The jury that convicted the Kings Bay Plowshares 7 was self-avowedly apathetic about the risks posed by nuclear weapons and the judge and prosecution prevented defendants from trying to raise their consciousness on the issue, reports Marjorie Cohn.
The seven Catholic peace activists who were convicted on Oct. 24 for their symbolic protest against nuclear weapons at the Kings Bay Naval Base in Georgia are now facing a two-to-three-month wait to hear their prison sentences. They could face more than 20 years in prison.
“Our own lives are uncertain regarding the possible length of prison sentences,” defendant Martha Hennessy told Truthout in an exclusive interview. “But we rejoice in the fact that more scrutiny is being directed at the purpose of the Kings Bay Naval Base in southern Georgia.”
The Kings Bay Naval Base is home to nuclear armed submarines with two dozen ballistic Trident D5 missiles, each of which is 30 times more powerful than the atomic bomb the United States dropped on Hiroshima in 1945. The seven peace activists — Martha Hennessy, Mark Colville, Clare Grady, Jesuit Fr. Stephen Kelly, Patrick O’Neill, Carmen Trotta and Elizabeth McAlister, who are collectively known as the Kings Bay Plowshares 7 — were convicted by a Georgia federal jury of conspiracy, destruction of property on a naval station, depredation of government property, and trespass after entering the base on April 4, 2018.
They came onto the base bearing hammers, baby bottles containing their own blood, crime scene tape, a copy of Daniel Ellsberg’s book, “The Doomsday Machine: Confessions of a Nuclear War Planner,” and an indictment that charged the U.S. government with crimes against peace. They cut a fence and entered the base without being detected. They used the hammers to deface a monument to the Trident, poured their blood and left a sign that read, “The Ultimate Logic of Trident is Omnicide.” They went to three sites on the base, including a storage bunker for nuclear weapons where they damaged statues and poured their blood on various structures.
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“We understand the efficiency of the State is a formidable force, and we ourselves are not surprised with the guilty verdict on all counts,” Hennessy told Truthout. “In a time of withdrawing from nuclear treaties and promoting violence in foreign policy, we are left to wonder what the future may hold for the world.”
Self-Avowedly Apathetic Jury
The jury that convicted the Kings Bay Plowshares 7 activists was self-avowedly apathetic about the risks posed to humanity by nuclear weapons, and the judge and prosecution worked together to prevent the defendants from sharing information or arguments to raise jurors’ consciousness on the issue.
Sam Husseini, communications director at the Institute for Public Accuracy, a progressive nonprofit organization, attended the three-day trial. “It was a subtly but insidiously controlled courtroom with the judge and prosecution working hand in glove,” Husseini told Truthout. “The defendants were allowed to speak about their religious beliefs and to some degree how they relate to nuclear weapons. But it was all presented as subjective, and expert testimony on international law, and justification and necessity of urgent action were excluded.”
The defendants, who said they were following the command of the biblical prophet Isaiah to “beat swords into plowshares,” were denied the right to present the defenses of necessity, which allows one to commit a crime in order to avoid a greater harm. They were also denied the right to discuss the Religious Freedom Restoration Act, which “ensures that interests in religious freedom are protected.” Thus, they were limited to their own testimony about their subjective motivations for their acts.
“Defendants were allowed to briefly discuss their moral objections to nuclear weapons but were cut off quickly. No outside evidence or testimony was allowed,” defense attorney Bill Quigley told Truthout.
Husseini added: “The manner that the judge allowed the case to be made did not make it clear that the house was indeed on fire — or even that there was a house. The reality of the nuclear weapons, the threat they pose, and certainly their illegality, were not objectively communicated” to the jury.
Speaking with Truthout in an exclusive email interview, defendant Patrick O’Neill shared an anecdote that further highlights the degree to which the jury reflected the widespread ignorance about nuclear risks that exists in the U.S. now.
