Two years after Megan Rice, Greg Boertje-Obed and Michael Walli entered the Y12 Nuclear Weapons Complex in Oak Ridge, TN to issue an indictment against the continuing production of nuclear weapons components there and to oppose plans for a multi-billion dollar Uranium Processing Facility which would produce thermonuclear cores for US weapons, and fifteen months after their conviction in federal court in Knoxville, TN on charges of sabotage (at which point they were held in jail), and six months after they were sentenced to prison terms ranging from three to five years, lawyers for the Transform Now Plowshares resisters have filed an appeal in the Sixth Circuit court of appeals in Cincinnati, OH challenging the government’s use of the Sabotage Act, and the prosecutions efforts to prejudice the jury by inappropriately presenting testimony of prior offenses and invoking a comparison of the nonviolent demonstrators to 9/11 terrorists.
The appeal (you can access it below or under the Legal Arguments button above) asks the Sixth Circuit to reverse the defendants’ convictions. The arguments articulate what many of us who witnessed the proceedings firsthand felt during the trial—the prosecution sought to twist the law in a way that would achieve a conviction and, in so doing, subverted justice. “How can this be?” we wondered.
It turns out it can’t be, at least not legally. The appeal cites Berger v. United States in pointing out that “a prosecutor’s interest is not simply to ‘win a case, but that justice may be done.’ While he (sic) may strike hard blows, he may not strike foul ones.”
The appeal asserts that the prosecutor knowingly and wrongly conflated harm with the Y12 Nuclear Weapons Complex with harm to the national defense, and the court failed to distinguish between the symbolic action of the Transform Now Plowshares resisters and previous Plowshares actions that damaged actual apparatus of nuclear attack. The appeal also notes that motive—wishing to advance the cause of global nuclear disarmament—is not the same as an intent to disrupt Y12 operations.
The appeals team asks the sixth circuit to hear oral arguments. The appeal was prepared by the law firm Orrick, Herrington & Sutcliffe LLP with assistance from Bill Quigley and Anna Lise Lellilid-Douffet from the original defense team.
OPEN LETTER FROM THE BROOKLYN METROPOLITAN DETENTION CENTER
from Sr. Megan Rice, on behalf of the Transform Now Plowshares
July 28, 2014
Our Dear Sisters and Brothers,
We send warm greetings and many thanks to all who actively engage in the transformation of weapons of mass destruction to sustainable life-giving alternatives. Gregory Boertje-Obed (U.S. Penitentiary, Leavenworth, Kansas) Michael Walli (Federal Correctional Institution McKean, Bradford, Pennsylvania) and I are sending you some of our observations and concerns on the 2nd anniversary of our Transform Now Plowshares action.
On July 28, 2012, after thorough study of nuclear issues, and because of our deepening commitment to nonviolence, we engaged in direct action by cutting through four fences at the Y-12 National Security Complex in Oak Ridge, Tennessee, where the U.S. continues to overhaul and upgrade thermonuclear warheads.
On that day, two years ago, when we reached the building where all U.S. highly-enriched (bomb-grade) uranium is stored, we prayed and also wrote messages on the wall, such as “The Fruit of Justice is Peace”. (Realistically, the higher and stronger fences built as a result of our nonviolent incursion can never keep humans safe from inherently dangerous materials and weapons.) We acted humbly as “creative extremists for love”, to cite one of our most important and revered leaders, Martin Luther King, Jr.
There are a number of reasons for what we did. We three were acutely mindful of the widespread loss to humanity that nuclear systems have already caused, and we realize that all life on Earth could be exterminated through intentional, accidental, or technical error.
Our action at the Y-12 site in Oak Ridge exposed the storage of weapons-making materials deliberately hidden from the general public. The production, refurbishment, threat, or use of these weapons of mass destruction violate the fundamental rules and principles by which we all try to live amicably as human beings. The United States Constitution and the Laws of War are intended to ensure the survival of humanity with dignity. However, it is abundantly clear that harmony and cooperation among nations can never be achieved with nuclear weapons. (These arguments, we assume, will be made on our behalf during the eventual appeal of our convictions that accused us of sabotage, though it was never our intention to harm our country.)
Our “crime” was to draw attention to the criminality of the 70-year-old nuclear industry itself and to the unconscionable fact that the United States spends more on nuclear weapons than on education, health, transportation, and disaster relief combined.
We three Transform Now Plowshares consider it our duty, right, and privilege to heighten tension in the ongoing debate of Disarmament vs. Deterrence because history has repeatedly taught us that the policy of deterrence doesn’t lead to security, but rather to the proliferation of weapons of mass destruction. During our trial, the U.S. prosecutors and the U.S. courts accused the wrong people when they claimed that we violated the law, because what we did was to make America’s citizens aware of egregious preparations for mass murder.
We took action because we were acutely aware that our government has failed to keep its long-standing promise to pursue nuclear disarmament. (As Ramsey Clark testified during one of our pre-trial hearings, the U.S. entered into the Nuclear Non-Proliferation Treaty in the 1960’s because our country was finally facing up to the severe human and environmental consequences of the U.S. atomic bombing of Hiroshima and Nagasaki, as well as to the hideous results of countless nuclear tests conducted by the U.S. government within and beyond our own borders.)
