Metropolitan News-Enterprise


Monday, April 16, 2012


Page 1


Ninth Circuit Upholds Convictions in Nuclear Trespass Case


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday affirmed the convictions of two grandmothers, two priests, and a nun who cut their way through two fences and into a secure area of a U.S. naval base in a protest against nuclear weapons.

The panel rejected claims by the five that the laws they were convicted of violating are preempted by an international treaty banning the “employ[ment of] arms, projectiles, or material calculated to cause unnecessary suffering,” at least to the extent that the facilities at which the violations occur contain nuclear weapons. 

The five were all sentenced to prison terms in March of last year by U.S. District Judge Benjamin H. Settle of the Western District of Washington.  They are Anne Montgomery, an octogenarian nun from New York ordered to serve two months in prison and four months home detention; William Bischel, a Jesuit priest from Tacoma, Wash., also in his 80s, ordered to serve three months in prison and six months home detention; Susan Crane a member of a religious community in Baltimore, Md. ordered to serve 15 months in prison; Lynne Greenwald, a nurse from Bremerton, Wash. ordered to serve six months in federal prison; and  Stephen Kelly, a Jesuit priest from Oakland ordered to serve 15 months in federal prison.

Crane, Greenwald, and Kelly are in their 60s.  The five are longtime peace and disarmament activists associated with the group Plowshares, and on Nov. 2, 2009, they cut their way through two fences and into a secure area of the Kistap-Bangor base near Seattle.

Once inside, they spread “simulated blood” on base fences and unfurled a banner reading, “Plowshares—Trident Illegal and Immoral,” before being detained by Marines. The defendants claimed Kistap-Bangor houses submarines carrying nuclear-warhead-tipped Trident missiles, while the government would not comment on the base’s mission.

The defendants were indicted on charges of trespass, destroying government property, injuring government property worth more than $1,000, and conspiracy.  They moved to dismiss the indictment, arguing that the statutes they were charged with violating conflict with the 1907 Hague Convention Respecting the Laws and Customs of War on Land and its Annex.

Settle denied the motion, and later granted a motion by the government to preclude the defense from presenting evidence or argument regarding the applicability of international law. He also denied a request to charge the jury that in order to convict the defendants of “maliciously” destroying government property under 18 U.S.C. § 1363, the government had to prove they had a “wicked,” “evil,” or “mischievous” intent.

The judge instead told jurors that “maliciously” means “wrongfully and without legal justification or excuse,” which is the first-listed definition in Black’s Law Dictionary.

U.S. District Judge James Gwin of the Northern District of Ohio, sitting by designation, wrote for the Ninth Circuit, saying there was no judicial error.

Even assuming that The Hague Convention is self-executing, and that nuclear weapons are “calculated to cause mass suffering,” the treaty “does not explicitly prohibit mere possession (and enclosure within fencing) of such weapons,” Gwin wrote.

“In the end, Congress has decided to protect the property of the United States,” he added. “The Hague Convention neither conflicts with nor supersedes those statutes.”

The judge also found no fault with Settle’s definition of “maliciously.”

“Consistent with the common-law definition of malice, the government need not prove that the defendant harbored any ‘[i]ll will’ or ‘wickedness of heart,’…even defendants who genuinely believe that their intentional, unlawful actions are consistent with ‘the conscience of the people,” as appellants put it, are guilty,” the jurist wrote.

The fact that the defendants cut holes in the fences in order to enter the property was sufficient to establish that they maliciously intended to injure or destroy them, Gwin said.

Judges Richard A. Paez and Mary H. Murguia joined the opinion.

The case is United States v. Kelly, 11-30084.


Copyright 2012, Metropolitan News Company