Protecting the Fiction of Legal H-bombs


“The Defendants may not present a defense of necessity or justification … evidence that the operations at Y-12 violated international or domestic law, evidence that their actions were compelled by the Nuremberg Principles or evidence of their motives”.

This April 30 ruling by US District Judge Amul Thapar makes a sham of the upcoming Knoxville, Tenn. trial of three pacifists who snipped through four wire fences to string “Crime Scene” tape around paint slogans on the Highly Enriched Uranium Materials Facility at the Y-12 complex in Oak Ridge, Tenn. Y-12 houses 400 tons of HEU. (That’s 800,000 pounds of material that the US has threatened to bomb Iran over, if a single ounce of it is ever found there.)

In order to quash any use of the banned words during jury selection which starts May 6, the judge has said he will ask all the questions.

The nuclear abolitionists, Greg Bortje-Obed, 57, Sr. Megan Rice, 83, and Michael Walli, 64, face up to 35 years in prison if they are convicted of “damage to federal property” (10 years) and “intent to injure the national defense” or “sabotage” (25 years).

At the 54,000-acre Y-12 site, a $25 million warhead called the “B61-mod 12” is being planned for US bombers in Europe. It’s a 50-kiloton H-bomb, four times the magnitude of the Hiroshima bomb that killed 140,000 people. The International Court of Justice did the math in 1996, and declared that any threatened use (deployment) of such first-strike nuclear weapons violates international law.

Judge Thapar’s order acknowledges that, “[T]he necessity defense exempts a defendant from liability when [a] criminal act clearly averted much more harm than it caused.” The question of whether an act caused less harm than it prevented is one for a jury to answer. Think of someone who finds a meth operation and in the process of alerting the cops, wrecks some of the lab equipment. The state would never charge “property destruction,” but if it did the accused could argue that the material was contraband and explain, “Meth labs are criminal enterprises. This was crime prevention.”

But in Judge Thapar’s court, the jury won’t be allowed to decide if the pacifists’ incursion was necessary, or even hear their evidence. Of course Thapar holds in his order that it, “[D]oes not ‘invade’ the province of the jury when determining whether a defendant has met the burden of introducing sufficient evidence….”

To reach this position, Thapar had to dismiss reams of expert substantiation of this evidence, including 1.5 hours of sworn testimony given April 23 by former US Attorney General Ramsey Clark. Defense attorney Bill Quigley asked the Hon. Mr. Clark, “The defendants believe indiscriminate weapons are illegal under US Code [Sec. 2441]. Is that a reasonable belief?” Clark answered, “By definition it follows they are illegal.” Judge Thapar curtly brushed off the USAG’s testimony. “… the preclusion of irrelevant evidence or affirmative defenses may occur pretrial.”


When the possession of thermonuclear bombs is as issue — especially in the politically-charged atmosphere of the state that produced the uranium bomb that incinerated Hiroshima — the courts sound self-righteous. Judge Thapar quoted Chicago’s 7th Circuit Appeals Court: “Even if it were contrary to international law for a nation to possess nuclear weapons, domestic law could properly and does make it a crime to correct a violation of international law by destroying government property.”

The protesters’ defense relies on the Nuremberg Principles which banned inchoate crimes including “planning, preparation [or] initiation of a war of aggression or a war in violation of international treaties, agreements, or assurances.” Those treaties include the Geneva and Hague Conventions which ban poison weapons, attacks on civilians or civilian objects and long-term ecological damage. Deploying nuclear bombs — a threat to destroy civilians en masse also violates US military service manuals which codify the laws of war.

Questions of government wrongdoing must sometimes be addressed by our courts. Yet questions about the legal status of nuclear weapons are treated like radioactively hot potatoes by our judges and appeals courts. They have repeatedly ruled that juries mustn’t hear about either what our H-bombs do — massacre — or what the law says about planning and preparing them — it’s criminal.

Judge Thapar’s order is another frank admission that to sustain the fiction that our H-bombs are legal, juries must be kept in the dark.

