On October 11th, the appeal of Mary Anne Grady Flores conviction for violating her Order of Protection was argued before the New York State Court of Appeals in Albany by Attorney Lance Salisbury. For those who are interested in better understanding the issues, I have posted a video of the press conference they held after leaving the courtroom below. The court will return a decision within 60 days from October 11, when the appeal was heard.
Video by Heriberto Rodriguez
Among those present with Mary Anne and Lance were Ed Kinane, Ann Tiffany, Julianne Oldfield, John Amidon, Kathy Manley, Kathy Kelly, Ellen Grady
Wednesday October 11thGrandma Drone Protester,
Mary Anne Grady Flores, Appeal to be heard by NYS Court of Appeal
2pm Ithaca, N.Y. On Wednesday, Oct. 11, 2017, the long-awaited appeals case of Mary Anne Grady Flores, one of many grandma drone protesters at NYS Hancock MQ-9 Reaper Drone Base, will be heard by the N.Y.S. Court of Appeals, 20 Eagle Street, Albany, NY 12207. Depending on the verdict, Grady Flores, who has already served 56 days, may complete another 65 days in Jamesville, Onondaga County Jail, E. Syracuse. The NYS Court of Appeals, the highest court in NY State, with a panel of seven judges, will render a decision in one to six months.
Watch tomorrow-Wednesday, 20 minutes: 2:15-2:40 pm NYS Court of Appeals Live Stream. At 3:15pm a press conference with Mary Anne’s attorney Lance Salisbury, drone activists Kathy Kelly, Ed Kinane, and others will be held in the park across from the court, posted live on Grady Flores Facebook page.
On Feb. 13th, 2013, Ash Wednesday, Ithaca Catholic Worker, Grady Flores took pictures of Catholic protesters from the road, unknowingly crossing what Hancock claims to be its boundary, “the double yellow line in the middle of the road.” Where she stood in the road violated her “order of protection” (OOP) which was given to protesters by a local DeWitt Court judge on behalf of Colonel Evans to keep protesters away from the base. In an appeal the OOP of another drone protester had been ruled invalid by Onondaga County Judge Brunetti because the OOP didn’t delineate how close or far people had to be from the base. Judge David S. Gideon sentenced Grady Flores to a year in jail to stop others protesters. Many, however, returned despite having an OOP.
Grady Flores’ appeal contends that an order of protections cannot be used on behalf of property. Normally OOPs are given on behalf of a victim or a witness. The use of a form of protective order developed to address domestic violence to deter protesters and chill speech raises important First Amendment issues in which NY Civil Liberties Union has taken an interest filing a friend of the court brief by NYC attorney Jonathan Wallace.
In Grady Flores’ 2014 sentencing she said, “Who is the real victim here? The commander of a military base whose drones kill innocent people halfway around the world, or those innocent people who are the real ones in need of protection from the terror of US drone attacks?” According to the Bureau of Investigative Journalism Drone Warfare page, approximately 10,000 people have been killed by drones since 2001. October 6th and 7th were the 16th anniversary of both the beginning of the Afghan war and the first US drone strike, with drone attacks worsening during the Trump administration. More US bombs and missiles were dropped on Afghanistan in September than in any other month for nearly seven years, higher than any month since November 2010.
Drone warfare is a profitable enterprise for numerous military contractors, making fortunes off of the murder of defenseless people around the world. Hancock is the largest training and maintenance center for the US MQ-9 Reaper drone program. Extra judicial killings are executed by Air Force crews sitting in front of computer screens in the Syracuse base, killing civilians in Afghanistan and Pakistan. In a five-month period in 2015, up to 90% of drone assassination victims were civilians. The base shares facilities with civilian Syracuse International Airport. Hancock Air National Guard Base has been the site of protests of the US killer drone program since 2010, resulting in over 200 arrests and numerous trials, appeals, numerous incarcerations some ending in acquittal.
Grandma Drone Protester Appeal Hearing Scheduled
Ithaca, N.Y. The long-awaited appeals case of Mary Anne Grady Flores, one of many Grandma drone protesters at Hancock MQ-9 Reaper Drone Base, will be heard by the panel of judges of the N.Y.S. Court of Appeals in Albany, on Oct. 11, 2017. Depending on the verdict, Grady Flores, who has already served 56 days, may have to complete 65 days in Jamesville, Onondaga County Jail, E. Syracuse.
On Feb. 13th, 2013, Ash Wednesday, Ithaca Catholic Worker Grady Flores took pictures of eight Catholic protesters from the roadway, unknowingly crossing what Hancock claims to be its boundary, “the double yellow line in the middle of the road.” Where she stood in the roadway violated a domestic violence, stay away “order of protection” (OOP’s) given by local DeWitt Court on behalf of Colonel Earl A. Evans of the 174th Attack Wing of the NY National Guard Base. In another drone protester appeal the OOP had been ruled invalid by Onondaga County Judge Brunetti because the OOP didn’t delineate how close or far people had to be from the base. Grady Flores’ OOP’s was from a previous nonviolent witness at the base, Oct. 25, 2012.
Colonel Evans testified during her 2014 trial that he didn’t know Grady Flores or ever speak with her. He said he, “That’s just a piece of paper. I just want the protesters away from my base.” Judge David S. Gideon sentenced Grady Flores to a year in jail, unsuccessfully trying to stop 50 others, many who returned to protest despite having OOP’s.
Grady Flores’ appeal contends that you cannot take an order of protection out on behalf of property. Her appeal, written by Ithaca attorney Lance Salisbury, also argues that the order threatens her First Amendment protected right of free speech. NYC attorney Jonathan Wallace of the National Lawyers Guild has submitted an amicus brief in support of her case.
The eight Catholics photographed were protesting Hancock Killer Drones, atoning for the killing and maiming of child drone victims on that February Ash Wednesday. They were acquitted of their only charge, disorderly conduct, explaining their intent was to uphold law and sound the alarm of laws being violated by the base, such as extrajudicial killing, violation of drone victims’ right to due process, violation of sovereignty laws. They contended they were there to enforce law, not there to break law.
Hancock is the largest training and maintenance center for the US MQ-9 Reaper drone program. Extra judicial killings are executed by Air Force crews sitting in front of computer screens in the Syracuse base, killing civilians in Afghanistan and Pakistan. In a five-month period in 2015, up to 90% of drone assassination victims were civilians. The base shares facilities with civilian Syracuse International Airport. Hancock Air National Guard Base has been the site of protests of the US killer drone program since 2010, resulting in about 200 arrests and numerous trials, appeals, numerous incarcerations some ending in acquittal.
