Last June two nuclear weapons abolitionists sawed down three of the 4,000 poles that hold antenna lines for the US Navy's Project ELF (extremely low frequency) submarine transmitter (PN 2440).
Bonnie Urfer and Michael Sprong are not alone in believing that their action was lawful, which is why the two so boldly accepted responsibility for the damage – unlike vandals or thieves. Convicted in February 2001, they were sentenced in Madison in May.
The activists have good reason to believe that their shut-down of Project ELF was an act of crime prevention. Critics call the submarine command and control system the “cocked trigger” for sea-launched nuclear war. Urfer and Sprong brought with them to the action copies of case law, legal opinions and binding treaties that make their case and nailed them to the downed poles. For example:
- In Scotland three women were found not guilty in 1999 of damage charges after admitting they threw Trident computer equipment into the sea. The British have four Tridents – modelled on the United States' 18. A jury acquitted the group after the judge concluded that Britain's Trident system is illegal, its standing threat of nuclear war a violation of the UN Charter and various treaties. Two similar acquittals in Britain followed the groundbreaking verdict, and two came earlier in Germany.
- The International Court of Justice (ICJ) concluded in 1996 that the use or threat to use nuclear weapons is contrary to the Geneva and Hague Conventions, the Nuremberg Charter and the Nuclear Non-Proliferation Treaty. This ICJ opinion made the British and German acquittals possible, and it puts the policy of deterrence in legal jeopardy, because in practice it amounts, simply stated, to the threat of nuclear holocaust.
- Later in 1996, Donna Howard and Tom Hastings were found not guilty of sabotaging ELF in Ashland, Wisconsin's County Court. They had also sawed down three ELF poles, and at their trial expert witnesses testified that the Trident missile system cannot act defensively. Since ELF and Trident are designed for aggressive nuclear attacks, and because Wisconsin's sabotage statute requires proof of “interference with the defence of the United States”, the jury acquitted them.
This was some of the legal armour that Urfer and Sprong wore to the ELF site along with the Navy's own law manual. But this time, because of the embarrassing acquittal in 1996, Ashland County refused to prosecute and the US Attorney in Madison took over. This way, a slam dunk conviction was guaranteed because the jury would never see the crucial evidence.
The federal prosecutor moved the US District Court to exclude “irrelevant” defence evidence. US Magistrate Stephen Crocker granted the motion in full, ruling prior to trial that neither expert witnesses nor physical exhibits could refer to “the defences of crime prevention or necessity; international law regarding nuclear weapons and the policy of the US regarding nuclear arms, or the deployment of nuclear weapons on submarines.” The magistrate was aware of the defendants' allegation that the directors of ELF and Trident participate in a plan to attack civilians with firestorms and radiation poisoning, to destroy cities and cause permanent ecological destruction. He was informed that such plans are illegal acts in the United States regardless of what other military forces might do.
So why would the court keep evidence of these allegations from the jury? In defence of the gag order, it's a fact that it was based soundly on US Appeals Court findings in similar cases. But the reason that the courts have approved the exclusion of defence evidence is because the absolute horror of nuclear weapons negates the notion of law itself and must be denied.
Keeping juries in the dark
If anti-nuclear defendants and their expert witnesses are wrong about the legal status of hydrogen bombs, the government could prove it. If nuclear warheads are legitimate weapons of war, district attorneys should be able to rebut evidence to the contrary. In practice, however, they cannot, so the government's only recourse is to keep juries in the dark by declaring the evidence irrelevant.
All it took for nuclear weapons assailants to win acquittals in US, British and German courts, was for jurors to hear the facts about what H-bombs do, what current plans for nuclear war actually look like, and what the law says about planning massacres. Speaking more diplomatically, the United Nations ICJ condemned “the necessarily indiscriminate consequences” of the use of nuclear weapons. So it's not, as the saying goes, that there ought to be a law; there already is.
The question is whether Urfer and Sprong should go to prison for obeying it.