“When Judge Lisa Wood asked the entire jury pool: ‘Do any of you have a strong opinion about nuclear weapons — pro or con, would you raise your hand?’ Of 73 people, not one raised a hand,” O’Neill told Truthout. “That is an indication that people living in the throes of the nuclear age, at two minutes to midnight on the Doomsday Clock, have come to see [weapons of mass destruction] as inconsequential — nuclear weapons on hair-trigger alert 24/7 is now a ‘normal’ part of people’s lives.”
O’Neill added, “The Pentagon has brainwashed people to just trust a government that is imperiling the earth and risking the end of life as we know. That’s why we went to Kings Bay — to hopefully wake people up.”
Refusal to Allow the Necessity Defense
Had the judge allowed the peace activists to raise a “necessity defense” — in other words, arguing that their actions were necessary to avoid the use of nuclear weapons — the jury could have come to a very different decision. There was abundant evidence to support a necessity defense.
In order to sustain the necessity defense, Quigley explained in his brief, the defendant must show four elements:
(1) that she believed that she needed to choose between two evils and she chose the lesser evil. “Any use of nuclear weapons by definition cannot discriminate between civilian and military targets. Each of the many Trident nuclear missiles kept at Kings Bay contain many multiples of the destructive power used by the United States in Hiroshima and Nagasaki.”
(2) that she sincerely believed and reasonably acted to prevent imminent harm. The Bulletin of Atomic Scientists says the world is closer to nuclear devastation than ever before. President Donald Trump repeatedly declared that “all options are on the table” and threatened North Korea with “fire and fury like the world has never seen.”
(3) that she reasonably believed her action could help to avoid that harm. “Only by symbolically disarming these nuclear weapons is there any hope for real disarmament.”
(4) that she reasonably believed there were no legal alternatives to breaking the law. “Defendants have each spoken, written, prayed, petitioned, and lobbied for nuclear disarmament and peace for decades. These actions are the only ones left which might make a difference.”
Quigley’s brief cited the 2018 Nuclear Posture Review, which would allow the United States to use nuclear weapons in response to a non-nuclear attack. The Doomsday Clock, maintained by the Bulletin of Atomic Scientists, continues to stand at two minutes to midnight. The U.S. refuses to join the majority of the nations of the world in ratifying the Treaty on the Prohibition of Nuclear Weapons. Trump withdrew the U.S. from the Iran nuclear deal, and he may well pull out of the New START Treaty as well, “which would leave nuclear weapons free from all controls” Quigley wrote.
Ellsberg believes the defendants were “definitely entitled” to present the necessity defense. As he said in a statement to the Institute for Public Accuracy, “an action which would under other circumstances be illegal can be justified as legal by a reasonable belief that it is necessary to avert a much greater evil: in this case omnicide, the collateral murder of nearly every human on earth in a war in which the nuclear missiles aboard Trident submarines were launched.”
The judge found that the defendants could have protested nuclear weapons without illegally entering Kings Bay and could’ve used the political process to change nuclear policy. But, Quigley wrote in his motion to reconsider, “there are no facts at all in the record” to support the judge’s conclusions. In fact, the defense tried unsuccessfully to introduce evidence that defendants had tried to effect change through the political process “for decades without success.”
In a declaration filed with the court, Ellsberg wrote about the significance of civil disobedience:
[I]t was not until widespread campaigns of civil disobedience, affecting public awareness and conscience . . . relating to the women’s right to vote, civil rights, and the right to unionize that the electoral and legislative and legal processes began to function to extend and protect these rights in a way we now take for granted as fundamental to democracy.
Refusal to Allow Expert Testimony
“Tellingly,” Quigley wrote, “the Magistrate granted the Government the right to preclude the jury from hearing evidence about nuclear weapons without never once discussing or even acknowledging the uncontested lethality of nuclear weapons.”
Moreover, the judge denied the defense motion to present the expert testimony of Professor Francis Boyle about the illegality of nuclear weapons under both international and U.S. law. “[T]hese defendants acted lawfully and reasonably to prevent egregious and fundamentally prohibited of all crimes, war crimes,” Boyle wrote in a declaration. He concluded that the defendants did not have the criminal intent required to convict them of the charged crimes.
