Day Two: Transform Now Plowshares Trial

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May 7, 2013 No Comments ›› orepa

It was a day full of testimony, cross examination, and more testimony—the first full day of the Transform Now Plowshares defendants began in Knoxville, Tennessee, at 8:00am as supporters gathered with the defendants in downtown Knoxville to process to the federal courthouse.

By 8:15 they were in the courtyard of the federal courthouse building and security was unhappy to say the least. The guard tried to intimidate people into leaving, declaring they were holding a demonstration. Art Laffin merely continued with his reflection while the guard made phone calls and one or two supporters offered copies of the Constitution to the guard and the media captured it all on film—or on megapixels.

By the time we got to court at 8:45 the judge was starting with preliminaries. The jury arrived at 9:07 and the judge gave them a stern lecture about how his father always said if you were on time you were ten minutes late, and they should have been there at 8:45 because he has to do his dad one better… and announced we would stay 15 minutes late, until 5:45, as punishment. He proceeded to outline his schedule for the day which we would only later learn was apparently just a little game he likes to play with himself.

After the judge’s condescending lecture about punctuality, the prosecution’s Melissa Kirby presented her opening arguments. “Before dawn, July 28, 2012,” she began. Her job was fairly easy since the defendants freely admit to almost every fact about the case. The scene she described did not spare the security apparatus of B&W Y12 or the NNSA. She noted cameras didn’t work and guards failed to respond to alarms, and then she painted a picture of the damage they unwittingly did—Y12 going on lockdown, the search for snipers on the ridge, the diversion of a shipment of nuclear weapons components from Pantex until Y12 security could be restored, competing security patrols on the ridge, the team from Albuquerque and the team from Oak Ridge apparently trying not to shoot each other.

The trial seemed at times to reflect the confusion of that morning. After winning a ruling from the judge that the defense would not be allowed to raise nuclear weapons facts or policy in front of the jury, Kirby proceeded to do it for them.

She did tell the whole story. She told the jury the banners read “Transform Now” and the paint on the wall said “Transform Disarm.” She described the banner on the fence—a bomb encircled by fire and the words “Never Again.” Jurors heard the area was roped off with crime scene tape—by the defendants. In the loveliest twist of all, she noted that Megan, Michael and Greg, once they were in custody, proclaimed their anti-nuclear agenda to “their captive audience”—the security guards who apprehended them.

She also credited the Transform Now Plowshares action with upsetting the national security apparatus in ways that they may not have recovered from yet—“Y12 got behind on their deliverables,” she said, “and they’ve played catch up probably ever since.” She asked the jury to bring their common sense to the task before them.

 

It was a nice set up for Chris Irwin who opened for the defense, reminding the jury that reasonable doubt could be as large as and elephant or as small as a mouse. He noted the government’s evidence would be about what the defendants had with them—a white rose, a Bible—as well as what they didn’t have: grenades, dynamite, machine guns. Because they were nonviolent protesters.

He provided the jury with additional detail about what Megan, Michael and Greg did on July 28. He told them about the blood, the hammers—he read the slogans on the handles—the cucumber seeds. “They weren’t wearing black face paint,” he noted. He told how they climbed up the ridge and back down, how Michael hung banners—Swords Into Plowshares—while Greg and Megan cut the next fence. Still no discovery.

And on, through the third fence, and the fourth. He read the messages they painted on the walls: The Fruit of Justice is Peace, Plowshares Please Isaiah, Woe to an Empire of Blood. He described the arrival of Officer Garland, met with bows from Megan. When he got to the part where they sang “Down By the Riverside” to the guard, he broke into song.

He noted that Kirk Garland did not pull his gun on them, even as they sang on. “This Little Light of Mine” and “Peace Is Flowing Like a River.” It was only when the second guard arrived that they were forced to lie down on the gravel, were cuffed.

As Chris got ready to close, he referred to the paper before him. The intensity in his voice rose as the words caught him and he caught the words. “Come, let us go up to the mountain of God, to the house where God lives.” His client Michael Walli held a copy of the statement they read to the guard up and followed along. “Brothers and sisters,” Chris retold it, “powers that be, we come to you today as friends, we come in love. We, like many of you, are people of faith, inspired by the many who have gone before us, people like the prophets, Isaiah and Micah, Jesus as well as Gandhi, and the countless who call us to ‘beat swords into plowshares.’”

Greg drew the defense arguments into a tight focus, describing how the work of Catholic Workers is providing hospitality, safety and security to those in need. “It relates to this trial,” Greg said, “because that is real security; that is the real defense. We believe Y12 offers only false security—nuclear weapons are false security. Their only purpose is to terrorize and to kill civilians.

