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.
Government effort to silence critics of nuclear policy continues
Sentencing of Transform Now Plowshares resisters set for
January 28, 2014, in Knoxville, TN
Megan Rice, Greg Boertje-Obed and Michael Walli will appear before Judge Amul Thapar in federal court in Knoxville, Tennessee on January 28, 2014, to be sentenced for the Transform Now Plowshares action on July 28, 2012. The three were convicted in May 2013 on charges of depredation of property and sabotage; they have been jailed since the guilty verdict because the sabotage charge, by definition, is a “crime of violence.” The sentencing will commence at 9:00am with a consolidated hearing which will likely be followed by separate sentencing hearings for each defendant.
“The action of the government from the outset has had one aim: to silence these messengers of truth,” said Paul Magno, spokesperson for the Transform Now Plowshares support team. “They succeeded in banishing from the trial all testimony about the vast gulf between the United States’ legal obligation to disarm under the Nuclear Nonproliferation Treaty and the ongoing activities at the Y12 Nuclear Weapons Complex in Oak Ridge, where production of nuclear weapons components is ongoing, and plans for a new $19 billion bomb factory are being drawn up.”
The message of the Transform Now Plowshares action was delivered in the early morning hours of July 28, 2012, when Walli, Boertje-Obed and Rice entered the ultra-high security area of Y12 and read an indictment charging the United States with failure to comply with its legal obligations under the Nonproliferation Treaty. The opening paragraphs read:
“Today, through our nonviolent action, we—Transform Now Plowshares—indict the U.S. government nuclear modernization program, including the new Uranium Processing Facility planned at Oak Ridge and the dedication of billions of public dollars to the continuation of the Y-12 facility.
“WHEREAS, This program is an ongoing criminal endeavor in violation of international treaty law binding on the United States under the supremacy clause of the U.S. Constitution (Article VI):
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The indictment delivered that morning was validated by U.S. Attorney General Ramsey Clark who testified at a motions hearing in federal court in Knoxville that ongoing weapon production activities at Y12 in Oak Ridge are “unlawful.” Clark, Attorney General when the United States signed the Nonproliferation Treaty, testified the US has failed to meet its legal obligations under that treaty and cited the 1996 opinion of the International Court of Justice that nuclear weapons states have an obligation to achieve nuclear disarmament. “It’s the single most important treaty we have ever had,” Clark told the court, adding, “The life of the planet is at risk from the one plant here in Tennessee.”
Contrary to the US commitment in the NPT, Y12 currently manufactures thermonuclear cores (secondaries, or canned-subassemblies) for W76 nuclear warheads under the Stockpile Life Extension Program. The purpose of the SLEP is to extend the life of warheads for decades; the ongoing W76 LEP is introducing significant modifications to the warhead’s military capability resulting in what some experts have called a new nuclear weapon. In addition, Y12 is planning to build a new bomb production facility, the Uranium Processing Facility, which will have as its sole mission the production of thermonuclear weapons components. The estimated pricetag for the UPF, originally $1.5 billion, is now $19 billion.
In an attempt to throw a blanket of silence over the Plowshares resisters’ concerns, the government chose to charge them with sabotage and, despite testimony about the symbolic nature of their action and the hopeful intent demonstrated throughout by their nonviolent behavior, an East Tennessee jury took less than three hours to convict them of all charges including the sabotage charge which carries a maximum penalty of 20 years.
Following the conviction, Rice, Walli and Boertje-Obed were taken into custody and labeled violent offenders. They were incarcerated in remote Ocilla, Georgia, to await sentencing. The government prepared a pre-sentencing report that recommended lengthy sentences, from 6 – 12 years, for the defendants; the US District Attorney in Knoxville has asked the judge to reject considerations of the nonviolent nature of the action and calls for downward departure from the sentencing guidelines, disingenuously characterizing the defendants and seeking penalties of at least six years—a sentence that would jail 84 year-old Megan Rice until she was nearly 90 years old.
