US Bows Out After Plowshares Conviction is Vacated: Appeals Court Ill-Informed on Nuclear Overkill

The 2012 Transform Now Plowshares anti-nuclear action made the "Fort Knox" of weapons-grade uranium look like "F Troop." Three senior peace activists got through four chain-link fences and past multiple "lethal force" zones before stringing banners, spray-painting slogans, and pouring blood on the Highly-Enriched Uranium Materials Facility in Oak Ridge, Tennessee - all without being noticed by guards.

The guard who finally spotted the three activists - Sr. Megan Rice, 85, of New York City, Greg Boertje-Obed, 60, of Duluth, and Michael Walli, 66, of Washington, D.C. - testified that he knew a peace protest when he saw one. He had watched many of them while on duty at Rocky Flats, the former plutonium warhead factory near Denver, Colorado. That's why he shrugged off official protocol and didn't draw his gun on Greg, Megan, and Michael that night.

Yet the trial judge, the prosecutor, government witnesses, and the Knoxville, Tennessee, jury decided to transform symbolic peace protest into "sabotage" - the "intentional and willful" injuring of "national defense." The trial judge, Amul Thapar - after first forbidding any expert defense evidence or testimony regarding the outlaw status of nuclear weapons production - played his part and waited for the inevitable default convictions (on sabotage and damage to property), then ordered senior citizens jailed pending sentencing because, he said, the technical terms of the charge fit the definition of a "federal crime of terrorism." Commentators howled at the idea of equating sloganeering and spray painting with bomb building, but the religious pacifists were taken away in cuffs and ankle chains - just like any dissident in China, Iran or North Korea.

Finally, after three years of legal wrangling and 24 months in jail and prison, a successful appeal decision has hinted at what a kangaroo Kabuki dance the trial was. Last May, the 6th U.S. Circuit Court of Appeals, voting two-to-one, threw out the "sabotage" convictions, declaring, "No rational jury could find that the defendants had that intent [sabotage] when they cut the fences... Nor could a rational jury find that the defendants had that intent when they engaged in the protest activities outside." U.S. Circuit Judge Raymond Kethledge, writing for the majority, said, "It takes more than bad publicity to injure the national defense."

The Justice Department could have challenged the Appeals Court decision with an appeal to all 23 judges of the 6^th Circuit, but on June 22 the government threw in the towel. Re-sentencing on the damage charge is set for Sept. 15, but no more prison time is expected after the Appeals Court wrote that the two years already served by Greg, Megan and Michael is "substantially" more than federal guidelines require.

Blind Spot Taints Appeals Court Decision

The Appeals Court made one grossly ill-informed distinction between the case at issue and two previous Plowshares actions. In symbolic protests against Minuteman III nuclear missile silos, the "Silo Pruning Hooks" (Carl Kabat, Helen Woodson, Paul Kabat, and Larry Cloud Morgan) damaged a concrete silo lid in Missouri in 1985; and the "Sacred Earth and Space Plowshares" (Sisters Ardeth Platte, Carol Gilbert, and Jackie Hudson) did symbolic damage to a silo in Colorado in 2002.

The Appeals Court claimed that, unlike actions taken at weapons manufacturing sites, protests against bunkers with armed nuclear weapons on alert like Minuteman missiles should be characterized as "sabotage" because "even a brief disruption of operations would have grievously impaired the nation's ability to attack and defend. (Imagine, for example, if Soviet [sic] infiltrators had similarly disrupted the facilities' operations in the minutes before a Soviet first strike.)"

This hypothetical scenario by the Appeals Court betrays a profound ignorance of the size of the U.S. nuclear arsenal, its diversity, and its destructive capacity. The United States had 450 Minuteman III missiles, not just one, ready to launch.

Further, in addition to dozens of nuclear-armed B-52 and B-2 bombers, the Navy has 14 Trident submarines, each armed with 24 missiles. Each submarine carries five to eight nuclear warheads that can fly 6,000 miles. If only four of these submarines are simultaneously on patrol, their 480-768 warheads could incinerate every major city on Earth, not merely those in "Soviet" territory.

Even the Air Force knows its overkill capacity. A computer glitch at Wyoming's FE Warren Air Force Base in October 2010 took 50 Minuteman missiles offline. Yet, according to Lt. Gen. Dirk Jameson, Deputy Commander in Chief of Strategic Command, the shutdown had "no real bearing on the capabilities of our nuclear forces." Lt. Col. John Thomas, a spokesman for the Air Force's Global Strike Command, said at the time, "The wartime capability of that squadron [of missiles] was never significantly affected." The Appeals Court is also ignorant of the fact that dozens of Minuteman missiles are regularly "disrupted" for repairs or upgrades without any slacking of U.S. nuclear war readiness.

The Appeals Court cited the testimony of an Air Force Lt. Col. who said, regarding missile protests, that "it would be unwise to launch the missile in those circumstances." And thousands of higher authorities have gone further and said it would be unwise to launch nuclear attacks under any circumstances. In what should stand as the last word on the subject, former Reagan Presidential Adviser and Cold War anti-Soviet hawk Paul Nitze wrote in 1999, "I can think of no circumstances under which it would be wise for the United States to use nuclear weapons, even in retaliation for their prior use against the U.S. ..." This from arguably the most hawkish of US officials in the Cold War.