Some Background Information:
Hancock Protester Mary Anne Grady Flores’ appeal will be heard in NYS Court of Appeals. She was convicted of violating an order of protection by standing in the street in front of the base taking photographs. The Ithaca office of Parole had submitted a pre-sentencing report that suggested Mary Anne should not be given jail time a she was not a threat to the commander or anyone else and jail time would severely impact her family and her job, but an irate judge Gideon sentenced her to a year in jail.
The OOP was requested by the Commander of Hancock Base at the time to keep known protesters from protesting at the base. Mary Anne was not protesting that day. She was doing press. The people arrested for protesting that day were acquitted of their disorderly conduct charges by Judge Jokl who found there was no intent to cause harm. In any case, should the base commander be able to use an ‘order of protection’ to secure the perimeter of the base property from unwanted information sharing? Does this really constitute a personal threat to him, and if not, how is the order of protection legal? These are among the issues that need to be addressed by the court.
Amicus Brief for Mary Anne Grady Flores
Jonathan Wallace has written an Amicus Brief for Mary Anne Grady Flores and submitted it to the Appeals Court on behalf of Upstate Drone Action. Mary Anne, one of the first Hancock protesters to receive an Order of Protection, decided not to press her luck and participate in the next civil resistance action outside the base. She did however come to the site of the protest and stand in the street photographing the participants. As she walked back to her car, she was arrested for ‘violating’ the terms of her OOP.
Since she was in a public road well outside the locked gates of the base while merely photographing the protesters, Mary Anne was completely surprised by her arrest. In her mind, she had followed what she believed was the intention of the OOP which was to refrain from protesting at Hancock Base and stay off base property. She later learned that the public thoroughfare she was standing in was leased by the base from the town, and subject to an easement allowing traffic to pass by.
At the trial, the Jury sided with a very aggressive prosecution that labeled her as an intruder in the affairs of the community and convicted her of not ‘staying away’ from the base. Judge David Gideon wanted to ‘send a message’ to the protesters so he sentenced her to a year in jail. By that time, the actual protesters she was photographing had already been acquitted of their Disorderly Conduct charges on the basis that there was no ‘intention’ to cause alarm or disruption.
Mary Anne’s case has been appealed and the appeal will be heard possibly in the fall. This is the context in which Jonathan wrote the brief. I have transcribed the introduction and summary portion of the brief in this post, but if you wish to read the whole brief you can click on the pdf link at the end of the post. I have also linked a copy of her Order of Protection so you can see what Jonathan references in his document.
INTEREST OF THE AMICUS CURIAE
Upstate Drone Action respectfully submits this brief as amicus curiae in support of Appellant’s argument that her conviction for contempt of an Order of Protection (“OOP”) violated the First and Fourteenth Amendments. Upstate Drone Action is a grassroots coalition founded in 2010 which, in its
own words, “seeks to expose – both to the public and to Hancock Air Force Base personnel – the ongoing satellite-facilitated Reaper drone war crimes perpetrated in West Asia and the Middle East by the 174th Attack Wing of the New York State National Guard stationed at Syracuse’s Hancock Air Force base”.
Upstate Drone Action has organized and carried out a series of peaceful protests on the public street adjoining, and in the access road to, Hancock Air Force base. Numerous members of Upstate Drone Action have been arrested during these peaceful protests and charged with obstructing government action, a misdemeanor, and disorderly conduct and trespass violations, and some have gone to trial on these charges. Almost from the very outset, authorities in the Town of Dewitt, where the base is located, have begun issuing OOP’s under Criminal Procedure Law Section 530.13, using the same blank form which would be utilized to protect a battered spouse or frightened witness, issuing these in the name of the colonels commanding the base. Appellant Mary Ann Grady was arrested for violating her OOP at an Upstate Drone Action demonstration. Three other members of Upstate Drone Action currently face contempt charges for OOP violations, which have been adjourned by a DeWitt Town Court judge without date pending a decision on this appeal.
STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT
Amicus maintains that the OOP issued to Appellant violates the First and Fourteenth Amendments, and the New York State Constitution, because:
It is so vague as to offend Due Process, in that it fails to contain any geographic limitation whatever or other clarification as to the meaning of its terms, including the phrase “stay away”;
Appellant’s actions, peacefully photographing a demonstration on a public thoroughfare, were First Amendment protected and cannot Constitutionally be construed as a misdemeanor violation of the OOP;
The OOP fails the “intermediate scrutiny” test applicable in First Amendment cases involving content neutrality, in that the OOP itself, and Appellant’s arrest pursuant to it, were not “narrowly tailored to a significant government interest, while allowing ample alternative means of communication”; and
The OOP constituted an unlawful prior restraint on Appellant’s speech.
Click icon to read the entire brief:
Hancock Nativity Tableau Charges Dismissed
FOR IMMEDIATE RELEASE contact: Ed Kinane 315) 478-4571 home
10 March 2017 John Amidon 518) 312-6442 cell
CHARGES DISMISSED AGAINST 12/23 “NATIVITY FOUR” HANCOCK REAPER DRONE PROTESTERS FOLLOWING LAST WEEK’S JURY ACQUITTAL OF THE “BIG BOOKS” HANCOCK DRONE PROTESTERS
In a surprise move, DeWitt Town Court Judge David Gideon dismissed charges against all four* Upstate Drone Action activists protesting the hunter/killer MQ9 Reaper drones piloted over Afghanistan by the 174th Attack Wing of the NY National Guard at Hancock AFB just north of Syracuse NY.
The four had staged a December 23, 2016 “Nativity tableau” in front of Hancock’s main gate, at 6001 East Molloy Road in the Town of DeWitt. The four protesters were charged with trespass, disorderly conduct and obstruction of government administration. (OGA). OGA is a misdemeanor requiring a jury and carrying up to a year’s sentence.
Judge Gideon explained last night’s dismissal by noting that the accusatory documents provided by Hancock repeatedly referred to the 12/23 “Nativity” arrests as occurring on Federal property – which the Judge declared outside his jurisdiction.