“Our message,” said Greg, “is not just to transform nuclear weapons; that’s too small a task. We want to turn around the whole US role in the world so there is justice and peace around the world.

Greg closed by quoting a Michael Walli favorite quote. “Michael is an authority on the saints and Bible passages,” he said. So I leave you with this quote, for the judge, the prosecution and the jury, because you are the conscience of the community. “If today, you hear God’s voice, harden not your heart.”

 

The prosecution opened with the National Nuclear Security Administration’s manager of operations at Y12, Steven Erhart who, he reported, reported for duty in Oak Ridge on July 18, 2012—ten days before the Plowshares action. The formalities went quickly, after which Mr. Erhart provided testimony that mixed truth with fiction and certainty with guessing. In the middle, he acknowledged that Y12 manufactures secondaries for nuclear weapons. “The secondary is the main component of a nuclear weapon,” he said. “Producing and assembling them is the main purview of Y12.”

When Assistant District Attorney asked the wrong question, he helped her. “How many times have nuclear weapons been deployed?” she asked. The answer, of course, would be beyond the ken of almost anyone, since tens of thousands have been deployed, over and over again, on military aircraft, in silos and submarines, staged in weapons stations. “How many times have warheads been put on weapons or systems and turned over to the Department of Defense—is that the intent of your question?” he asked.

“How many times have they been deployed and activated,” asked Kirby.

“Two times,” answered Erhart, though it is likely no one in the room had the remotest idea if that number was accurate.

“Hiroshima,” he said, “with the Little Boy bomb. And then the plutonium implosion bomb at Nagasaki to end the second world war.” That last bit, the opinion, was offered at no extra charge.

Erhart then went on to impress upon the jury the importance of deterrence, the sole purpose for nuclear weapons, at least since the first ones which, he reminded the jury again, were used to end the war.

Erhart also described how a thermonuclear weapon works so the jury would understand the key role Y12 plays—without the secondary, there is no H bomb, no release of the energy of tritium and hydrogen at more than one hundred million degrees Kelvin, no fusion leading to fission of the depleted uranium in the secondary, all of it happening in “much less than a nanosecond. The secondary is doing what the sun is doing,” he said.

“Does Y12 still do that today?” “Still today.” Erhart said about 65% of Y12s funding is for weapons production activities. Y12 does some other things, he allowed, but the primary point has always been nuclear deterrence.

There was one moment of irony that nearly went unnoticed when, in describing the purpose of the three tiers of fencing and the high tech apparatus in the Personnel Intrustion Detection and Assessment System (PIDAS), the ultra high security zone around Y12’s most sensitive production operations, Erhart said, “Basically we prefer you not try to go through the PIDAS; we hope you will be deterred by the various devices.” So much for banking on deterrence…

 

During a break, Bill Quigley argued to the judge that Erhart had made statements that could be contradicted by Ramsey Clark and other experts the defense had listed but the judge had later ruled could not testify. The judge lectured Quigley that he was mixing apples and oranges. “The government can say it’s part of the national defense; you can say it’s not. If you intend to object, do it.”

John LaForge leaned over to ask, “Is he purposely not understanding this?” It was not the first time the judge had refused to address a defense issue by pretending it was about something else.

When Erhart continued, we learned some interesting things about what the Transform Now action accomplished. Shipments of weapons secondaries from Pantex had to be re-routed while security was reconfirmed, and the transportation office in Albuquerque would not take Oak Ridge’s work that the site was secure; they insisted on doing their own sweep on the premises.

We also learned that US and Y12 credibility were damaged, a concern when Y12 has positioned itself as the safe place for other countries to divest themselves of their highly enriched uranium, a key part of the US nonproliferation program.

 

Bill Quigley began a cross examination that eviscerated Y12 security—noting security cameras were nonoperational for six months and that the Inspector General had described a “culture of complacency” at Y12. After some bantering, Erhart said he would prefer to say security personnel had become too comfortable with the status quo. He listed the changes made at Y12 and asked Erhart is it was possible that the breach of security might have, in fact, been an important wakeup call? Erhart asked if that statement was in the IG report. Quigley showed him the report. “Yes, it’s part of the report,” Erhart said.

“Do you think it’s possible they could have anticipated the security cameras would be out? Or the communication problems? Or that security personnel had become comfortable and complacent?” asked Quigley.

“I was very surprised.” said Erhart.

When Quigley asked Erhart, who had testified with authority about the policy of deterrence, if he had heard of the Nuclear Nonproliferation Treaty, Erhart demurred. “I am familiar with treaties, but not policy. I am not a policy expert.”

