March 12, 1930, Ahmedabad, India. Mahatma Gandhi and a company of nonviolent satyagrahi set out from the Sabarmati ashram and began his march to Dandi where, twenty-four days later, he would make hold in his hands salt made from the ocean water and declare, “Here I ruin the British empire.”
It was an audacious faith in the power of nonviolence that carried Gandhi on that walk, and that powered him for another seventeen years before the miracle was realized and India was freed from British colonial rule.
Eighty-four years later, to the day, the power of nonviolence entered into the Potter Stewart federal courthouse in Cincinnati, Ohio, where three men sat in black robes to hear arguments challenging the sabotage convictions of Gregory Boertje-Obed, Megan Rice and Michael Walli in the Transform Now Plowshares action. Appellate arguments usually echo in a courtroom empty but for judges, a clerk and the lawyers. But on March 12, 2015, the pews began to fill at 8:30. By 9:00 there were more than forty people in the courtroom—three dozen Plowshares supporters and another dozen high school students on a field trip who were about to be educated about the legal process, and maybe be prompted to think about nuclear weapons and the power of nonviolent direct action in the process.
We had made our way to the courthouse in the early morning darkness after skimming a thin sheet of frozen dew off the windshields of our car. Fortified by oatmeal, some amazing english muffins, homemade granola and a selection of teas and coffee—thanks, John Blickenstaff!—we began to pass out flyers to passers-by. The courthouse was located alongside the downtown bus terminal, providing a convenient distribution point.
Within minutes, others arrived—Ardeth, Carol and Liz from Jonah House; Kathy Boylan from Dorothy Day Catholic Worker in Washington, DC and Paul Magno; four Sisters of Charity from Mt. Saint Joseph just outside Cincinnati; members of footprints for peace; half a dozen OREPA members from Knoxville; Brian Garry from Cincinnati; Shannon from Xavier. We greeted the Quigleys who traveled up from New Orleans for the hearing. It was a nice mini-reunion of folks who enjoyed the grand spirit of community of the trial and sentencing. Those of you who weren’t able to join us were missed. Some brought kinfolk with them.
The Veterans for Peace banner was unfurled; Ellen Barfield and Eve Tetaz held it on the corner in the chilly morning air. When we ran out of flyers, we went inside.
At 10:10 our case was called. Placards on the bench identified Judge Kethledge on our left; Judge Boggs in the middle; Judge Helmick on our right. Flanking the three living judges were two other elderly white judges, portraited in their robes. On the side wall, another judge l’oeil, and behind us, on the back wall, two much-larger-than-life judges watched over the proceedings from inside their frames. The courtroom was all dark paneling reaching to within four feet of the ceiling. The paneling was rectangles; the recessed lights were squares, the benches were mitered corners; there were precious few curves in a room dedicated to the sharp angles of the law.
Each side had fifteen minutes to argue. Mark Shapiro delivered oral arguments for our side and he was brilliant. Assistant District Attorney Jeff Theodore traveled from Knoxville to make the government’s case.
The purpose of our appeal was primarily to challenge the use of the sabotage statute to convict Megan, Greg and Michael—it is the reason they got such long sentences. Piece by piece, Marc peeled back the government’s rationale, applying case law and referring repeatedly to the intent of Congress in passing a statute meant to convict people who interfered with US war-making capability in war time. We argued the government has misapplied the statute, that interfering with Y12 (the Oak Ridge bomb plant) was not the same as interfering with the “national defense,” that the defendants general aspiration to bring about global nuclear disarmament did not equate to an intent to injure the national defense, and more.
Marc began by providing a clear accurate description of three senior citizens who trespassed at Y12 and damaged property. If that were the only charges they faced, he said to the judges, we probably wouldn’t be here. “But the government went further. They said that acts of nonviolent civil disobedience are equal to sabotage. They said these people, who sang, prayed and broke bread…that was not what Congress had in mind when they passed 2155 in 1918. They were concerned with damage to the instrumentalities of the national defense in a time of war.”
