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WHAT DO YOU DO WHEN A CHILD IS ON FIRE?
By Joy First, Mt. Horeb, WI
As a member of the National Campaign for Nonviolent Resistance (NCNR), we have been working in a number of different ways to bring an end to the illegal drone assassination program being perpetrated by the White House, the CIA, and the Pentagon. We know that thousands of innocent people have been murdered, and that the program continues to kill families in Afghanistan, Pakistan, Iraq, Somalia, Yemen, and other places around the world. So many people are suffering so greatly because of our government’s actions.
On Friday February 7, in the US District Court for the Eastern District of Virginia, members of NCNR appealed our conviction from an arrest at a vigil against drones at the CIA on June 29, 2013 when about 50 people rallied at the gates in Langley, VA. After several speakers, six members of NCNR walked to the police line and attempted to deliver a letter to CIA Director John Brennan, trying to set up a meeting to talk about the drone assassination program. After being denied a meeting and engaging in street theater Malachy Kilbride, Max Obuszewski, Phil Runkel, Janice Sevre-Duszynska, Cindy Sheehan, and myself were arrested and charged with trespass. Five of us went to trial on October 22, and were found guilty (Cindy was not able to join us and pled guilty). There were so many things that were not right about the trial and we decided to appeal.
We also decided that while we were at the courthouse for the appeal we would try to visit Assistant US Attorney Eugene Rossi since he is in the same courthouse building. Six activists from NCNR had a 40 minute meeting with Mr. Rossi on May 21, 2013. His office, the Eastern District of Virginia, has jurisdiction over the CIA. We delivered a criminal complaint against Obama, CIA Director Brennan, and others at the CIA who are involved in the killer drone program. During the meeting Mr. Rossi was over-the-top friendly in a very artificial way. He was good at his job and tried to placate us, while constantly trying to change the subject to friendly small talk. We left the criminal complaint with him and he said he would send it up to his boss. Over the last several months, we have followed up with him several times, but, as expected, they are not taking our complaint seriously. We can’t let this drop and so we decided to pay him a visit on February 7.
In preparing for our appeal, we were not able to obtain an attorney, and so we decided we would do the best we could as pro se appellants. Several days before the appeal, we filed a written brief that was authored by Max. There were six arguments made in the brief. In summary:
1) Our First Amendment right to free speech was infringed upon.
2) The government did not present sufficient evidence to show that the order to leave was lawful or that we were on CIA property.
3) The arrest and conviction violated our due process rights under the Fifth Amendment.
4) We were denied sufficient discovery to present an effective defense.
5) We were not allowed to present evidence regarding our First Amendment activities or intent during the trial.
6) The Nuremberg Tribunal charges us all to take action against war crimes, and we were not allowed to bring this up in our defense.
Just the day before the appeal hearing, Attorney Stacy Chaffin, on loan to the US Attorney’s office from the CIA and the prosecutor in our October trial, filed a written brief that was very weak and not supported by case law.
Feeling anxious about what would happen during the hearing, Malachy, Max, Phil, and I walked into the 9th floor courtroom a few minutes before 9:00 am. We were joined by several others who were there for support. Janice received a waiver to appear because of a family matter, but was allowed to join onto Max’s motion. Judge T.S. Ellis III would be hearing the case.
What really surprised us that morning was to see that Assistant US Attorney Rossi was in the courtroom along with his boss, Acting US Attorney Dana Boente. Rossi was the person we met with when we delivered the criminal complaint last June. I don’t suspect that their schedule often allows them to be sitting in on cases in a courtroom, and we wondered why they were there.
There were two other cases that were going to be heard before our case, and this gave us an opportunity to see how the judge operated. During the second case, a young man was before the judge for using cocaine three times while on probation. Judge Ellis went into a long lecture about how some people claim that a drug addiction is a disease. However, Ellis disagrees. He thinks it is a personal choice and that you always have a choice as to whether you take a drug or not. He told the story of his mother who was a smoker. She had surgery four times on her lungs, and it was only after the second surgery that she quit smoking. He said she was addicted to smoking, but the addiction was not a disease, it was a choice. To hear a judge sitting on the bench going against all the scientific medical research that has been done in the important area of addictions was simply astonishing.
Our case began at 10:00 and lasted for less than an hour. Stacy Chaffin represented the government and sitting beside her at the prosecutor’s table was Assistant US Attorney Eugene Rossi. Acting US Attorney Dana Boente was also sitting in the courtroom. It appears they are paying attention to what we are doing.
Judge Ellis began by saying that this was an appeal for an arrest for demonstrating to show opposition to drone attacks. He continued by saying that he doesn’t sit on the bench to determine whether drone attacks are good or bad. Someone at the CIA or in the White House does that. And then he chuckled. That was the first of many inappropriate laughs we heard from him throughout the trial.
Max spoke powerfully about why the responses to our arguments from the prosecutor’s brief did not hold water. The judge had a lot of questions and comments for Max.
One theme that Ellis kept went back to over and over was that we live in a democracy and obviously most people don’t agree with us or we wouldn’t have drone strikes. He also said that we should be going to Congress rather than to the CIA. Max responded that we have made many visits to Congress to talk about this issue.
The judge said if that is the case, then our voices have been heard and we need to just let it go then. He said that some people think drones are good and some people think they are bad. That’s just the way it is in a democracy and if we let our members of Congress know how we feel, then we have done what we can. It seemed very inappropriate for the judge to be arguing about whether drones are good or bad, and whether we should be protesting against them or not.
Max also talked about how we have written letters to various officials, including CIA Director Brennan, and we don’t get a response. The judge lectured about how government officials are not obligated to respond. We can write all the letters we want to, but they don’t have to respond to us.
In the government’s brief it said that our intention was to get arrested. Judge Ellis asked Max if we weren’t there to get arrested. Max responded that we were not. “Was this not an act of civil disobedience?” asked Judge Ellis. Max responded that it was not. Max explained that we were not breaking an unjust law for the purpose of changing it. Rather we were trying to stop our government from breaking the law through the drone assassination program that is responsible for killing thousands of innocent people.
Phil talked eloquently about the Nuremberg Principles and why our actions were an attempt to uphold international law and are binding upon all citizens under customary international law. He also stated that each of us has the duty to prevent crimes against peace and humanity from occurring, even if domestic laws must be broken in the process.
After the government prosecutor made her arguments, the judge handed down his ruling.
Judge Ellis said that he said he did not doubt our sincerity and that we are all intelligent people. However, he said that you could get a group of people who thought drones were good and another group who thought they were bad, and asked who really knows whether they are good or bad. But he did think that probably more people approved of drones than disapproved because otherwise our country wouldn’t be using them. He talked about how there are laws that say our government can use drones. First of all, his arguments didn’t even make sense. It is not simply a matter of opinion about whether using drones to illegally kill innocent people is good or bad. It is bad. Second, there are many legal scholars who would argue that the CIA assassination program is illegal. Third, it is not his job to argue with us about drones, but rather to look at the previous case and determine if procedures were violated during our trial.
Even after Max told him we were not committing an act of civil disobedience, I don’t think the judge understood what Max was saying. He talked about a famous case of nonviolent civil disobedience when Henry David Thoreau did not pay his taxes during the War of 1812. However, the judge got it wrong; it was the Mexican-American war that Thoreau opposed. To me this shows that the judge is not careful in making sure that he knows the facts before he speaks out about something from the bench.
At one point during the hearing Judge Ellis said, “You say innocent people are dying. Maybe they are and maybe they aren’t. It doesn’t really matter.” This statement was followed by his inappropriate laugh. This was one of the many outrageous statements he made.
It was unclear whether he had really read and studied our brief. In his ruling, he briefly and inadequately addressed our first two arguments. He said again that we do not have the right to a meeting or a response from public officials. He said that the officer testified to the boundaries of the CIA and that was enough evidence to prove we were on CIA property.
Regarding our last argument, he said that Nuremberg does not have the force of law. What is it going to take for our courts to start upholding international law? As David Barrows pointed out after the trial, according to the constitution treaties are the highest law of the land.
We will be appealing this appalling ruling to the next level.
Once the hearing was over, Malachy walked over to US Assistant Attorney Rossi and asked if we could meet with him about the criminal complaint we had filed in May. He said he didn’t have time, though he and the Prosecutor Chaffin went into a room for several minutes, presumably to look up how many days we had to file for the next level of an appeal. Again, he acts like the nice guy in trying to help us, but he refuses to address why we are there. We waited for him in the hallway.
When Rossi came out of the room, he told us we had 14 days to appeal. We tried to talk to him about the criminal complaint and he said over and over like a broken record, “I gotta go. I gotta go.” He refused to listen to anything from us and within a minute or so, he was in the elevator. Jack McHale commented that this is who he really is. He acts like the nice guy, but this is who he is. Rude and controlling. Malachy commented that if he listened to us and didn’t do anything, he would be held accountable. Once you know a crime is being committed, you are responsible and therefore, he totally shut out everything we were trying to say by saying “I gotta go.” Max thinks he may be conflicted and if so, that is what we need to play to in the future.
We spent a couple of hours discussing what had happened and talking about what our next steps are. We have a lot of work to do in filing for an appeal, and continuing our follow up of the criminal complaint.
The next day, Saturday, was the regular monthly vigil against killer drones at the CIA. I was glad to be in town so that I could attend the vigil. It was a moving experience to be at the vigil after the stress and tension of the previous day in the courtroom. It is always wonderful to gather together with friends that I have made through this work and who I have come to know and love like family. We go through so much together and our experiences create strong bonds.
As I approached the CIA and saw the crime scene tape across the driveway, it brought back memories of the day last June when I was arrested there. Several people said a few words and I read a piece about the just war theory. I also shared that in Wisconsin we have five grandmothers who will be on trial soon for attempting to deliver a war crimes indictment to the head of Volk Field during our monthly vigil against drones there last May.
