A Judge’s ‘Doubtful Proposition’ on Nuclear Weapons

Brian Terrell reflects on the trial of the Kings Bay Plowshares 7.

By Brian Terrell
Voices for Creative Nonviolence

“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,” so ruled Judge Lisa Godbey Wood of the U.S. District Court for the Southern District of Georgia, late on Friday Oct. 18. This last-minute order, restricting the defense of seven antinuclear activists at a trial that began Monday morning the 21st, made a short trial a foregone conclusion. It also, more than any evidence that the yet to be impaneled jury would eventually hear, made their convictions all but certain.

On trial were seven Catholics, who on April 4, 2018 — the 50th anniversary of Martin Luther King’s assassination — cut through a fence and entered the Kings Bay Naval Submarine Base in Georgia, homeport for six Trident nuclear submarines, where in an act of symbolic disarmament, they poured bottles of their own blood onto military plaques and hammered statues of nuclear missiles. In a previous Aug. 26 ruling on the activists’ claim that their actions were protected under the Restoration of Religious Freedom Act (RFRA) Judge Wood agreed that the “Defendants’ actions at Kings Bay were exercises of their sincerely held religious beliefs that they should take action in opposition to the presence of nuclear weapons at Kings Bay,” and that their actions were “‘religious exercises’ within the meaning of RFRA.” 

“The laws at issue put ‘significant pressure’ on Defendants to not exercise their religion as they did at Kings Bay” Judge Wood continued. She also noted they “were substantially burdened by the laws at issue.” Judge Wood nevertheless decided that the government has a “compelling interest” to have nuclear weapons which overshadows any other consideration.

From right, the author and two other activists with Voices for Creative Nonviolence, Kathy Kelly and Sarah Ball, outside the Brunswick Courthouse. (Kings Bay Plowshares 7)

Restricting Defendants’ Arguments

At trial, activists were allowed to explain to the jury “their subjective beliefs about religion and the immorality and illegality of nuclear weapons,” but, she warned, too much “testimony and argument on these topics creates the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” In effect, the defendants were allowed to give evidence of their own subjective beliefs that nuclear weapons are illegal but not allowed to explain the facts that inform those beliefs. 

One of the expert witnesses that Judge Wood decided would confuse and mislead the jury was Professor Francis Boyle of the University of Illinois. He had submitted an extensive legal declaration in defense of the activists, noting that U.S, treaties, including the Geneva Conventions banning weapons of mass destruction and the condemnation of nuclear weapons by the International Court of Justice among many others, are part of international law to which the U.S. government and its citizens are bound to obey.

Also disqualified as a witness was Professor Jeannine Hill Fletcher, a theologian from Fordham University. She was not allowed to testify that the activists’ actions were based on sincerely held religious beliefs in the context of their Catholic faith. The jury was allowed to hear only about the defendants’ subjective beliefs about their Church’s teachings on war and nuclear weapons, but what those teachings actually are or whether the defendants’ subjective beliefs are well informed, was deemed irrelevant. 

At trial, the jurors had no knowledge of Judge Wood’s order but they were clearly confused by its bearing on the testimony they heard, as shown by the notes that they passed to the judge for clarification. “Is it true that there are nuclear missiles kept at Kings Bay?” one juror wanted to know, a question that went unanswered as irrelevant. 

USS Pittsburgh pulling into Naval Submarine Base Kings Bay on routine visit in 2011. (U.S. Navy/James Kimber)

Unanswered Questions

The fact that the defendants left this and other decisive questions up in the air and unanswered could easily have given the impression to the jury that they simply did not know what they were talking about, that they were not acting on known facts about Kings Bay and the danger of nuclear weapons, but on rumor, conjecture or propaganda by our country’s enemies, if not paranoid delusion. Defendant Carmen Trotta could tell the jury, “One-fourth of the U.S. nuclear arsenal is deployed out of Kings Bay, the single most sophisticated weapon on our planet. If used, they will destroy all life on the planet. They can’t be legal,” but he was not allowed to say why he believed this to be true.

Martha Hennessy was able to speak of the Catholic social teaching she learned from her grandmother, Dorothy Day, and her belief that “We, our country, many countries, replace God with these weapons. We don’t put our trust in God. We need to study Christian teachings; it is idolatry to trust these weapons,” but the jury was not allowed the context to discern whether her belief, however “sincerely held,” proceeded from established and systematic teachings of her Church, or her own personal and possibly misguided conviction.

