Federal Appeal Courts Agree: Facts About Nuclear Weapons Can be Hidden from Juries in Protest Cases

Between 1980 and 2005, seven separate United States Circuit Courts

If you thought confronting nuclear weapons in the United States would be easier now that the UN General Assembly has approved a treaty outlawing them, think again.

The 2017 Treaty on the Prohibition of Nuclear Weapons will come into force after 50 countries have ratified the law. This may occur in 2020, since 34 nations have already done so.

However, the US court system has constructed a seemingly impenetrable fortress of legal precedent that provides nuclear weapons systems a heavy blanket of judicial security. Like a palace guard that keeps an Emperor safe from all foes, US Courts of Appeal have placed the Bomb and its producers on a throne of the highest order where the mere mention of its status under law is forbidden.

Between 1980 and 2005, seven separate United States Circuit Courts of Appeal have decided that federal judges may — and in one case must — prevent juries in nuclear weapons protest cases from hearing a “defense of necessity” or expert testimony about international law, even if such law forbids nuclear weapons by name.

The First, Second, Seventh, Eighth, Ninth, Tenth, and Eleventh US Circuit Courts of Appeal have all agreed that in political protest cases, keeping juries in the dark concerning the outlaw status of nuclear weapons is legitimate. (1) These seven federal US circuits are the controlling and precedent-setting tribunals for all federal trial courts in 38 of 50 states.

Most recently, in the October 2019 trial of the Kings Bay Plowshares 7 in Brunswick, Georgia, Federal District Judge Lisa Godbey Wood granted the government’s “motion in limine”(2) or gag order, agreeing with the government’s wish to silence the defendants and quash their attempt to argue a “crime prevention” defense based on international law. Judge Godbey Wood even ridiculed the controversy over the legal status of nuclear weapons in her October 18 order granting the motion, writing, “… 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.”

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

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