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.