The government prosecutors took advantage of the gag order that limited the defendants’ testimony. At times they seemed to goad them up to the line of what was allowed, only to have something to object to. One prosecutor badgered Clare Grady in an attempt to make her look arrogant, suggesting that she set herself above the law, claiming the right to run red lights if she felt like it, arrogating herself “the power to overrule 320,000,000 who have elected Congress to make laws.”

“You think that your personal opinion is the supreme law of the land!” he challenged her. While the prosecutor spoke freely about the supreme law of the land, Clare and other witnesses for the defense could not. Had he been allowed to testify, Boyle could have explained to the jury that the term “supreme law of the land” is not an abstract or malleable notion and that the supreme law of the land that Clare was obeying was not her own personal whim of the moment, but something clearly defined in article VI of the U.S. Constitution:

“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.” 

Swift Convictions

In less than 90 minutes, the jury convicted all seven on four felony counts each. They are facing up to 25 years in prison.

Judge Wood’s determination regarding irrelevant testimony is concerning enough, but her parenthetical judgement that the illegality of nuclear weapons is “a doubtful proposition,” shows an irrational and dangerous bias that, by itself, should have disqualified her from hearing this case, at least. The illegality of making, maintaining and threatening to use nuclear weapons is firmly and unequivocally established as 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.” 

Three months before I was in the courtroom in Brunswick, Georgia, where this miscarriage of justice occurred, I was in Europe, camping outside (and occasionally making an unauthorized visit inside) a German Air Force Base at Buechel. There, 20 B61 nuclear bombs are maintained by a U.S. Air Force squadron, ready to be loaded on German fighter bombers upon orders from both the US and German governments. 

Gen. Roger Brady, at left, observes disarming procedure of a B61 nuclear bomb on a “dummy” weapon shape in an underground vault at Volkel Air Base. (U.S. Air Force, Wikimedia Commons)

Both the U.S. and Germany are signers of the Nuclear Non-Proliferation Treaty (NPT), where the U.S. is prohibited from sharing nuclear weapons with any country and Germany is committed:

“… not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly … or otherwise acquire nuclear weapons or other nuclear explosive devices …”.

The U.S. maintains that the prohibitions of the NPT and the other disarmament treaties and agreements only count in peace time. The logic is that, if there is a nuclear war, the NPT by that point will have failed to keep the peace and so is null and void. In the meantime, the nuclear weapons stored at Buechel and on bases in five other NATO countries are in the possession of the U.S.

It seems absurd on its face. Disarmament agreements in force only in peace time is like being a vegetarian between meals. On the other hand, it is true that if (when?) the order is given to load these U.S. nuclear bombs onto German planes to be dropped on predetermined targets, by that time any notion of law, of agreements and cooperation between nations, of human kindness and simple decency, is done and over. No one will be protected and no one held responsible for the chaos and destruction to follow. There will be no Nuremburg trials after World War III.

Clare Grady testified in court in Georgia that “we used the word ‘omnicide,’” describing a banner she helped hang at Kings Bay. Omnicide, she explained, is “a word that didn’t exist before the nuclear age — the death of all living things. We put up crime scene tape because Trident is the biggest crime we know.”

Judge Wood’s doubt over the illegality of nuclear weapons, her suggestion that the means of the destruction of all living things is legal and to be protected, shows, at best, a culpable ignorance of the law, if not outright contempt for it. If, on the other hand she is right and the killing of everything is legal and actions to avert omnicide are criminal, is the institution of law any good at all? If Judge Wood is correct and objection to the destruction of the whole of creation and the killing of everyone is the irrelevant and subjective belief of some Christians, and not a constitutive and essential obligation of our faith, than of what use is Christianity? 

These are among the crucial, but hopefully not the final, questions that Lisa Godbey Wood raised for us in the courtroom in Brunswick. I pray that she, and all of us, attend to them with the diligence and courage shown by the Kings Bay Plowshares 7 on April 4, 2018.

Brian Terrell, brian@vcnv.org, is a co-coordinator of Voices for Creative Nonviolence.

This article is from Voices for Creative Nonviolence.

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19 comments for “A Judge’s ‘Doubtful Proposition’ on Nuclear Weapons

  1. dean 1000
    November 20, 2019 at 11:39

    Deciding this issue on a religious basis would be an attempt to “establish” a religion contrary to the 1st amendment. The Kings Bay protesters do very good work but their religion is no more worthy of “establishment” than mine.