“In this country, we often point to other nations, like China, Russia or Iran, where dissidents are imprisoned in order to silence their criticisms of the policies and practices of their governments,” noted Magno. “We like to think we are more enlightened, that in a free land like ours such draconian measures are out-of-bounds. But this case shows otherwise. The United States is determined to carry out its nuclear agenda, to continue to violate its treaty obligations, to build new bombs and new bomb plants, and they will even put an 84 year old nun in jail for the rest of her life if that’s what it takes to bury the truth.
“There is no mystery behind this action—the government simply knows its nuclear policy and practices can not bear scrutiny. They are, on their face, violations of our treaty obligations. They present a stunning double-standard—we refuse to allow Iran even to enrich uranium while we ourselves continue with full-scale bomb production and are spending billions on a new bomb plant.”
Witnesses expected to testify at the sentencing hearing include John LaForge of Nukewatch in Luck, WI; Mary Evelyn Tucker, Director of the Forum on Religion and Ecology at Yale University; Andy Anderson, Veterans for Peace in Duluth, MN; Kathy Boylan of the Washington, DC Catholic Worker community.
for more information: Paul Magno 202 321 6650
Ralph Hutchison 865 776 5050
Bill Quigley, attorney for Michael Walli, who, along with Greg Boertje-Obed and Megan Rice, faces sentencing on January 28, 2014 in federal court in Knoxville, TN, for the July 28, 2012 Transform Now Plowshares action at the Y12 Nuclear Weapons Complex in Oak Ridge, TN, has filed a cogent and timely response to the government’s motion, filed last week, asking the judge to adhere to the sentencing recommendations provided to the court. Those recommendations would require Megan Rice to serve at least 6 years in prison, with longer sentences for Greg and Michael.
In his response, Quigley notes the government wants to have it both ways—accusing the TNP three of harming the national defense by undercutting our nuclear deterrent at the same time they (the government) successfully blocked any testimony from the defendants about nuclear policy, claiming at the time it was beyond the reach of the charges.
Quigley also notes once again the wide discrepancy between the action taken—a symbolic act of speech—and the draconian charge of sabotage. Quigley rightly points out to the court that the government which is now seeking lengthy sentences was, up until the TNP three rejected a plea offer, satisfied with lesser charges. It was only after the government made its plea offer/threat, and Greg, Megan and Michael rejected it, that the charge of sabotage was levied against them.
You can enjoy the entire response here:
The US District Attorney filed its response to defense motions for downward departures for the Transform Now Plowshares activists; they ask Judge Amul Thapar to sentence Megan, Michael and Greg within the sentencing guidelines, ignoring the nonviolence nature of their action, disposing of them, instead, as though they were armed terrorist saboteurs.
You can read a copy of the government’s motion here:USA Sentencing Memo – Rice – 1-15-14
Defense attorneys for Michael Walli have submitted a sentencing memo to the court on behalf of Mike who is scheduled to be sentenced by Judge Amul Thapar on Tuesday, January 28, 2014 for the Transform Now Plowshares action on July 28, 2012. Walli will be sentenced along with fellow TNP resisters Greg Boertje-Obed and Megan Rice; the sentencing hearing will be consolidated at the outset (9:00am) and will then be divided into individual hearings for each of the three prisoners. Megan, Michael and Greg are currently being held in jails in Blount County and Knox County awaiting sentencing. Michael’s sentencing memo is here:
Francis Lloyd, counsel for Megan Rice, has filed her sentencing memo with the court in advance of the sentencing of the Transform Now Plowshares prisoners. Rice is scheduled to appear before Judge Amul Thapar in Knoxville, TN, on Tuesday, January 28, 2014, along with her colleagues Greg Boertje-Obed and Michael Walli, to be sentenced for their July 28, 2012 action at the Y12 Nuclear Weapons Complex in Oak Ridge, Tennessee. The sentencing memo can be found here:
In preparation for the January 28, 2014 sentencing of the Transform Now Plowshares trio in federal court in Knoxville, TN, Greg Boertje-Obed has filed a sentencing brief with the court:
One aspect of a sentencing brief is to describe the history of the defendant. One motivation for me to join in the Transform Now Plowshares action came when attending a Christian church during graduate school in 1980 in Baton Rouge, Louisiana. The pastor and teachers in the church sponsored a series of public forums on whether or not people ought to pay federal income taxes, since a portion of them went to build nuclear weapons. Respected professors advocated that nuclear weapons were not consistent with the teachings of Jesus, and that it was a sin to pay for them. Massive killings and destruction were contrary to loving one’s enemies.