In a three-day trial culminating on March 2, 2017, also before Judge Gideon, a six-person jury, after deliberating about a half hour, acquitted all defendants of the same charges for their “Big Books” action at Hancock on March 19, 2015
A six person jury acquitted Hancock Big Books Protesters 2 years after demonstration resulted in arrests. The trial of Hancock protesters, Ed Kinane of Syracuse, James Ricks and Daniel Burns of Ithaca and Brian Hynes of Brooklyn, began on February 28th with jury selection, and ended after 11 pm on March 2nd with all defendants acquitted. They were tried before Judge David Gideon on charges of trespass and 2 counts of disorderly conduct, all violations, and on misdemeanor charges of Obstructing Governmental Administration (OGA).
Two others, Bev Rice of Manhattan and Julianne Oldfield of Syracuse have yet to be tried as they have additional misdemeanor charges of violating Orders of Protection. It is ironic that these two women, both over 70, will be facing an additional charge for approaching Hancock Air Base due to an order protecting the Colonel who runs it.
James Ricks and Brian Hynes were pro se before the court, i.e. they represented themselves in the proceedings, while Ed Kinane was represented by Jonathan Wallace of NYC, and Daniel Burns was represented by Daire Irwin of Buffalo. The defendants met with their lawyers and advisors every day in early to mid afternoon and were in the courtroom from 5pm till after 11pm. The first day, the court proceedings got off to a late start (from the standpoint of the audience) due to general discussions about the instructions that would be presented to the jury.
The following is taken from my notes. My personal comments are in brackets . Dan’s drawings give a visual sense of the courtroom. On the last day, the jury went to deliberate after 10 pm. They were tired and we thought they might be out a long time. After about 15 minutes they asked to have the charges read to them again. Apparently they don’t get written copies of them (how weird is that?). Less than 10 minutes after they went out again, they came back with the verdict. By now it was after 11 pm. Everyone was exhausted and we were expecting the worst. It was so uplifting to hear the charges recited one after another for each defendant, and the Jury Forperson respond “Not Guilty”. Wow!
So, here is how it happened:
————————— Tuesday: Jury Selection —————————
After a jury pool of some 30 people was admitted to the courtroom and seated, Judge Gideon read several pages of instructions to them. Finally, the first 10 candidates were called up to the jury box for questioning. Judge Gideon again read instructions at some length. He then asked some basic questions of the prospective jurors regarding their ability to be impartial before calling on the assistant district attorney (ADA) to present his own questions. Mr. Albert told the jury that there are consequences to one’s actions, and asked if they could hold the defendants accountable for their actions. He presented a very broad understanding of ‘intention’. He says that the case is simple and he is only going to present one witness. On hearing the testimony of that witness, they can use their common sense to decide whether or not they believe his testimony.
Defense attorneys and pro se defendants now had an opportunity to interview the prospective jurors. Brian Hynes begins by telling them that the facts of the case are not in dispute. There is general agreement on “What Happened”. What the prosecution needs to show is that a ‘crime’ was committed. Over the course of several interviews, the defense team introduced themselves to the prospective jurors and asked them questions about themselves and their lives.
The defense wanted to know how the jurors felt about authority. The defendants have strongly held beliefs but the trial is about their right to express those beliefs. Can you be fair if you disagree? One gentleman became quite confrontational with the members of the defense team. One of the two black women who were brought into the jury pool to increase the diversity approached the bench to speak to the Judge, then left. She apparently had asked to be excused and her request was granted.
They asked about their relations with the military and whether they had ever heard of ‘civil resistance’. Did anyone know what it was? Is it ever acceptable to break the law? Notable examples were raised; Rosa Parks, Martin Luther King, the Boston Tea Party; strikes. Any union members here? The judge’s rules say that each individual should be judged separately but Jonathan emphasizes that all the defendants are the same, whether or not they have a lawyer. Some will speak more than others, but we ‘the defense’ don’t have to say anything.
James Ricks introduced himself to the jury and asked if they were intimidated by the Judge’s recitation of the rules. It was long and complex and somewhat redundant. A woman sitting behind me said that it was the substance a semester class in the first year of law school. James introduced himself and asked the jury whether they felt intimidated by the lengthy (and at times tedious) rendition of the rules “I find it intimidating”, he said. There were numerous instances of Judge Gideon reading extensive (and often redundant) instructions to the jurors during the trial. They went on for tens of minutes. I don’t know if every judge does this. It seems to me to be one way in which Judge Gideon asserts his authority, although, as he directly states, they are actually the final arbiters in the case.
The first group was finally considered and four jurors were chosen. Another group of ten were called. Perhaps Judge Gideon heard James because he shortened his recitation of the rules and allowed the attorneys to proceed with their interviews. Jonathon tells them that the prosecutor will try to prove that a crime happened. Are they comfortable understanding that? Midway through this process, a second juror comes forward to speak to the judge. After a consultation with the attorneys, she returned to the jury box. However, she was not chosen for the jury. Is it possible that two people quit the jury because they could not be impartial? Could it be that neither could see the obvious crimes committed?
Finally, the prosecutor, judge and defense team retired to select the final 2 jurors and an alternate. On their return, the entire jury was convened, and Judge Gideon once again read at length from the document on his desk stating the rules and responsibilities of jurors.
—————- Wednesday: The Trial Begins ———————–
Judge Gideon reads the rules to the Jurors.
————————— Opening Remarks —————————
Prosecution is up first. Mr. Albert says he will provide a ‘roadmap’ of the case. He describes what happened. He is confident of his description of the crimes committed, which he presents in ordinary words that are subtended by a lot of assumptions about the context. The protesters blocked the entrance to the base for over an hour. They didn’t cross the street when asked to do so. He says that the case is about the ‘law’ not about ‘beliefs’. The case is not complicated and he will call a witness who is responsible for security at the base to explain events.
Protesters come to the base twice a week, and there are normally no arrests as they abide by the restrictions. He neglects to mention that they are the same protesters who are here in court today for not abiding by those restrictions.
Mr. Albert welcomes the burden of proving the facts of the case beyond a reasonable doubt. Not complying with instructions from an individual in authority is disorderly. Standing on base property is trespass, no matter that they were outside a ten foot fence topped with barbed wire and in an area generally associated with an easement. The presence of the protesters caused a nuisance for base personnel thereby obstructing Governmental Administration.
Brian Hynes Opens
Brian begins by saying that this case is not like a typical courtroom drama on TV which begins with a crime scene. The police have to figure out what happened and apprehend a perpetrator. Then there are accusations and denial; finally a verdict. That is not the case here. The prosecutor and the defendants agree on the facts. The question is whether what happened violates the law or upholds the law. The verdict is not a determination of what happened. Exercising our right to defend ourselves is an extension off what we began at the base.
All of these codes take place within a context. We brought information about that context to the base. that context supersedes all of these other laws you have heard about.
