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Boardman writes: "One stark example of American exceptionalism is the nation's official pride in being the first and only country to drop atomic bombs on civilian targets. There was no Nuremberg tribunal for those 1945 war crimes."

'The jury verdict against the seven Kings Bay Plowshares protestors affirms the US government position that no one has any right to challenge the legality of US freedom to resort to nuclear annihilation.' (photo: The Ithaca Voice)
'The jury verdict against the seven Kings Bay Plowshares protestors affirms the US government position that no one has any right to challenge the legality of US freedom to resort to nuclear annihilation.' (photo: The Ithaca Voice)

Christians vs. Militarists – In Clash of Religions Over Nuclear War, Militarists Win

By William Boardman, Reader Supported News

16 November 19

It is one of the abiding principles of American Exceptionalism that Americans, no matter what they do, are exempt from the Nuremberg Principles or most any other aspect of international laws against war crimes or crimes against humanity. Or as the US recently made clear: as far as any allegations of US crimes are concerned, the International Criminal Court can go pound sand.

ne stark example of American exceptionalism is the nation’s official pride in being the first and only country to drop atomic bombs on civilian targets. There was no Nuremberg tribunal for those 1945 war crimes. The US has maintained ever since that it has the right to obliterate civilians with nuclear weapons any time it feels the need. In 2018, seven American peace activists nonviolently challenged this right to kill, invading a nuclear missile submarine base and defacing government property with religious objections. The US responded with the full force of federal law and charged them with multiple felonies carrying the threat of decades in jail. Their 2019 trial ended with the predictable affirmation of the US right to choose global omnicide and the predictable absence of widespread media coverage.

At the end of a four-day trial, a federal jury in Georgia had a chance to take a stand in defense of global safety from nuclear weapons. Instead the jury voted unanimously in favor of all 28 counts against seven defendants for committing symbolic property crimes in protest against the US willingness to hold the world hostage to the threat of nuclear war. The jury verdict against the seven Kings Bay Plowshares protestors affirms the US government position that no one has any right to challenge the legality of US freedom to resort to nuclear annihilation. That’s not the legal analysis, that’s just what happened in the US District Court for the Southern District of Georgia in Brunswick on October 24, 2019, at the end of a trial in which the government successfully prevented the defendants from presenting the actual defense of their actions.

The jury took less than two hours to reach all 28 separate verdicts on counts of conspiracy, destruction of Navy property, depredation of government property, and trespassing. In other words, the jury didn’t deliberate in any meaningful sense. Taking less than 4 minutes per count allows just about enough time to read each count, vote on each defendant, and check the government-approved box on the government verdict form like good, obedient patriots unwilling to entertain alternatives to US-approved thought.

The Naval Submarine Base Kings Bay is a 17,000 military facility surrounded by 26 miles of fencing. The Kings Bay base is home to eight of the most advanced US missile submarines. Each submarine is armed with a set of Trident II missiles carrying up to eight nuclear warheads with the destructive power of as much as 488 kilotons each. The bomb that destroyed Hiroshima was 14 kilotons, one thirty-fifth as powerful as one warhead. Each missile with eight warheads can carry 3,904 kilotons, enough for the equivalent of 278 Hiroshimas destroyed by one missile. Each submarine can carry 20 missiles with the capacity to create more than five thousand Hiroshimas. The US refers to these submarines as “its most survivable nuclear strike capability… [that is] vital to deterring a surprise nuclear attack on the United States of America.” The US would have you believe that these are defensive weapons, which is true. The US would have you believe that these are not offensive, first-strike weapons, which is false. All that is needed for them to be offensive weapons is for the US to use them first. US nuclear missile submarines are deployed at all times in unknown numbers around the world. The threat of an American first strike on any target is a permanent condition of contemporary life.

“Nuclear weapons are a cocked gun at the head of the planet” – that’s how Plowshares member Clare Therese Grady puts it. The US finger on the trigger is always there.

