Defense Case Denied for Nuclear Weapons Protesters

L to R: Michael Walli, Sr. Megan Rice and Greg Boertje-Obed, in Jeffery Smith’s depiction from the Washington Post, Tues., April 30, 2013, p. C1
L to R: Michael Walli, Sr. Megan Rice and Greg Boertje-Obed, in Jeffery Smith’s depiction from the Washington Post, Tues., April 30, 2013, p. C1

 

“The Defendants may not present a defense of necessity or justification … evidence that the operations at Y-12 violated international or domestic law, evidence that their actions were compelled by the Nuremberg Principles or evidence of their motives”.
That’s the April 30 ruling of US District Judge Amul Thapar which will make a sham of the upcoming trial in Knoxville, Tenn. of three pacifists who climbed through four wire fences to string plastic “Crime Scene” tape and “name with blood” the Highly Enriched Uranium Materials Facility at the Y-12 complex in Oak Ridge, Tenn. Y-12 is the “Fort Knox of the nuclear arsenal” reportedly housing 400 tons of HEU. (That’s 800,000 pounds of material that the US has threatened to bomb Iran over, if a single ounce of it is ever found there.) The show trial starts May 6.
Three defendants, Duluthian Greg Bortje-Obed, 57, Sr. Megan Rice, 83, and Michael Walli, 64, face the possibility of 35 years in prison if they are convicted of “damage to federal property” (the fences) which carries a maximum of 10 years, and of “intent to injure the national defense of the United States” (embarrassing the war system) which carries a 25 year maximum.

Judge Thapar’s order notes that “the necessity defense exempts a defendant from liability when [a] criminal act clearly averted much more harm than it caused.” Think of a murder case, where the prosecutor must prove that the accused had a motive and that his alibis are flawed. In this case however, the jury will not be allowed to decide if the protest was necessary. Judge Thapar ruled that the defendants couldn’t make such a showing even if they tried.

To do so, he had to dismiss reams of expert opinion including 1.5 hours of testimony given April 23 for the defense by former US Attorney General Ramsey Clark. The judge observed that the “preclusion of irrelevant evidence or affirmative defenses may occur pretrial.”

Defense attorney Bill Quigley had asked the Hon. Mr. Clark, “The defendants believe indiscriminate weapons are illegal under US military code. Is that a reasonable belief?” The AG answered, “By definition it follows they are illegal.”

The judge said his order “[D]oes not ‘invade’ the province of the jury when determining [pretrial] whether a defendant has met the burden of introducing sufficient evidence on each of the elements…” But in criminal cases, the question of whether an action caused less harm than it prevented is for the jury to answer — after hearing the evidence.

Maintaining the
fiction of legal H-bombs

Now, when the possession of radioactive WMD is as issue, and in the politically charged atmosphere of the only country to ever bomb cities with nuclear weapons, it is the government itself that is said by the defendants to be the wrong-doer. Judge Thapar’s order notes, “[T]he defendants’ entire theory is that the government is committing war crimes and that they felt obligated to try and stop the government.” [Emphasis in original]

At the 54,000-acre Y-12 site, a warhead called the “B61-model 12” is being constructed for US warplanes in Europe. It’s a 50-kiloton H-bomb, four times the magnitude of the Hiroshima device that killed 140,000 civilians. Greg, Megan and Michael have done the math. So has the International Court of Justice, which declared in 1996 that the threatened use (that is, the deployment) of super-accurate nuclear weapons violates binding international law.

In legal briefs by defense attorneys the Nuremberg Principles are crucial on this point, particularly their edict that any “planning, preparation, initiation of a war of aggression or a war in violation of international treaties, agreements, or assurances” “are crimes for which there shall be individual responsibility.”
Thus the “inchoate” crime of planning and preparing massacres was itself made illegal at Nuremberg. In order to prevent a repetition of the mass destruction of civilians committed by the Nazis  — which were crimes of obedience in Germany — the present day work of engineering such unspeakable slaughter as nuclear weapons cause is now a criminal enterprise. Building and deploying such first-strike warheads as the B61— which is a threat to destroy civilians en masse — also violates our own military service manuals which have embraced Nuremberg law.
Questions of government criminality must sometimes be addressed by our courts. The judiciary exists partly to check the White House and the Congress. Yet questions about the legal status of nuclear weapons are treated like radioactively hot potatoes by our judges and appeals courts. They have repeatedly ruled that juries mustn’t hear about either what our weapons cause (massacres), or what our laws say about readying nuclear sneak attacks (it’s unlawful).
Judge Thapar’s order is another bald admission that in order to maintain that our H-bombs are legit, juries must be kept in the dark.
— John LaForge works for Nukewatch, a peace and environmental justice group in Wisconsin.