One of our pressing concerns is that U.S. prosecutors and the courts adhere to an obsolete view of security with no cognizance – or consciousness – of the horrific effects caused by nuclear weapons. Greg, Mike, and I believe that, undeniably, the U.S. is in a state of denial. It’s what Hannah Arendt called not evil, but the banality of evil. “There’s nothing deep about it. It’s nothing demonic! There’s simply the reluctance ever to imagine what the other person is experiencing, right?” (Hannah Arendt, “Eichmann was Outrageously Stupid” in The Last Interview and Other Conversations, Melville House, Brooklyn 2013, p. 48).
We citizens cannot permit ourselves to be rendered passive and mute by the banality of evil! Only complete nuclear disarmament can save humanity. At stake is the honor and dignity of the Hibakusha, along with the physical, environmental, emotional, and psychological trauma long suffered by victims of the nuclear system, from uranium miners to down-winders. (From 1946 to 1958, Marshall Islanders were bombarded with 67 atomic and thermonuclear tests that were carried out by the United States.)
Michael Walli, Greg Boertje-Obed and I are in U.S. prisons because, ironically, our action at Oak Ridge was based on the common sense reality that we human beings have endured more than enough destruction and exploitation. We believe that we citizens can exercise our collective power to consciously transform our nation’s priorities. We all need to actively insist on more humane uses for the billions of dollars now budgeted for the nuclear weapons/industrial complex.
Two years ago, as we neared the building in Oak Ridge, we were extremely surprised by the ineffectiveness of the system that supposedly guarded our nation’s most important National Security Complex. We believed that we were about to expose the source of unfettered violence that has led to the chronic spiritual and economic decline in the U.S. As it turned out, it was the laxity of the security system at Y-12 that caught the attention of the courts and the mainstream media. Security weakness became the big story. There was no mainstream acknowledgement that the national security complex is rotting from its own irrelevance.
Most surprisingly, our July 2012 action and our court cases have revealed that it is not the U.S. government that is in control of the nuclear weapons complex, but in reality it is the corporations that are in control through their solicitation and manipulation of endless funding for the refurbishment of unlawful thermonuclear warheads. We three are incarcerated because we stood up to a nuclear weapons industry that is kept thriving by the interlocking and obsolete institutions that subscribe to the long-discredited notion that law and security can be enforced by ever-greater force.
Regarding the 22.8 billion dollar contract recently awarded for the operation of the Y-12 site in Oak Ridge and the Pantex site in Texas for the refurbishment of thermonuclear warheads and a new Uranium Processing Facility (UPF), the relevant corporations don’t actually operate under the long-discredited myth of “nuclear deterrence”. Rather, corporations such as Babcock and Wilcox, Lockheed, and Bechtel operate under limited liability subsidiaries, joint ventures, consortiums, and partnerships for the main purpose of making profits by engaging in huge nuclear weapons production/refurbishment contracts. By this time, Congress certainly is aware that valid contracts can be issued only for the dismantlement of all nuclear weapons and for the environmentally-sound treatment and disposition of all nuclear materials.
In order for the U.S. to negotiate for nuclear disarmament in good faith, we say it is essential to peaceably transform these very corporations so that they are no longer able to violate the most basic moral and legal principles of civilized society by deliberately precipitating planetary self-destruction.
We thank you for your letters and your concerns. We ask you to support the Republic of the Marshall Islands in their current legal actions against the United States in U.S. federal court and against the U.S. and all the other nuclear weapons states in the International Court of Justice, for failure to eliminate their respective nuclear arsenals. You can learn more and add your support by signing the petition at http://www.nuclearzero.org.
Greg, Michael and Megan
Several people requested we post this song, performed at the most recent Festival of Hope. Lyrics are by Ralph Hutchison; the performed version lifted the tune from Joel Rafael’s excellent piece, China Basin Digs.