That reality – and the unacceptability – of the perpetual threat of a nuclear doomsday is what prompted the three women and four men of the Kings Bay Plowshares, all devout Catholics, to plan their symbolic action at the Kings Bay submarine base. At trial, the essential facts were not in dispute. On the 50th anniversary of the assassination of Martin Luther King Jr., April 4-5, 2018, the Plowshares 7 had cut their way through the fence and entered three separate sections of the base, where they wrote scriptural graffiti, poured their own blood, and damaged a display of retired missiles that they considered a shrine to militarism. They also decorated the area with crime scene tape (the government insisted on calling it “caution tape”) and they used two cameras to record their peaceful actions. And they prayed. They were arrested without incident and base officials acknowledged that at no time did the protestors pose a threat to anyone.

In earlier legal proceedings a year before trial, the Plowshares had invoked the 1993 Religious Freedom Restoration Act in justification of their actions taken as acts of religious conscience. The law states that it “ensures that interests in religious freedom are protected,” based on the Constitution’s guarantee of the free exercise of religion. In 2014, the US Supreme Court noted that the law covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” In the Hobby Lobby case, in which the court upheld the right of Christian retailers not to sell birth control, the court ruled that the law “prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.”

Federal judge Lisa Goodbey Wood did not rule on the defendants’ motion to dismiss under the Religious Freedom Restoration Act until October 18, 2019, a Friday three days before the trial started. Judge Wood also ruled that the Plowshares defendants could not use various defenses: justification, necessity, religious freedom, freedom of speech, or the illegality of nuclear weapons under international law or domestic law. Judge Wood does not offer a serious analysis of the questions but rather makes ex cathedra pronouncements without further support:

Defendants’ individual religious and moral beliefs concerning nuclear weapons and their beliefs about the illegality of nuclear weapons are not relevant to any of the essential elements of the offenses charged or any apparent affirmative defense that Defendants can assert at trial…. 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…. Defendants are precluded from asserting a defense based on the illegality of nuclear weapons…. Even if true, the Defendants’ belief that nuclear weapons are illegal is not a defense to the charges here.

That is not an ordinary judicial ruling. Judge Wood makes no legal argument (“a doubtful proposition” is not a legal argument, it’s just barely an off-the-cuff opinion). Judge Wood’s ruling is a political ruling. She is a US federal judge. The US government is absolutely opposed to any discussion, never mind litigation, of the question of the legality of nuclear weapons. By ruling out the defendants’ motives and context, Judge Wood rigs the trial from the start.

In an apparent effort to create the illusion of fairness, Judge Wood also rules:

Defendants’ subjective beliefs about religion and the immorality and illegality of nuclear weapons are relevant background information…. However, testimony and argument on these topics will be limited…. While there is some probative value to such background information, the probative value is low. To the extent testimony and argument on these topics creates the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence, and that danger outweighs the relatively low probative value of the background information, the Court will exclude such testimony or argument…. Therefore, Defendants should limit their testimony and argument about their subjective beliefs about religion and the immorality and illegality of nuclear weapons to only that which explains to the jury the context of Defendants’ actions.

This is hopelessly self-contradictory and meaningless as guidance. In fact, the judge kept a tight rein on the defendants during the trial and constantly reminded the jury that the defendants’ testimony was not factual and not relevant. The judge reinforced the jury’s evidentiary vacuum by also barring the three expert witnesses defendants had planned to call.

As a result, the jury had no opportunity to hear Professor Jeannine Hill Fletcher explain the Catholic tradition of conscience that informed the action of all of the defendants (Judge Wood having dismissed that tradition as “subjective beliefs”). In the Religious Freedom Restoration Act proceeding before a different judge, Professor Fletcher had testified at length in explaining the defendants’ religious motivation, explaining that each of the acts for which they were standing trial:

… trespassing onto military property, cutting a lock, cutting a fence, and spreading blood and paint on symbols of nuclear weapons – are in accordance with Catholic practice and Catholic faith….

The belief of the Defendants that nuclear weapons are immoral is, in fact, the teaching of the [Catholic] Church – not just when [those weapons] have been used in the past, not just the threat of their being used now, but the very possession of these weapons of mass destruction is immoral. The bases for this conclusion are the teachings of Pope John XXIII… and of Pope Francis (“The threat of their use as well as their very possession is to be firmly condemned”)….

In the history of the Catholic and the Christian tradition the prophetic role is one that often necessarily violates unjust laws in order to see those laws transformed….