We read the names of children who have been killed by drone strikes and while each name was read we placed a stone on the driveway at the gates of the CIA. This was very moving and made it was important to slow down and really think about why we are really doing all of this with the arrests, going to court, monthly vigils etc. Jack McHale’s 5-year-old granddaughter was there and laid a stone on the driveway representing a child who died. It brought tears to my eyes to think that it is children just like her who we are killing with the drones.
Art Laffin led us in song, remembering our hero Pete Seeger by singing If I Had a Hammer at the beginning of the vigil and Step by Step at the end reminding us of the importance of all of us working together for a more peaceful and just world.
Afterwards many of us joined together for lunch at Malachy’s. It was such an enriching experience to spend time together and talk about stories from the resistance, what we learned, and discuss how we could move forward.
Later in the afternoon, Malachy, David, and I watched the movie The Camden 28 about a group of 28 non-violent activists who broke into a local draft board office in 1971. The movie started with one of the defendants asking, “What do you do when a child is on fire? Write a letter?” That statement hit me so hard because there are hundreds of children burning up from drone attacks and this is what compels me to continue working on this issue. What do you do when a child is on fire? Writing letters can be important, but it is a critical and an urgent situation. We have to act now and we have to do more. Children are dying. They are burning, and we must take immediate action. We don’t have time to write letters and wait for and hope others will respond.
I flew back to the sub-zero weather in Wisconsin on Sunday morning thinking about next steps. What is coming up and next is a nationwide Spring Days of Action Against Drones and it is something everyone can and should get involved with. We will be doing some organizing in Wisconsin, and NCNR will be organizing an action at the NSA in April as part of this. It is more important than ever to target the role of the NSA in the killer drone program. Glenn Greenwald and Jeremy Scahill have just written about the “shocking interplay between digital surveillance [from the NSA] and Obama’s assassination program.” In the fall Campaign Nonviolence and World Beyond War are working to bring people together and act in resistance. This can provide an opportunity to build towards actions against killer drones.
We will definitely be following up with our criminal complaint in Virginia. I feel like filing this criminal complaint with the proper authorities could be a very important path to continue on. I would like to encourage others to think about how you could file a criminal complaint with authorities in your area. This could be an organizing idea to use around the country during Spring Days of Action Against Drones. NCNR will be putting out more information with details on how this can be done. In the meantime, if you want more information or want to talk about how you might do this, please contact me.
What do you do when a child is on fire? This is the reality of life for too many families that are being attacked by drones overseas. We don’t have time to wait. It is NOW we must join together and take action.
On a personal note, my 7th grandbaby will be born in October. It is all the children of the world that we have to continue the resistance for.
Read or hear their Jan 31 Closing Statements
On Friday, January 31, the Hancock 17 Drone War Crimes Resisters trial concluded with Closing Arguments. Eight defendants gave legal and moral Closing Arguments, concluding that they be acquitted of disorderly conduct and trespassing, charges they had received after symbolically blocking the gates of Syracuse's Hancock Air National Guard Base (home of the 174th Attack Wing) on October 25, 2012. Their ongoing nonviolent actions there call for an end to drone warfare.
Legal arguments addressed both international law as well as faults with the charges themselves.
Since drone attacks embody terrorism, the defendants were not defying the law, but rather upholding international law and the U.S. Constitution, which holds that treaties made are the supreme law of the land. While due process is fundamental to the U.S. legal system, drone attack victims are not afforded that luxury, so the defendants acted as first responders to the scene of a crime - Hancock Air Base. They argued that judges even at the local level are bound by international law, as wars of aggression and drone assassinations are crimes against peace and humanity. They challenged Judge Gideon to acknowledge his obligation to acquit them.
On October 25, 2012 the defendants were petitioning their government for redress of grievances, as protected by the First Amendment of the U.S. Constitution.
Three defendants had just returned from meeting drone attack survivors in Pakistan only weeks before the action. Others had been to war-torn Afghanistan. Another had experienced the U.S. "Shock and Awe" attack on Baghdad. They lamented how difficult it was to make the horror of drone attacks real for the judge and prosecutor. One defendant addressed his spirituality, stating that when you see actions that are evil, you must not look away, but instead cooperate with the work of the spirit and do good. Another brought the conversation back home, saying that war has a cost and a face right here at home in the number of people in jails, and that the amount of money going into warfare could be spent much more productively here.
The defendants argued that the elements of the charges could not be proven beyond a reasonable doubt. They did not actually interfere with traffic since the gates were already closed and Base personnel chose not to open them. Both the prosecution witnesses and the defendants had testified that the action was orderly and nonviolent; the Nonviolent Pledge the defendants had all taken was read aloud. Since there were no base boundaries beyond its surrounding barbed-wire fence marked and no two prosecution witnesses could agree on the exact location of any other boundary, it was impossible to tell if the defendants had been on public or private land.
Assistant District Attorney Jordan McNamara argued that the defendants were well aware of the Base boundaries and that their intent was to block traffic and disrupt business as usual on the base. He did not address the international law or Constitutional issues raised.
The defendants are a part of Upstate NY Coalition to Ground the Drones and End the Wars (also known as Upstate Drone Action) which seeks to educate the public and Hancock personnel about the war crimes perpetrated in Afghanistan with the MQ9 Reaper drone piloted from Hancock. See upstatedroneaction.org.
Previously two people pled guilty and two had their charges dismissed. The defendants who will be receiving a verdict on Friday are:
Elliott Adams, Sharon Springs NY
Judy Bello, Rochester NY
Dan Burgevin, Trumansburg NY
Mark Colville, New Haven CT
Clare Grady, Ithaca NY
Mary Anne Grady Flores, Ithaca NY
Brian Hynes, Bronx NY
Ed Kinane, Syracuse NY
Rae Kramer, Syracuse NY
James Ricks, Trumansburg NY
Mark Scibilia-Carver, Trumansburg NY
Patricia Paki Weiland, Northampton MA.
-- carol baum ###
WHO: Citizen activists from the east coast to the west coast will be in court this week defending their actions protesting the United States Military and Central Intelligence Agency weaponized drone program.
The first trial will begin Monday February 3 in Sacramento, California for four activists arrested at Beale AFB in April 2013, while attempting to deliver a letter to the base commander addressing the illegality of US drones which kill innocent people and noncombatants in Pakistan and other countries. The letter is a citizen's declaration charging President Obama and all military personnel involved in the drone program with crimes against humanity and multiple violations of the law, including due process. (Letter is below.)
Meanwhile, in upstate New York, 17 activists are in the midst of an ongoing trial in a DeWitt, NY courthouse for an October 2012 protest at Hancock AFB protesting the use of the Reaper drones piloted from there that activists say perpetuate war crimes, and violations of human rights laws.
On Friday five activists will be in US District Court in Alexandria, VA appealing their trespass conviction at the Central Intelligence Agency in June, 2013 as they attempted to deliver a letter and seek a meeting with CIA Director John Brennan concerning CIA violations of international law related to illegal targeted drone killing in Pakistan, Yemen, Somalia and elsewhere.
WHEN: Monday, February 3 through Friday, February 7, 2014
(Beale AFB case), US Courthouse, 50l I St., Sacramento, CA,
(Hancock AFB case) Courthouse at 400 Butternut Drive, East Syracuse, NY,
(CIA case) U.S. District Court, 401 Courthouse Square, Alexandria, VA
WHY: Activists across the country continue to work to bring an end to the illegal and immoral killer drone strikes which have now killed thousands of people, including hundreds of children, around the globe with no due process.
For the last several years citizen activists have engaged in peaceful protests drawing attention to the violations of international law the US drone program is committing in multiple countries including Pakistan, Yemen, and Somalia. In protest activities and courtroom testimonies, activists have repeatedly spoken about their obligations under the Nuremberg Principles to oppose the crimes against peace, the violations of international law, and the war crimes the US is committing through its use of weaponized drones.
Beale AFB defendants: Robin Ryan 415-517-5856; Martha Hubert; 415-722-3321; Toby Blome, 510-541-6874
Hancock AFB defendants: Ed Kinane, 315-478-4571; Mary Anne Grady Flores, 607-273-7437
CIA defendants: Malachy Kilbride 571 501-3729, Max Obuszewski 410 366-1637 Joy First 608 239-4327
OPEN LETTER TO BEALE AIR FORCE BASE PERSONNEL (April 30, 2013)
We, the people, charge the US President, Barack Obama and the full military chain of command, to Beale Air Force Base Colonel Phil Stewart, 9th Reconnaissance Wing Commander, every drone crew and service member at Beale Air Force Base, and every other U.S. base involved directly or indirectly with the U.S. drone program, with crimes against humanity, with violations of part of the Supreme Law of the Land, extrajudicial killings, violation of due process, wars of aggression, violation of national sovereignty, and killing of innocent civilians.
US military and CIA Drone attacks have killed thousands of innocent civilians, including women and children, in the Middle East, Somalia, Pakistan, and Afghanistan. In the name of combating terrorism against the US, we are terrorizing innocent people and creating many more enemies and potential terrorists in the process.
Our government has become a lawless power, acting as judge, jury, and executioner, just because it can. The US uses remote-controlled drones to kill women in their kitchens, elders meeting in their jirgas, mourners at funerals, and rescuers who try to help the wounded. By most independent studies, the vast majority of those killed are civilians.
We therefore demand:
(1) An immediate ban on the use of all drones for extrajudicial killing
(2) A halt to all drone surveillance that assaults basic freedoms and inalienable rights and terrorizes domestic life in Pakistan, Afghanistan, Iraq, Yemen, and Somalia
(3) A prohibition on the sale and distribution of drones and drone technology to foreign countries, in order to prevent the proliferation of this menacing threat to world peace, freedom, and security, and
(4) An immediate end to this lawless behavior of drone warfare that violates many international laws and treaties.
Ed Kinane, CLOSING STATEMENT, Charges: trespass & disorderly conduct, Trial of the "Hancock 17," Judge David S. Gideon presiding, De Witt, NY Town Court, 31 January 2014
Good evening Judge Gideon, prosecutor Mc Namara, court staff, our many supporters here, and my fellow defendants.
I want to thank you, Judge, for your attentiveness throughout this trial and for assuring that each pro se defendant has had ample opportunity to speak and adequate time to do so.