These views led me to reflect because I had been in the Army Reserve Officers Training Corps in college, and I was soon due to begin active duty in the US Army. In 1981 I was sent to Army medical service training where I was taught about the effects of nuclear weapons exploding and how we were expected to respond. We learned of different types of radiation and what responses to make. We were instructed in preparing to fight and win a nuclear war and how to report many characteristics of a nuclear explosion if we saw one.
When I was assigned to a medical aid station for combat engineers at Fort Polk, Louisiana, we engaged in field training exercises which were intended to simulate combat realities. Our commanding officer fervently spoke of the need for us to kill Russians who were said to be advancing from Monroe, Louisiana. It was conveyed that we were to hate and destroy the dehumanized enemies.
During this combat training, we practiced atomic, biological and chemical warfare exercises. I was in charge of about twenty-five enlisted men who formed the field medical aid station. We were required to put on tight-fitting gas masks for increasingly longer times, simulating conditions of chemical warfare. The masks put great pressure on one’s head and were painful when worn for more than a short time. The thought came that if I was in a situation where a mask was needed for protection, I was going to die.
During a break in the exercises, some of us were sent back to our headquarters to replenish supplies. On the way back, I continued reading a book by Dorothy Day, one of the founders of the Catholic Worker movement. I read a section in which she wrote that working in a munitions factory was contrary to the teachings of Jesus. She urged such workers to leave their jobs. They could walk away and trust God, who would provide for them and lead them to other ways of earning a living.
An inner voice suggested that the same ideas could apply to me. I could refuse to prepare to fight a nuclear or chemical war, and I could trust God to lead in a better direction. Soon I returned to the combat training and informed my captain that I could not shoot anyone, based on reasons of conscience.
When I faced the possibility of my death in the event of a nuclear or chemical war, my eyes were opened to the illusion of nuclear weapons bringing security. I felt compelled to non-cooperate with that falsehood, and I felt led to better serve truth by striving to prevent a nuclear war.
Later I studied the Nuremberg Principles and learned how the killing of civilians is a war crime, and that preparing for a war crime is a war crime. With the aid of teachers and books, I continued to study international laws and treaties outlawing all weapons of mass destruction.
Another factor for engaging in the Transform Now Plowshares action was learning about judges who have opposed the horrific nature of nuclear weapons. Pennsylvania Appellate Judge Spaeth issued a concurring opinion when the first plowshares action conviction was overturned. He quoted from a news article and then gave his comment:
“ ‘If only a small fraction of the nuclear missiles now able to be fired, either by the US or the Soviet Union, are fired, a ‘dark nuclear winter’ will occur: a cloud of debris will block off our sunlight, temperatures will plunge; and our death by freezing or starvation will follow. Scientists have identified a 100 megaton explosion as the ‘nuclear war threshold’ that once crossed will lead to such a global catastrophe.’ (See “After Atomic War: Doom in the Dark,” Philadelphia Inquirer, November 1, 1983, at 1.) It is in light of this peril that the reasonableness of appellants’ belief must be judged.
“Perhaps a jury will discount evidence that our situation is as desperate as authorities I have alluded to believe. Or perhaps a jury will regard appellants’ conduct as mere bravado. On either of these views, appellants’ plea of justification will fail. But we must leave such appraisals to a jury.” (Commonwealth of Pennsylvania v. Rev. Daniel Berrigan et al, Appeal from the Judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal No. 2647-80, Concurring opinion by Judge Spaeth, Feb 17, 1984) In Swords Into Plowshares by Art Laffin and Anne Montgomery (1987, p.72).