Among the Big Books brought to the base were Dirty Wars, Living Under Drones, The United Nations Charter which was ratified by the US Congress. The preamble to the UN Charter begins:
“WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.”
The protest we began at Hancock Base was constitutionally protected speech. This trial is not about a protest. It is a protest. It is a sustained, disciplined, nonviolent protest that you are now a part of.
After 16 years, the War on Terror has become and open ended search and destroy against civilian militants that kills 9 unintended civilian victims for every target. We are caught up in a crisis of policy which none of us is completely responsible for, but none of us can fully escape responsibility. We fight by legal means to restore our government function to the law.
James Ricks Opens
He greets the jury and shares that he has Native American ancestors. He said “I find it hard to be charged with trespassing on land that has been basically misappropriated. After crimes you committed against my ancestors it is no wonder you do so with such a deservedly paranoid view. He went on to say “The evidence will show that my co-defendants and myself are innocent of these charges and that the charges are a very thinly veiled smokescreen to divert attention from the real concerns and reasons that we were there that day, that they are committing war crimes on that base.”
Daniel Burns Opens
He said”This is a case about the killing of people, women, children, the elderly . . .” He said “This is a case about citizens’ obligation to stop war crimes.” He said “This is a case about hope for a better world and the responsibility we have to one another . . .”
He said, ” I nonviolently upheld domestic and international law. Drone war is premeditated murder, which we all know is illegal. Drone killings . . . violate the ban on assassinations and they violate the policy that due process be granted before deprivation of life. They not only violate US state and federal law, they violate the military code of conduct and they violate international law. Since 1986 it has been illegal for US agents to assassinate people in other countries”. Gerald Ford Signed a Presidential Executive signed disallowing assassination, which was later affirmed by Ronald Reagan.
Daniel quoted article 2 of the United Nations Convention which says that it is illegal to use armed force except in self defense, and even then only in a manner proportional to the attack you are confronting and not punitive in nature. Furthermore, he said that the UN Charter says that if you know your country is committing a crime and you do nothing to try and prevent it, you are guilty before the law. “The US is not in authorized [by the United Nations] combat in Pakistan, Somalia or Yemen. Therefore it is illegal to kill there. ” The US government justifies these actions as anticipatory self defense. Would the United States allow this on our territory?
Jonathan Wallace Opens
Jonathon began by telling a story that is related in both the old and new testaments of the Christian (and Jewish) scriptures. This is the story of the rejected stone that eventually becomes the cornerstone of the structure. The stone is initially rejected because it is different, and only used when all other options fail. It proves to be strong and stable. New ideas take time to be heard but they carry us forward.
Jonathan tells the Jury he is interested in speech. He says, “What you are doing is the cornerstone of our legal system.” He says “Words that seem to have an obvious meaning may not. Think about the meaning of words.” “The trial isn’t about what Mr. Albert says or what I say. It is about your beliefs [understanding]. You may have to decide what a ‘lawful order to disperse’ is.”
The defendants mocked up Big Books to communicate a message to government officers and staff at the base. They presented a new stone. Was there a lesser way for the government to respond to this attempt to communicate? Whether you agree with their message or not, the first amendment guarantees that:
“Congress shall make no law  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.”
Jonathan told the jury “You are not expected to become androids for jury process, but to bring your own experiences to the process; to bring that humanity to your determination. If you find one of the pieces of the law missing then maybe you have to acquit – or not. Do you need all the parts to convict? The judge will inform you. [you do] ” There is an old saying: “I disagree with what you say but I will fight to the death for your right to say it. That may be this instance.”
————————— Testimony —————————
The Prosecution calls Chief Master Sargent Michael Ramsey
Chief Master Sargent Ramsey has been at Hancock Air National Guard Base since 1991. The point wasn’t made, but he had just returned from deployment to Iraq in Operation Desert Storm at the time. In April of 2001, just before 9/11, he became Chief Master Sargent.
In his testimony, Chief Ramsey described the front gate at Hancock base on East Molloy Rd as the primary point of entry and exit used by both civilian and military traffic. He said there is lots going on at the base beyond the drone related activities of the 174th Attack Wing. It is the Headquarters of NY State National Guard and the initial processing location for recruits in all branches of the military.
He said that there is an easement of about 60′ from the center line between East and Westbound lanes on East Molloy Road. There is a blue line at the end of the access road, though it is unclear what it designates. At least in some cases it has acted as a ‘property line’. There are 2 other gates on either side of the base, one on Thompson Rd and the other on Townline Road. These gates are normally not open except for some deliveries. There is also access to the base through Syracuse Hancock International Airport which shares some facilities with the base.
When Chief Ramsey became aware of the protesters along the road outside the front gate, he had the gate closed and the Thompson road gate opened. The process for opening the side gate takes 10 – 15 minutes. He also deployed security officers to greet vehicles that entered the turning lane on East Molloy road and redirect them to the Thompson road gate. He said that he closed the gate immediately for the protection of the protesters. It would be dangerous for them to go through the gate into the base.
On March 19, 2015, the protesters arrived around 9 AM, and removed the Big Books from a U-Haul, placing them in locations across the bottom of the access road.
They were in the road for about an hour before he pressed them to move. He didn’t ask them to leave immediately as he was waiting for enough local police to arrive to arrest them individually one to one. There is an agreement in place that outside the gate that surrounds the base property is the jurisdiction of the local authorities and not the military authorities. He did go out and speak with them. He wanted to make sure they were on an even keel and that they were aware that they were on base property.
The second time he spoke with them he addressed each individual personally and offered him or her the opportunity to cross the road and join the other protesters. He told the that if they did so, they would not be arrested. Mr. Albert asks whether anyone on the other side of the road was arrested. Ramsey replies “No”.
Mr. Albert shows clips of video from the base security cameras so the jury can see the actions of the protesters. There are 7 – 10 people standing between the Big Books in the access road, and a group of people on the shoulder of the road across the street holding signs. People cross back and forth across the street periodically and base personnel walk among the protesters and into the road. The Books are light so, when cars drive up them on exiting the base, they move the Books and allow them to pass.
Chief Ramsey identifies the defendants in the courtroom as the protesters he spoke with that day recognizes them by name, but in the listing he has made of the video, mapping events to time-stamps, the protesters are referred to as ‘protester 1’, ‘protester 2’, etc. not identified by name. He says he told them that if the don’t cross the street they will be arrested. You can see him in the video walking from one person to the next but there is no sound. Finally, we see law enforcement officers arrive and arrest the protesters, knocking over the Books as they approach them.
