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Kangaroo Court Looming for Nuclear Weapons Critics

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by John LaForge, Nukewatch

Three pacifists that snuck into the Y-12 nuclear weapons complex last summer are preparing for their Feb. trial, and face the prospect that any mention of nuclear weapons will be forbidden.

Y-12 is the 811-acre site in Oak Ridge, Tenn. that’s been building H-bombs and contaminating workers and the environment since 1945. On July 28, Sister Megan Rice, 82, of New York City, Michael Walli, 63, of Washington, and Greg Boertje-Obed, 57, of Duluth, snipped through fences and walked up to the new Highly Enriched Uranium Materials building. They unfurled banners, painted “Woe to and Empire of Blood” etc., poured blood on the place, prayed and broke bread.

Now they face felony charges that carry a maximum of $500,000 in fines and 15 years in prison. Additionally, in an apparent attempt to scare them into pleading guilty now, federal prosecutors have mentioned bringing two heavier charges, including sabotage “during wartime,” which together carry up to 50 years.

Yet as with previous cases of symbolic damage to nuclear war systems, a Kangaroo Court is being arranged in advance. If the government gets it way, the trial judge will keep facts about nuclear weapons away from jurors and make sure that questions about the Bomb’s outlaw status are left out of jury instructions. Instructions are the jurors’ marching orders, the last thing they hear before starting deliberations.

On Nov. 2, federal prosecutors led by U.S. Attorney William Killian offered a motion “in limine,” urging U.S. Magistrate Judge C. Clifford Shirley to “preclude defendants from introducing evidence in support of certain justification defenses.” The motion asks the court to forbid all evidence — even expert testimony — about “necessity, international law, Nuremberg Principles, First Amendment protections, the alleged immorality of nuclear weapons, good motive, religious moral or political beliefs regarding nuclear weapons, and the U.S. government’s policy regarding nuclear weapons.” The “basis” for excluding evidence regarding the threatened use of our H-bombs is that it is “not relevant.”

Volunteer defense attorneys have submitted a detailed memo to the contrary, arguing that interference with and even defacing and damaging nuclear war plans is a legitimately excusable “lesser harm” that prevents an indisputably greater one. The lawyers, Bill Quigley, Chris Irwin, Francis Lloyd and Kary Love, argue that forbidding a defense of necessity violates protesters’ rights. Citing case law from 2005, 1994, 1980 and 1976, they note that “In a criminal case it is reversible error for a trial judge to refuse to present adequately a defendant’s theory of defense,” and, “where a defendant claims an affirmative defense [necessity, crime prevention, etc.], and that ‘defense finds some support in the evidence and in the law,’ the defendant is entitled to have the claimed defense discussed in the jury instructions.”

It’s easy to show that necessity defenses are relevant, the memo notes, since the “burden is not a heavy one” and is met “even when the supporting evidence is weak or of doubtful credibility.” Nevertheless, as the prosecutor’s motion points out, “Courts have precluded defendants from presenting any evidence in support of such defenses at trial, including expert testimony.” Indeed, gag orders in similar cases have been upheld by the 9th, 8th, 7th and 11th U.S. Circuit Courts of Appeal. Judges and prosecutors have in fact placed nuclear weapons and war planning beyond the reach of the law — unlike assault rifles, poison gas or other contraband — as if H-bombs were sacrosanct, unquestionable, and too precious to be addressed by mere mortals.

In this case, Magistrate Shirley is expected to grant the stifling motion. He and Mr. Killian know that if jurors learn about the effects of nuclear attacks, about the law against planning massacres, and about U.S. plans for nuclear warfare, they would likely acquit the defendants. The U.S. Attorney’s motion even confesses, “[w]e do not suggest that the deployment of nuclear armament systems does not violate international law, but merely that Congress has power to protect government property….”

If a gag order from Magistrate Shirley follows suit with earlier nuclear weapons protest cases, the accused will again be denied the right to reasonably defend themselves. With the world clamoring for nuclear abolition, it won’t be the defense that’s irrelevant then, but the court system.

— John LaForge is a co-director of Nukewatch, a nuclear watchdog group in Wisc., and edits its Quarterly.

Related reading (PDF):

US Motion to Preclude Defenses, 11/02/12 – This is the motion by the government prosecutors asking the judge to prohibit the Transform Now Plowshares from being allowed to provide any evidence or tell the jury anything about: international law; the alleged immorality of nuclear weapons; US policy regarding nuclear weapons; necessity; Nuremberg Principles; or First Amendment protections.
attachment to US Motion to Preclude: Gump decision, 11/02/12 – Attached to the Government Motion to Preclude Defenses was the USDC decision in 2011 stripping defenses from Jean Gump, Elizabeth Lentsch, Bradford Lyttle, Bill Bichsel, David Corcoran, Bonnie Urfer, Carol Gilbert, Ardeth Platte, Jackie Hudson, Paula Rosdatter, Michael Walli, Steve Beggarly and Dennis Duvall.
attachment to US Motion to Preclude: Mellon decision, 11/02/12 – Attached to the government motion to preclude defenses was the 2002 USDC decision in the case USA v Timothy Mellon, Elizabeth Lentsch, Lena Feldmann and Mary Adams.  That decision stripped those defendants of the right to put on all kinds of evidence.  The 2002 decision was made by the same US Magistrate who is making preliminary decisions in the Transform Now Plowshares case.
Transform Now Plowshares Response to US Motion to Preclude Defenses, 11/16/12 – This memo was filed Nov. 16, 2012 by the Transform Now Plowshares opposing the Government attempt to strip them of all defenses.  It explains that the government is seeking to suppress the truth about: what happens at Y-12; what nuclear weapons do; what US policy is on use of nuclear weapons; and why they did what they did.

The Transform Now Plowshares want to tell the jury the truth, the WHOLE truth and nothing but the truth.

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