John LaForge works for Nukewatch, a peace and environmental justice group in Wisconsin.

John LaForge is a Co-director of Nukewatch, a peace and environmental justice group in Wisconsin, and edits its newsletter.

October 08, 2015
Michael Horton
Why is the US Aiding and Enabling Saudi Arabia’s Genocidal War in Yemen?
Ben Debney
Guns, Trump and Mental Illness
Pepe Escobar
The NATO-Russia Face Off in Syria
Yoav Litvin
Israeli Occupation for Dummies
Lawrence Davidson
Deep Poverty in America: the On-Going Tradition of Not Caring
Thomas Knapp
War Party’s New Line: Vladimir Putin is Why We Can’t Have Nice Things
Brandon Jordan
Sowing the Seeds of War in Uruguay
Binoy Kampmark
Imperilled by Unfree Trade: the TPP on Environment and Labor
John McMurtry
The Canadian Elections: Cover-Up and Steal (Again)
Anthony Papa
Coming Home: an Open Letter to 6,000 Soon-to-be-Released Drug War Prisoners From an Ex-Con
Ramzy Baroud
Listen to Syrians: The Media Jackals and the People’s Narrative
Norman Pollack
Heart of Darkness: A Two-Way Street
Gilbert Mercier
Will Russia, Iran, Hezbollah and Iraqi Shiite Militias Defeat ISIS in Syria and Iraq?
John Stanton
Vietnam 2.0 and California Dreamin’ in Ukraine
William John Cox
The Pornography of Hatred
October 07, 2015
Nancy Scheper-Hughes
Witness to a Troubled Saint-Making: Junipero Serra and the Theology of Failure
Luciana Bohne
The Double-Speak of American Civilian Humanitarianism
Joyce Nelson
TPP: Big Pharma’s Big Deal
Jonathan Cook
Israel Lights the Touchpaper at Al-Aqsa Again
Joseph Natoli
The Wreckage in Sight We Fail To See
Piero Gleijeses
Cuba’s Jorge Risquet: the Brother I Never Had
Andrew Stewart
Do #BlackLivesMatter to Dunkin’ Donuts?
Rajesh Makwana
#GlobalGoals? The Truth About Poverty and How to Address It
Joan Berezin
Elections 2016: A New Opening or Business as Usual?
Dave Randle
The Man Who Sold Motown to the World
Adam Bartley
“Shameless”: Hillary Clinton, Human Rights and China
Binoy Kampmark
The Killings in Oregon: Business as Usual
Harvey Wasserman
Why Bernie and Hillary Must Address America’s Dying Nuke Reactors
Tom H. Hastings
Unarmed Cops and a Can-do Culture of Nonviolence
October 06, 2015
Vijay Prashad
Afghanistan, the Terrible War: Money for Nothing
Mike Whitney
How Putin will Win in Syria
Paul Street
Yes, There is an Imperialist Ruling Class
Paul Craig Roberts
American Vice
Kathy Kelly
Bombing Hospitals: 22 People Killed by US Airstrike on Doctors Without Borders Hospital in Kunduz, Afghanistan
Ron Jacobs
Patti Smith and the Beauty of Memory
David Macaray
Coal Executive Finally Brought Up on Criminal Charges
Norman Pollack
Cold War Rhetoric: The Kept Intelligentsia
Cecil Brown
The Firing This Time: School Shootings and James Baldwin’s Final Message
Roger Annis
The Canadian Election and the Global Climate Crisis
W. T. Whitney
Why is the US Government Persecuting IFCO/Pastors for Peace Humanitarian Organization?
Jesse Jackson
Alabama’s New Jim Crow Far From Subtle
Joe Ramsey
After Umpqua: Does America Have a Gun Problem….or a Dying Capitalist Empire Problem?
Murray Dobbin
Rise Up, Precariat! Cheap Labour is Over
October 05, 2015
Michael Hudson
Parasites in the Body Economic: the Disasters of Neoliberalism
Patrick Cockburn
Why We Should Welcome Russia’s Entry Into Syrian War