I would also like to thank both you and Mr. McNamara for your patience with our frequently fumbling ways as we amateurs seek to navigate court protocol.
Likewise I must acknowledge your patience as, over several days, we’ve sought to mesh the efforts of the 15 or 16 of us who, coming from all over the map, often couldn’t consult together much before coming to court.
As pro se defendants, we are probably naive about how the U.S. “justice” system works.
We understood from our charges that any alleged trespass must occur on private property.
We further understood that any alleged annoyance, any alleged disturbance, any alleged recklessness, construed as disorderly conduct, must occur on public property.
Squaring that circle, we’ve been thinking, would surely result in at least one of those charges being dropped.
But that has yet to happen.
In my opening remarks on December 3, eight weeks ago, I noted that our defense would take two paths: that of conscience and that of legalism.
Our hope remains that this court will move along those two paths, paths bound for justice.
For as Clare Grady in her January 3rd Opening suggested, the law is meant to serve humans and not humans sacrificed to law.
Each of our testifiers spoke out of their consciences, some suggesting that their consciences were shaped by their own personal faith tradition.
Others cited personal experience as impelling them to gather outside the Hancock drone base on October 25, 2012.
I myself in my Opening alluded to having survived the murderous 2003 bombardment of Baghdad, Iraq -- an ancient city of several million non-combatants widely viewed as a cradle of civilization.
It was that bombardment which the Pentagon boastingly and terrifyingly called “shock and awe.”
It would be impossible to count the number of “shock and awe” casualties – the Pentagon expressing supreme indifference to such numbers.
So I speak from analogous firsthand experience when I say that airborne killing and destruction typified by the weaponized drone – whether in Somalia, Yemen, Pakistan or Afghanistan -- are terrifying.
And I speak first hand when I say that the Trespass and Disordered Conduct of those drones are not a defense against terrorism, but rather embody terrorism and may well generate retaliatory terrorism – an endless cycle of violence.
Others defendants – James Ricks, Patricia Weiland and Judith Bello -- spoke of participating in a risky October 2012 human rights fact-finding delegation to Pakistan – a nation, supposedly a U.S. ally, terrorized by the robotic, lethal drones.
On this delegation they met drone survivors, non-combatant human beings who were maimed or had neighbors and close relatives killed.
Judith Bello shared with the court a short video interview with one of those survivors she met – a young man named Raz Mohammed.
Hopefully that video helped personalize the horror of those cowardly drone attacks.
James, Patricia and Judith testified that such encounters helped shape their state of mind on October 25, 2012 as they stood outside the gates of the Hancock drone base.
Their vivid reports on their Pakistan experience also helped shape the state of mind of other Hancock co-defendants on October 25th.
Many of my co-defendants who testified spoke to the layers of law we sought to uphold that morning.
These included the Nuremburg mandate for citizens of all nations to expose the war crime of her or his government.
Those layers also included aspects of international and U.S. Constitutional law, with the latter’s First Amendment right to assemble, to speak out, and to petition our government for a redress of grievance.
That Constitutional law cited also included Article Six, the Supremacy clause, specifying that treaties the U.S. Government enters into become the highest law of the land.
Such law governs the judiciary at all levels -- national, state and local.
Sadly, it appears that some U.S. courts unilaterally pick and choose the international treaties they’ll recognize.
For example, as we stand here on stolen Onondaga Nation land, it’s clear that New York State courts fail to honor the U.S./Onondaga Nation treaty.
By contrast international trade treaties like NAFTA – i.e. commercial international law so kind to corporations – tend to be treated as legitimate in U.S. courts.
It’s a curious inconsistency.
Several of our testifiers referred to the grievance about which we were petitioning and for which we sought redress – that grievance being the protracted war crime committed or being prepared for 24/7 at Hancock by those piloting weaponized Reapers in Afghanistan and who knows where else.
Our petition at Hancock on October 25th against such war crime took the form of a people’s indictment co-authored with us by former U.S. attorney general Ramsey Clark.
As you ponder a just outcome for this trial, Judge Gideon, we urge you to carefully weigh that indictment.
That document, entered into evidence here, specified the layers of law we sought to uphold on that October 25th.
On that date we were not defying law, we were seeking to uphold law.
Some testifiers noted that no one from the base inquired as to what our business was there and none spoke to us claiming we were trespassing.
Certainly no base personnel ordered us to leave.
Nor did any base personnel, including military police, tell us that the area near the base entrance from which we were petitioning the government was somehow exempt from the First Amendment.
Under questioning, both prosecution and each of our own witnesses noted that there was no NO TRESPASSING signage visible or in place between the Hancock main entrance gate and East Molloy Road in the town of DeWitt.
As each prosecution witness acknowledged, there was no line demarcating any trespass zone.
The prosecution’s own witnesses couldn’t seem to agree on where base property began.
In fact, the prosecution provided no documentation regarding base boundaries.
Curiously, while the prosecution initially sought to put into evidence a map of the base, when the defense asked for a copy of that map, the prosecution withdrew its request.
It does seem like the base command, for reasons of its own, prefers to keep base boundaries ambiguous.
No testifier for the defense indicated we knew where, besides at that fortified gate or at the barbed-wire fence surrounding the base, base property could properly be said to have begun.
Obviously, not only the authorities, but the defendants were in the dark regarding the whereabouts of the base property line – so much for our knowingly trespassing.
Pledge of Nonviolence
As each defense witness testified, all of us read aloud together a Pledge of Nonviolence on the morning of October 25, 2012 before embarking for the Hancock Reaper base.
Each defense witness testified that that Pledge faithfully reflected her or his frame of mind on October 25th.
Each also testified that their own behavior was consistent with that Pledge.
Further, neither our witnesses nor any of the arresting officers testified that they saw any of the defendants engage in behavior inconsistent with the Pledge.
In fact some of the arresting officers told of the congenial interactions between themselves and those they arrested.
Having been entered into evidence, and having referred to the Pledge numerous times while questioning our witnesses, I would like to read aloud the Pledge here.
It consists of seven short sentences. But first let me quickly put the Pledge into context.
Since 2009 appalled citizens have been seeking to educate the public, the media, law enforcement, and base personnel about the ongoing war crimes originating at Hancock. This campaign, coordinated by our grassroots group Upstate Drone Action, involves a range of tactics – including some that have led to arrest, trial and incarceration. Our entire campaign has been scrupulously nonviolent in the spirit and tradition of Gandhi and Martin Luther King, Jr. – both victims of assassination.
Thus before each civil resistance action participants commit ourselves to the following Pledge:
We are committed in the campaign to nonviolence in all of our words, symbols and actions. Our purpose is to publicize and hopefully deter the war crimes perpetrated from Hancock AFB by hunter/killer Reaper drones piloted by Hancock personnel over Afghanistan and elsewhere.
Accordingly, at today’s event at Hancock our attitude will be one of respect toward all – including police, military personnel, the public, and each other.
We will not resist or evade arrest and if prosecuted, we will use the judicial process to continue our anti-drone campaign. Where possible we will put the Pentagon’s and CIA’s use of hunter/killer drones itself on trial.
Today’s Action is part of an ongoing, protracted campaign. We will return to our communities and continue our work to end Reaper assassination, civilian killing and other such acts of state terrorism.
Closing Argument presented on Janurary 31, 2014, by Judith Bello on trial as of those who protested at Hancock Air Base in New York State on October 25, 2012
I would like to begin, Judge Gideon, by thanking you for your attention to our unique argument, and support for our learning process with regard to formal court procedures as pro se defendants.
I will preface my remarks by saying that we are ever grateful for the right and privilege given to us by the First Amendment to the United States Constitution which says that:
“Congress shall make no law [. . .] abridging the freedom of speech . . . ; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
We would not be here today if this were not the law of the land. I will argue that I went to Hancock Base on the 25th of October, 2012, that as far as I know, we all assembled at Hancock Base on October 25th, 2012 to exercise our right and privilege of free speech to ask our government for redress of grievance; specifically to uphold international laws that prohibit wars of aggression, targeted assassination and the reckless endangerment of civilian populations around the world.
You have heard testimony that Weaponized Drones, including those flown from Hancock Air National Guard Base are on the front line of illegal wars in Afghanistan, Pakistan, Yemen, Somalia and other countries around the world. You have heard testimony that Armed Drones threaten civilian populations in these countries, and contrary to government assertions, kill indiscriminately, leaving a trail of dead civilians in their wake. Even the oft affirmed ‘militant’ target is a civilian in most cases, perhaps in every case depending whether American combatants can be said to be engaged in a legal war. According to Customary International Law and numerous treaties which I will now elaborate, these wars of aggression are illegal,
Therefore, my presence, our presence at Hancock Air National Guard Base is justified under NYS Penal Law 35.05, Subsection 1)
"Unless otherwise limited by ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when: 1) Such conduct is required or authorized by a law or judicial decree . . . "
In light of Article. VI of the US Constitution, which says:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
We turn to the following passages from the Nuremberg Judgment which has been designated as a Federal Rules Decision, thereby incorporated into United States Law as well as the United States Army Field Manual:
on pg 19 under THE COMMON PLAN OR CONSPIRACY AND AGGRESSIVE WAR:
The esteemed justices of the Nuremberg Court say:
". . . War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
on Pg 42 under VIOLATIONS OF INTERNATIONAL TREATIES:
The court continues in the same vein. It says that the waging of an aggressive war is a crime regardless of whether any signed treaty has been violated.
"The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties. [ . . . ] This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also "wars in violation of international treaties, agreements or assurances.""
In other words, since we are agreed that prosecuting a war of aggression is a crime, we do not need any further Treaties to justify our verdict.
on Pps 44-47 of the Nuremberg Judgment, under THE LAW OF THE CHARTER: The Nuremberg judges state:
"The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law."
