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US Circuite Courts of Appeal.

   Seven nuclear weapons protesters are facing up to 25 years in prison for a nonviolent protest at the nuclear submarine base Georgia. The “Kings Bay Plowshares 7” snuck into the base April 4, 2018, recalling the 1968 assassination of Dr. Martin Luther King, Jr. Three of the 7 have spent a year in jail, and four are out on house arrest, awaiting trial. Considering the suppressive legal history of US anti-nuclear cases puts the courage of these seven into stark relief. They have a long row to hoe.

Between 1980 and 2005 at least seven US Circuit Courts of Appeal have ruled that trial judges may prevent juries from hearing a legitimate defense in political protest cases -- even if nuclear weapons are illegal. The Appeals Courts have declared for example 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” (US v. Allen, 1985), and, “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’” (US v. Urfer & Sprong, 2002).

After their October 6, 2002 disarmament action at a Minuteman missile launch site in Colorado, Ardeth Platte, Carol Gilbert and Jackie Hudson were convicted of “sabotage” and of “depredation against government property.” (jonahhouse.org/archive/space_plowshares.htm)
Before trial, their convictions were guaranteed inevitable by court an order that prohibited them from presenting trial evidence, or jury selection questions, or jury instructions, or opening or closing statements regarding the outlaw status of nuclear weapons. The trial judge mined every previous weapons protest case for any and all available defenses, in order to quash them. In an order that was later upheld by the 10th US Circuit Court of Appeals, the trial judge used this all-encompassing exclusion of such evidence, so the jury wouldn’t hear:

“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; US 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.”

There have been objections to such orders. In “Towards a Recognition of the Necessity Defense for Political Protesters,” in the Washington and Lee Law Review, Prof. Matthew Lippman wrote that, “Civil resisters typically … claim that their criminal act was a justified attempt to halt an ongoing governmental illegality.” The government is, they assert, “intentionally engaging in illegitimate criminal conduct” -- nonchalantly called “deterrence” -- which is the public, open-ended terroristic threat to commit massacres the world over.

Most of the court rulings forbidding necessity rely on the US v. Allen case which found, “Although their purpose may have been to uphold international law, their action disobeyed the wholly independent federal law protecting government property.” Independent it may be, but it is not superior or controlling. This blatant error or subterfuge is obvious, in view of five Supreme Court cases where US treaties are declared the “supreme law of the land” -- controlling all other law.

Prof. Lippman says, “By denying protesters the use of the necessity defense, courts merely are…abdicating their constitutional duty to permit criminal defendants to introduce a defense.” Nowadays, most federal juries are prohibited from learning objective facts about nuclear weapons: either about their uncontrollable, long-term, and indiscriminate effects, or about what treaty law says about individual responsibility for planning and preparing massacres. Federal juries only hear what military officers and weapons contractors testify to about the Bomb. Their biased, self-interested testimony, from the perpetrators of the weapons crimes being protested, becomes the only “evidence” the jury is allowed to consider.

Easy to prove nuclear weapons are unlawful

Because of these court orders, federal juries never hear any expert testimony that rebut or refute the military’s or contractors’ claims about their weapons. The reason for the exclusion of these facts is obvious. Defense testimony can easily disprove the presumption and assertion that nuclear weapons are legal. The courts know this. Judges know how easy it is to show that H-bombs are outlawed.

Binding international Treaties in general -- and Air Force, Navy and Army Field Manuals in particular -- all “impugn the legality” of nuclear weapons. In view of nuclear weapons’ poisonous, indiscriminate and long-term effects, US military manuals and Treaty Law place them in a class along with cocaine, land mines, cluster munitions, biological weapons, and poison gas. For some reason federal courts can’t tolerate this. These prevailing laws can’t be explained to juries. It’s as if the judges believe the courts to exist in a vacuum, where even the tiniest bit of fresh air would smash their bubble.

The court system is so frightened of such a puff of air, that in one fantastic case, where a federal judge in Arizona agreed to hear a necessity defense (in a 1985 nuclear weapons protest case), the 9th Circuit Court of Appeals rushed in before trial to prevent it. In US v. the Hon. Richard M. Bilby, Arizona’s US Attorney acted against the judge, are warned that allowing the defense of necessity would, “divert the focus of the trial”, “transforming routine criminal prosecutions [in]to broad-ranging and time-consuming inquiries concerning the wisdom of nuclear … policies…”  Indeed, “If left uncorrected, the … order will … possibly result in the defendants’ acquittal…” A frightening prospect indeed. The 9th Circuit ruled against judge Bilby, forbid the use of the defense, and got its conviction.

Prof. Lippman notes that, “The judiciary, in ruling on necessity, must concede that the harm created by nonviolent protesters is minor when compared to the potential consequences of a nuclear…war…”  But the judiciary absurdly pretends otherwise, and listens to federal prosecutors instead, one of whom even claimed that if a necessity defense were allowed, “the harm to the government … would be substantial.”

Dozens of lower courts have permitted necessity defenses by political resisters, and juries have often returned acquittals, as Prof. Lippman points out. “In my rather extensive experience,” he wrote, “in civil resistance cases in which defendants have been permitted to rely upon the necessity defense, a significant percentage have been acquitted by a jury of their peers.”

“It is time,” says Prof. Lippman, “to tear down the ‘Berlin Wall’ that prevents civil resisters from pleading the necessity defense…” Unfortunately for the seven Kings Bay Plowshares defendants, that wall of silence is still high and mighty.