    Virtually everyone on the planet would agree that nuclear weapons should be disarmed and dismantled. The agreement of most people in the nuclear countries would hinge on whether the other nuclear countries would agree to disarm. They would not invoke religion. The basis would be practical – getting rid of the most hellish and destructive weapons on earth.

    This issue should not be decided in the courts. Lacking the means of free speech, the Kings Bay 7 and others try to use the courts and sporting events to publicize their issues.

    Congress has restricted the means of mass communication to a handful of individuals and corporations. When it did not simultaneously provide for the means of mass communication by the public, to the extent possible, it “abridged” the speech rights of everyone it did not favor with a frequency monopoly, license, tax breaks, etc.

    Congress is now obliged to direct the FCC to provide every election district with a TV and Radio station where political candidates can politic with charge, and groups like the Kings Bay 7 can publicize their “political” issues w/o insulting the public by trying to establish religion. The costs are minimal on a national and constitutional basis.

  2. Godless John
    November 19, 2019 at 18:56

    This is what the government does in all trials of dissidents and whistleblowers. Of the 49 defense witnesses requested by her legal team, the judge allowed one to appear citing “national security” to dismiss the others.

  3. November 19, 2019 at 13:08

    No More War

  4. Donal
    November 19, 2019 at 12:06

    The earth was once a ball of molten metal! It does not care what we do to it. In billions of years it would again flourish without care for our destruction but build in spite of it. Only we reap the horror of nuclear destruction and have great arrogance to create a word like omnicide, as arrogant as keeping nuclear weapons to prevent war!!

  5. November 19, 2019 at 11:39

    “The law, Roper, the law. I know what’s legal, not what’s right. And I’ll stick to what’s legal. . . . I’m not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can’t navigate, I’m no voyager. But in the thickets of the law, oh there I’m a forester. . . . What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? . . . This country’s planted thick with laws from coast to coast – Man’s laws, not God’s – and if you cut them down . . . d’you really think you could stand upright in the winds that would blow the[n]? . . . Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

    R. Bolt, A Man for All Seasons, Act I, pg. 147 (Three Plays, Heinemann ed. 1967), as quoted in Tennessee Valley Authority v. Hill, 437 U.S. 153, 195-196 (1978), (construction of “virtually complete” major dam halted to protect the tiny, endangered Snail Darter; “[t]o sustain that position, however, we would be forced to ignore the ordinary meaning of plain language”).

  6. Walter
    November 19, 2019 at 11:19

    Jeff, it’s more interesting than that. If you dig into the origins of the “cold war” you will discover that the policy was by march of ’44, to use the bomb on the soviets, Japan was simply the second and third tests. It’s all there in the records, but you have to look pretty hard. Anyway that policy being followed through the signing and ratification of numerous subsequent treaties would seem to imply that all those laws were fraudulently created, and are thus moot. That would include the UN Charter, so far as the US is concerned. And Boltor recently said they recognized no law other than the US’s law. That seems to make it pretty clear.

    • Kevin
      November 19, 2019 at 17:30

      If you have already looked hard into this, could you provide references for the rest of us? The FDR government and the Manhattan Project were so infiltrated by Soviet agents that it is inconceivable that they would not know this.

    • Sam F
      November 19, 2019 at 18:19

      Yes, the USG as corrupted presently does not respect any law or treaty. But where these can be used for justice, perhaps you agree that we should do so regardless of wrongdoing in their origins. Can you recall a source on the decision to use the first nukes on the USSR?

  7. Aaron
    November 19, 2019 at 11:13

    I would like to see the brief by Francis Boyle. Where can I find that document?

    Thank you.

  8. Skip Scott
    November 19, 2019 at 08:24

    I have often cited article VI of our Constitution in arguments with friends over the total disregard for our Constitution by every successive administration, from both sides of the aisle, and every branch of government and the military. Even without being signatory to the ICC, our own federal courts should be prosecuting ALL US war criminals, from the bottom to the top of the chain of command. Every soldier and member of any “Intelligence” Agency takes an oath to protect and defend the Constitution. I humbly suggest that they all take the time to actually read it.