There is a second video that shows events along East Molloy Rd. You can see the blue line at the end of the access road on the left and Chief Ramsey says that the line demarcates the property line. I find myself confused because he previously stated that the property line is at the double yellow lines in the center of East Molloy Rd. In any case, on the left side of the line is base property. Master Sgt. Ramsey says the town has given permission to the base for exclusive ownership to the left of the blue line. There is a Big Book on the blue line, and there are people to the right of the line. After a while the Books are moved inside the blue line, i.e. to the left of the line.
The blue line interests me. Base personnel have given inconsistent definitions of the property line at different trials over the years. Common sense does not suffice to bring understanding. The base is surrounded by a ten foot fence with two feet of barbed wire at the top, and there is a Guard Shack next to the opening which is manually closed by a rolling gate. It isn’t surprising that the base claims the property to the road since that is normal. The grassy area along side the road is usually an easement so that work can be done on and pedestrians can pass by.
This was the assumption by everyone at our first couple of protests. Then, suddenly, we found out in court one day that the base owns the property to the center of the road; and the easement is not viable in certain cases. Two years ago, Mary Anne Grady Flores was sentenced to a year in jail for standing in the west bound lane (on the same side of the base) of East Molloy Rd. taking photos. She walked back and forth across the street and at one point her shadow touched the blue line. But, when the final warning came (as it always does) she crossed to the opposite shoulder of the road and then left the scene.
So, after the discussion of what happened, facilitated by the video, Daire Irwin was the first to cross examine Master Sgt. Ramsey.
Daire Irwin’s Cross
Daire asked Chief Ramsey if he was trained in New York State law. He said the he was not. His job was base security. He then asked him some questions about the function of the base. Ramsey said it was responsible for both weaponized and surveillance Reaper UAVs. Daire asked for a clarification. A UAV, and unmanned aerial vehicle is another name for what is commonly called a ‘drone’. Ramsey said that he isn’t a member of the 174th. He is in charge of base security and law enforcement. He knows that they fly Reapers locally to Fort Drum and back but he isn’t privy to their mission briefing. That information is classified in any case.
Daire showed Chief Ramsey photos of the demonstrators holding signs with words on them and of the Big Books they brought to the base. He asked him what the protest was about. Ramsey said he didn’t know exactly. They don’t like the drone mission. He was dismissive of the details. He said he lets people talk, but he doesn’t necessarily stop this or that protest unless the protesters are on base property. Did he notice what any of the books were? They are representations of actual books.
Daire shows him photos of the books, The Constitution, The United Nations Charter, Dirty Wars, Living Under Drones and You only Die Once. Was he familiar with Article 6 of the Constitution? It says that treaties signed and ratified by congress become the “supreme law of the land.” Ramsey didn’t seem certain. “Are you sworn to protect the Constitution?” Daire asked.
Chief Sgt. Ramsey did not remember many details about the books but he said that he is familiar with “Dirty Wars”. “Dirty Wars”, a book by Jeremy Scahill, describes the brutal actions of JSOC (Joint Special Operations Command Units) and Drones in Afghanistan, Yemen and Somalia. Did he know about the many civilians killed by drones? About the American citizens killed by drones? They include a 16 year old boy from Colorado.
Daire further questioned the fact that the gate was closed on the arrival of the protesters to ‘keep them off the base’. Would the closed gate not be a visual barrier to those who wish to enter? The protesters were letting people out. There was no clear reason to believe they would not also allow cars and deliveries to come in. However, no cars approached the protesters and asked to be allowed to pass. No car was deliberately barred from entry by the protesters. Ramsey concurred that the protesters were courteous and cooperative except that they did not leave when asked to do so.
The hour or so of the demonstration passed while waiting for local police to show up to clear the driveway including the right of way and easement up to the blue line. Even so, to his knowledge no deliveries to the base were missed and no one was absent from work. He checked. Local law enforcement decides what the charges will be. They typed up Chief Ramsey’s statement together.
Jonathan Wallace’s Cross
Chief Ramsey is in charge of security for the entire base, of the 300-500 people who work there, about 30 work for him. Asked for a clarification, Ramsey said the blue line is a ‘Stop Line’. The gate is visible to approaching cars on East Molloy Rd. Eleven local police and five or six base personnel were involved in the arrest. Did the anyone request that the protesters move the books? No.
Members of base security tell people not to go through or past the protesters as the contact may cause a confrontation. No protesters at any time interacted with the vehicles. The gate is closed to make certain the protesters won’t try to get into the base. The drivers do not interact with the protesters or vice versa. The scene is managed.
Jonathan says that other protests occur at other times where people chain themselves to fences or to one another and create blockades that take hours to dismantle. Chief Ramsey says these protesters don’t do anything like this. Ramsey estimates he has attended about fifty demonstrations at the base. They were all nonviolent events. At some demonstrations the protesters stay on the far side of the road and don’t cause any trouble at all.
Jonathan asks what Governmental Functions did the protesters interfere with? Ramsey says it is “Keeping traffic open in the driveway”. Interesting. At some trials there were serious clarifications about whether it is a driveway or an access road. It seemed to matter. In this moment it clearly doesn’t.
The prosecution rests.
Mr. Albert asks if Chief Ramsey can stay in the courtroom now that he has testified. Of course. He always attends our trials.
—————– Motions ——————–
The jury retired. Mr. Albert had no motion. Jonathan Wallace made a motion to dismiss all charges. He said that the prosecution did not prove all of the necessary elements of OGA. OGA is a misdemeanor, but in this case the specifics are redundant with the violations. He says “It wasn’t the intention of the legislature to have violations automatically elevated to misdemeanors” with no additional elements. He goes on to say that the OGA charge requires that physical force is involved. The law specifically requires ‘intimidation, physical force and interference”. “Ramsey”, he says, “informed us of the opposite. ” There is nothing to escalate out of the level of a violation.
He goes on to say that the disorderly conduct charge doesn’t stand up. There was no intent to obstruct. It seems like the base is vested in the game. The protesters should no show up and the should be obedient. No effort was made to avoid a confrontation or to receive the message. There is no evidence that anyone was impacted by the actions of the defendants. Every element is missing.
Finally, with regard to the trespass charge, Ramsey did not place everyone at the scene. He recognized the people here, but didn’t remember who was there until he saw them in the video to refresh his memory. Without Lt. Dailey here (the local policeman who was in charge at the scene) there is no specific enough description of a lawful order to disperse to satisfy the charge. Chief Ramsey spoke with the protesters, but he does not have jurisdiction outside the fence.