The United States must have agreed with this at the time because the Judgment was admitted to US Law as a Federal Rules Decision. They go on to say that it is a matter of justice that a criminal act is understood in reference to the law. So they proceed to name the Treaties on which they have based their judgment. First and foremost, the Kellogg-Briand Treaty, also called The Pact of Paris because the United States and France were the makers of the treaty, and the charter signatories:
“This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of August 27th 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on sixty-three nations, including Germany, Italy and Japan [and, I might add, the United States] at the outbreak of war in 1939. [ . . . ]
The first two articles of Kellogg-Briand are as follows:
"Article I: The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations to one another."
"Article II: The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arrive among them, shall never be sought except by pacific means."
In case we don't take this seriously, the Nuremberg judges go on to quote Henry L. Stimson, US Secretary of State in 1932, as follows:
"War between nations was renounced by the signatories of the Kellogg-Briand Treaty. This means that it has become throughout practically the entire world ... an illegal thing. Hereafter, when nations engage in armed conflict, either one or both of them must be termed violators of this general treaty law....We denounce them as law breakers."
I have been told that the Kellogg-Briand Treaty is obsolete and irrelevant. No one pays any attention to it. However the United States has not withdrawn her signature from Kellogg-Briand, as she has, for instance, from the International Court of Justice. Kellogg-Briand is not only a basis for the Nuremberg Judgment, which is accepted as a Federal Rules Decision, but is a direct creation of US diplomacy of which the United States is a charter signatory. Perhaps it should be taken more seriously.
Clearly, Kellogg-Briand does not codify particular penalties for particular variants or degrees of the crime of aggressive war. The Nuremberg judges respond to this concern as follows:
“But it is argued that the pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. [. . . ] In interpreting the words of the Pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts.”.
Here we have an argument that International Law is a foundation of global justice, and should be enforced through understandings and procedures defined by Customary Law, which has evolved through the consensus of nations over a period of centuries.
Armed Drones, which are currently a critical tactical method in support of our many wars of aggression, are engaged in the commission of crimes, Crimes Against Peace in so far as they facilitate illegal wars, and War Crimes and Crimes Against Humanity in so far as they facilitate indiscriminate killing of civilians and targeted assassinations which are illegal under US Law.
It is a matter of particular concern that United States officials are attempting to change Customary International Law to their advantage by changing the facts on the ground through the introduction of new technologies and social classifications. Terrorists and terrorism supposedly represent a class of individuals who perpetuate a condition not anticipated by Customary International law nor standing Treaties. However, the United States duplicity in both fighting 'terrorists' and supporting the same individuals under different names shows that this is not the case. The use of new technologies i.e. armed drones, to 'terrorize' civilians while supposedly hunting so called 'terrorists' is frivolous, hypocritical and completely illegal.
Terrorists and the armed drones that hunt them are social and technical constructs designed to disrupt international law and the social structures on which it is founded. This is clearly succeeding as can be seen by the confusion evidenced in recent statements by the United Nations Rapporteurs on Extrajudicial Killing and on Human Rights and Counterterrorism, and by the conclusions drawn by NGO Reports on Drone attacks released by the Human Rights NGOs this Fall by Amnesty International  and Human Rights Watch.
Drones are asserted to be a device that is not constrained by Customary International Law as we have understood it in the past. The claim is that they are so advanced as to require new laws for new situations. Indeed they say:
- Drones can hover quietly at great heights, out of view of those o the ground and out of reach to retaliation by populations without air power and are claimed to be primarily used for surveillance
- Since drones aren't manned, they have not violated the boundaries and borders they have illegally crossed.
- Since a Drone can be piloted from a faraway location that is not in the clear zone of war, then pilots are not at risk and not liable for their actions
- Drones are able to discriminate their targets more effectively than other delivery systems for missiles
To me, the above list of special features can be subsumed under a single classification, IMPUNITY. The latter point in particular has clearly proven not to be the case. It takes more than a stable image from 2 miles away to provide meaningful clues to an operator 10,000 miles away. Drones are used to conduct illegal wars invisibly. Even so, new laws aren't necessary to constrain armed drones. What is necessary is that their owners and users be called to obey the existing laws.
In fact, International Law has addressed this very situation more than 100 years ago. Initially, the Martens Clause, as it is called, was introduced into the prologue of Hague Convention II in 1899, later the substance was incorporated into the Hague Convention IV in 1907. The Martens Clause states:
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents (we would say civilians and combatants) remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.
In other words, you cannot create an instrument that smashes the existing rules and boundaries and then claim that new boundaries must be drawn around it. Rather, the use of new technologies must be required to remain within the boundaries of existing law until such time as the international community can come to a consensus on a new structure of law to accommodate them. Then their use can be expanded into the new legal space. We must act under the empire of international law rather than under the law of the empire.
-------- Conclusion ---------------
We cannot ignore the fact that these laws are often broken; often restated in new language. It seems to me that war is much like an addiction, deadly and difficult to end. We vow to quit, then fail, and recover and relapse again and again. This does not mean that we should cease trying. Every treaty and promise to repudiate the deadly violence of war, and restrain the instruments that make it easy for us to engage in war, must be held up and honored, over and over again until justice prevails, and we are at last free to live as civilized human beings in peace and security with other individuals and other nations.
That is why I was at Hancock Base on October 25, 2012 and that is why I am here today. I am not asking you, Judge Gideon, to try defendants under these laws as the Nuremberg Judges were required to do. That is not your job. What I am asking is that you acknowledge our obligations under these laws, along with my obligation and privilege to uphold them under the Constitution and acquit me and my companions of the current charges under Penal Code 35.05 which says that we may justify an act that would otherwise constitute an offense when it is authorized by a law or judicial decree.
Cross-Posted from DeSmogBlog
The State Department has released the Final Supplemental Environmental Impact Statement (SEIS) for the proposed northern leg of the controversial and long-embattled TransCanada Keystone XL tar sands pipeline.
Image credit: Kris Krug.
In a familiar "Friday trash dump" — a move many expected the Obama administration to shun — John Kerry's State Department chose to "carefully stage-manage the report's release" on Super Bowl Friday when most Americans are switching focus to football instead of political scandals. **See bottom of this post for breaking analysis**
Anticipating the report’s release, insiders who had been briefed on the review told Bloomberg News the SEIS -- not a formal decision by the State Department on the permitting of the pipeline, but rather another step in the department’s information gathering -- “will probably disappoint environmental groups and opponents of the Keystone pipeline.”
And, indeed, the new report reads: “Approval or denial of any one crude oil transport project, including the proposed Project, remains unlikely to significantly impact the rate of extraction in the oil sands, or the continued demand for heavy crude oil at refineries in the United States.”
This reiterates one of the earlier draft’s most heavily criticized conclusions that the pipeline is “unlikely to have a substantial impact on the rate of development in the oil sands,” and thus avoids a comprehensive assessment of those climate impacts.
In June 2013, President Obama said in a speech announcing his Climate Action Plan at Georgetown University that he would only approve the permit if it was proven that “this project does not significantly exacerbate the problem of carbon pollution."
The final environmental review is being released on the heels of damning revelations about the close ties between the Canadian pipeline builder, TransCanada and Environmental Resources Management (ERM). ERM was hired by the State Department to conduct the environmental review.
TRIAL DATE: Monday, Feb. 3, 9:00 am
OPEN LETTER TO BEALE AIR FORCE BASE PERSONEL (April 30, 2013)
We, the people, charge the US President, Barak Obama, and the full military chain of command, to Beale Air Force Base Commander Colonel Col. Phil Stewart, 9th Reconnaissance Wing commander, every drone crew, and service members at Beale Air Force Base, and every other U.S. base involved directly or indirectly with the U.S. drone program with crimes against humanity, with violations of part of the Supreme Law of the Land, extrajudicial killings, violation of due process, wars of aggression, violation national sovereignty, and killing of innocent civilians.
US military and CIA Drone attacks have killed thousands of innocent civilians, including women and children, in the Middle East, Somalia, Pakistan, and Afghanistan. In the name of combating terrorism against the U.S. we are terrorizing innocent people, and creating many more enemies and potential terrorists in the process.
Our government has become lawless powers, acting as judge, jury and executioner, just because it can. The U.S. uses remote-controlled drones to kill women in their kitchens, elders meeting in their jirgas, mourners at funerals, and rescuers who try to help the wounded. By most independent studies, the vast majority of those killed are civilians.
We therefore, demand:
(1) An immediate ban on the use of all drones for extrajudicial killing
(2) A halt all drone surveillance that assaults basic freedoms and inalienable rights and terrorizes domestic life in Pakistan, Afghanistan, Iraq, Yemen and Somalia
(3) A prohibition on the sale, and distribution of drones and drone technology to foreign countries in order to prevent the proliferation of this menacing threat to world peace, freedom and security and
(4) An immediate end to this lawless behavior of drone warfare that violates many international laws and treaties.
My mother, the anti-war activist and writer Margaretta D'Arcy, is serving a three-month sentence in Limerick prison for trying to stop the violation of Irish neutrality by US military planes, which stop over at Shannon airport on the way to and from the war in Afghanistan. She took peaceful direct action to stop crime being committed by lying down on the runway of the airport. Margaretta, the widow of playwright John Arden, is 79 and undergoing treatment for cancer. Imprisoning her for an act of conscience is inhumane. I call upon the Irish government to release her immediately and for the British government to use its influence to secure her release. To keep her spirits up while she remains in prison, I urge readers to send cards c/o Limerick Prison, Mulgrave Street, Limerick, Ireland.
Here is an excerpt from a statement by her colleagues:
(Orange Gate 1983-84)
We are outraged to learn that our dear sister and colleague Margaretta D’Arcy has been jailed – and for three months! – for protesting the use of the civilian airport at Shannon for US wars. And we are deeply worried about her health and well-being as a cancer patient. One of the many public services Ms D’Arcy has performed is to protest the Irish government’s many years of complicity in US war crimes and its destruction of Irish neutrality. She has been dedicated to highlighting that the most devastating impact of war is on women and our children, both directly from the bombs that rain down on us, and by paying with our poverty for the horrendous weapons of massive destruction that surround us all.
on behalf of Global Women’s Strike, Ireland
There is access to an online petition contact.ie/node/271
Comments can be registered at email@example.com
Updates are available from Clare Daly (Clare.Daly@Oireachtas.ie)
Thank you for sharing this story with any and all persons you can reach who are concerned with issues of free speech, social justice, and over all, peace.
