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by Anabel Dwyer Esq.
30 September 1998
The Gods of Metal Plowshares Five -- Frank Cardaro, Carol Gilbert, Larry Morlan, Ardeth Platte, and Kathy Shields-Boylan -- were the first in the U.S. to rely upon the International Court of Justice opinion on nuclear weapons for legal authority to disarm a B-52 "in service" at the Andrews Air Force Base open house. After a two-day trial at the Federal District Court in Greenbelt Maryland the five were convicted of "depradation of US property" in spite of a clear record of the exact opposite of criminal intent their intent to abide by preeminent and binding rules and principles of humanitarian law.
In 3 hours of testimony by Francis Boyle whom the Court qualified as an expert on international law U.S. criminal law and nuclear weapons reaffirmed the Gods of Metal Five evidence that the B-52 is a strategic nuclear weapon which the binding rules and principles of humanitarian law renders illegal and criminal in any circumstance.
The Gods of Metal Five had a privilege right or duty to interfere with known gross harms planned threatened and committed by the B-52.. The District Court permitted the Gods of Metal Five to present defenses but plainly did not comprehend either the facts of the case or the law. As two nuns two priests and a grandmother now sit in prison awaiting sentencing it behooves us all to continue to challenge the absurd and erroneous finding of the US Federal District Court that US law sanctions the B-52 a nuclear weapon designed and intended for horrific and uncontrollable mass destruction.
The District Court made a series of reversible errors. A review of these errors suggests lines for appeal or offers us the chance to anticipate problems in the next such case. One of these days a court must get it right. In the words of Defense Counsel David Walsh-Little, "If not now, soon."
The District Court erred in failing to find that so-called "U.S. property" which the Gods of Metal Five were convicted of "depradating" is a B-52 a nuclear weapon intended and designed to inflict vast harm and death through heat blast and radiation unleashed by 20 150 KT nuclear bombs. The facts of the B-52 are a matter for judicial notice and the B-52 was the "US property" element of the crime alleged. Evidence submitted by the Gods of Metal Five was unquestionable and decisive. As the trier of fact and law the District Court knew both before and during trial that the B-52 is a strategic nuclear weapon which is ipso facto illegal and criminal. Yet the ruling from the bench assumed that the B-52 is as nothing. Even so it is not possible to depradate nothing.
The Court may have been swayed by the prosecutor's surreal argument that the defendants "attacked " the B-52 with household hammers. The prosecutor transformed the monstrous weapon of mass destruction into just another airplane albeit a poorly designed one whose pressurized fuel lines could be ruptured with hammers. And without apparent comprehension of the Court the navigator of the B-52 in question fed the prosecutor's line of lies. The B-52's navigator claimed he had no knowledge that the B-52 is a nuclear weapon and that he didn't know about the laws of war.
Presumption of Illegality
The Court erred in failing to require the prosecutor to prove that the B-52 is legal under US law. The Gods of Metal Five and Francis Boyle testified that the B-52 is a strategic nuclear weapon designed and planned to unleash "powerful and prolonged radiation" with horrific effects well understood and documented by the US government itself. The US government has long accepted that no such weapon can be used or threatened by any government or individual. The B-52 is an unequivocal example of a nuclear weapon that is "incapable of distinguishing between military and civilian targets." As such any threat or use of the B-52 is presumptively both illegal and criminal under the rules and principles of humanitarian law which no one doubts are binding US law.
The International Court of Justice's finding of general illegality of any threat or use of a nuclear weapon [Advisory Opinion para. 105 2(E)] restates the plain presumption of illegality of such weapons. At the very least the District Court erred in failing to require the prosecutor to prove that any threat or use of the B-52 could be legal beyond a reasonable doubt. The prosecutor apparently attempted to rebut the presumption of illegality of the B-52 by raising the second paragraph of 105 2 (E) of the ICJ's advisory opinion. Francis Boyle made it clear that the area of indeciveness of the ICJ was not relevant to and could not apply to the B-52. The reason is that countries "may never use or threaten to use" a weapon such as the B-52 designed to unleash "powerful and prolonged radiation... which cannot be controlled in space or time." The prohibition covers not only any use but any threat or plans for use of such a weapon.
The Court found that the B-52 in question was not carrying nuclear weapons during the time of the Andrews Air Force open house. But a B-52 is not a Ryder truck which is only a weapon of mass destruction when filled with explosives. A B-52 is designed for the purpose of threat or commission of uncontrollable mass destruction. If the Court held that the B-52 in question was legal because it was disarmed at the Andrews Air Force Base show further disarmament could not constitute harm or depradation but only add to its legality in a further disarmed state.