Judge Boggs interrupted (appellate hearings are not exercises in good manners…) to ask how Shapiro distinguished between slight harms, which Congress did not intend to include, and larger harms. He referenced the missile silo actions of Carl Kabat and Ardeth Platte. Marc said one could consider the instruments brought in; one could also consider the immediacy of the effect of the action. A missile silo had to be able to respond within minutes to an order—a bomb plant that manufactures one component of a nuclear weapon is several steps away from a sense of immediacy.
There was a back and forth between Shapiro and Boggs in which Marc deftly steered the conversation toward the issue of intent.
Judge Kethledge picked up: Well, there are two ways of defining intent…
Marc: Yes, objective intent and actual intent.
Kethledge: In this case, I understand they brought in little hammers.
Boggs: And they didn’t know about the shipment of material that was diverted.
Shapiro: There is no dispute about that. They could not have foreseen that they would get all the way in, not past one fence or two or even three, but through four. It was a surprise to everyone that security was extremely flawed. What they could expect was they could expect to be stopped. They did expect that. They hoped they would have a chance to educate the employees there about weapons of mass destruction. This gets to intent. Beyond that, no one expected this action would bring an end to nuclear weapons or stop production.
Kethredge: When they unfurled the banners, did they intend to eliminate nuclear weapons? Proximately?
Shapiro: No one could intend that.
Boggs: But they don’t have to eliminate all nuclear weapons to injure the national defense.
Shapiro: But Congress is clear. Slight injuries are not included in this statute.
Boggs: They took a chunk out of the wall.
Shapiro: Which everyone would see is a symbolic act.
Time was called, Marc having reserved four minutes for rebuttal.
It was Theodore’s turn. He tried to take the offensive. “There was sufficient evidence to sustain the sabotage charge; there are two elements, and they are only disputing one. To interfere with, injure or obstruct the national defense is enough. They surreptitiously entered, cut the fence, crossed the PIDAS security zone, and targeted the Highly Enriched Uranium Materials Facility. They brought a banner. They read an indictment for war crimes,” he said, his voice rising with a little emotion at the end.
Kethredge cut in. “Sounds more like a protest than sabotage.”
Theodore: It was more than that. They had the desire, and then they took action.
Kethredge: Do you not recognize a distinction between motive and intent? If a man shoots his wife to get her money, his intent is to kill his wife, but his motive is to enrich himself.
Theodore: There is a difference to the extent. I don’t agree with their interpretation of the case they rely on.
Kethredge: Let’s look at the particulars. How big were the hammers?
Theodore: About a foot.
Kethredge: And they hammered on the building. Does that show an intent to injure the national defense? Banners?
Theodore: They intended to disrupt the national defense.
Judge Helmick spoke for the first time: “How is that accomplished, at that time of day (4:00am), when the damage they did was $8,500, at a time when no one was working…”
Theodore: They could have reasonable foreseen…
Kethredge: But reasonably foreseen has been defined as practically certain. Could they be practically certain that they would stop shipments from coming in, or that the bomb plant would be shut down for two weeks?
Theodore: They could be sure of a strong response.
Kethredge: They would more likely be certain they would be shot.
Theodore: Which did not happen, thank God. But the intent was to overall disarm, to enter.
Judge Kethredge then proposed a scenario where 20 ardent disarmament proponents undertook to lay down on the public road leading into the bomb plant to block a shipment of nuclear materials. “Suppose it takes a long time to remove them, and you can’t have bomb material waiting by the side of the road for a couple of hours, so they have to turn around and go back, three or four states away. Would those people be guilty of sabotage?”
Theodore: They would meet the second element, intent to injure.
Boggs: Intending to keep nuclear materials from getting in.