They cut the fence and they started in about a half past two
They had no doubt when they thought about what they were called to do
The prophet said that hammers would make plowshares out of swords
And people turn their hearts to study peace instead of wars
They scaled the ridge in darkest night, couldn’t see what lay below
But they knew the bomb plant was out there, they headed toward the glow
One building gleaming white stood out ‘gainst the darkened July sky
Three fences blocked the way ahead, but they knew they had to try
The second fence had a low wall, and bright light shone beyond
They sprayed a message “Disarm Now” before the chance was gone
In a moment they’d be surely caught, and so they poured their blood
A symbol of the justice that will flow down like a flood
Before them stood the Y12 plant, where nuclear bombs are made
Where Hiroshima’s death was formed, and where the devil’s paid
Their cutters snipped the second fence and they headed for the third
Compelled to act by lessons they had learned from Nuremberg
When people see the government is bent on doing wrong
They have no choice, they have to act, they can not go along
Whispering prayers they forged ahead, the nun was first in line
They reached the third fence and they read the lethal warning sign
But the cameras failed to capture them, the alarms were all ignored
They crept ahead and came to where the nuclear swords were stored
But no guards came—they later said it was a miracle
They were kept at bay, heads turned away, the angels in control
They unrolled crime scene tape to say, “What happens here is wrong”
Poured blood and painted “Plowshares please;” they wouldn’t have too long
They painted on, each letter seemed a dove that was released
The words were like the voice of God; the fruit of justice, peace
And when the guard finally arrived, they met him with a bow
No gun was drawn, the guard could see there was no danger now
They offered him some bread to eat; the offered him their prayers
He radioed his bosses he had peace protesters there
They locked the Transform Plowshares up, for how long no one knows
But the seed of peace they planted there has sprouted and it grows
Who knows what act will turn the tide and lead the way to light
It’s the reason we’re required to do what we see is right
You don’t need all the answers, may not know precisely how
But ignorance is no excuse; the time to start is now
It’s enough to know we can not stand in silence anymore
Every dollar spent on bombs and guns is stolen from the poor
What started at Y12 that night in Oak Ridge, Tennessee
Is somehow still a living thing, it lives in you and me
A dream, a vision, a prayer, a call for all those who have ears
Transform swords to plowshares, please, make pruninghooks from spears
“STOPPING BY THE U. S. CONSTITUTION ON A SNOWY EVENING”
Poem by MICHAEL WALLI , with thanks to Robert Frost
Whose world this is
I know altho
The CIA thinks it
Is the Federals’ so
Surely they see us
To fill the jails
With empty show
The Founding Fathers
Must think it queer
To adjudicate without
A Constitution near
Between the paychecks
And frozen chosen
The biggest hypocrisy
Of the year
They give their burial
Shrouds a shake
To ask if there
Is some mistake
The only other
Sounds you hear
Is contractor money
And greedy take
The Constitution is lovely
Dark and deep
So many promises
You do not keep
When no one can sleep
Forsake your sleep!
— February, 2014
Here is the prepared statement Megan Rice read to the court on Tuesday, February 18, 2014:
As I sat observing the facial expressions of participants present in the hearing on January 28th, I sensed a clear sense of a shared mental reaction during the arguments on this restitution evidentiary Table submitted by the Prosecution (identification…) (display my Exhibit I)
I think we felt something of a Master’s compassionate consternation with the hypocrisy at his accusers. (Luke 6:5-11 Mark 4:20-30)
I was stunned that 8 months had elapsed with apparently no prior conversations, out of court, between the opposing sides and the court in this case, and would have imagined it had been resolved by negotiation during those delays, and relegated to where it deserved to be disposed. – unworthy of evidence in any court of law.
This very document [hold up Exhibit 1] is self-incriminating evidence for all the world to see. It represents in microcosm an enormous cloud of deception, exaggerated expenditures in time, energy and cost under which Y-12 has hidden these 70 years since its inception. It reveals but a sample of the extortion by unaccounted for or unaccountable profiteering and blatant miscalculation over Y-12’s entire evolution till today. – Draconian extortion of the hard-earned labor of the people in this country over the last 70 years, and perhaps before.
It provides evidence why we are in deep trouble today. – A perfect analogy to what Greg spoke of as “Emperor’s new clothes.”
Why can we not call a spade a spade?
Why can we not admit the bare truth, and just get on with what is humanly possible: transforming this humanly constructed horrific monstrosity, an entity which has, effectively un-impeded, evolved into risks of perilous portent to the very existence of this sacred Planet and life as we have known it; for whose transformation we all readily long to give our lives.
Who or what is capable of naming, and being heard to name,
this Emperor’s new clothes?
(if not already named in countless ways and forms.)
When will we be willing to listen,
and to face the truth?
Good morning! Thank you, Judge Thapar, and each of you, in this Beloved Community. We are so grateful this morning, in the depths of our hearts. Grateful to each of you for gracing us from your very busy lives, to be here once again. Your coming here from Kentucky, your honor, and up from New Orleans, Bill and Anna. Down form Michigan’s Upper Peninsula, Anabel and David, faithfully giving time, and so much zesty, passionate energy and legal expertise in popular education for truth and justice’s sake on current status of international and domestic law; and here, also from a crowded date book at Yale’s Schools of Divinity and of Forestry and the Environment, Dr. Mary Evelyn Tucker, to witness on behalf of our entire Planet. A Beloved Community joins us in Spirit, from the four corners of the Earth, speaking truth from people in places like Seychelles, Australia, New Zealand, Papua New Guinea, Denmark, Finland, France, Belgium, Qatar, Bolivia, Alaska, Africa, Scotland, Ireland, Montenegro, Sri Lanka, Mauritius, Britain, and many places in between. These messages from the Afghan Youth Peace Volunteers came by post for this court. May I deliver them now?
It is indeed fitting as the issue here before us today has touched with perilous risk, for 70 years, the very existence of our sacred, lovely home, which we all share and try to treasure – our Planet Earth, which many of us revere as Mother! So thank you. We treasured the time all you gave in attending the trial in one way or another.
This trial has exposed, quite gratuitously, in the evidence, thanks to the prosecution’s witnesses, the truth about what is happening. That this one facility is part, of what Kristen Iversen says, the U.S. has become: one, huge, bomb factory, of which Y-12 is but one very significant part.