International Law and US Law
The Court acknowledged that international law is US law. But as to the rules and principles of humanitarian law related to nuclear weapons and the International Court of Justice opinion the Court stated it only heard "loud disputes" between the prosecutor and Francis Boyle. If the Court did not understand the nature of the dispute it erred in not taking the expert testimony of Francis Boyle and the Gods of Metal Five evidence including the International Court of Justice Opinion under advisement until such time as it could study and understand the law raised and apply it properly to the case. The Court will upon review of the record f ind that the prosecutor's arguments were irrelevant and of course not evidence. All the points raised by the prosecutor on cross-examination of Francis Boyle related to the US claim (not accepted by the ICJ) that such fictions as "clean low yield nuclear weapons" existed. The prosecutor could not and did not make any assertion that the B-52 was or is such a "clean" nuclear weapon which could be legally used in any circumstance.
It appears that the Court relied upon or was confused by the State Department Legal Counsel Michael Matheson's interpretation of the ICJ opinion as urged by the prosecutor. The Court also erred in not granting defense request to require the prosecutor to produce Michael Matheson as an expert witness against the defendants so that the defendants could cross-examine him . Francis Boyle in his testimony cited a portion of Judge Schwebel's dissent to the ICJ opinion for the conclusion that all the 14 sitting judges of the International Court of Justice agreed unequivocally that a strategic nuclear weapon such as the B-52 was illegal and criminal in any circumstance. If the Court was persuaded or confused by the prosecutor's irrelevant citations from other portions of Judge Schwebel's dissent it also erred.
Right or Duty to Interfere with or stop harms. Francis Boyle testified that under ordinary US criminal law and international law citizens who know of a harm (of which mass murder and mass irradiation are certainly very grave ones) which is being planned threatened or committed have duty privilege or right to interfere with or stop such harm. (For testifying against McVeigh the Fourniers for example were granted immunity from prosecution for failure to stop or interfere with McVeigh's plans to bomb the Federal Building in Oklahoma City). The Court found without stating its reasons that the defendants had no privilege to stop or interfere with the planned grave harms inflicted by the B- 52. The Court is wrong as to US law international law and common sense.
The Gods of Metal Five testified in their motion to dismiss and at trial that their intent was to uphold the rules and principles of humanitarian law which are fundamental and to which they as individuals are bound. The Court held that the prosecutor did not have to prove any or any particular level of intent (specific or general) "to depradate US property" beyond a reasonable doubt. This too is error because it assumes without reasoning or authority that US criminal law could be applied in this case to supercede and contradict the rules and principles of humanitarian law.
The Gods of Metal Five testified that the posture and purpose of the Andrews Air Force Base Open House is to promote weapons in general and nuclear weapons such as the B-52 in particular. They cited Article VI of the NPT to assert that such "displays" stand in direct contravention of the US treaty obligations to achieve nuclear and general disarmament. No harm could be done against the US by engaging in an act of disarmament consistent with binding obligations of the US.
After conviction from the bench on September 23 1998 the Court denied the Gods of Metal Five's request for immediate sentencing and scheduled the sentencing date for January 4 1999.
The defendants two of whom live a great distance from Greenbelt MD stated that they could not promise the Court that they would return for sentencing. The Gods of Metal Five also told the court that they could no longer cooperate with a court that condones weapons of mass destruction such as the B-52. All five were immediately jailed. If such people can be imprisoned-- all of us are in danger. Or conversely if such people can be imprisoned all law-abiding people should also be in prison.
US law used in this case to protect and condone the B-52 cannot and does not negate or supercede the rules and principles of humanitarian law any more than the law of the Third Reich could legitimize plans for and executions of mass murder. Indeed in the words of Judge Weeramantry of the ICJ a system of law that accommodates nuclear weapons "collapses upon its foundations for legal systems are postulated on the continued existence of society."
The cataclysms that the B-52 threaten and are poised to commit remain somehow beyond the imagination of US courts. They prefer to sanctimoniously rail against smaller terrors such as car bombs. Highly dangerous and short-sighted this state of affairs mirrors the banal reliance on the Starr Chamber for defining our system of law. The Gods of Metal Five saw through the arrogant ruse and acted sensibly to stop us from eliminating ourselves and to restore our basic humanity. In the words of Larry Morlan Blood is on the hands of every American citizen as long as we rely on these weapons. Far from acting illegally the Gods of Metal Five acted in a courageous demand for consistency between what we in the US claim our law says and how we administer it.
David Dwyer Department of Anthropology Adjunct Mellon Fellow Michigan State University The National Foreign Language Center Johns Hopkins University firstname.lastname@example.org