But while the “Defendants’ subjective beliefs about the illegality of nuclear weapons may be relevant background information, whether nuclear weapons are actually illegal under international or domestic law (a doubtful proposition) is not relevant or an appropriate issue to litigate in this case,” Judge Lisa Godbey Wood wrote.
Refusal to Allow Religious Freedom Defense
The judge also denied the defense motion to argue that the prosecution violated their rights to religious exercise protected by the Religious Freedom Restoration Act (RFRA). Although the judge concluded that the defendants had established the prima facie elements of a RFRA defense, the government demonstrated a compelling interest in prosecuting the defendants for their actions at Kings Bay, citing the safety of individuals on the base, the security of the assets there, and the smooth operation of the base.
The defense, however, elicited an admission from Scott Bassett, communications officer for Kings Bay base, that he had told The Washington Post that the protesters didn’t threaten any personnel or asset, or damage any military asset, including submarines or weapons systems, at the base.
Reactions to the Verdict
The Kings Bay Plowshares 7 are asking people to sign a worldwide petition urgently requesting that the charges against them be dropped.
Peace activist and retired Col. Ann Wright summed up the irony of the prosecution of the Kings Bay Plowshares 7, writing on Facebook, “The US nuclear weapons are so poorly protected that the 7 were able to get into the more secure area! They should be rewarded for pointing out how poorly guarded the weapons are instead of being on trial!!!”
“I don’t see [what I did] that’s the crime,” defendant Liz McAlister said on Democracy Now! “I think the crime is the weapons. The crime is the money spent on the weapons. The crime is the money taken from the real needs in our country and in our world to spend it on these weapons of mass destruction. And we need to stop that. And that’s the message that I want to continue to stand behind.”
Meanwhile, defense attorney Quigley told Truthout that he thinks the verdict will “make convictions easier and defenses harder” in the future.
“If the jury would have heard the facts about the nuclear bombs headquartered at Kings Bay — with 3,800 times the destructive power of Hiroshima and the real possibility of ending all life on the planet — they would probably have come to a different decision about the legality of what these courageous people did,” he said.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and a member of the advisory board of Veterans for Peace. Her most recent book is “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.”
This article is from Truthout and is reprinted with permission.
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The defense did a great job. The jury panel (73 people) was so tiny it didn’t have even one person that opposed nuclear weapons. So the panel could not have been representative of the people who are Georgia, or “impartial” as to guilt or innocence. People without opinions are usually uninformed rather than impartial, and may lack a frame of reference beyond the allegations and arguments.
The impartially standard may have been the best the 18th century could do. If juries are required to be impartial on the issue they are useless. The representative standard is more in line with the Bill of Rights safeguards for the innocent and unjustly accused.
The US census bureau estimates that the population of Georgia on July 1, 2018 was 10,519,475. It further estimates that 23.8% of the population is under the age of 18. So the jury panel should have been a database of 8,015,840 citizens of Georgia minus those medically unable to serve. There is no other way to select a jury that has a chance of being representative of a majority of the people of Georgia, or any other state.
I’m not suggesting anything new or radical. Nothing new or radical about a fair trial. If the jury panel doesn’t include a police officer’s grandmother or a drug dealer’s brother it is not representative of the people who are Georgia or any other state. Voir dire of the random selection would make the jury less representative of the state and district.
A genuine sixth amendment jury would have known, probably without any discussion, that the federal government would not unilaterally remove the nuclear triggers from its nukes or increase the stockpile, whatever the jury decided.
A real jury would have acquitted. The protesters did no harm. They have been abused and mistreated and deprived of their constitutional rights. The defense was effectively gagged.
Of course they tried to brainwash us all. Theses people knew all along ducking and covering were acts of futility. When the best acronym the war mongers could come up with after they lost control of the nuke bomb science & technology was MAD and no one blinked they had completed the “NUCLEAR BLACKMAIL” of mankind.