We are all grateful, as Anabel Dwyer points out, with the Defense team of Lawyers, that the details of the goings-on at Y-12 were revealed by the witnesses for the government, details kept mostly secret, over nigh to 70 years – the specific warheads being “enhanced” and “modernized” – the enormous quantities of highly enriched uranium material (HEUM) produced and stored there, in the very building we were able, almost unknowingly, to reach, to touch, and to label with statements and symbols of truth. This alerted Y-12 workers to what has been kept secret for nearly 70 years.
The secrecy began in 1943, when worker women, by thousands, could not tell fellow workers or family. Still now, secrets are kept between workers, officials, and managers. The secrecy prevailed to try relentlessly to turn these United States into a “super power,” an empire. As Germany tried to be under the Third Reich. When I was growing up, to our generation, these were very evil terms. Has any empire, or aspiring super-power not declined, not fallen apart from exceptionalism into decadence? So we had to come to this facility to call it to transformation. Thank you for revealing these secrets as evidence.
Many who were here on Jan. 28th had attended plowshares trials around the country, your honor, from the most recent in Tacoma, WA – the Disarm Now Plowshares (seniors also, I allege, aged from 84-60: One Sacred Heart Sister, Anne Montgomery of happy memory, 2 Jesuits Frs. Bill Bicshel and Steve Kelly, and 2 grandmothers, Susan Crane and Lynne Greenwald.) In many of these earlier trials, even the words, nuclear weapons, have been called “classified” and denied to be alluded to. Despite being components for weapons of mass destruction, contrary to the Non-Proliferation and other treaties and laws, to which the U.S. is legally bound, and for which crimes we citizens bear shared responsibility by law to expose and oppose as crimes, when we know they are being committed.
And still we have more room and reasons for gratitude, you honor. Because recent laws, by the U.S. congress, gave you distress, you felt that you had to keep these jury-convicted, conscience-bound peace-makers as “violent saboteurs,” felons accused of “seriously damaging the national defense of the U.S.” in detention while awaiting sentencing. Detention in a privately-contracted, for profit, rendition warehouse, which punishes and tortures unsentenced people, partly because of the enormously overcrowded courts and prisons in this country. These facilities are not effectively overseen nor accountable. Because of our experience of the ill-equipped conditions and inadequately trained personnel in those for-profit warehouses, we now know how U.S. citizens and non-citizens are treated for nonviolent crimes of “conspiracy” and other medical, drug laws as they exist. Crimes engendered by the failed socio-economic situation which prevails today in a national security state. The direct fall-out from gross misspending to maintain a nuclear industrial complex – of ten trillions of dollars over these last 70 years. An economic system devoid of any outcome other than death, poverty for the masses in a debt-ridden country, with obscene wealth for the less than 1% of the people – individuals wealthier than the GNP of entire countries and I would ask, from war-profiteering?
We thank you, Judge Thapar, for giving us this time to become inspired by truly great human beings, so patiently enduring flagrantly inhuman conditions. We can now report to you and the general public, who are the government, of the conditions where people are experiencing punishment and torture as unsentenced, awaiting changing court dates, or places in federal prisons today. We have seen how this far-profit detention contract system fails to accomplish any kind of restorative justice or rehabilitation. Women and men who are the victims of a nation, impoverished by the violence and cost of an economy based on manufacturing WMDs and war-making – inhumanly separated by distance and poverty, managerial incompetence; inordinately separated from contact with loved ones and families.
I am grateful also for what Daniel Berrigan called in a letter to me in Danbury Prison in 1998, “my time under federal scholarship.” We have tried to make the most of it. (Have learned enough for 2 or 3 Masters degrees, and written and received letters to and from enough to do a doctoral dissertation!) We are activated by the people who suffer under disempowering conditions of detention. Activated to invite U.S. prison reform, which calls for transformation of minds and hearts from violence. Violence of profiteering from the “fall out” of constant, unending war-making, by a military industrial complex. Those engaged in the production of ever more massively powerful, death-dealing weapons, – nuclear, chemical, biological, unmanned weapons, which rob the poor and sabotage and pollute all of life and creation on this Planet. Imagine the profit accrued by charges like mine: $15 for one 10 minute call to Washington DC from Knoxville Detention Facility. TN instate calls can be close to $3.00 each for 10 minutes. Or a sick call, which can cost an inmate $15 to obtain a dropped, previously sanctioned prescription for a nightly Claritin tablet for controlling an allergy condition. Medical records denied to be passed on from facility to facility as inmates are moved along to prisons.
We are energized to call for life-enhancing alternative projects: like disarmament, depleting radioactive isotopes and toxins, and those which meet real needs – social, cultural, spiritual and environmental: restoration, healing, harmony, balance and peace in non-violence.
May I close with a prayer? A rendition of an ancient Hebrew country song – PS 98 (according to Nan Merrill) as again we thank you, Judge Thapar, honorable jurors, our defense team, lawyers on behalf of the government (whose crimes, we as law-abiding citizens attempt to disclose, oppose, and heal), and for each of you, you in this most honorable Beloved Community, a prophetic peace-making remnant, from whom we receive hope and inspiration and encouragement to carry on as grateful participants in your noble pursuits:
Let us sing to the Beloved a new song.
For Love has done marvelous things!
By the strength of Your Indwelling Presence, (Your right hand)
We, too, are called to do great things;
We are set free through Love’s Forgiveness and Truth.
