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The Fourth Branch

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I am a lawyer. My pro bono clients are often those who offer nonviolent resistance to wrongs committed by our own government.

I read that, this week past, some nonviolent resisters entered a nuclear weapons storage facility in Germany.
Damn if it is not a list of many of my clients. These people are incorrigible. Next time at sentencing I will argue jail is a waste of time and public money for those sorts; you just cannot deter some people from a life of “crime.”
What a world, in which those acting peaceably for peace are criminals while those in power ordering the killing of people “for their own good” are not.

I still subscribe to law professor Francis Boyle’s view; nuclear weapons and related materiel are not property–property rights attach to legitimate things, not to criminal instrumentalia that have no use but criminal annihilation.

I’ve argued all this a few times with success and many other times not. As to the juries in cases of nonviolent resistance to injustice or in defense of higher laws, I trust them if they are allowed to hear all germane facts.
In one case in which I argued that the nonviolent defendants—who had used hand tools to dismantle a portion of a US nuclear Navy command facility—did not interfere with the defense of the USA because technical experts—whose published work the defendants had read—those defendants were innocent of sabotage charges.

We won this case in great part because of Captain James Bush’s (Ret.) testimony; the members of that jury were fully informed. Bush told the jury of 12 that as he commanded a United States nuclear submarine loaded with ‘city-busting’ weapons that he was also earning a graduate degree in International Relations and that he came to understand that he was in violation of the law every day. Hearing that from a retired commander made quite an impression. The jury rose to the occasion and acquitted, even with a hostile judge.

But it’s degenerating. The recent Espionage Act prosecutions have prevented defendants such Kiriakou et al. from even saying the word “whistleblower.” Reality Winner will be so shackled in her defense.

I have experienced this abuse of the law in nuke protest cases in US federal court–to the point I conclude such trials are Soviet Mock Potemkin Trials (back in the US, back in the US, back in the USSR).

In my judgment the jury is the 4th branch of government. The Founders knew power corrupts, and that sooner or later, the Congress, the President and the judges would abandon the Constitution for power and that only fully informed juries could stem the tide of corruption.

The Federal judges who issue orders in limine so jurors do not hear all the evidence (as to both the law and the facts) are complicit in destroying the check and balance the jury must be–as all others involved, i.e., Congress, President, judges, are beholden to the system.

In the case to which I referred above, the State Court Judge had some residual fidelity to the Constitution and we kind of boxed him in to allowing Bush to testify as he did–though I expect the Judge did not think a “military man” would have such a complicated mind, capable of rational thought and a moral code superior to his willingness to “just follow orders.”

Kinda tricky of me, I guess. But my oath is to the Constitution, not Congress, White House, or Judge–all of whom are creatures of the Constitution deserving of no respect nor obedience when they violate same (as is the ordinary course of all branches these days.)

Despite many disappointments, I still have faith in juries of ordinary people when fully informed to make “just” decisions even if necessitating deviation from the law. Thus, government fears the people so long as there is trial by jury.

This is as it should be. A government making unjust laws as ours does ought to fear its ability to convict when justice is not served by conviction. The three branches have become unmoored from being “bound down in the chains of the Constitution”–with the result it is a lawless beast.

Ultimately it will be up to the people: a nation of law, or a nation of beasts? Our “leaders” have no interest in curbing their own abuse of power. As victims of such abuse, the people are responsible, for the sake of their progeny and the future of liberty.

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Kary Love is a Michigan attorney.

CounterPunch Magazine


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