The actions that the Defendants undertook were actions that were attempting to reveal our own idolatry in protecting that warhead. They cut the fence to break that symbolic hold of Trident over those of us who are kind of just going along our day and not even aware that that idol is so clearly in place…. Their prophetic call in that action was at the heart of the Christian Gospel…. The reality that the prophetic action reveals is a reality that some among us as human beings have made the claim that we can decide the future of the planet.… Nuclear weapons could destroy humanity as we know it, the earth as we know it.

Professor Fletcher had more to say, much more, none of it about “subjective beliefs,” all of it about the historical reality of centuries of Christian tradition. Judge Wood’s denial prevented the jury from hearing any of it from an authoritative source.

The judge also barred the jury from hearing expert testimony on the illegality of nuclear weapons under international or domestic law (“a doubtful proposition,” she wrote dismissively, without offering factual or legal support). Professor Francis A. Boyle teaches law at the University of Illinois in Champaign. He is an expert in international law and foreign policy and has qualified as an expert witness in courts in the US and abroad. He filed a draft declaration in the Plowshares case in July 2018 in which he argues in part:

… the current Administration at the Kings Bay Naval Station continues to plan, prepare and conspire for threat or use of many W-76 and W-76-1 nuclear warheads weapons, each capable of unleashing 100 kilotons of heat, blast, and radiation, and many of the W88/MK5 warheads which carry 455 kilotons of nuclear weapons. Any planning, preparation, conspiracy for threat or use of even one of these nuclear warheads was and is unlawful, that is illegal and criminal….

The London Charter (1945) establishing the Nuremberg Tribunal and the Nuremberg Judgment (1946) made it clear that those rules and principles preempt contrary domestic law…. The United States is bound as a party to each of these treaties. Because of the known and intended effects of the explosion of the nuclear warheads, each of these rules prohibits their planning, preparation, threat or use. In addition, any use of the warhead would also violate the international law of armed conflict by causing widespread, long-term and severe damage to our common environment and contaminating neutral states and violate the right to life and other non-derogable human rights….

Professor Boyle continues at length. He inveighs against the breakdown of US constitutional checks and balances that allows the president and the Pentagon to flout US responsibility to abide by the Laws of War. He underlines the failure of the Congress or the courts (this is another example) to force the executive branch to act within the laws that limit the methods and means of the threat or use of military force. He concludes that:

The US government flouts its responsibility to abide by the Laws of War, laws to which we are fundamentally bound. Under these circumstances, where redress within traditional channels is refused and ineffective, domestic criminal law coincides with the “Nuremberg Privilege”… to afford a justification for seeming violations of domestic criminal laws in an effort to prevent the war crimes outlined above.

… the charges brought against these Defendants in these circumstances must be dismissed.

The charges were not dismissed. Judge Wood prevented the jury from hearing any serious argument for any of the defendants’ legitimate defenses. The judge ran a very efficient kangaroo court. The jury, in its bubble of enforced ignorance, performed as the government intended, exercising no thought or independence in finding the defendants guilty as charged.

“Our country has a nuclear regime occupying us and most citizens don’t know about that,” said defendant Martha Hennessy after the trial. Hennessy is the granddaughter of Dorothy Day (1897-1980), the legendary activist who founded the Catholic Worker who is now under consideration for canonization as a saint. When Hennessy testified, she started to read Dorothy Day’s 1945 article about Hiroshima. Judge Wood would not allow it. Even though the prosecution was allowed to call it an “outrage” that the Plowshares protestors would deface the Kings Bay nuclear shrine, Judge Wood prohibited Hennessy from showing pictures of the dead at Hiroshima. As Hennessy has experienced it, the court decided its job was to protect nuclear weapons above all: “If nuclear weapons are beyond the reach of our courts then what purpose do our courts have?”

Hennessy and most of the other Plowshares 7 are currently released from prison. Father Steven Kelly remains locked up in protest. A sentencing hearing is expected in early 2020. The good news is that there’s no evidence of any kangaroos being hurt in this continuing miscarriage of justice. The only immediate victims are seven principled persons with the courage of their convictions and a belief in the rule of law. The rest of us are merely collateral damage.

William Boardman has been writing for Reader Supported News since 2012. A collection of his essays – EXCEPTIONAL: American Exceptionalism Takes Its Toll – was published in September 2019 and is available from Yorkland Publishing of Toronto.  He is a former Vermont assistant judge.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News. your social media marketing partner
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