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