around the world are gaining strength, bolstered by the compelling authority of the Treaty on the Prohibition of Nuclear Weapons.

The problem of nuclear weapons will not be solved by non-nuclear nations alone—those of us living in nuclear weapons states and under the nuclear umbrella have a primary obligation not just to work for, but to achieve abolition.

STOP THE NEW NUCLEAR ARMS RACE will bring together activists from around the world to talk about how we can use the tools available to us—the Treaty, the work of Don’t Bank on the Bomb, the  merging voices of faith communities, resistance efforts at weapons sites, localized nuclear-free-cities efforts,  ICAN’s report on University ties to nuclear weapons production, Back from the Brink, direct actions at military bases, and more—in collaborations that are mutually supportive and effective.

SCHEDULE

The conference begins Friday evening with a chance to hear from participants about the work being done around the globe.

Saturday, we’ll have presentations followed by in-depth workshops focusing on many of the efforts happening in the US, Europe and elsewhere.

Sunday will include time to share ideas and develop collaborative strategies. As the Ban Treaty enters into force, it will provide additional leverage to reduce the reach of nuclear weapons states; as weapons are withdrawn from foreign soil, the pressure will mount on weapons states to fulfill the promise they made in the Nonproliferation Treaty.

Monday morning—a trip to the bomb plant! We’ll go to Oak Ridge for a nonviolent demonstration against the nuclear weapons work being done at the Y-12 Nuclear Weapons Complex.

[Read more…]

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Kings Bay Plowshares 7 Convicted After 4-Day Trial

Nukewatch Winter Quarterly 2019-2020

“The Pentagon has many installations – and we just walked out of one of them.  It’s a place where they weaponize the law. They wield it mostly against the poor, the people who have all the redlined neighborhoods in this country know that very well,” Mark Colville, one of the defendants, said to Gloria Tatum

By Marjorie Cohn, Truthout

The seven Catholic peace activists who were convicted on October 24 for their symbolic protest against nuclear weapons at the Kings Bay Naval Base are now facing a two-to-three-month wait to hear their prison sentences. They could face more than 20 years in prison.

“Our own lives are uncertain regarding the possible length of prison sentences,” defendant Martha Hennessy told Truthout in an exclusive interview. “But we rejoice in the fact that more scrutiny is being directed at the purpose of the Kings Bay Naval Base in southern Georgia.”

The Kings Bay Naval Base is home to nuclear armed submarines with two dozen ballistic Trident D5 missiles, each of which is 30 times more powerful than the atomic bomb the United States dropped on Hiroshima in 1945. The seven peace activists—Martha Hennessy, Mark Colville, Clare Grady, Jesuit Fr. Stephen Kelly, Patrick O’Neill, Carmen Trotta and Elizabeth McAlister, who are collectively known as the Kings Bay Plowshares 7—were convicted by a Georgia federal jury of conspiracy, destruction of property on a naval station, depredation of government property, and trespass after entering the base on April 4, 2018.

They came onto the base bearing hammers, baby bottles containing their own blood, crime scene tape, a copy of Daniel Ellsberg’s book, The Doomsday Machine: Confessions of a Nuclear War Planner, and an indictment that charged the U.S. government with crimes against peace. They cut a fence and entered the base without being detected. They used the hammers to deface a monument to the Trident, poured their blood and left a sign that read, “The Ultimate Logic of Trident is Omnicide.” They went to three different sites on the base, including a storage bunker for nuclear weapons where they damaged statues and poured their blood on various structures.

“We understand the efficiency of the State is a formidable force, and we ourselves are not surprised with the guilty verdict on all counts,” Hennessy told Truthout. “In a time of withdrawing from nuclear treaties and promoting violence in foreign policy, we are left to wonder what the future may hold for the world.”

On stage during an Oct. 20 festival in their honor, the Kings Bay Plowshares 7 from left are Clare Grady, Elizabeth McAlister, Mark Colville, Martha Hennessy, Patrick O’Neill, Fr. Stephen Kelly (in photo), and Carmen Trotta. Photo: John LaForge
Facing a Jury without Opinions on Nuclear Risks

The jury that convicted the Kings Bay Plowshares 7 activists was self-avowedly apathetic about the risks posed to humanity by nuclear weapons. [When the pool of 72 prospective jurors was asked by the judge “Does anyone have strong feelings one way or the other about nuclear weapons?” not a single person raised their hand.] And the judge and prosecution worked together to prevent the defendants from sharing information or arguments to raise jurors’ consciousness on the issue.