Yes, for Your steadfast Love and Faithfulness
are ever-present gifts
in our lives.
All the ends of the earth have seen
the glory of Love’s Eternal Flame.
Make a joyful noise to the Beloved,
all the Earth;
Break forth into grateful song
and sing praises! [-Sacred the Land, Sacred the Water, Sacred the Sky, holy and true!]
Yes, sing songs of praise extolling
Lift up your hearts with gratitude and Joy!
Let the voices of all people blend in harmony,
in unison let the peoples magnify the Beloved!
Let the waters clap their hands!
Let the hills ring out with joy!
Before the Beloved who radiates Love to all the earth.
For Love reigns over the world
with truth and justice,
bringing order and balance, [harmony]
to all Creation!
In keeping with all that is just and Fair.
and may we go forth
as Your holy right hand, to do great things, in Love!
(MK 3: LK 7)
Megan then asked the judge if it would be all right to sing a song. He agreed, then was taken aback as she turned to the audience and they rose to join her in singing “Sacred the Earth.”
Sr. Megan Rice, SHCJ, February 18, 2014
U S Federal Court for the Eastern District of Tennessee, Knoxville, TN
Judge Amul R. Thapar passed sentence on Greg Boertje-Obed, Megan Rice
and Michael Walli on Tuesday, February 18, 2014 in federal court in
Knoxville, Tennessee. The three were convicted in May 2013 for their
nonviolent action called Transform Now Plowshares at the Y12 Nuclear
Weapons Complex in Oak Ridge, Tennessee, on charges of depredation of
property and sabotage—the convictions carried possible maximum
sentences of 30 years in prison. Sentencing guidelines, based on
factors including history, recommended sentences ranging from 6-10
Sentencing began at 1:30pm; the three were permitted to be in the
courtroom together by Judge Thapar.
Michael Walli received a sentence of 62 months on each count, to be
served concurrently, followed by 3 years of supervised release.
Greg Boertje-Obed received a sentence of 62 months on each count, to
be served concurrently, followed by 3 years of supervised release.
Megan Rice received a sentence of 35 months on each count, to be
served concurrently, followed by 3 years of supervised probation.
“Judge Thapar has tried to strike a compromise that reflects the
nature of this nonviolent action but satisfies the government’s
demand that Megan, Michael and Greg’s sentence send a deterrent
message to the wider community. For now, their bodies remain in
prison. But their voices are free, reminding us that the central
issue of this action and trial have not been resolved—as long as the
government continues to produce thermonuclear weapons of mass
destruction in Oak Ridge or anywhere, people are required to resist,”
said Ralph Hutchison, coordinator of the Oak Ridge Environmental
At the hearing, each of the Plowshares resisters spoke, reminding the
court of the central purpose of their action—to call the court’s
attention to the ongoing violation of the Nuclear Nonproliferation
Treaty at the Y12 plant in Oak Ridge. In testimony at hearings
leading up to the trial, former Attorney General of the United States
Ramsey Clark called the production of nuclear weapons components at
Y12 “unlawful,” and the work there “a criminal enterprise.”
Megan, Michael and Greg entered Y12 in the wee hours of the morning
on July 28, 2012, cutting four fences and traversing a lethal-force-
authorized zone, arriving at the Highly Enriched Uranium Materials
Facility, the nation’s warehouse of weapons grade highly enriched
uranium. They poured blood on the walls of the HEUMF and spray
painted “Plowshares Please Isaiah,” and “The Fruit of Justice is
Peace.” They also chipped a corner of the concrete wall with a small
hammer, a symbolic act reflecting the Old Testament prophecy of
Isaiah who said, “They shall beat their swords into plowshares.”
The statement issued at the time declared the United States in
violation of the Nuclear Nonproliferation Treaty and said Y12 was
chosen for the action because of plans for a multi-billion dollar
bomb plant to be built there—the Uranium Processing Facility. The
sole purpose of the UPF (pricetag now $19 billion) is to produce
thermonuclear cores for warheads and bombs. Y12 is an active weapons
production facility—workers today are performing Life Extension
Upgrades on the W76 warhead at Y12.
Supporters outside the courtroom said, “The United States is breaking
its own law when it builds bombs in Oak Ridge. Any goverment that
would lock up Megan, Michael and Greg is desperate to hide the truth.
By their actions, they have broken the silence; their sacrifice
challenges each of us to speak up for a safer world. In prison or
out, Michael, Greg and Megan will continue to pray and work to save
the life of the planet.”
Judge Amul Thapar received a sentencing brief from sentencing law expert Douglas Berman on the eve of the Transform Now Sentencing hearings. Berman’s brief dealt with several questions raised in court at the first session of the sentencing which was disrupted by snow on January 28.
One argument put forward by the defense at the initial hearing was the use of the sabotage law against nonviolent protesters was outside the “heartland” of the law—meaning the law was intended for use against real saboteurs, not in cases like this. The prosecution argued, and the judge appeared to agree, that since the sabotage law was upgraded, it was rarely used against civilians, in fact, it had been used only three times, and all of them were in nuclear weapons protest cases. The logic was “if this is what it is being used for, it must be what it was meant for.” The judge, ignoring the fact that in two of those three cases judges had ruled for the defendants that the case was “outside the heartland,” concurred with the prosecution. Professor Berman disagrees.