Jan 23/24 - Thursday & Friday 5pm
Town of De Witt Court, 5400 Butternut Drive, East Syracuse, NY.
The Hancock 17 trial began January 3, 2014 and will continue this week on January 23 and most likely January 24. Please come in support!
After 12 hours in the courtroom on January 3rd and 6th, the prosecution case is nearly complete. With one exception, the defendants are going pro se, which means that they are defending themselves. Their defense is based on the fact that they were not at the base to break the law, but rather to uphold the U.S. Constitution and international law.
Listen to the powerful opening statements of Ed Kinane and Clare Grady at http://upstatedroneaction.org/
It is expected that the defense case will begin Thursday, January 23, most likely continuing on the Friday the 24th. The defendants' case is supported by former Attorney General Ramsey Clark, international law experts Francis Boyle and Mary Ellen O'Connell, and a an Afghani man whose brother-in-law was killed in a drone strike.
On October 25, 2012, they had been arrested for symbolically blocking the three gates at Hancock Air National Guard Base, from which MQ 9 Reaper drones are piloted over Afghanistan and where MQ9 Reaper pilots, sensor operators and technicians are trained. They stood in front of the gates with banners and and signs calling for an end to drone warfare, and read a Citizen's War Crimes Indictment to the base personnel. They called for an end of attacks on civilians that are illegal under international war.
After more than two hours outside the gates, they were arrested and arraigned on charges of Trespass and Disorderly Conduct (both violations) and were issued Orders of Protection for Col. Earl Evans which require them to stay away from the base (his place of work). Violating these Orders of Protection carries potential misdemeanor or even felony charges.
Elliott Adams, Sharon Springs, NY
Judy Bello, Rochester, NY
Daniel Burgevin, Trumansburg, NY
Mark Colville, New Haven, CT
Paul Frazier, Syr. & Rochester, NY
Clare Grady, Ithaca, NY
Mary Anne Grady Flores, Ithaca, NY
Martha Hennessy, New York, NY
Brian Hynes, Bronx, NY
Ed Kinane, Syracuse, NY
Rae Kramer, Syracuse, NY
Andrea Levine, Trumansburg, NY
Michael Perry,Trumansburg, NY
James Ricks, Enfield, NY
Mark Scibilia-Carver, Trumansburg,NY
Patricia Weiland, Northampton, MA
Margaretta D’Arcy is not a war criminal. Nor is she a human rights abuser, or the commander of an invading army. But she has spent many years drawing attention to the fact that these type of people pass through Shannon Airport regularly. The legally and morally correct response from the Irish police would be to investigate this complicity in wrongdoing at Shannon. Instead they imprisoned 79 year old Margaretta because she wouldn’t promise to stay away from the airport.
Days Before Casselton Oil Train Explosion, Obama Signed Bill Hastening Fracking Permits on ND Public Lands
Cross-Posted from DeSmogBlog
On December 20, both chambers of the U.S. Congress passed a little-noticed bill to expedite permitting for hydraulic fracturing ("fracking") on public lands in the Bakken Shale basin, located predominantly in North Dakota. And on December 26, President Obama signed the bill into law.
This is a cross-post from Transcend Media Services
Nonviolence vs. Nonexistence!
Nearly 50 years ago, the Rev. Martin Luther King, Jr. said: “The choice is not between violence and nonviolence but between nonviolence and nonexistence.” That choice is becoming ever more profound as we enter the new year of 2014. For billions of people around the world, and for the earth itself, life is hanging by a thread. The choice is do we foster a world free of war, poverty, and climate crisis through non-violent action, or do we continue on the downward spiral toward nonexistence.
By Dave Lindorff
So Pope Francis, the new pope who has conservative American Catholics, particularly those in politics and the media, freaked out because he is criticizing capitalist greed, knows Marxists who are "good people," and isn't upset to be labeled one of them, even though he says "Marxist ideology is wrong.".
Cross-Posted from DeSmogBlog
As we evaluate the outcomes of the recent UN climate negotiations in Warsaw, one lesson that we are invited to learn, again, relates to our strategy for getting effective action taken on the ongoing climate catastrophe and other critical environmental problems. Is lobbying elites to change their behaviour an effective strategy for change?
My experience, reinforced by decades of casual observation, is that lobbying elites is a complete waste of time and that a strategy that focuses on inviting ordinary individuals and groups to take action in the desired direction is far more effective. Why do I say this?
The pre-eminent problem confronting humankind is human violence. It is our own violence, in its various guises, including the ongoing possibility of nuclear war and the ongoing devastation of the natural environment, that threaten to consign us to the fossil record within decades, if not sooner. And yet we devote virtually no effort to trying to understand human violence and to developing strategies to end it. Why?
Report Back: Occupy Beale AFB and Resisting Drones, November 2013
On November 25-26, we held our monthly vigil that included a surprise “pre-emptive peace response”
direct action on Tuesday morning against drone warfare at Beale Air Force Base. We were wearing
white clothes with blue scarves in solidarity with the people of Afghanistan who want peace.
www.TheBlueScarf.org “The Blue Scarf represents the expansive blue sky we all share and has
become a global symbol for togetherness. It was set in motion by a brave group of women in
Afghanistan ready to be heard and is now being worn around the world as a way for people to
express their solidity as global citizens for a better world.”
On Monday afternoon, four of us from the Bay area went to the Doolittle Gate. There were another 6
at the Wheatland gate. Meeting at the main gate at 5:30pm, in the dark and cold, we were visited by a
security detail from the base during our potluck. They advised us of the nighttime cold. When Flora,
a local activist, arrived with MacGregor, we gladly accepted an offer of her warm house for the night.
After our potluck, we shared two birthday cakes to celebrate the completion of our 3rd year at Beale.
Three years ago this month, Toby, Martha, Lisa and Eleanor dared to come to Beale AFB in the dark of
the early November morning for the first drone warfare vigil. We have since had nearly 100 different
people join the vigil, 4 road blockades and numerous arrests. These past 3 years, many more people in
our country have become aware of the immoral use of drones against civilians, women and children in
other lands. As more and more innocents are being slaughtered by drones the outrage is intensifying.
On Tuesday morning, shortly after 5am we headed out to the Wheatland gate on S. Beale Rd., a heavily
used artery into the base. 12 of us were able to again block traffic into the base at the Wheatland
gate for over 30 minutes. Traffic had backed up for nearly a mile. We held out large banners with
messages of peace, including the beautiful drone victim quilt, with panels of paintings showing some
of the many children who have been murdered by drone warfare. The large NO DRONES light brigade
signs glowed brightly in the night. The vast majority of vehicles respected our blockade without physical
confrontation, but several irate motorists forced their way through the vigil. One dragged our drone
quilt and other visuals several hundred feet, and put one Veteran For Peace activist, John Reiger, at risk,
though luckily he was unharmed. (This led to a length discussion and learning experience for how to
deal with confrontational motorists: peacefully let them through). Not all of us were able to risk arrest,
thus we moved aside after Highway patrolman, Dan Yeager, arrived and gave several warnings. It is our
deepest hope that in that brief period of the morning, as the war machine was momentarily halted, that
maybe a human life in Afghanistan, Pakistan, Yemen, Somalia or elsewhere was saved.
Four of us, Shirley, Flora, Michael and MacGregor then walked about ½ mile down the road to the
waiting military police at the base boundary, McGregor handed over the vigil’s signed letter she
had prepared to the base commander demanding a halt in the base participation in the drone wars.
Michael, as a military veteran, told the soldiers he was there to speak on their behalf to condemn
the U.S. government for forcing our military personnel to be involved in war crimes against innocent
civilians. After waiting over 15 minutes for a representative of the commander, who never came, the
four of us walked onto the base and were immediately arrested. We were treated well and were
processed out just after 9am to the greetings of many of our fellow vigilers who had braved the cold
morning air another 2 hours to support us. We then closed our usual vigil with breakfast, debriefing
and planning for future drone resistance at the Brick Coffeehouse in Marysville. We will be back and we
hope you will join us the next time.
Written by Michael Kerr, Martha Hubert and Toby Blome
Cross-Posted from DeSmogBlog
The ever-wise Yogi Berra once quipped "It's like déjà vu all over again," a truism applicable to a recent huge decision handed down by the United States District Court for the District of Columbia.
The real criminal, our government, jails the real hero: The Hero and the Villains: the Jeremy Hammond Sentence
By Alfredo Lopez
This past Friday, Internet activist Jeremy Hammond stood in a federal courtroom and told Judge Loretta A. Preska why he released a trove of emails and other information uncovering the possibly illegal and certainly immoral collaboration of a major surveillance corporation called Stratfor with our government.
As our government continues the illegal and immoral killer drone program, terrorizing communities around the world, members of the National Campaign for Nonviolent Resistance (NCNR) continue our resistance. As part of that resistance I was on trial with four other activists in US District Court in Alexandria,VA on October 22. Joining me were Malachy Kilbride, Max Obuszewski, Phil Runkel, and Janice Sevre-Duszynska. Cindy Sheehan was also arrested with us, but was unable to attend the trial because of an illness.
We began our resistance against the CIA drone program when we filed a criminal complaint against the CIA with the US Attorney’s office in Alexandria, VA on May 23, 2013. As citizen activists we are responsible for reporting crimes that we know are being committed. So we went to the US Attorney’s office and we were able to meet with Assistant US Attorney Eugene Rossi. He talked with us for about 40 minutes and accepted our complaint. We then followed up with phone calls and emails to his office in our attempt to hold the CIA accountable for their crimes. However, we did not receive any response.
We decided to continue our resistance with a letter to CIA Director John Brennan. In the letter we told him why we oppose the drones and we asked for a meeting to discuss our concerns. When we didn’t get a response from him, we went to the CIA on June 29, 2013. Our crime was to walk onto the CIA property with a copy of the unanswered letter in our hands and ask for a meeting with CIA officials.