Theodore: They have to willfully intend to injure the national defense. If they indicated their intent…these people said at trial and in the media…
Boggs: But there was a time, a long time ago, when people would lie down in front of trains. Was that obstructing and interfering?
Theodore: They have all the right in the world to be against nuclear weapon and to protest. But when they take action and they try to interfere…
Kethredge: Well, standing on top of the missile silo door is different. What is missing is the proximate effect and substantiality. It’s de minimis, in terms of expectations. It is less proximate than Platte, right?
“It is,” Theodore admitted, then argued on a parsing of the statute to defend his position that Y12 is a national defense facility. “The bottom part refers to the military and armed forces. Everything above that is broader.”
Kethredge cited a recent case, Bond, and noted an uncanny parallel. In Bond, the defendant attempted to poison a person by applying chemicals to a doorknob, a little at a time. The government charged the defendant with using chemical weapons. Kethredge said, “The court said, ‘We’re not going to read chemical weapons that closely,’ even though there were chemicals that were used. Is it fair to say, banners, hammer, spray paint and blood—those are instruments to harm the national defense?”
Theodore could not back down now. “They could be—“
“Could be?” Kethredge cut him off. “These people are in prison right now.”
In that instant, humanity entered the courtroom that usually dealt only in verbal interpretations of legal language, hypothetical cases and the intentions of legislatures long since past.
Kethredge continued, “I’m inclined to the view of Chief Justice Roberts that we have to take a step back from a definition of national defense so eggshell that banners…
Theodore tried to argue for a broad reading.
Kethredge pushed back. “Banners? Bread? To injure the national defense?
Theodore: Or obstruct.
Theodore tried to present an interpretation of another case to suggest a broad application of the law. “We would not have these weapons or the national defense without Y12,” he said. “The statute should be interpreted to fulfill its purpose.”
Boggs noted one of the cases being used, Ortiz, ended up with the court requiring the government to go back to “get better intent.” Theodore’s time was running out. “We have to make sure the military establishment is prepared,” he said. Boggs took the last word: “It takes a long time to get from Y12 to a bomb.”
Now Marc Shapiro rose for his last few minutes. Boggs asked him to address the de minimis argument by creating a hypothetical poisoning of 20 soldiers at Fort Leavenworth. Is that interference?
Marc parried deftly and returned to the question of instrumentality—it could not be lost on the court that banners and bread were not poison and guns.
Marc noted: The government says they did this surreptitiously, but the whole point was exposure. They may have gotten in at night, but they were not trying to dilute the Uranium and hide out to see what happens. The point is, in this case, they intended to be exposed.
There was a pause and he closed, plain and strong: “We ask the court to reverse the sabotage conviction.”
We rose to file out while the lawyers for the next case stepped to the lecturn. I turned at the door to look back—the courtroom empty except for three people in suits, waiting their turn to address the judges.
There are other parts to the appeal, and they were all masterfully argued in the written briefs, but the oral arguments focused on the parts the judges felt were at issue. It is impossible to know from what we saw in court how the judges will rule. It did seem clear that no weaknesses in our arguments were exposed, and the judges seemed skeptical of Theodore’s arguments.
There is also no way of knowing when we will get a ruling from the court. We can hope, since at least one judge recognized the decision has implications for people who are incarcerated, they may have incentive to rule sooner rather than later.
If the TNP three are successful on appeal, the most likely result would be a resentencing, with the sabotage charge taken out of the picture. That would cause an adjustment in the calculations used to determine maximum and minimum sentences and could very likely result in reductions for Megan, Michael and Greg.
In the aftermath of the hearing, as we gathered at Panera Bread to speculate, we were reminded of the generosity of the lawyers for Orrick, Herrington and Sutcliffe—Shapiro, Thomas McConville, and Judy Kwan, who briefed the appeal, and Bill Quigley, always faithful and almost always hopeful. It was a great team, and a very good day for truth in the courtroom, at least a slice of the truth in the courtroom in Cincinnati.