He further asserted that the blue line has no legal standing. It seems more like a ‘stop line’ than a property boundary. Ramsey had conceded this point. There was no intent on the part of the protesters to cause inconvenience, annoyance or alarm. The principal intent was to communicate. They were cooperative and peaceful.
There is no claim that the protesters obstructed pedestrians. But the disorderly charge states that they obstructed traffic and pedestrians.
The disorderly conduct charge requires that people congregate in a public space therefore is inconsistent with trespass. There was no ‘lawful order’ by the police and no testimony that Ramsey is the police.
With regard to the First Amendment, the reaction of the government has to be narrowly tailored to a significant government interest in creating an appropriate channel of communication. This is needed for the trespass charge, but was not proven. The arrest did not allow ample alternative for communication. It was not in the government’s interest to take no action other than to arrest the protesters. “First Amendment rights must be protected!”
All of the defendants joined in this motion.
Daire Irwin argued a motion to drop the charge which required warnings by the police. There was no testimony by the Sheriffs department and it was not proven that there were multiple warnings by members of the sheriffs department.
Jonathan’s motion was rejected but Daire’s was upheld and one count of disorderly conduct was dropped. Judge Gideon (and perhaps all court officials) likes narrow technical arguments.
The Defense Opens with Witness from James Ricks
James begins by explaining that the birth of his young grandson was a seminal moment for him as an activist and a black man. The same year, a back man named Sean Greenwood was killed under suspicious circumstances by a white police man in Ithaca. The two men had attended high school together and had a history of poor relations. Even so, no charges were brought against the man who killed Sean Greenwood. The killing was ruled ‘accidental’ by an internal police department inquiry. James was concerned for the kind of world his young grandson, Hassan, would live in. Eight year old Hassan was in the courthouse with his mother for the duration of the trial.
James then attended a meeting with drone activists where he learned that people in several countries were being assassinated by US drones on a daily basis. Not only were the targets not given due process, but in most cases significant numbers of innocent civilians who happened to be in the vicinity were killed with them. Drone deaths are never accidental. They are planned. The deaths of innocents are factored in as ‘collateral damage’.
James read the United Nations Charter to find out what it had to say about these killings. The UN Charter, Article 2 states the following:
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter
According to Article 6 of the U.S. Constitution, violating the U.N. Charter, legally signed and ratified by the U.S. government is a violation of the Constitution. Corruption in our government has allowed powerful forces to cross the threshold. The law exists to protect the vulnerable.
James talked about his trip to Pakistan and Waziristan in 2012. He met Karim Khan there. Karim Khan is a well educated journalist from Waziristan. His younger brother and his teenage son were killed by a drone strike on his house. Karim Khan has spent time in Texas. He loved America, but now he is better. James held up a photo of Karim Khan with photos of his dead brother and son.
Military attacks without United Nations Security Council approval are going on in Hancock base. They are committing war crimes on the base. We have tried to present an indictment accusing the chain of command of these crimes but it was rejected. It is the chain of command that he holds responsible and not the enlisted men working on the base. However, he said, “it is our duty to stop that base from killing innocents”.
James also pointed out that the military base, because it is directly engaged in acts of war makes the base and the local community a war zone, i.e. a legitimate target for retaliation.
———- Thursday: More Witness Testimony, Closing and Verdict ———-
Mr. Albert Cross Examines James
I didn’t record the questions but James made the following points during cross examination:
He has tried repeatedly to deliver the indictment.
The base is committing war crimes in violation of the U.N. Charter and the Constitution of the United States.
He understands that Chief Ramsey has to do his job. He likes Ramsey because he once compassionately escorted James’ friend Louis across the road. However, he does not remember being invited to cross the street on the day of the Big Books protest. He saw the police and thought, “Oh Good! War Crimes are being committed on the base. ” The next thing he knew, his hands were cuffed behind his back.
Jonathan Wallace calls Ed Kinane to Testify
Ed is a Syracuse native who earned his graduate degrees at Syracuse University. He has traveled to foreign countries as a peace advocate with the Peace Brigades, Witness for Peace and Voices for Creative Nonviolence. He has traveled to Afghanistan, Guatamala and El Salvador, Sri Lanka, Iran and Iraq. He spent five months in Iraq with Voices for Creative Nonviolence during “shock and awe”. They visited hospitals and saw casualties. He believes that aerial bombardment is a form of terrorism. Thousands of people die. Living in Iraq during this period, he saw the dignity of the Iraqi people under these circumstances.
In the U.S. in 2009, he became aware of the drones at Hancock Air National Guard Base. Reaper drones fly 24/7 over Afghanistan, Pakistan, Yemen Somalia and other countries. He was disturbed by this understanding that robotic planes controlled from ‘here’ were responsible for bombardment in these countries. He wrote letters to the editor, published on national and international websites. In 2010, he began the vigil across the street from the base twice a month. They stand there at rush hour and hundreds of cars pass by.
Our taxes pay for the drones, Ed said. The killing is done in our name. What is it about the drones? This is my home town. We have to protest against the crimes of our government. This was the judgement of Nuremberg. If you know your government is perpetrating war crimes you have an obligation to expose those crimes.
How do drone operations translate to war crimes. Not much information gets out about what the drones are doing from the areas where the strikes occur. There is not much reporting going on. The military is secretive.
We have a tableau at the New York State Fair every year. We try to show the destruction that drones perpetrate. We have a drone model we put up, and in front of it, a die-in with people lying on the ground covered with bloody shrouds. We show the wreckage of their homes in the background. People stream by going in and out of the fair. It is educational. People ask ‘what is a drone’? ‘Do drones save lives?’ The answer is ‘no’.
Drones are tactically clever but strategically stupid. They can be used as a tool in a context where you can’t send regular troops. But they create hostility towards the United States. When families are incinerated it creates hostility towards U.S. people, the U.S, military and U.S. interests. Drones are a cowardly and despicable tool.
Drones are a tool of war. What is the difference between a drone and a battleship. For starters, battleships are not here in New York. Drones are a whole new form of warfare. There is no way to defend oneself. A strike comes from the heavens. You can’t even see the drone that launched the strike sometimes. Hundreds of thousands have been displaced out of fear.