We were arrested and charged with trespassing. After some preliminary matters, including a motion filed for extended discovery (which was denied) our trial was scheduled for October 22. We made plans to defend ourselves, pro se, and at about 10:00am on October 22 we walked into Judge Ivan Davis’ courtroom in the US District Court in Alexandria, VA as he was finishing up with another case.
As our case was called, we walked to the front of the courtroom, and the five of us crowded around the defense table. I got ready to take notes on the proceedings, and as the trial began and the judge immediately began to chastise Max, the first words I wrote were “He’s scary”. Right from the start he was very antagonistic and argumentative towards Max. Max tried to argue again for extended discovery and the judge did not want to hear anything about it.
The prosecutor, US Attorney on special assignment from the CIA, Stacy Chaffin, gave a short opening statement and framed the case for the judge stating this was a simple case of trespass and that though we would try to bring the issue of drone warfare into the trial, this was only about us trespassing on CIA property on June 29. It was not about drones, she emphasized.
Ms. Chaffin had one witness, Police Officer Davilla. He said that we had a letter that we wanted to deliver, and it was accepted by an official with the CIA. He said there was a mock air strike and the defendants fell across the police line and were allowed to lie there, but when they got up and moved forward he read us a warning and when we didn’t leave we were arrested.
Max cross-examined Davilla and Ms. Chaffin objected to almost every question he asked with Judge Davis sustaining the objections. Max asked if the letter that Davilla mentioned could be entered as evidence and the judge refused this request. When questioned by Max, Davilla claimed he didn’t know that the mock air strike was supposed to be a simulated drone strike. Malachy followed up, asking Davilla to read the police report. In the police report, written by Davilla, it was noted that it was a mock drone strike. The government was working hard to try to keep the word “drone” out of the proceedings.
Throughout the questioning of the government witness Judge Davis repeated over and over that what Max and Malachy were saying was not relevant. He shut them down at every turn and seemed very angry.
I took the stand as the first defense witness, and gave background information. I said that I live in Mt. Horeb, WI. I am a wife of 41 years, a mother of five, and a grandmother of six, with a seventh on the way. I have my PhD in Women’s Studies. Spending time with my grandchildren and doing the work I am involved in for peace and social justice are the things I spend most of my time on. The two are very interconnected. My grandchildren inspire me to do this work. I said that I think about what kind of world my grandchildren will live in when they grow up and that makes me continue with this work. I felt very overwhelmed by emotion as I talked about being a grandmother, and stated that as a grandmother I don’t just think of my own grandchildren, but I think of all the children of the world. I want to spread my arms wide around all the children of the world and keep them safe. I think about the children who are dying from drone strikes in Pakistan, Afghanistan, Yemen, Somalia and other places around the world. I am a member of the National Campaign for Nonviolent Resistance (NCNR) and we have been acting in resistance to the illegal actions of our government since 2003. We have done actions at the White House, the Pentagon, Congress, and the Department of Justice. We write letters to both elected officials and government personnel about our concerns before each visit. It has become clear that those in our government feel they are no longer accountable to the citizens of this country because we have never once gotten any kind of reply to any of our letters. When we don’t get a response we follow up with a visit in person and have often been arrested simply for seeking a meeting with a government official.
The statute for trespassing states that unauthorized people are not allowed on the property, but under cross-examination I stated that I believed I was authorized to be there under the First Amendment and that I was obligated to be there under the principles that came out of Nuremberg. I talked about what happened at the CIA on June 29 and was able to say that we were there because of our concerns that thousands of innocent people, including children, are dying as a result of our government’s illegal activities.
After seeing the judges response to Max and Malachy, I was very surprised that he let me say all that I said.
Janice took the stand next. She talked about being a teacher and about how it is important to show children how to resolve conflict through mediation. She testified that many of the children she taught in ESL classes were from war-torn countries and that she doesn’t want to see this kind of suffering anymore. She stated that it is more than the US Constitution that gives her the right to do what she did on June 29, but that she has that right as a human being.
I gave the closing statement (see below) and then without any deliberation at all, the judge found us guilty. I looked him right in the eye during the last sentence of my closing, “We ask that you please find us not guilty as charged and join us in working for peace and true justice in the world.” but he refused to open his heart to what we were saying.
His arguments for the conviction were that there was police tape with the words “Do not cross” and this should have put us on notice. He said that the defendants could argue that because they were allowed to be there, according police testimony and the police report, that meant they were authorized. However when Officer Davilla read the warning that we should leave or we would be arrested, we should have know we would be arrested at that point and we should have left. He argued that although the defendants said that we did not intend to break the law, this was not a crime of intent and so our intention was irrelevant. He also said that Nuremberg does not apply because there were no international laws broken. This was an astonishing statement to hear the judge make.
Also unbelievable were statements made by Judge Davis that the Bill of Rights were irrelevant, Nuremberg was irrelevant, and drone strikes were irrelevant. He said this is a court of law, not morality.
The prosecutor asked for unsupervised probation, reasoning that we were obviously nonviolent. This was a surprise because she had told Max and Malachy at a pre-trial hearing that she would ask for supervised probation.
All the defendants, except for me, gave moving sentencing statements. I said what I needed to in the closing and didn’t need to say more, but I am glad the others were able to speak out so clearly about our need to be there and to be doing what we did.
The judge gave us one year unsupervised probation and said that we should not violate the law in that year or return to the CIA for protesting in an unauthorized fashion. We would also be fined $300 plus court costs.
Malachy asked for clarification on the sentence because he vigils outside the gates of the CIA monthly. The judge said that would be acceptable as long as he does not go onto CIA property.
What happened next was something I have never seen before. Judge Davis said that now that the whole thing was over he had a question he wanted to ask us just to satisfy his curiosity. He said that all we tried to do all morning was to talk about drones, but what if there was a plane with a pilot who killed someone, would we be there? Of course we would be there, we responded. But what was the meaning of this question? Was he putting us down and making fun of us? Of course he knew how we would answer to that question.
On our way out of the courthouse we were required to check in at the probation office. Though we have been on unsupervised probation, we have never had to do check in with the probation office before. We were given a stack of forms to fill out and were surprised when we realized they wanted us to sign releases for access to medical, psychiatric, financial, educational, and jobs records. Though we all know the government is spying on us and getting this information, we were not going to willingly submit and give our permission for this kind of serious intrusion of privacy. After raising our concerns to the receptionist, we were able to talk to a supervisor who said we did not have to fill out the forms, but if they needed the information they would come after us.
The trial was two weeks ago. It takes a lot out of you emotionally and physically, but in one week I will return to DC to ttend the CodePink drone summit. NCNR is organizing an action of nonviolent civil resistance on Capitol Hill for Nov. 18 and then I will be traveling from DC to the SOA Watch in Georgia. I will be so looking forward to returning home on Nov. 24 to spend the holidays with my family, even as I remember those who are not able to spend time with their loved ones because of the US drone attacks.
We filed for an appeal and we also filed a motion to stay the execution of the sentence pending the appeal. I am feeling deeply conflicted about the year of probation with the order to not get arrested during that time or face the serious consequences of Judge Davis’ courtroom. In the mail today I received a counter motion, for the stay of execution, filed by the prosecutor. She wrote that she is willing to stay the payment of the fine, but not to stay the year of unsupervised probation. In her motion she states, “the probation is necessary to protect the community…”. How arrogant and ironic and ridiculous! Ask Nabila who poses a threat to her community.
It is wrong whether a bomb is dropped from a plane with a pilot or from a drone. It is wrong if it is soldiers on the ground fighting to expand the empire through the pain, suffering, and death of innocent children, women, and men around the world. As long as these crimes continue, I will join my compatriots in standing in resistance and calling for an end to the illegal actions of our government. We will work together for a world where communities are a place of peace and justice and where children can play happy and free.
CIA Arrest June 29, 2013 Trial October 22, 2013
Good morning/ afternoon Your Honor. My name is Joy First, defendant pro se and I will be giving the closing statement for our group.
We are standing before you today, Your Honor, being charged with Trespassing - Entering or remaining on an Agency Installation without proper authorization.
But the government did not \prove our guilt on that charge beyond a reasonable doubt. We have shown that we did not go to the CIA on June 29, 2013 to break the law; rather we went there to uphold the law.
It should not be presumed that we were there to engage in unlawful activities. We are people of nonviolence, involved in Constitutionally-protected speech. Our intent was to seek a meeting with Mr. Brennan and to influence him, wake him up, affect his conscience, and shame him perhaps, but we never engaged in any criminal activity.
You heard testimony that the police knew we were coming and had erected a police line at the main entrance gate of the Central Intelligence Agency on Dolley Madison Boulevard.
You heard testimony that we were given mixed messages from the police regarding this line. First being told we would be arrested if we crossed the line of police tape, but then according to the police report as we crossed the police line, “CIA Police Personnel backed up and allowed them to lie on the ground.” Then, as we moved further onto the property we were arrested. To us, it was not clear what the boundaries were, and what we could and could not do. We were on CIA property during the rally, and we were on CIA property when we did the die-in. We did not know if or when we would be arrested.
You heard testimony that we did, in fact, go to the CIA on June 29 and ask for a meeting with Mr. Brennan or one of his representatives to discuss our concerns.
You heard testimony that it was only when that meeting was refused that we were moved by our conscience to walk peacefully onto CIA property expressing our very deep concerns about the CIA involvement in illegal drone strikes.
We were charged with trespassing – being on the CIA base without “proper authorization.” But you heard witnesses state that they believed that not only were we authorized under the US Constitution, but we were obligated to be there under the principles of Nuremberg.
You heard testimony that though the police told us we had to leave, we believed it was our right and our duty to refuse that order.
You heard from both government and defense witnesses that we acted in a nonviolent and a peaceful and cooperative manner throughout the whole process.