“So your opinion on deterrence was just your personal opinion since you are not an expert?” asked Quigley.

Soon Erhart professed not to know how many countries possessed nuclear weapons, or whether there were more nuclear weapons states now than in the 1940’s. “I’m not an expert on that,” he said.

When Quigley asked about the post-July 28 security fixes at Y12, he honed in on the fence cut by Greg, Megan and Michael in the perimeter fence, noting it was left unrepaired until December. Erhart stated the hole had actually been reclosed with twist ties. He was mistaken—the hole was open in mid-December when the defendants and OREPA pointed it out to Y12 officials and the media. At any rate, testified the NNSA’s top Y12 manager, the eight foot high chain link fence, with three strands of angled wire at the top, was not intended to keep people out—it’s job is to hold up the no trespassing signs.

 

Francis Lloyd discussed the particulars of Erhart’s testimony and then asked if Erhart was personally embarrassed by the July 28 breach. As it turns out, Erhart takes nothing personally. It was an embarrassment to Y12 and the people who worked there, but Erhart was more impressed by the way people pulled together to fix things afterwards. He was just impressed by that.

Francis politely noted his question was not answered.

“I speak for NNSA,” said Erhart.

 

+++++

 

After lunch, it was the guards’ turn. The jury and spectators in the main courtroom watched video of Megan, Michael and Greg moving through fences and across the PIDAS. Those who were shunted into the overflow room saw nothing.

The first guard on the stand was the second to arrive, Sgt. Chad Riggs. He described arriving and taking control, jumping from his vehicle, ordering the three to the ground, compelling them to crawl across the gravel away from their backpacks so he could search for potential weapons.

He noted that his gun was “partially drawn” but not pointed at the defendants because he felt in danger. With his experience, he identified the liquid on the high walls of the HEUMF as “obviously blood,” even though it was dark at 4:30 in the morning. He described putting his training to use in determining there was likely a sniper on high ground, providing cover. Eventually, the officers donned body armor, drew their weapons and took Mike Walli into custody because of “my gut feeling that he was the most dangerous one.”

On cross examination, Chris Irwin elicited testimony about the weapons the Plowshares three had carried with them—none, as it turned out.

He asked the guard if the defendants had made any effort to flee. No. Then he had video replayed and the court watched as the first guard’s vehicle arrived. “Freeze,” said Chris. Then to the Riggs. “What you just saw, the defendant Megan Rice, does she appear to be bowing to him?”

“Yes,” said Riggs. Together they watched portions of the video again, watching for any sign of a weapon being drawn. All they saw was Greg lighting a candle. The guard was asked to point out any holes blasted in the side of the building—none. They watched as Officer Garland didn’t draw his gun, didn’t mace the intruders, didn’t tazer them.

Riggs then read from the handle of the hammer used to chip at the corner of the building, “Trust God, not first strike nuclear weapons.”

When it came Greg’s turn to cross-examine Officer Riggs he was brief: “Did you see my Veterans for Peace card among the items you identified?” Riggs said he did not recall seeing it.

 

Kirk Garland described his encounter in detail. He remembered seeing the resisters, approaching them, ordering them to keep their hands in sight. He said they read statements and also read from the Bible. “Isaiah, if I remember,” he said.

“Did they have any weapons?”

“No. I asked them if they had any weapons, anything sharp they could use to stick me. They said no.

 

The fourth prosecution witness was Brigadier General Rodney Johnson, imported to Y12 to clean things up after July 28 after a 32 year career in the Army and three years at the Pantex Plant in Amarillo, TX.

Johnson reviewed the cost of repairs and cited numbers. Fixing the PIDAS, cleaning the walls, repainting them cost $7,555.74; Fixing the perimeter fence cost $975.93. In both cases, the lion’s share of the costs were exorbitant labor costs—overtime pay for Saturday, required because the work had to be completed immediately. For some reason, carpenters were called out to repair the chain link perimeter fence ($451) as well as laborers ($524).

 

Greg rose to ask a simple question as a painter. “You said there were twenty 5-gallon buckets of paint?” Yes. “One hundred gallons altogether?” Yes. “Was there any paint left over?” The courtroom laughed. “Because that seems quite excessive to me,” said Greg. “Have you ever painted a room in your house or hired someone to paint a room?” Yes. “Do you recall how much paint it took?” No. “I suggest about a gallon,” said Greg, turning to return to his seat even as the prosecution objected.

The final prosecution witness was Ryan Baker, special agent for the Inspector General’s office. Baker testified to his role in taking custody of the three resisters and transporting them to Blount County Jail and then returning to Y12 to collect evidence.