The defense attorneys labored into the evening Monday, February 17, and filed their response to Bermans’ brief, noting Judge Thapar now not only has the discretion to provide some relief in sentencing, but has the opinion of an expert who suggests the Transform Now Plowshares defendants need not and should not be treated as though they were terrorists bent on actual sabotage.
You can read the Berman brief here:
And you can read the superb response by the defense team here:
Sentencing on February 18 is expected to begin at noon with Michael Walli, followed by Greg Boertje-Obed at 2:00 and Megan Rice at 4:00pm.
Judge Amul Thapar issued an order this morning shifting the time of the sentencing hearings for Michael Walli, Greg Boertje-Obed and Megan Rice. The sentencing hearings will still take place on Tuesday, February 18. Michael Walli will be sentenced at 12:00noon; Greg Boertje-Obed at 2:00pm; Megan Rice at 4:00pm.
The sentencing hearing of Michael Walli, Greg Boertje-Obed and Megan Rice was interrupted by wintry weather—some might say providentially. Judge Amul Thapar announced at 1:15 that the federal courthouse was closing at 2:30pm because the accumulating snow promised to make travel treacherous. After a brief consultation among the attorneys it was decided they could not conclude the sentencing process by 2:30, so the Judge suspended the hearing; it is currently scheduled to resume February 18th at 9:00am in Knoxville.
The courtroom was full of supporters, and a second courtroom was pressed into service; that room filled and there were reports of people sitting on the floor to view the proceedings on a big-screen TV.
As the judge prepared to begin the hearing, Bill Quigley asked if the handcuffs could be removed from the prisoners for the proceedings. The judge conferred with the US Marshals and the cuffs were removed.
At 9:00am, the hearing opened with the judge hearing arguments about the amount of restitution that would be required of Megan, Greg and Michael. After hearing testimony from a B&W Y12 official, and a detailed cross examination, the judge heard brief arguments, overruled all defense objections, and set restitution at $52,953.00; he waived interest since the defendants were not in a position to pay it off immediately. How much the final assessment might actually be has yet to be determined—no one in the court could say for certain whether the government had, in fact, reimbursed B&W Y12 or Wackenhut for the items billed—if there was no reimbursement, the government can not claim restitution from the TNP three.
After a brief recess, court resumed with consideration of objections to the Presentencing Reports; the judge quickly sustained the defense’s objection to the use of the word “maliciously” in the charge against Greg, Michael and Megan. There was a detailed discussion of whether or not the defendants had accepted responsibility for their actions. As in the trial, legal language bears only scant resemblance to common usage of words—accepting responsibility means pleading guilty and not putting the government to the trouble of a trial.
Assistant District Attorney Jeff Theodore used the occasion to go on a mini-rant about Ramsey Clark, from US Attorney General who testified in a pre-trial motions hearing in April. “On this issue, he has no credibility,” Theodore said, ignoring Ramsey’s own testimony that he was the AG when the Nuclear Nonproliferation Treaty was signed. “He has represented just about every nefarious person out there,” Theodore said, “Nazi war criminals, Saddam Hussein…he talked about war criminality at Y12!”
The judge cut him off. Francis Lloyd rose to address the record. Describing himself as a lawyer whose heroes include Clarence Darrow, he said no person should be faulted for taking any case. The judge tried to deflect Francis by reinterpreting Theodore’s statements in a creatively favorable light.
The judge then danced around Francis’ assertions that Megan, Michael and Greg, by submitting to arrest and admitting the particulars of their case amounted to accepting responsibility. “When you argue every element at every point, you’re not accepting responsibility. You’re asking the court to put a square peg in a round hole.” The judge found his metaphor compelling and repeated it later. “I don’t believe the defendants are contrite.”
Francis pointed out that, in the history of law, it was only by repeatedly coming back to court with arguments again and again that bad law like Plessy v. Ferguson was overturned. “I get it,” said the Judge.
The judge eventually ruled the TNP trio would not be given downward departures for acceptance of responsibility.
In the ensuing discussion about various cases and how they were interpreted, Judge Thapar in every instance chose the view most favorable to the prosecution, denying the defendants any benefit of the doubt, and stepping in to help the prosecution when it stumbled.
One issue raised by Greg Boertje-Obed was whether or not a nonviolent civil resistance action was “outside the heartland” of the sabotage law. The question is critical because circuit courts had ruled that if a law was being applied outside the primary purpose intended by Congress, “outside the heartland,” the judge could take that into consideration at sentencing. Here’s where it got surreal.
The prosecution argued, and the judge agreed, that since these kinds of cases—anti-nuclear actions—are the only kinds of cases where the law is being used at all, they must be the “heartland.” Thapar said, “Congress and the [Sentencing Guideline] Commission has had plenty of time to change it if it doesn’t like it.” But in two of the three cases where the law was applied to anti-nuclear protesters, judges found at sentencing that it was “outside the heartland.”
After some back and forth, the judge said he would not make a final decision at the moment, but would take it up during the discussion on reasons for variances.