Another example of a judge opposing nuclear weapons is that of US District Judge Miles Lord who presided for the trial of the Sperry Software Pair. In that action, John LaForge and Barb Katt hammered and poured blood on components for the Trident nuclear submarine guidance system near St. Paul, Minnesota. The activists were convicted by a jury of destruction of government property. At their sentencing, US District Judge Miles Lord said:
“It is the allegation of these young people that they committed the acts here complained of as a desperate plea to the American people and its government to stop the military madness they sincerely believe will destroy us all, friend and enemy alike… Can it be that those of us who build weapons to kill are engaged in a more sanctified endeavor than those who would counsel moderation and mediation as an alternative method of settling disputes?
“Why are we so fascinated by a power so great that we cannot comprehend its magnitude? What is so sacred about a bomb, so romantic about a missile? Why do we condemn and hang individual killers while extolling the virtues of warmongers? What is the fatal fascination which attracts us to the thought of mass destruction of our brethren in another country?…I would here in this instance, attempt in some way to force the government…to remove the halo—which it seems to hold over any device that can kill—and, instead, to place therein a shroud, the shroud of death, destruction, mutilation, disease and debilitation.” (No. CR 4-84-66, US District Court, Minnesota, Transcript of Sentencing, Nov 8, 1984. In Swords into Plowshares, by Laffin and Montgomery, 1987, p. 198.)
At another time, I met Judge Ulf Panzer of Germany who has given expert testimony on the illegality of nuclear weapons. He helped to organize a group called “Judges and Prosecutors Against Nuclear Weapons.” Some of them, including Judge Panzer, were arrested in a direct action when they blocked the entrance to a US military base in Germany where nuclear weapons were deployed. In July, 1985, Judge Ulf Panzer stated the following in an interview:
“Judges were an instrument of the leaders of the Third Reich, a very docile instrument. Many judges in Germany—almost all of them—committed immense crimes during the Nazi regime. We feel that by being silent today, we judges would be guilty again.
“In the Third Reich, we allowed ourselves to be used to legitimate the most cruel crimes. We feel that we are right at the point of being used again to legitimate instruments of mass murder, of omnicide, really. We do that in our courts by declaring them to be legitimate property, which they are not…We don’t want to be part of that legitimating process any more…
“We are convinced that the true criminals are those who produce and possess nuclear arms and who may some day use them. If you protest or resist nuclear arms, you are on the right side of the law. So the term ‘civil disobedience’ just isn’t appropriate. You are obeying the law by resisting nuclear arms…
“The strategy of nuclear deterrence is nothing but the threat of mass violence. ‘If you push your button, then I’ll push mine…’
“International law says nuclear arms are prohibited. There are many declarations and protocols violated by nuclear arms: Geneva, the Hague, the Kellogg-Briand Pact… The United States has signed all of these treaties.” (Published in Swords Into Plowshares, Laffin and Montgomery, 1987, pp. 201-203.)
Another influence came from learning of Magistrate Margaret Gimblett who ordered a directed verdict in a plowshares action in Scotland. Three women, calling themselves the Trident Three, had disarmed computers, fax machines, and other equipment for monitoring Trident submarines. Judge Margaret Gimblet allowed expert testimony from five witnesses, including Francis Boyle, professor of international law at the University of Illinois, and Judge Ulf Panzer from Germany. She then directed the jury to render a verdict of not guilty, which they did. (This information was published in Crossing the Line, Rosalie Riegle, 2013, pp. 158-159 and Trident on Trial: The Case for People’s Disarmament, Angie Zelter, 2001, pp.568-69.)
Also, juries that have heard personal testimony and legal arguments have acquitted plowshares activists in England, Ireland and New Zealand. These verdicts are a sign of a growing awareness of the criminality of “nuclear deterrence,” which is also known as “nuclear terrorism.”
Another part of a sentencing memorandum is to describe the nature and seriousness of the action (§3553(a)(2)(A). The seriousness is lessened if no bodily harm occurred (Sentencing By the Statute, Amy Baron-Evans, 2010, p.5.). Our group had many discussions in preparing ourselves to accept violence against ourselves and to refrain from violent thoughts, words, or actions. We discussed how we would put down our hammers or tools if we were approached by a guard. We did not want anyone to feel threatened or to be harmed by us. The evidence presented at trial showed that no workers at Y-12 were harmed.