When Theodore asked him about the 229 boundary fence, he, like Erhart before him, claimed the hole had been re-closed by plastic zip ties. This strange claim, which is completely false, suggests some corroboration of testimony between the witnesses. Baker said he walked the boundary fence but missed the opening because it was “held together with a zip tie.” In fact, Greg had tried to reclose the fence with zip ties, but they failed. And Michael had hurriedly made another attempt with twine; that two failed. The hole, which was at least 20” wide at the bottom, was actually discovered by OREPA members at Greg’s suggestion because the tie was not attached, but hanging in the air, the small piece of brown twine dangling from it.

Then came some remarkable strange moments, when the prosecution showed photos of the thing strips of cloth Michael had wrapped around his hammer; each had a message painted on it. It is difficult to understand what reason the prosecution had for showing the strips to the jury or how they supported any theory  the prosecution might put forward. But they were shown.

And then Jeff Theodore asked Ryan Baker to read them.

“The United States is the chief…I can’t quote make that out—“

“I believe it is ‘purveyor,’” offered Theodore.

“The United States is the chief purveyor of violence in the world. Martin Luther King,” read Baker.

“And the next one?”

“Every dollar spent on armaments is a theft of bread from a child who is hungry. Dwight Eisenhower.”

“We must oppose the culture of death. John Paul the second.”

“Peace is the fruit of justice. The word of God.”

“I surrender all to you, Lord Jesus.”

And then the prosecution showed Michael’s blue UN helmet and asked for assistance. Two aides stepped forward to unfurl the large “Transform Now Plowshares” banner, then the Never Again bomb.

We listened to recordings of Greg, Megan and Michael made from jail telephones and in radio and TV interviews in which they described their action. “We did it to try and begin to heal it, and begin the work of disarmament,” said Megan to the jury.

 

At 4:50, the prosecution rested and the judge ordered the defense to call its first witness. Megan Rice took the stand. She reviewed her history, growing up in New York, learning slowly of her neighbor’s curious job he could not talk about, learning about the power of radiation in biology classes, traveling to Africa to work for forty years before returning and taking up the nuclear abolition banner at the Nevada Test Site with the Nevada Desert Experience. She spoke of learning to appreciate the value of many religious expressions, and appreciating the Buddhist custom of respect for every human.

After her testimony, one observer stood in the courtyard and said, “After she read that statement, I just wanted to jump up and shout ‘Hallelujah!’ I never heard anything like that in a courtroom before.”

Megan explained the symbolic purpose of the things they carried with them, the candles as truth symbols, the white rose of forgiveness, the crime tape to point our truth and end lies, the Bible to remind ourselves to become sources of wisdom, and the bread—food for strengthening us to build a new world. When she got to the part about “Nuclear Weapons are war crimes” the prosecution objected, but the judge overruled. “It’s something she brought.” After a chat at the bench, it was admitted.

When asked why they chose “transform now,” she said, “Because we don’t want to just stop. We want every military base to create a viable economy that would manufacture things that would be needed.”

She spoke of Plowshares, Dan and Phil Berrigan. She said they were led by the Spirit of God. “Clearly.”

“Did you hear any reference to a shut down?” asked Francis Lloyd. “That bowled me over,” Megan exclaimed. After the prosecution’s objection was overruled Megan went on. “It stunned me. I couldn’t believe it! I almost started laughing when I heard the voice over the loudspeaker.”

Francis asked Megan if in her experience building schools in Nigeria she had gained the kinds of skills that would have allowed her to repair the damage caused. “It would have taken less than half a day,” she said. “It almost wouldn’t have been worth opening a bag of cement. I could have repaired it.”

At 5:45 the testimony concluded for the day. Megan remained in the juror’s box as the jury rose to leave. As they passed by her she stood, hands clasped, and bowed to each juror.

 

++++

 

The dismissal of the jury triggered an hour’s discussion with the judge and lawyers. The topics included whether or not to dismiss charges—the judge indicated he would not dismiss the damage charge, but would take the request to dismiss the sabotage charge under advisement overnight. The defense claimed the prosecution failed to prove “intent” on the part of the defendants, thus failing to meet their burden on the sabotage charge.

The other issue was the presentation of defense witnesses. Both Colonel Ann Wright and Jim Sessions are slated to testify on Wednesday if the judge permits them to. If he dismisses the sabotage charge it is unlikely either will be called. If he allows it, Jim Sessions’ testimony about nonviolent action will illuminate the mens rea, or state of mind of the defendants, critical in understanding their intent. Col. Wright’s testimony would challenge the assertion that nuclear weapons production at Y12 is, in fact, necessary for the national defense.


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