Sadly, a large portion of the citizenry are unable or unwilling to challenge the government when it engages in activities which are unlawful. However, these five defendants have a long and worthy history of engaging in the legislative process. We defendants are citizen activists, who have engaged in dialogue with many elected officials mostly over peace and justice matters. We recognized a long time ago that War Is Not the Answer. It is wrong on many levels—wasting tax dollars which could go to social programs, creating enemies when random acts of violence attack generally poor people in the Middle East and make our government representatives to be hypocrites when challenging another country’s human rights violations.
The First Amendment to the U.S. Constitution confirms that we were authorized to engage with government representatives: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” However, we were instead arrested.
According to the Nuremberg Principles, if we remain silent while our government is engaged in illegal activities, then we are complicit, we are equally guilty of being in violation of international law and of going against our most dearly held values. It is our responsibility as citizens, as taxpayers, as voters to speak out. Robert Jackson, the United States judge at the Nuremberg trials said, “The very essence of the Nuremberg Charter is that individuals have international duties which transcend national obligations of obedience imposed by the individual state.”
Your honor, the bottom line is that thousands of innocent people are dying and it is up to all of us to do everything we can to stop the pain and suffering and death being inflicted on these people by our government.
We ask that you please find us not guilty as charged and join us in working for peace and true justice in the world.
Thank you for your time and attention to this case.
Every day, human adults kill 35,000 of our children. We kill them in wars. We kill them with drones. We kill them in our homes. We also kill children in vast numbers by starving them to death in Africa, Asia and Central/South America because we use military violence to maintain an ‘economic’ system that allocates resources for military weapons, as well as corporate profits for the wealthy, instead of resources for living.
495 supporters from around the world write letters in support of clemency application
Donations to assist the Rivera Family can be made online here. 100% of donated funds will assist the Rivera Family.
By James Branum and Courage to Resist. November 4, 2013
Fort Carson, Colorado – Imprisoned war resister PFC Kimberly Rivera has submitted a clemency application seeking a reduction by 45 days in the 10 month prison sentence she received for seeking asylum in Canada rather return to her unit in Iraq.
The request for clemency was based on humanitarian reasons due to pregnancy. Unless clemency is granted, Private First Class Kimberly Rivera will be forced to give birth in prison and then immediately relinquish custody of her son while she continues to serve the remainder of her sentence.
Unfortunately military regulations provide no provisions for her to be able to breastfeed her infant son while she is in prison.
Fort Carson Senior Commander Brigadier General Michael A. Bills will be making a decision on PFC Rivera’s clemency request in the coming weeks.
PFC Rivera’s case made international news when she was the first female US soldier in the current era to flee to Canada for reasons of conscience. After a protracted struggle through the Canadian legal system, she was deported back to the United States in September 2012. She was then immediately arrested and sent back to the Army to stand trial.
In an interview with Courage to Resist on the eve of her court-martial, Rivera said, “When I saw the little girl [in Iraq] shaking in fear, in fear of me, because of my uniform, I couldn’t fathom what she had been through and all I saw was my little girl and I just wanted to hold her and comfort her. But I knew I couldn’t. It broke my heart. I am against hurting anyone… I would harm myself first. I felt this also made me a liability to my unit and I could not let me be a reason for anyone to be harmed—so I left... Even though I did not fill out the official application to obtain conscientious objector status, I consider myself a conscientious objector to all war.”
On April 29, 2013, PFC Rivera pled to charges of desertion. She was sentenced by the military judge to fourteen months in prison, loss of rank and pay, and a dishonorable discharge; thanks to a pre-trial agreement her sentence was reduced to an actual sentence to ten months of confinement and a bad-conduct discharge.
Kimberly Rivera has been recognized by Amnesty International as a “prisoner of conscience.” She is the mother of four children, ages 11, 9, 4 and 2.
Kimberly Rivera’s request for clemency was accompanied by 495 letters of support, written by family members, friends, as well as members of Amnesty International from 19 countries.
“We have many organizations to thank for the outpouring of support for Kimberly Rivera, including Amnesty International, Courage to Resist, the War Resisters Support Campaign of Canada, Veterans for Peace and Coffee Strong,” said James M. Branum, civilian defense attorney for PFC Rivera. “We also want to recognize the tireless efforts of local supporters in Colorado Springs and San Diego who have taken the time to visit Kim in prison as well as to provide important support to Kim’s family in her absence.”
While the official clemency request is now complete, supporters of PFC Rivera are still encouraged to continue to speak out on her behalf. Letters in support of PFC Rivera’s clemency request can be sent directly to:
Brigadier General Michael A. Bills
c/o Fort Carson Public Affairs Office
1626 Ellis Street
Suite 200, Building 1118
Fort Carson, CO 80913
Supporters are also encouraged to sign an online petition posted at:
Photos: Top-Kimberly with husband Mario during her court martial. Middle-Kimberly in Canada prior to being deported. Bottom-Courage to Resist rallies outside Canadian Consulate, San Francisco CA, prior to Kimberly's forced return.
DE WITT, NY JUDGE RE-ISSUES HANCOCK AIR BASE DEFENDANTS’ EXPIRED ORDERS OF PROTECTION, SUPPRESSING THEIR FIRST AMENDMENT RIGHTS TO PROTEST DRONE WAR CRIMES THERE
In 2012 on October 25, seventeen U.S. Americans, as part of Upstate Drone Action’s ongoing campaign to expose the extensive killings of innocent civilians by weaponized Reaper drones piloted from Hancock Air Base, were arrested as they protested outside the base, blocking its three entrances.
Upon arraignment that day in the DeWitt, New York town court, the 17 were given year-long Orders of Protection (OOP), at the request of Col. Earl A. Evans, forbidding their return to Hancock, home of the 174th Attack [sic] Wingof the NY Air National Guard.
Typically a court uses an OOP to protect vulnerable women and children from domestic violence. In this case, according to defendant Ed Kinane of Syracuse, “the court is bastardizing the OOP to suppress our First Amendment right to petition our government for redress of grievance.” (On Oct. 25, 2012 the defendants had unsuccessfully attempted to bring a citizens’ war crime indictment to Hancock.)
Last night (Oct. 30) DeWitt court Judge David Gideon renewed the expired OOP until April 30, 2014 (or until the conclusion of the 17’s trial for trespass and disorderly conduct, now finally scheduled last night for 5 pm December 12.)
In a historic decision, five Catholic Worker activists were acquitted Thursday of disorderly conduct charges for blocking the main entrance to Hancock Air Base, home of the 174th Attack Wing of the Air National Guard, Syracuse, New York.
Hancock is a Reaper drone hub whose technicians pilot weaponized drones over Afghanistan. The five went “pro se," defending themselves in the De Witt town court of Judge Robert Jokl. In his closing statement Fr. Bill Picard said, "We pray for you, Judge Jokl, to have the courage to do the right and courageous thing."
After the verdict was announced, the D.A. objected, and the judge said to him that he hadn’t found mens rea, Latin for "guilty mind." The five defendants, with powerful eloquence, convinced the judge that their intent was to uphold, not break, the law. This acquittal marks a major breakthrough by those who have sought to strengthen international law, and stop U.S. war crimes, including extra-judicial murder by the illegal drones.
Defendant Carmen Trotta said, "We are happy to be part of a groundswell of opposition to the drones. What a joy to win such a verdict on what is officially United Nations day. We told the judge that we were not alienated citizens, but rather engaged citizens! Ultimately it seems he was moved by our consciences." Carmen noted the recent groundswell included Human Rights Watch, Amnesty International, the Bureau of Investigative Journalism, and the head of the Jesuits Order, Alfanso Nicolas, UN Special Rapporteur Mr. Emmerson, and the Nobel Peace Nominee, the young Pakastani girl shot for promoting education for women and girls, in Pakistan, all of whom have condemned drone U.S. drone strikes.
Defendant Linda LeTendre stated, "My hope is that dissent is once again welcome in the US and we turn away from killing to caring as a country."
Ellen Grady stated, "We pray and will continue to act that the children of Afghanistan, Pakistan, Somalia, Yemen, and all countries will some day soon be without the terror of drones or any wars!"
~ Fr. Bill Frankle-Streit of Virginia;
~ Linda Le Tendre of Saratoga Springs; NY
~ Ellen Grady of Ithaca, NY;
~ Carmen Trotta of New York, NY;
~ Fr. Bill Pickard of Scranton, PA.
Ash Wednesday Statement - Feb. 13, 2013
We come to Hancock Airfield, home of the National Reaper Drone Maintainence and Training Center, this Ash Wednesday, to remember the victims of our drone strikes and to ask God's forgiveness for the killing of other human beings, most especially children. The killer drone strikes and the US's killer drone policies have taken the lives of thousands in a number of countries, such as Afghanistan, Pakistan, Yemen, Iraq and Somalia. These strikes are illegal and immoral. Under international agreements, which the US has signed, the killing of civilians, extra-judicial murders, violations of national sovereignty, and violations of due process are ALL illegal acts.
We come to Hancock Airfield this Ash Wednesday to repent for the actions of our government and to ask God's forgiveness and the forgiveness of the people we daily terrorize with these drones. We remind ourselves that our lives are brief and mysterious, and that "from dust we were created and to dust we shall return!" The significance of our brief animation is the degree to which we love one another.
Lent is a time to repent--literally, to change our minds. It is a time to REMIND ourselves of Jesus' command to love our neighbors and our enemies. It is a time to REMIND ourselves of Jesus' radical, non-violent message love.
Stop the Killing. Ground the Drones. STOP the Wars.
What is the measure of a human being? Is it their wealth? Their wisdom? Their spirituality? Is it something that can be measured from the outside? What if it is something else altogether?
Each human being is genetically programmed with a drive to seek and find meaning in life and it will endeavour to do this throughout its life if it is allowed to do so. What constitutes ‘meaning in life’ varies from one individual to the next and is dependent on many factors (including the genetic endowment, social context and the natural environment) but the ultimate outcome would be what is sometimes described as consciousness or Self-realization in a form that would be unique for each individual.