Sam Husseini, communications director at the Institute for Public Accuracy, a progressive nonprofit organization, attended the three-day trial. “It was a subtly but insidiously controlled courtroom with the judge and prosecution working hand in glove,” Husseini told Truthout. “The defendants were allowed to speak about their religious beliefs and to some degree how they relate to nuclear weapons. But it was all presented as subjective and expert testimony on international law, and justification and necessity of urgent action were excluded.”

The defendants, who said they were following the command of the biblical prophet Isaiah to “beat swords into plowshares,” were denied the right to present the defense of necessity, which allows one to commit a crime in order to avoid a greater harm. They were also denied the right to discuss the Religious Freedom Restoration Act, which “ensures that interests in religious freedom are protected.” Thus, they were limited to their own testimony about their subjective motivations for their acts.

Our own lives are uncertain regarding the possible length of prison sentences…. But we rejoice in the fact that more scrutiny is being directed at the purpose of the Kings Bay Naval Base. — Martha Hennessy

“Defendants were allowed to briefly discuss their moral objections to nuclear weapons but were cut off quickly. No outside evidence or testimony was allowed,” defense attorney Bill Quigley told Truthout.

Husseini added: “The manner that the judge allowed the case to be made did not make it clear that the house was indeed on fire—or even that there was a house. The reality of the nuclear weapons, the threat they pose, and certainly their illegality, were not objectively communicated” to the jury.

Speaking with Truthout in an exclusive email interview, defendant Patrick O’Neill shared an anecdote that further highlights the degree to which the jury reflected the widespread ignorance about nuclear risks that exists in the U.S. now.

“When Judge Lisa Wood asked the entire jury pool: ‘Do any of you have a strong opinion about nuclear weapons—pro or con, would you raise your hand?’ Of 73 people, not one raised a hand,” O’Neill told Truthout. “That is an indication that people living in the throes of the nuclear age, at 2 minutes to midnight on the Doomsday Clock, have come to see [weapons of mass destruction] as inconsequential—nuclear weapons on hair-trigger alert 24/7 is now a ‘normal’ part of people’s lives.”

O’Neill added, “The Pentagon has brainwashed people to just trust a government that is imperiling the earth and risking the end of life as we know. That’s why we went to Kings Bay—to hopefully wake people up.”

Refusal to Allow the Necessity Defense

If the judge had allowed the peace activists to raise a “necessity defense”—in other words, arguing that their actions were necessary to avoid the use of nuclear weapons—the jury could have come to a very different decision. There was abundant evidence to support a necessity defense.

In order to sustain the necessity defense, Quigley explained in his brief, the defendant must show four elements:

(1) that she believed that she needed to choose between two evils and she chose the lesser evil. “Any use of nuclear weapons by definition cannot discriminate between civilian and military targets. Each of the many Trident nuclear missiles kept at Kings Bay contain many multiples of the destructive power used by the United States in Hiroshima and Nagasaki.”

(2) that she sincerely believed and reasonably acted to prevent imminent harm. The Bulletin of the Atomic Scientists says the world is closer to nuclear devastation than ever before. President Trump repeatedly declared that “all options are on the table” and threatened North Korea with “fire and fury like the world has never seen.”

(3) that she reasonably believed her action could help to avoid that harm. “Only by symbolically disarming these nuclear weapons is there any hope for real disarmament.”

(4) that she reasonably believed there were no legal alternatives to breaking the law. “Defendants have each spoken, written, prayed, petitioned, and lobbied for nuclear disarmament and peace for decades. These actions are the only ones left which might make a difference.”

Quigley’s brief cited the 2018 Nuclear Posture Review, which would allow the United States to use nuclear weapons in response to a non-nuclear attack. The Doomsday Clock, maintained by the Bulletin of Atomic Scientists, continues to stand at 2 minutes to midnight. The US refuses to join the majority of the nations of the world in ratifying the Treaty on the Prohibition of Nuclear Weapons. Trump withdrew the U.S. from the Iran nuclear deal, and he may well pull out of the New START Treaty as well, “which would leave nuclear weapons free from all controls” Quigley wrote.