Drones implement a kind of warfare that depends on assassination. The United STates has laws against assassination. This kind of warfare is not worthy of us. For every ‘target’, 9 others are killed. Targets are not just named militants. There are strikes targeting patters of behavior. Men gathering in a meeting; men carrying guns – nearly everyone in these rural areas carries a gun.
Do we know the result of drone warfare? Yes, It is documented. They use double tap strikes. The second strike incinerates rescuers who come to the aid of the victims of an initial drone strike. There are triple tap strikes, where the funeral of the victims is targeted by further drone strikes.
People are very concerned about refugees right now. For instance, there was a protest at Hancock International Airport against those who would reject refugees and about 1000 people attended. Right around the corner, Hancock Base is part of the problem. People have no clue. Hancock Base shares the facilities of the Hancock Airport. It is wrong to expand the use of civilian facilities for warfare. It makes the region a war zone, a legitimate target for retaliation.
We have an organization to support our activism. It is called Upstate Drone Action. Ed goes on to talk a little about the ‘Big Books’. He is intimately familiar with their content.
“Living Under Drones” presents research by a team from NYU. They interviewed people in communities that were frequently subject to drone attacks and survivors of drone attacks. The people in these regions live in constant fear.
“Dirty Wars” is a book by Jeremy Scahill that describes actions by the Joint Special Operations Control and by drones in Afghanistan, Yemen and Somalia. He interviews many people including survivors and perpetrators. He talks at length to the family of Anwar Awlaki and his 16 year old son Abdulrahman, both killed by drone strikes in Yemen. What is ‘terrorism’? It is violence or a threat of violence towards civilians for political gain. What is ‘assassination’? It is killing without due process.
“You Never Die Twice” is another research paper from the human rights organization, Reprieve. It investigates the number of strikes required to kill a particular target and the number of innocents killed along the way – collateral damage. On average four separate operations occurred targeting an individual before he was actually killed (present). Each time, the target was reported as killed and then later found to be still alive. As many as 41 innocent persons were killed in the process of ‘taking out’ a single target.
Other defendants talked about the United Nations Charter and the U.S. Constitution at length so I will leave that here.
Mr. Albert Cross Examines Ed
Under cross examination, Ed states that he has been to the base to protest over 100 times. He has, on occasion ‘risked arrest’ there.
——————————- Closing Remarks —————————–
Judge Gideon proceeds to inform the jury that their sworn duty as jurors is to follow his instructions as to the law over the interpretations of the lawyers and pro se defendants.
Daire Irwin Closes
Daire tells the jury that all of the defendants are the same. Some did not testify, but that was not because they are any more or less guilty. Testifying is nerve wracking. He tells the jury that they are the most important element of the trial.
He reminds the jury that we talked about the First Amendment and Religious freedom. The defendants were morally and ethically compelled to act as they did. Sunshine is the best disinfectant. The case is not content based. What if it was military appreciation day. They still have to consider the issues of free speech.
The testimony of Lt. Dailey (the responsible police officer) is missing. Who is innocent? Everybody is innocent until proven guilty. A jury trial is a public trial and is based on the presumption of innocence. The defendants are only guilty if you say they are guilty.
Be true to yourself and follow your conscience. Do what you feel is right.
Jonathan Wallace Closes:
Every trial is a temporary community. This is a valuable context. We are all in that community, protesters, Chief Ramsey, base personnel, court officials and yourselves. Peaceful demonstrations are not an act of defiance, but an act of cooperation.
The elements of Obstructing Governmental Administration require that the defendants intentionally obstructed, impaired or perverted government function by physical force. There is no proof that these defendants did so. Sometimes words stop thought. The words aren’t a crime. Only physical force would be a crime.
With regard to the Trespass charge, the warning was unclear. The elements of the Disorderly Conduct charge require that the defendants stopped vehicular and pedestrian traffic so as to cause alarm, annoyance or inconvenience. It is unclear whether the defendants stopped vehicular traffic and they clearly did not interfere with pedestrian traffic.
Speculation is not evidence.
Brian Hynes Closing
We were Educating the base. Someone has to settle the questions. You the jury are like kings and queens. You can decide whatever you feel is correct. The facts are not in dispute. What you have to decide is the meaning.
There is a circumstance that demands attention. There is no fact that isn’t already embedded in some context of meaning. No crime was committed. You are free to respond in a way to what you hear. You have the right to acquit for any reason that appeals to your imagination. The elements given in testimony, drone operations wreak havoc on our neighbors, drive recruitment of enemies and traumatize operators. The protesters symbolically closed Hancock. [This is the difference between ‘civil resistance’ and ‘civil disobedience’. ]
James Ricks Closing
You can’t yell ‘fire’ in a crowded theater. But what if the building is really on fire”.
We each took an oath of nonviolence before going to the protest. We do this every time we have a demonstration. We came to deliver an indictment. War crimes are being committed on the base in violation of the U.N. Charter and the U.S. Constitution. It would seem that these words and these documents are meaningless. There is a need for oversight and accountability on the part of our government. James saw the truth of drone strikes when he visited Pakistan and spoke with drone victims.
I don’t want my country celebrating the death of any living being. Secret justifications of what appear to be illegal actions are disingenuous. Our government is becoming a law unto itself. Speaking truth to power is troubling and it can be dangerous. Our charges are a diversion from real crimes.
Prosecutor Albert Closing:
Use your common sense. You saw with your own eyes. Listen to the Judge’s instructions and follow the law.
Pre Analysis of “Big Books” Trial #1
Our three-day Hancock trial in De Witt ended around midnight Thursday (3/2) and, exhausted, we scattered to the winds — some of us with long trips home. Hence only minimal de-briefing or analysis. but here I’ll mention some of what I think are relevant factors in our acquittals.
~ First, obviously our cause is essential — not that that usually guarantees anti-drone activists victories in court….
~ One of our four defendants (JR) is African American with Native American ancestry.
~ The trial began last fall, but – at our insistence — was postponed til February 28 in order to get a new jury pool that wasn’t drawn only from the almost-lily white suburb of De Witt. our sense was that this time we got a sympathetic jury (mostly women) – perhaps drawn from a population newly awakened to the trump horror.
~ We also were blessed with two dedicated, political, savvy pro bono attorneys (JW, DI) who have made multiple trips from afar (Long Island and Buffalo) to defend us in previous Hancock drone trials — they knew us, the issue, the charges and the judge (DG). They were skilled in voir dire; their presence served as a check on an unfriendly judge. The judge knows that, given our skillful legal support, abridgements of our rights might well be reversed on appeal.