What they were saying is “All you folks be good little citizens and go on about your business. We got this!”
Mutually Assured Destruction – in the name of DOG what in hell was wrong with these people?
We were all lied to. The U.S. bomb makers lied about everything nuclear that might cause them Public Relations Problem. Doses, fall out, contamination of facilities, costs commercial nuke power plants which were supposed to be safe and cheap all of it.
Seventy years later the industry still cannot make it on it’s own and needs life support in the way of political machinations to raise money from electric rates and taxes. The whole thing a mega industrial sham furthered because represive governments need the nukes to terrify the modern world. “Be good little kiddies or we will toast you all.” All of it pure unadulterated B.S.
Once Oppenheimer showed the technology would work Teller, Lewis Stauss , and a host of others black balled him as being unworthy of serving in his former capacity because he was a critic of the weapon. I believe proof of malice of aforethought was present, glaring in the intent of their actions.
But I fear the dictum was false and anchored in the fear that Oppenheimer would dissent and expose, what I truly believe was a plot within the USAEC, UNITED STATES ATOMIC ENERGY COMMISSION, to divert highly enriched U-235 to Israel. SEE the Apollo Affair.
The Israelis did divert the HEU 235 and now Israelis have nuclear weapons, thermo-nuclear weapons. The really bigfbombs.
I know this history pretty thoroughly for a laymen and things simply do not add up.
So I am officially announcing in the U.S. Naval vernacular , “It’s way pat time to run up the Bull Shit Flag here!”
You see this is why it is necessary for the government to jail these protesters. Up to this day in time these institutional nuclear creeps still fear the truth getting out so every criticism of them and their mission is seen a nail that must must driving out of sight.
Nuclear weapons have no place on this planet, PERIOD FULL STOP!
Thanks now lets have some truth from CIA, FBI, Israel and the DOJ on this matter!
Thanks very much Marjorie Cohn for this article on the 7 courageous anti-nuclear activists.
How gross that a court of law in America has not allowed them to explain why they needed to
take this action at the naval base. An action to draw attention to the dire dangers that nuclear weapons present for life on earth now and forever, is the best reason for civil disobedience.
How corrupted democracy is now in America, with Chelsea Manning in prison for a second time for exposing crimes against humanity in US wars and refusing to cooperate in the way the authorities want over Julian Assange who published her material ; and Julian Assange now ill and being threatened with extradition to America to face a kangaroo court and a grotesque sentence of over a hundred years in prison for publishing evidence about wars crimes that we needed to know about. This is no democracy or justice! It has been said that the place for a just person in an unjust society is in prison.
Thank you very much for the great work you are doing and have done Professor Cohn. I have found your work pointing out the illegality of the US-led war on Afghanistan very useful for a submission to an inquiry in New Zealand.
Here’s a question: what do the elites have to gain by bringing nuclear Armageddon? Are they stupid enough to think they’ll survive like some fucking 21st century Noah? Do they think they’ll be on some Martian beach sipping mai tai’s while the world burns in nuclear (or climatic) hellfire? Or is this another example of their arrogance and hubris pushing them over the edge (along with the rest of us) and realizing their mistake after it’s too late?
It is the money the industry sucks up every year, a multi-billion dollar economy all on it’s own.
There seems a widespread illusion that the current nuclear crisis is not as serious as the Cold War which ended without nuclear annihilation. But history shows that the “new Cold War” is far more dangerous than the original.
Unfortunately, the jurors in this trial were not only apathetic, they were also pathetic.
They allowed themselves to be bambozzled into following the letter of the law, rather than the spirit of the law. They allowed themselves to become tools of a system that tolerates no dissent, no whistle blowers, and only allows thinking in a range that it deems “acceptable”.
They did not consider jury nullification as an option or were totally unaware of that option. (too much watching corporate news and TV).