The final point argued was about the defendants’ “civic, charitable, public service,” which can be taken into account. “But it has to be truly exceptional,” said the judge, noting that for a billionaire to give millions to charity, it’s not such a big deal. The fact that Michael, Greg and Megan have devoted their entire lives to civic, charitable public service did not seem to strike the judge as truly exceptional, but he allowed it could be taken up later, under “3553A factors.”
It was 11:45, and Kathy Boylan took the stand. It was established that she has known Michael Walli for more than 20 years, sharing living space at the Dorothy Day Catholic Worker in Washington, DC for most of that time, where people are “committed to looking at the suffering of the poor, to alleviate that suffering, to eliminate violence, and to work for peace.”
Chris Irwin, Michael’s attorney, asked Kathy to tell the court who Dorothy Day was and she provided a brief, succinct description of Dorothy’s coming to terms with poverty and suffering by working to change conditions that created poverty and suffering. “Dorothy and Peter Maurin wanted to change society to serve the ideals of the kingdom of God,” said Kathy.
“And if Michael were released, would you be prepared to help him reintegrate into society?” asked Chris. “We’d like to do it immediately,” Kathy said instantly.
Chris: Is there anything else you’d like to tell the court?
Kathy: Michael is a beloved member of our community and a servant of God. Every morning, we walk down the street to pray with our friends at the Assissi house. They sent a letter I would like to read.
The letter explained that Michael joined in prayer every morning, and that was how they had come to know him. “He is an unwavering example of active nonviolence, generous, kind, helping in many ways, whether it is picking up litter or working in the garden. He is always willing to help others, especially those with special needs. Michael is a man of deep faith; he is a role model, a living example of the gospel.”
Chris: Does he get paid?
Kathy: We get a $20 stipend, plus $10 for Metro.
Kathy went on to describe Michael’s 2013 Pax Christi Peacemaker Award and the certificate was entered in evidence. Kathy then told of one of the women who shares the house with them, a woman from Ethiopia who is working hard to learn English. “One day she asked me, because she didn’t understand this word, ‘What is generosity?’ The answer came to me immediately. I said, ‘Michael Walli.’ And she then described in her broken english the many ways Michael serves the community.”
Kathy spoke also of a neighbor who, during a recent snow storm, came up the walk of the Dorothy Day house with a snow shovel. When he finished cleaning the walk he said, “I was just sitting inside watching the snow and I thought of how many years Mike Walli shoveled my walk, and other walks up and down the block, and I thought I should repay that since he was in jail.”
Kathy described Michael as a teacher and a missionary for Jesus who commanded us to put down the sword. She quoted Dorothy Day on the atomic bomb—”If we wouldn’t put people in gas chambers, why would we fling gas chambers at them?” I’ve learned these things because Michael has said them so often, she said. She spoke of Martin Luther King who condemned nuclear weapons in 1959 and declared that we face a choice between nonviolence and nonexistence. She quoted the Second Vatican Council: “Any act of war against cities is a crime against God and warrants universal condemnation,” and Pope Paul VI who described Hiroshima as “a butchery of untold magnitude.”
In closing Kathy drew the clear parallel between Michael Walli and the character Moshe the Beadle in the book Night. In the book Moshe is expelled from Hungary and goes to Poland where he witnesses the deportation of the Jews. Returning to Hungary, he seeks to warn everyone of the coming doom, but they won’t listen. They thought him mad. They went to the gas chambers. We hope we would have cut the fences of the camps to free the prisoners, Kathy said. I am certain our Moshe, Michael Walli, would cut the fences. In our world, our gas chambers are nuclear weapons. They are ready for use. The whole world is the concentration camp, prepared for omnicidal weapons unless we transform this reality. Michael is trying to save our lives. Your life, Judge Thapar. Your life, Mr. Theodore. All our lives.
The courtroom was still for a long minute.
Jeff Theodore rose to cross examine, extracting information from Kathy, who gave it up easily. Yes, she has been a member of a Plowshares action group. Yes, she has engaged in protests. Yes, with these defendants. Yes, an action against nuclear submarines in Newport News—five times, she volunteered to save Theodore the trouble. Five times I have acted against these gas chambers without walls. He said “You don’t believe what he did was wrong, do you?” She answered, “There is a higher law than the one in this court. There is the law of God.” Theodore lowered the boom: “If he were to come back to be reintegrated into your community, would you try to discourage him from doing this kind of action again?” Kathy said she would not.
Chris Irwin rose to redirect, asking Kathy to described the basis for the Plowshares movement and she paraphrased the Isaiah passage. We should always take a hammer to the chains that enslave people, she said. We have fashioned these weapons with our hands, we can take them apart.
“One more question,” said Irwin. “If Martin Luther King, Jr. were still alive, and he came to the Dorothy Day Catholic Worker house, would you discourage him from committing civil disobedience?”
“No!” said Kathy.
At 12:05 Mary Evelyn Tucker took the stand and Francis Lloyd walked her through her CV, and through the relationship between her family and Megan’s. “How long have you know Megan Rice?” he asked. Mary Evelyn leaned into the microphone. “All my life,” she said with a mixture of love and pride.
“Would you describe her personality?” Francis asked.