  9. Sam F
    November 18, 2019 at 22:03

    This kind of manipulation of the jury is the common practice and a principal skill of our uniformly and completely corrupt federal judiciary. Judges are selected for their corruption by choice of career and by law school, and those with any principles left remain at the level of small claims court. Promotions are by and for the oligarchy, and federal judges act primarily to gain their favor, and on the basis of the groupthink of “us” federal employees against “them” the People of the United States.

    Any moral judge would have let them off with minimal sentences for vandalism, and scolded the military to build better fences. But my extensive experience of roughly 50 federal judges in 5 states and DC, proves very well that there are no moral judges. If there were one or two left, they must be hiding somewhere, and would not dare to make a judgment in accordance with law, if it conflicted in any way with oligarchy demands. That would be the end of their career, and they know that very well. Judges are the worst criminals in the nation by far, and they are proud of that, as a professional skill.

    • Jeff G.
      November 19, 2019 at 19:13

      They should appeal. That would be very interesting. Once in a great while, there are sharper tools in the shed.

    • Sam F
      November 19, 2019 at 22:25

      Yes, but (in the US at least) the corruption increases at higher levels of the Judiciary. Obvious outright crimes by wealthier parties are completely ignored. 99% of the most serious cases in the US which reach the Supreme Court are decided by hack clerks on the basis of political party and money alone, and are denied a hearing. After all, money=virtue to oligarchy, especially if it is stolen, so no courts or laws are needed except to suppress the riffraff.

      In the US, the only appeals courts that are sometimes not corrupt are the 6th circuit (midwest) and 9th circuit (southwest). But one cannot choose the court of appeal. I cannot say how bad this may be in England, but not likely much better.

  10. irene
    November 18, 2019 at 21:03

    Quite a few years ago now, I came across a book on a library book sale table.
    It was called “By the Bomb’s Early Light” by Paul Boyer and it was going for fifty cents.

    I paid up. This is one of the most valuable books I own (and I own lots of books !)

    Boyer, an historian, meticulously documents the early years of the Nuclear Era.
    It’s very clear that right away, thoughtful people thoroughly grokked what The Bomb
    meant to the future of not only humanity, but the planet itself. (Even though ‘to grok’
    was not yet a concept). But the most important take-away from the book is Boyer’s
    compelling argument that The Most Dangerous time is Now (he was writing in 1984),
    when the original post-atomic-bomb generations are dying off, the world has moved
    on to other concerns, the general populace has put any qualms about our nuclear armed
    countries firmly in back of the closet, and the Cold War One has fractionated into multiple
    regional conflicts, exacerbated by climate change and population pressure.

    This book should be Required Reading for anyone who thinks about nuclear issues, it is
    readily and affordably available through any good used book service. Order a copy today !

  11. Mike Perry
    November 18, 2019 at 19:58

    This is such a great group of folks with a long history of mobilizations that span across generations. They are the real deal. .. And, I don’t think we ask for better neighbors and citizens. Thank You All – For What You Do.

    Quite a while back, I came across a copy of Emile De Antonio’s, ‘In The King Of Prussia: The Trial Of The Plowshares Eight’. I see that a copy is now posted on youtube, and this film is definitely a great antidote for the public’s airwave shame, that is called, “prime time”.

  12. Fran Macadam
    November 18, 2019 at 17:09

    “‘Things’ are in the saddle, and they ride mankind.”

  13. November 18, 2019 at 16:34

    “There will be no Nuremburg trials after World War III.” Chilling words we need to repeat.

  14. Jeff Harrison
    November 18, 2019 at 15:30

    The US has been in violation of the NPT for, like, ever. Since we seek to be the global hegemon, don’t expect us to play by the rules anytime soon.

    • AnneR
      November 19, 2019 at 08:25

      Even as we demand that others, like North Korea, Iran and others, must. True hypocrisy and amoral megalomania. After what happened to Libya of Qaddafi’s giving up his nuclear program, any country that is even remotely in the FUKUSIS peripheral vision for regime change, balkanization, theft of its resources is only demonstrating some sanity (albeit planet threatening Dr Strangelove style) if it creates a nuclear weapons program.

      On the subject of this judge, Godbey Wood – is she out of the same mold as Baraitser, the magistrate hearing Julian Assange’s case? She certainly sounds like it (and like Baraitser’s boss, Arbuthnot). Imperialist-Deep State stoolies.

      Who in their right minds would trust the US or UK criminally biased so-called justice system?

Comments are closed.