Now these activists face 20 years in prison, which for most of them is essentially a life sentence. What would their sentence have been if they actually did some damage or destroyed something rather than symbolically protesting?
On appeal I would have the defense investigate jury tampering by the prosecution in addition to judicial misconduct.
Having 73 people in a jury selection panel all demonstrate they have no opinion on the use of nuclear weapons or their ongoing existence can only mean one of two things; option #1 – these people were hand picked by the prosecution prior to jury selection under the auspices of the judge, or option #2 – they or they are all so stupid that they have no sense of survival.
However, my money is on option #1…
The greatest risk of nuclear war today comes from Trump Derangement Syndrome. The fact that the leadership of the Democratic Party would use Russia-gate, a pile of absurd lies, for political advantage, at the risk of initiating a nuclear war with Russia is beyond despicable. Hopefully that risk is still small (thanks to the sanity of Putin) but to make it any more likely, for such a selfish purpose, is a disgrace.
Thank you Ms Cohn for this overview of the appalling trial procedure denying the defendants the right to argue in their own defense. This judge/magistrate and her collaboration with the prosecution (what else can one call it?) is almost, if not entirely, a reprise of Julian Assange’s hearing in front of that other Magistrate back in the UK, Vanessa Baraister. (Is this judge/magistrate, Lisa Wood, the same one who sent Chelsea Manning back to prison – with hellish daily fines – for refusing to testify against Mr Assange?)
What we are seeing here is a blatant increasing of the construction of a police state. Or so it seems to me. US-UK “justice” has never been truly just, free from prejudice of any kind, and is profoundly vindictive. But it does seem to me to be worsening.
As for the jury’s indifference to the realities surrounding nuclear weapons/war. As someone born and raised back in the UK in the late 1940s-1960s, I am ever amazed at the split-mindedness of Americans in general. On the one hand, the Cold War (back in full triumph) paranoia with its totally useless – other than for establishing and maintaining that paranoia – “Duck and Cover” for school kids (not once ever done in the UK); on the other, the blase, there’ll be no effects over here if we ever use nuclear weapons, so who cares. We’ll be safe from radiation, from being evaporated… If we use nuclear weapons against another country – well that’s okay ‘cos it’s over there, thousands of miles away. We used them against the Japanese, and we didn’t suffer any nuclear “blowback.”
Not having had to endure – since the arrival of the Brits in the 17th century – an armed, genocidal invasion, not having been bombed during WWII (Pearl Harbor was, after all, a military naval base), not having any of the succeeding wars we have visited on other countries arrive on these shores (9/11 was something of a small blowback, but absolutely nothing compared to what we have visited and continue to visit on other countries since 1945) seems to have profoundly induced a total, shrug the shoulders attitude toward what we as a people have been doing across the world and what we have refused to do since 1945: destroy all of our nuclear weapons.
That 73 jurors do not have any particular opinion on nuclear weapons & weapons of mass destruction shows that the warmachine media & their mercenaries in suits have successfully manufactured the collective apathy & consent of a nation which continue to wage illegal war after illegal war on the basis that the perceived enemy has weapons of mass destruction.
On what basis were the defendants refused to present information on the capability of nuclear weapons, the ramping up of new cold war & the threats posed specific to the political climate? These aren’t national security information. These are information available open source to the entire world.
If the jurors had been exposed to media sources other than the main scream media, they would have known this. So, on what basis were the defendants denied the opportunity to explain why they did what they did? Yes, it would have had the unfortunate (unfortunate to the prosecution/War machine) consequence of educating the jurors, but how are they capable of giving a guilty verdict if they do not know the motivation, circumstances, reasons why the defendants did what they did?
I hope there is an appeals process. I bet no Main Scream Media would cover this, just as they do not cover Julian Assange. If they do cover this case, or that of Julian Assange, it would only be to further demonise the very people who sacrificed themselves in the eyes of the very society which they hope to protect.
Not only were the activists prevented from presenting a real defense; the threatened 20 year sentences reveal that the rule of law has become a bad joke against the yankee imperium.