Mary Evelyn: She believes deeply and clearly. She is so far from disingenuous. When he (Prosecutor Theodore) used that word, it hit my heart. She is a sincere person of conviction, compassion and love. Her commitment to nonviolence—Gandhi, Mandela, Martin Luther King—there is a lineage of transformation. She has committed her life to this way of seeking transformation.
“To allow Megan to continue the work of her life, the work to alleviate suffering, outside the walls of a prison would be an invaluable gift to the world,” said Mary Evelyn. “To keep her inside, the world would be diminished for lack of her work.” Mary Evelyn then told the court that Megan has served as the caretake in her large family, often accompanying the older generation in its final journey. “With Aunt Megan by our side…” said one niece.
“I can’t think of any good purpose that would be served by keeping her in jail. Megan is in a great lineage. Gandhi preached nonviolence; King practiced nonviolence; Mandela proclaimed nonviolence; and Megan invoked nonviolence. Through her work, we can imagine a future for our children, that we will not have to live under the long shadow of nuclear peril. Surely we want to be the generation that stood up for all of life and the future of the planet.”
Jeff Theodore asked no questions.
Andy Anderson, Duluth Minnesota Veteran for Peace, age 87, took the stand. Bill Quigley began to ask him questions about his history. “Careful about those memory questions,” Andy cautioned. The courtroom chuckled, appreciating the easing of tension. “I enlisted in the Navy in 1944,” said Andy. “I served on a destroyer in the Pacific. Our group came under fire from suicide planes and torpedoes; our job was to go around rescuing sailors. I sat in the stern of the ship and held a friend in my arms when he died.…No more violence. I came home a different person, and I hope I’ve been a different person ever since.”
Andy spoke of knowing Michael and Greg, of serving food to the homeless with Greg and being on the street with Michael. “There are terrific human beings,” he said.
“If you were the judge, what do you think you would say,” asked Bill Quigley.
“What is a crime? If I had my way—forgive them their mistakes and it’s gone. The only way to be able to help people is to be free. I would ask the judge to consider the release of Michael and Greg so they can continue to serve the community in the manner they have been serving.”
“These aren’t harmful people. They are decent, warmhearted. Let ‘em go.
John La Forge was the last witness. He told the court he knew Mike and Greg through the Catholic Worker movement fro 20 and 16 years respectively. He talked of taking vegetables from the farm in Luck, Wisconsin to the kitchens and shelters in Duluth. He pointed out there work was unpaid.
“And how would you describe Michael Walli?” asked Bill Quigley.
“He is the quintessential Christian,” said John. “He speaks in Biblical terms, about the burden the Bible places on us to do the right things. He will do it all. He is one of the unsung heroes, a man of all tasks, willing to do the ordinary work—changing beds, doing laundry, dishes.
Quigley: Would you described him as disingenuous?
LaForge: I was taken aback that the court said that. Maybe you qualified it. But there was a statement that they don’t care about the law. For people who practice nonviolence, this kind of nonviolence, they care deeply about the law. So much of this is about US law.
John also described a recent trip to Germany where he stood with people there for a two-week demonstration against the Tornado jets that carry US B61 nuclear bombs. Everybody in Germany wants these bombs out of there, he said, the people, the government, all the political parties. But the United States is bringing these bombs back here, to be refurbished, here at Y12, and then sending them back to Germany.
Greg asked John to talk about his knowledge of the history of the bomb dropped on Hiroshima, and John replied by referencing the work of Gar Alperovitz and Robert Lifton who documented that Japan was suing for terms of surrender in July 1945, and who linked the decision to drop the bomb to Russia’s expected entry into the Pacific theater on August 8, 1945. “After the bomb was dropped,” said Greg, “we accepted the terms offered by Japan, and they were able to retain the emperor.”
Jeff Theodore attempted to discredit John by getting him to recount his arrest history, which John cheerfully did. “You don’t think there was anything wrong with what they did, do you?” asked Theodore. “I might have done a few things differently,” allowed John.
“If they were released, you would encourage them to do it again, wouldn’t you,” said Theodore, unmindful of the lawyers’ dictum about asking questions you don’t know the answer to.
“I’ll refer to Phil Berrigan,” said John, “who said we should always discourage each other from doing Plowshares actions. If a person can be discouraged, they are not ready to do it.”
“So you would try to prevent him?” said Theodore.
“Argumentatively, yes,” answered John.
“But you would support him if he did it.”
Greg asked John to describe his case before Judge Miles Lord; John explained the Judge used the case to condemn nuclear weapons production and the companies that made them before sentencing John and to six months unsupervised probation.
When John finished, the court took a 15 minute break. We returned at 1:15 to the judge’s announcement that the courthouse would be closing at 2:30 due to the snow. The lawyers consulted calendars and the 18th of February came up as the next day all were free, so the sentencing hearing was suspended until then.
As Megan, Michael and Greg rose to leave, music broke out in the courtroom. On the day of Pete Seeger’s death, we sang a song so familiar to him. “Paul and Silas were bound in jail…” and when we reached the chorus, names sang out above the words. “Hold on, Megan Rice, hold on…Keep your eyes on the prize, hold on.”
And then, just before she was hustled out the door, someone called out, “Happy Birthday, Megan!” and the audience sang for her 84th birthday—January 31.