Our witness can also be interpreted to be less serious due to “the community view of the gravity of the action” or the “public concern generated” by the action. (28 U.S.C. §994(c)(4). It is also pertinent that Congress recognized that “community norms concerning particular…behavior might be justification for increasing or decreasing the recommended penalties” for the action. See S. Rep. No. 98-225 at 170 (1983).
In evaluating the community view of our witness, I am aware that varied opinions have been expressed in the media. Two examples favoring a less serious view are the editorials of Jack McElroy and Pam Strickland in the Knoxville News-Sentinel. Jack McElroy is the editor of the paper, and he wrote an editorial advocating that our action ought not be viewed as sabotage. Pam Strickland is a regular columnist who wrote an early article supportive of our witness. Other letters-to-the-editor and op-ed articles have been supporting, and others have been negative.
Concerning the history of how plowshares actions have been viewed, federal judges in 2003 (Platte) and 1998 (Sicken) gave sentences below the Guidelines for conviction of sabotage and destruction of government property. These sentences were prior to Booker, 2005, when courts considered the Guidelines mandatory.
A Bismarck, North Dakota, US Attorney Clare Hochhalter informed Michael Walli and me in 2006 that he had considered a sabotage charge for our “Weapon of Mass Destruction Here Plowshares” action. That witness involved cutting a lock, entering a deadly force area around a nuclear missile silo, hammering on infrastructure above ground, pouring blood, and spraypainting messages. US Attorney Hochhalter told us he chose not to charge us with sabotage because he thought the Guidelines sentences would be too lengthy.
In 1987, the “Epiphany Plowshares” action occurred at a military base near Philadelphia, Pennsylvania. A sabotage charge was initially entered in federal court, but it was dropped before trial. Juries in the first two trials did not reach a decision of not guilty or guilty of the charges of destruction of government property, conspiracy to destroy government property and trespassing. Thus, some jurors refused to convict the defendants of any crime. This indicates that jurors in the United States federal judicial system have not always viewed plowshares actions as criminal.
Letters to the judge, postcards and petitions can also be a factor in estimating community norms on the gravity of an action. Thus, I believe one can conclude that many people disagree with the severity of sentencing Guidelines for “sabotage.”
The seriousness of an action can also be evaluated on the level of sophistication or complexity of the witness (Publication 107 at II-70-74, Office of Probation and Pretrial Services Administrative Office of the US Courts, Revised March 2005), in (Sentencing By the Statute, Amy Baron-Evans, 2010, p.55.). Was the action relatively simple or easily discoverable? I believe our actions were of a low level of complexity and were discovered easily. Maps were readily available in public information from the internet and government documents. Simple tools were used, and we did not try to escape after beginning the process of transformation. The evidence at trial demonstrated that we came in peace, as did our testimony.
I believe a downward variance can be given in our case for “accepting responsibility.” We gave public statements taking responsibility for our actions. The prosecutors were able to use our statements that we were the people who came in peace and cut through the fences, hammered on a corner of the building, poured the blood, and spraypainted messages of truth.
We also took responsibility for the hole cut in the first fence which was not discovered until we described to supporters in December, 2012, where we had cut the first fence. They went to the site and found the hole unrepaired. If we had not revealed the place of our entry through the fence, who knows if it would have been discovered before trial?
We also accepted responsibility for our actions by stipulating to much of the evidence at trial.
One downward departure that could be applied is that our acts were committed to avoid a perceived greater harm §5K2(2). During pretrial motions, these arguments were presented with the aid of Ramsey Clark’s testimony and other experts’ affidavits. Our symbolic and real act of transformation was done with the hope that people’s eyes would be opened to the greater harm of the tens of millions of deaths, massive numbers of cancers and other illnesses which are ongoing from the building and testing of nuclear weapons.