It was a subtly but insidiously controlled courtroom with the judge and prosecution working hand in glove. — Sam Husseini

Ellsberg believes the defendants were “definitely entitled” to present the necessity defense. As he said in a statement to the Institute for Public Accuracy, “an action which would under other circumstances be illegal can be justified as legal by a reasonable belief that it is necessary to avert a much greater evil: in this case omnicide, the collateral murder of nearly every human on earth in a war in which the nuclear missiles aboard Trident submarines were launched.”

The judge found that the defendants could have protested nuclear weapons without illegally entering Kings Bay and could’ve used the political process to change nuclear policy. But, Quigley wrote in his motion to reconsider, “there are no facts at all in the record” to support the judge’s conclusions. In fact, the defense tried unsuccessfully to introduce evidence that defendants had tried to effect change through the political process “for decades without success.”

In a declaration filed with the court, Ellsberg wrote about the significance of civil disobedience:

[I]t was not until widespread campaigns of civil disobedience, affecting public awareness and conscience . . . relating to the women’s right to vote, civil rights, and the right to unionize that the electoral and legislative and legal processes began to function to extend and protect these rights in a way we now take for granted as fundamental to democracy.

Refusal to Allow Expert Testimony on Illegality of Nuclear Weapons

“Tellingly,” Quigley wrote, “the Magistrate granted the Government the right to preclude the jury from hearing evidence about nuclear weapons without never once discussing or even acknowledging the uncontested lethality of nuclear weapons.”

Moreover, the judge denied the defense motion to present the expert testimony of Professor Francis Boyle about the illegality of nuclear weapons under both international and U.S. law. “[T]hese defendants acted lawfully and reasonably to prevent egregious and fundamentally prohibited of all crimes, war crimes,” Boyle wrote in a declaration. He concluded that the defendants did not have the criminal intent required to convict them of the charged crimes.

But while the “Defendants’ subjective beliefs about the illegality of nuclear weapons may be relevant background information, whether nuclear weapons are actually illegal under international or domestic law (a doubtful proposition) is not relevant or an appropriate issue to litigate in this case,” Judge Lisa Godbey Wood wrote.

Refusal to Allow Religious Freedom Restoration Act Defense

The judge also denied the defense motion to argue that the prosecution violated their rights to religious exercise protected by the Religious Freedom Restoration Act (RFRA). Although the judge concluded that the defendants had established the prima facie elements of a RFRA defense, the government demonstrated a compelling interest in prosecuting the defendants for their actions at Kings Bay, citing the safety of individuals on the base, the security of the assets there, and the smooth operation of the base.

If the jury would have heard the facts about the nuclear bombs headquartered at Kings Bay … they would probably have come to a different decision.

—Def. Attorney Bill Quigley

The defense, however, elicited an admission from Scott Bassett, communications officer for Kings Bay base, that he had told The Washington Post that the protesters didn’t threaten any personnel or asset, or damage any military asset, including submarines or weapons systems, at the base.

Reactions to the Verdict

The Kings Bay Plowshares 7 are asking people to sign a worldwide petition urgently requesting that the charges against them be dropped.

Peace activist and retired Col. Ann Wright summed up the irony of the prosecution of the Kings Bay Plowshares 7, writing on Facebook, “The US nuclear weapons are so poorly protected that the 7 were able to get into the more secure area! They should be rewarded for pointing out how poorly guarded the weapons are instead of being on trial!!!”

“I don’t see [what I did] that’s the crime,” defendant Liz McAlister said on Democracy Now! “I think the crime is the weapons. The crime is the money spent on the weapons. The crime is the money taken from the real needs in our country and in our world to spend it on these weapons of mass destruction. And we need to stop that. And that’s the message that I want to continue to stand behind.”

Meanwhile, defense attorney Quigley told Truthout that he thinks the verdict will “make convictions easier and defenses harder” in the future.

“If the jury would have heard the facts about the nuclear bombs headquartered at Kings Bay—with 3,800 times the destructive power of Hiroshima and the real possibility of ending all life on the planet—they would probably have come to a different decision about the legality of what these courageous people did,” he said.

—Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the advisory board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. 

Copyright, Truthout.org. Reprinted with permission. <https://truthout.org/articles/convicted-anti-nuclear-activists-speak-out-pentagon-has-brainwashed-people/>

 

 

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