Trial postponed! The defendants for the March 19, 2011 Veterans for Peace action at the White House were ready to go on trial 8:00 am Monday, Sept 29. With the hurricane promising to tie up transportation on the east coast and threatening DC the defendants were concerned about how to get to the trial on Monday and to the practice trial on Sunday. But late Friday (4:30 pm, now that is last minute!) the prosecution filed a motion for continuance, asking that the trial be put off since they were not ready to go to trial. Judge Canan granted the motion. By this time some of the defendants were already in transit to DC.
This is all part of the meat grinder we call a legal system. It is sort of like the old hurry up and wait we know so well as vets, except worse. For the 19 defendants it was frustrating, after preparing the opening statements, the testimony, and the closing arguments and being prepared for trial it is maddening to have to go back to trying to schedule a new trial date. On the other hand it does seem hopeful that the prosecution must be having some problems developing an effective argument against our motions or they would have been ready for trial.
In a trial like this we see the many personal goals and strategies of defendants. There are those for whom the arrest is the action, it works for them to be able to “post-and-forfeit” (pay the government some amount and be free) and be able to do other things, like, for example, join the Free Gaza Flotilla. In this case the government even offered to allow people to post-and-forfeit for $35. About 100 people chose this route. The 19 that turned down this offer will pay more in just transportation costs than the $35, so obviously it is a matter of principle for them.
Amongst those on trial there is the usual array of motivations. There are those who are intrigued by law and look for every technicality and loophole by which to get off. This can turn up significant issues, for instance in the trial for the 2008 March 19 action we showed the court and the capital police that the space in front of the capital is a special area of public expression in the eyes of the law and that the police may not just barricade demonstrations from this area like they do other places. Then there are those for whom the trial is based on moral questions. They do not want to argue the law, they feel they are appealing to principles that are greater than any man-made law. (Indeed, who wouldn't agree that war is evil and cannot be condoned or justified by any law?!) Then there is the group who, for various reasons, are willing to accept the outcome of the case and their strategy is to have no defense in court.
There are those who are committed to the necessity defense. One could describe the necessity defense like this - if a woman broke into a locked building because the building is on fire and there is a child upstairs, she could be charged with breaking and entering. She might enter a “necessity defense,” saying, “I am guilty of breaking and entering, but I should be found innocent because breaking and entering was the only way I could save the child.” (Necessity defense can also be claimed where a lesser crime kept a greater crime from happening.) This is the defense used by many of the Plowshares Actions. The defendants in “Pitstop” Plowshares action at Shannon Airbase in Ireland were acquitted on the necessity defense. So the argument is made that we did unlawfully assemble, but we did it to stop the killing of many innocent civilians in Afghanistan.
Yet another strategy is to use International Humanitarian Law (IHL), that large body of law that deals with armed conflict, which includes things like the Geneva Conventions, Nuremberg y Principles, and the UN Charter. In court we argue that our government is violating the IHLs. The Nuremberg Principles make us individually responsible for war crimes if we do not stop them. The US Constitution gives us the right to appeal to the government for redress. The US Constitution makes all of the IHLs the supreme law of the land. So by protesting we are merely fulfilling our legal obligation to appeal to our government to stop the war crimes and crimes against peace. The judges typically say that their court is only responsible for cases involving local ordinances. But there is plenty of law that says local courts must take into consideration IHL. For example, even back in 1909 the court ruled “A treaty (the IHLs) ... is the supreme law of the land, binding alike national and state courts, and is capable of enforcement, and must be enforced.” We must keep making this argument until lower courts recognize their responsibility to enforce IHL. There was a time when no court would rule against lynchings, the law was there, they just did not see it as their jurisdiction. So we must keep pushing until lower courts recognize their legal jurisdiction and obligation to protect our work to end war crimes. We are often faced with situation where we can not comply both with the big and important laws like IHL and the little local laws. We must choose whether we comply with the lesser law (don't gather in front of the White House), or the greater law (obstruct the committing of war crimes). Incidentally, there is no law that says that if we abide by every “stay off the grass” law, every “don't spit on the sidewalk” law, and every jaywalking law we are somehow freed of our responsibilities under IHL.
These same varied approaches of defense come up in most civil resistance and civil disobedience trials. None of the defenses are more right than any other or higher on some hierarchy, they are all legitimate. And they all defend our freedoms and build the foundations of democracy. As they say, freedom is not free, but soldiers do not defend our freedoms, soldiers protect governments which take away our freedoms. Freedom is defended by those who stand up to unjust laws and the lawyers that help them make their cases in court.
Elliott Adams, August 2011
President, National Veterans for Peace
Secretary, Creating a Culture of Peace Nonviolence Training