Another factor to be considered is that when there is a high rate of downward departures for a particular action, it is reasonable that the guidelines need amending. (Downward Departures at 5 USSG, Report to Congress: Downward Departures from the Federal Sentencing Guidelines, at 5 (October 2003)). Sabotage charges for anti-nuclear witnesses have not occurred often, but the two cases in the last fifteen years both involved downward departures—Earth and Space Plowshares II (Platte, 2008) and Minuteman II Plowshares (Sicken, 1998). Since these cases have been so rare, I believe our case is outside the “heartland.”
I ask for consideration of granting the two downward departures which were given to Ardeth Platte, Case No. 02-CR-0509-03 RB, who was sentenced for the same charges as us for a plowshares action at a nuclear missile silo in Colorado. US District Judge Blackburn stated that “pursuant to USSC §5 K2.0 and the decision in US v. Sicken, 223 F 3d 1169 (10th Circuit, 2000), the offense conduct falls outside the ‘heartland’ and a six-level downward departure is warranted.” (Exhibit A attached.)
Judge Blackburn also noted Platte’s long history of community service and community support which was corroborated by many leteters to the court. He ruled that “Pursuant to USSG §5 H1.11, Military, Civic, Charitable, Public Service, Employment Related Contributions and Similar Prior Good Works, a two-level downward departure is warranted.” (Exhibit A.)
It is noteworthy that the Sentencing Commission recognizes that “departures serve as an important mechanism by which the Commission could receive and consider feedback from courts regarding the operation of the guidelines.” (Downward Departures at 5 USSG, Report to Congress: Downward Departures from the Federal Sentencing Guidelines, at 5 (October 2003).)
Another relevant quote is that “Congress, too, expected that comments and data coming to the Commission’s attention would be instrumental in the overall improvement of the guidelines.” (Sentencing By the Statute, Amy Baron-Evans, 2010, p. 53)
In conclusion, I request that you, Judge Thapar, listen to your conscience and consider issuing a sentence below the sentencing guidelines.
2 January 2013
Judge Amul Thapar, in response to a motion filed by the TNP legal team, has agreed to consolidate the sentencing hearing for Megan Rice, Michael Walli and Greg Boertje-Obed to permit testimony offered on behalf of all three convicted Plowshares activists by Bishop Tom Gumbleton and Nukewatch’s John LaForge.
The Judge indicated Michael, Greg and Megan will still be sentenced individually.
The hearing will be held in federal court in Knoxville, TN beginning at 9:00am on Tuesday, January 28, 2014.
The Judge also refused a request by Greg Boertje-Obed to have two songs played during his sentencing hearing saying Greg could submit the lyrics, but he will not allow recorded music. The songs, My Name is Lisa Kalvelage and By Breath, performed by Duluth’s Sara Thomsen, can be heard on iTunes.
Media reports indicate the recommended sentences for Megan Rice and Greg Boertje-Obed are in the range of 6-8 years while the range for Michael Walli is 10-12 years.
FESTIVAL OF HOPE/ HOSPITALITY IN KNOXVILLE
A Festival of Hope will be held in Knoxville on the eve of the sentencing, Monday, January 27, 2014 at the Church of the Savior (UCC), 934 N Weisgarber Road, Knoxville, TN. The Festival will start with a potluck meal at 6:00.
The Oak Ridge Environmental Peace Alliance is working to arrange housing for people traveling to Knoxville for the sentencing hearing; we would appreciate hearing from folks as soon as possible about travel plans and housing needs.
Folks traveling to Knoxville for the sentencing are urged to contact Shelley Wascom (email@example.com) with your travel plans; Shelley is coordinating pickups from the airport and bus station as well as arranging hospitality for home stays.
The Oak Ridge Environmental Peace Alliance is asking people who can to plan to remain Tuesday afternoon and evening for a meeting to discuss further organizing to stop the construction of the Uranium Processing Facility at the Y12 Plant in Oak Ridge—a focal point of the Transform Now Plowshares action. The meeting will be held at St. James Episcopal Church, 1101 N Broadway, Knoxville, TN. It will begin at 2:30pm or approximately one hour after the conclusion of the sentencing hearings.