Nukewatch Quarterly Summer 2015

By John LaForge 

A federal appeals court has vacated the sabotage convictions of peace activists Greg Boertje-Obed of Duluth, Minnesota; Michael Walli of Washington, DC; and Sister Megan Rice of New York City. On May 8, a three-judge panel of the Sixth US Circuit Court of Appeals found that federal prosecutors had failed to prove—and “no rational jury could find”—that the protesters had intended to damage “national defense.”

In July 2012, Greg, Michael, and Megan clipped through four fences and walked right up to the “Fort Knox” of weapons-grade uranium, the Highly Enriched Uranium Materials Facility inside the Y-12 complex in Oak Ridge, Tennessee. In the hour before they were confronted, the nuclear abolitionists painted “Woe to an Empire of Blood” and other slogans on several structures, strung banners, poured blood on the building, and enjoyed their surprise in catching the nuclear weapons system asleep at the wheel. When a guard finally approached them, they offered him some bread.

The three have been imprisoned since they were convicted in May 2013 of damage to property and sabotage. Boertje-Obed, 60, and Walli, 66, were both sentenced to 62 months on each conviction, to run concurrently; Sister Rice, now 85, was given 35 months on each count, also running concurrently.

Following the appeals court reversal, a motion for immediate release was filed and granted—unopposed by the government—on May 15. All three activists were hastily allowed to return to their respective homes.

The appeal did not address questions about the legal status of nuclear weapons, but rather focused on whether the Sabotage Act applies to nonviolent protesters. During the appeal’s oral argument, the prosecutor insisted that the three senior citizens had “interfered with defense.” Circuit Judge Raymond Kethledge asked pointedly, “With a loaf of bread?”

The court’s written opinion, also by Judge Kethledge, ridiculed the idea of depicting peaceful protesters as saboteurs, saying. “It is not enough for the government to speak in terms of cut fences…” To apply the Sabotage Act, the government must prove that the defendant’s actions were “consciously meant or practically certain to” interfere with “the nation’s capacity to wage war or defend against attack.” The court found that Greg, Megan, and Michael “did nothing of the sort”; thus, “the government did not prove the defendants guilty of sabotage.” The opinion went so far as to say, “No rational jury could find that the defendants had that intent when they cut the fences.” The opinion is uncharacteristically blunt in its direct implication of prosecutorial overreach and judicial manipulation of the jury.

Another reason the appeals court vacated the sabotage conviction was that the Supreme Court’s legal definition of “national defense” is unclear and imprecise, “a generic concept of broad connotations…” The appeals court said it needed “a more concrete” definition because “vague platitudes about a facility’s ‘crucial role in national defense’ are not enough to convict a defendant of sabotage. And that is all the government offers here.” The definition is so general and vague, the court said, that it barely applies to the Sabotage Act, since, “It is hard to determine what amounts to ‘interference with’ a ‘generic concept.’”

Re-sentencing may result in “time served” 

The appeals court took the unusual additional step of voiding the prison sentences for both the sabotage and damage-to-property convictions, even though the second conviction still stands. This was because the harsh prison terms given for property damage were heavily weighted in view of the (ill-gotten) sabotage conviction. The result is that the three radical pacifists were released until their re-sentencing, which is scheduled for July 8. As the appeals court said: “It appears that the [sentencing] … for their [damage to property] conviction will be substantially less than their time already served in federal custody.”

The high-profile nature of uranium enrichment at Oak Ridge, and the vulnerability of the site to the entrance of three senior citizens, brought enormous media attention to the case, which has been featured in lengthy investigations by the Washington Post, the New Yorker, and others. The action, known as “Transform Now Plowshares,” also helped uncover scandalous misconduct and malfeasance among security contractors at the Y-12/Oak Ridge complex.

What remains unaddressed is the White House’s plan to spend $1 trillion on new weapons production facilities over the next 30 years—$35 billion a year for three decades. The role of the Highly Enriched Uranium Materials Facility in nuclear bomb production—a clear violation of the Nuclear Non-Proliferation Treaty—was named with blood by the Transform Now Plowshares action, but H-bomb business marches on. Protesters will converge on the site again August 6, the 70th anniversary of the US atomic bombing of Hiroshima.

For more on Y-12 and the weapons build-up, see the Oak Ridge Environmental Peace Alliance, OREPA.org.

Ill-Informed Distinction in Appeals Court Order 

The appeals court opinion made one apparently ill-informed distinction between this case and two other Plowshares actions. In symbolic protest actions taken on top of Minuteman nuclear missile silos, the Silo Pruning Hooks (Carl Kabat, Helen Woodson, Paul Kabat, and Larry Cloud Morgan) hammered on silo N-5 in Missouri in 1985, and the Sacred Earth and Space Plowshares (Sisters Ardeth Platte, Carol Gilbert, and Jackie Husdon) did symbolic damage to silo N-8 in Colorado in 2002.

The appeals court opinion declares that unlike actions taken at weapons manufacturing sites, protests against sites with armed nuclear weapons on alert could still be characterized as sabotage because, “… even a brief disruption of [the Minuteman III’s] operations would have grievously impaired the nation’s ability to attack and defend. (Imagine, for example, if Soviet [sic] infiltrators had similarly disrupted the facilities’ operations in the minutes before a Soviet first strike.)”

This claim betrays profound ignorance of the US nuclear arsenal’s diversity, size, and destructive capacity—and of geopolitical events including the long-past dissolution of the Soviet Union.

A computer glitch at Wyoming’s FE Warren Air Force Base in 2010 took 50 Minuteman missiles off-line but had, according to Lt. Gen. Dirk Jameson (USAF, Ret.), “no real bearing on the capabilities of our nuclear forces.” Gen. Jameson was a Deputy Commander in Chief and Chief of Staff of Strategic Command, which controls all 450 Minuteman III land-based ICBMs. Lt. Col. John Thomas, a spokesman for the Air Force’s Global Strike Command, said at the time, “The wartime capability of that squadron [of missiles] was never significantly affected.”

Additionally, the US has 14 Trident ballistic missile submarines, each armed with 24 missiles that carry at least five warheads apiece. If only four of these submarines are on patrol at any given time, their 480 thermonuclear warheads could incinerate all the major cities of the world, not merely those in “Soviet” [sic] territory.

The court also appeared ignorant of the fact that the Air Force regularly takes dozens of Minuteman III missiles off alert for repairs or replacement, meaning they are often “disrupted” without any consequent impairment of the government’s nuclear war readiness.

The appeals court cited testimony of an Air Force Lt. Col. who said, regarding missile protests, that “it would be unwise to launch the missile in those circumstances.”

Of course, thousands of authorities the world over have said it would be unwise to launch such missiles under any circumstances. Former Reagan Administration Presidential Adviser and Cold War hawk Paul Nitze said, “I can think of no circumstances under which it would be wise for the United States to use nuclear weapons, even in retaliation for their prior use against us.”