WHO: Members of the National Campaign for Nonviolent Resistance [NCNR] have been active in challenging U.S. invasions and attacks of Afghanistan, Iraq and other countries. Frequently NCNR members have been arrested, and then in court speak out against such U.S. policies. On May 23, 2013 members of NCNR filed a criminal complaint with the U.S. attorney’s office in Alexandria, Virginia against the CIA’s use of drone strikes to assassinate people in various countries, including Pakistan. The citizen activists never received a response.
WHAT:Subsequently, NCNR gathered some 200 signatures on a letter to CIA Director John Brennan seeking a meeting to discuss ending the assassination program. Again there was no response. On June 29, 2013 six activists went to the Central Intelligence Agency hoping to arrange a meeting with CIA officials. While a CIA representative accepted the letter, he would not speak with the petitioners. Sothese petitioners engaged in a die-in to represent the victims of the assassination program. The police then arrested Joy First, Mt. Horeb, WI, Malachy Kilbride, Arlington, VA, Max Obuszewski, Baltimore, MD, Phil Runkel, Milwaukee, WI, Cindy Sheehan, Vacaville, CA, and Janice Sevre-Duszynska, Lexington, KY, and charged them with “enter or remain on installation without authorization.” Now they are scheduled for trial.
WHEN: Tuesday, October 22, 2013 at 9 AM
WHERE: U.S. District Court, 401 Courthouse Square, Alexandria, VA
WHY: Activists across the country continue to work to bring an end to the illegal and immoral killer drone strikes which have killed around 3500-4500 people, including hundreds of children, around the globe with no due process. The National Campaign for Nonviolent Resistance is one of the groups working against this assassination program.
When the citizen activists went to the CIA, over 60 people rallied at the gates of the CIA with speakers who have been to Pakistan and who have spoken to families affected by drone strikes.Of course, the CIA would refuse to meet with the activists, as the assassination program wreaks of unlawfulness. In court the defendants will argue they were authorized to be at the CIA, and should not have been arrested. The First Amendment to the U.S. Constitution confirms that they were authorized to engage with government representatives: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
NCNR citizen activists believe they have the right and a Nuremberg responsibility to highlight perceived illegal government operations. Moreover, the Nuremberg trials pointed out that citizens must act to prevent their government from further illegal activities.
It seems a child has said what most politicians choose to ignore. Malala Yousafzai met with President Obama. Philip Rucker of THE WASHINGTON POST on Oct. 11, 2013 wrote this: “Yousafzai said she was honored to meet Obama and that she raised concerns with him about the administration's use of drones, saying they are ‘fueling terrorism.’" And killer drone strikes are a blatant disregard of due process and an absolute waste of taxpayer dollars. The defendants intend to raise these points in court, and will continue their efforts to end the CIA’s assassination program, regardless of the verdict.
"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs
Cross-Posted from DeSmogBlog
In a major ruling that's flown under the radar, the U.S. Court of Appeals for the Tenth Circuit - based in Denver, Colorado - decided not to grant the Sierra Club and Clean Energy Future Oklahoma a temporary injunction on the construction of the southern half of Transcanada's Keystone XL tar sands export pipeline.
The Court's decision hinged on an "injury" balancing test: Would Transcanada be hurt more financially from receiving an injunction? Had it lost, it would be stuck with one until Sierra Club, et al receive a U.S. District Court decision on the legality of the U.S. Army Corps of Engineers' decision to grant Transcanada a Nationwide Permit 12 (NWP 12) for construction of what's now called the Gulf Coast Pipeline in February 2012.
Or would ecosystems suffer even greater and potentially incalculable damage from the 485-mile, 700,000 barrels per day pipeline crossing 2,227 streams?
In a 2-1 decision, the Court sided with Transcanada, and by extension, the U.S. Army Corps of Engineers. The Court ruled, "the threatened environmental injuries were outweighed by the financial harm that the injunction would cause Transcanada."
Commenting on the case brought by Sierra Club, et al, Judge Jerome A. Holmes and Judge Paul J. Kelly, Jr. - appointees of President George W. Bush and President George H.W. Bush, respectively - shot down the arguments sharply.
U.S. Appeals Court for the 10th Circuit Judge Jerome A. Holmes; Photo Credit: The White House
Holmes and Kelly ruled that Sierra Club, et al failed to show how the pipeline will have a significant environmental impact despite the fact it's been deemed a "fuse to the biggest carbon bomb on the planet" by retired NASA climate scientist James Hansen.
Construction of Keystone XL's southern half - subject of significant grassroots activism by the Tar Sands Blockade and others - is now nearly complete. Tar sands dilbit is slated to begin to flow through it in early 2014.
NWP 12: "New Normal" for Tar Sands Pipeline Approval
After protestors succeeded initially in delaying Keystone XL, Big Oil has chosen a "new normal" stealth approval method: the non-transparent NWP 12.
This avoids the more strenuous National Environmental Protection Act permitting process overseen by the Environmental Protection Agency (EPA), which requires public hearings and public comments for major federal pipeline projects. NEPA compels the EPA to take comments into account in response throughout the Environmental Impact Statement phase, allowing robust public participation in the process.
Sierra Club Staff Attorney Doug Hayes explained in an interview with DeSmogBlog that NWP 12 is for utility projects with up to a half an acre of stream or wetland impacts, and has never been used for tar sands pipelines before Keystone XL's southern half.
The southern half of the pipeline was approved via Executive Order by President Barack Obama in March 2012, directly after Obama gave a speech in front of a Cushing, OK pipeyard.
President Barack Obama speaks in Cushing, OK in March 2013; Photo Credit: White House
"The Corps is abusing the nationwide permit program. Nationwide permits were intended to permit categories of projects with truly minimal impacts, not tar sands oil pipelines crossing several states," said Hayes.
Utilizing tricky legal loopholes, Transcanada used NWP 12 to push through Keystone XL's southern half in February 2012, calling each half acre segment of Keystone XL's southern half a "single and complete project." The Army Corps of Engineers agreed despite the fact that Transcanada refers to the pipeline at-large as the "Gulf Coast Pipeline project."
"What the Corps is doing is artificially dividing up these massive pipelines, treating them as thousands of individual projects to avoid environmental review," Hayes explained. "In this case, there were 2,227 crossings of federal waterways, so the Corps has treated the Gulf Coast Pipeline as 2,227 'single and complete projects,' each of which qualifies under NWP 12."
Sierra Club Staff Attorney Doug Hayes; Photo Credit: Sierra Club
Why, I asked Hayes?
"The Corps artificially treats these massive pipelines as thousands of individual projects so as to qualify under NWP 12 and avoid NEPA compliance."
NWP 12 has also been utilized by Enbridge for the Flanagan South Pipeline, a 600-mile, 600,000 barrels per day pipeline set to shuttle tar sands crude from Flanagan, IL to Cushing, OK, crossing over 2,000 streams. That pipeline is scheduled to begin operations in mid-2014, demonstrating how NWP 12 is the "new normal" way to fast-track domestic tar sands pipelines.
Dissent: Laws Violated, Economic Harm Transcanada's Fault
Perhaps the biggest irony of the Appeals Court decision is that Judges Holmes and Kelly barely grappled with the central issue of the legal challenge to begin with: using NWP 12 rather than going through the NEPA process.
"The majority opinion avoided addressing the legal questions that are central to this lawsuit - whether the Corps violated the law in permitting this pipeline - and instead it was based on how much money a delay in construction would cost TransCanada," said Hayes.
Though Judges Holmes and Kelly stayed mum about these issues, dissenting U.S. District Court for the District of Colorado Judge William Martínez - an Obama appointee - did not, pulling no punches in doing so.
U.S. District Court for the District of Colorado Judge William Martínez; Photo Credit: Judgepedia
"Given the totality of the circumstances...I believe the...Gulf Coast Pipeline required a comprehensive NEPA analysis," Martínez wrote.
"There are also no specific findings in support of the Corps' conclusion that the Gulf Coast Pipeline, as a whole, would have minimal cumulative impact. The failure to consider the cumulative effects of all of the water crossings involved in the Gulf Coast Pipeline violates the terms of NWP 12, and, therefore, the approval of the use of NWP 12 for construction of the Gulf Coast Pipeline violated the law."
Though Judges Holmes and Kelly grappled with the issue of water crossings - belittling the amount of water Keystone XL's southern half would cross over - Martínez said it's about much more than just water.
There is "real and signifcant harm caused by the actual construction of the pipeline, including the clearing of trees and vegetation, removing topsoil, filling wetlands, building access roads, and clearing an eighty-five foot construction right-of-way for the length of the pipeline," he stated.
Hayes agreed with this assessment, pointing to examples of things the Judges simply ignored in their assessment.
"[T]he court's balancing test ignored the host of environmental impacts associated with this pipeline, including the risks of tar sands oil spills," said Hayes.
"Remember that the 2010 tar sands pipeline spill in Michigan is still being cleaned up, and so far has cost over a billion dollars. It's a bit of a Catch-22 to say that this is all just about a few acres of wetlands loss, when the whole point of this lawsuit is that the Corps avoided analyzing any of the pipeline's environmental impacts as required by NEPA."
Lastly, Martínez put the onus on Transcanada for its economic decision-making.
"Transcanada chose to incur its economic harm by entering into contracts for services before the Gulf Coast Pipeline was approved, even in light of the controversial nature of the Pipeline," said Martínez (emphasis his).
U.S. District Court Decision Forthcoming, Activism Persists
Sierra Club, et al now await a summary judgment from the U.S. District Court for the District of Colorado on whether Keystone XL failed the dictates of NEPA. It's a key decision, Hayes says, because "a ruling in our favor could prevent the Corps from doing this in the future."
While they await this lower court judgment, activists continue efforts to fend off these pipeline projects.
"This decision yet again demonstrates why direct action is necessary. The permitting process for Keystone XL's southern leg was illegal, yet regulators, inspectors, Obama, and the courts are failing to do what is necessary to protect the people and ecosystems threatened by this toxic pipeline," said Ron Seifert, a Tar Sands Blockade spokesman.
"If all the branches of government are so helplessly captured by industry that they will do nothing to stave off climate change, then the people must rise up and take the defense of the environment into their own hands."