~ The defendants are seasoned activists, each having been tried before in the De Witt court (as well as in other courts for other issues over the years). Our goal was not necessarily to “win” or to avoid prison, but rather to put weaponized drones on trial. Maybe our action and our defense radiated a certain integrity.
~ Three of the defendants (JR, DB, BH) went pro se; this gave our defense added flexibility and allowed the jury to see us as human beings. one of us (EK), who usually goes pro se, deliberately allowed JW to represent him, which allowed that attorney to play key roles in the defense.
~ The defendants acted and spoke more or less with unanimity both during the trial and during our planning sessions before each trial session.
~ Although Hancock AFB and the town of De Witt are in Greater Syracuse, local media and even many local liberal activists — being in denial about how pivotal militarism and the pentagon budget are to the issues they work on — pretty much ignore our coalition’s scrupulously nonviolent and protracted (since 2010) civil resistance campaign. Nonetheless we got valuable support from other locals providing food and lodging to sustain the defense.
~ I can single out here such support, typical of all our trials, of Friends of Dorothy, the local catholic worker house. [in previous trials another catholic worker house, Slocum House, has played a key hospitality role…and we expect it will continue to do so in the future. Also, former Hancock Defendants (AT, RK) provided key lodging and logistical support.
~ While no mainstream media attended the trial (despite our pre-trial press releases), we had our own videographers (CB, EG, ER) who will be getting out footage of opening and closing statements. We were also fortunate in having our videographers (JA, CB, ER) on hand on march 19, 2015, when we did our “big books” action. they soon circulated footage on YouTube. this was helpful in court, showing not only our “books”, but our obviously un-disorderly deportment throughout the action and the arrest.
~ Each evening of the trial there were dozens of supporters. they came from NYC, Ithaca, Buffalo, Albany, Rochester, New England and points in between. The jury might well have been favorably impressed by the community there on our behalf. not to mention the presence in court of JR’s six-year old grandson and DB’s two youngsters – all cute as a button.
~ A word about the prosecutor: unlike some of the past De Witt prosecutors, ADA Albert played fair. He indulged in neither cheap tricks nor pandering rhetoric, nor was he obstructionist or hostile. He even allowed us to show the jury ten oversize color photos of the “big books” action and of victims and relatives of drone victims.
~ ADA Albert’s only witness was Hancock Master Sergeant Ramsey who has been a prosecution witness at probably all of our trials. Ramsey seems to be a pretty straight shooter; we’ve remained on good terms with him over the years. Even after he testifies, he generally stays to watch the rest of our trial. Who knows? Maybe this career military man has been able to hear our testimony.
~ Others were arrested with us on march 19, 2015. but JO and BR, with the additional charge of violating their Order of Protection, a bogus misdemeanor, still await a trial date. it’ll be interesting to see if this jury’s verdict will dispose the DA and Hancock to drop that charge. Their next court hearing is march 9.
. . . . . . . stay tuned.
CONNECTING THE DOTS….NO BAN, NO WALL, NO KILLER DRONES at Hancock Airport/Air Base
Thank God for the great crowd of 1,000 protesting Trump’s Ban of Immigrants at Syracuse International Airport, as thousands flooded airports all across the US last Saturday night, Jan. 28th, when the ban first went into effect!
We have a beautiful foto of a member of the Afghan Youth Peace Team with a poster saying “We Wish to Live Without War”. The youth sent a bolt of the sky blue fabric to US drone activists to wear as blue scarves to remember their wish for blue skies….skies safe without killer and surveillance drones hovering over them and assassinating them causing people to flee and become refugees.
Ironically on the other side of the same Hancock Airport campus of Syracuse is Hancock Air National Guard Drone Base. Many locals are not aware that the US assassinates people from Hancock Drone Base. Our US drone policy of execution without due process is a part of the driving force for the refugee crisis throughout the seven countries Trump has listed in his ban of people from the Middle East.
Lets work together to connect the dots…..drone assassinations cause people to flee…who become refugees…. who need asylum in other countries….countries who shut their borders to refugees….like the US under Trump.
I invite that great crowd of 1,000 to come around the corner to the other entrance of the same airport campus….to the Hancock Drone Base on East Malloy Rd, in DeWitt, East Syracuse, and demand that Hancock end their drone killings with MQ9-Reaper drones. We violate our US Constitution and International Law when we kill with drones.
We, who gather, would be giving a message of peace to the world and to the parents and children of the Middle East, saying “You can stay and live in peace in your own homes. You don’t have to flee the drones and become refugees. We, too, wish that you live without war.”
Please join us as we continue to say #NOKILLERDRONES Hancock Air National Guard Base -4:15-5pm 1st Tues. every month @ 6001 East Molloy Road, Mattydale, NY 13211.
You are welcome to attend the trial of the Big Books defendants, who were arrested March 10, 2o15.
They are charged with Trespass, Disorderly Conduct and Obstructing Government Administration
A jury trial is scheduled for:
5 PM, February 28th, 2017
@ DeWitt Town Court
5400 Butternut Dr, East Syracuse, NY 13057
Codefendants in the trial (from the left): Ed Kinane (Syracuse, NY), Fr. Bill Pickard (Scranton, PA), Brian Hynes (Bronx, NY), Daniel Burns (Ithaca, NY) and James Ricks (Ithaca. NY) on the far right, Attorney’s Jonathan Wallace and Daire Irwin of Buffalo, NY. (2nd and 3rd from the right) will advise them.
Harry Murray initiated a discussion about drone warfare, and about civil disobedience with Judge Gideon at his sentencing hearing, and through a sentencing memorandum sent to him before this hearing. You can read that memo in the previous post, if you haven’t alread read it. There was some disagreement regarding how those of us present felt about Judge Gideon’s response. You should read the memo before deciding what you think.
You can see a complete video by Wilton Vought of the Press Conference and Harry’s Sentencing Hearing HERE.
Videos below by Charlie Bowman –
Harry Murray Reads his Sentencing Statement (not the Memorandum he had mailed to the Judge in advance)
Judge Gideon Responds
Sentencing Memo Sent to Judge Gideon by Professor
I would like to take the occasion of this memorandum to continue the conversation we have had over the past five years on the nature of civil disobedience, particularly in the context of the Reaper drone control center at Hancock Air National Guard Base. I have benefited from those conversations and hope that, in some small way, you have as well. At the core of our discussions, I think, has been the question of what civil disobedience is and, specifically, how civil disobedience “works.”
I will begin by discussing the nature of civil disobedience, as defined by Gandhi and by John Rawls.
Gandhi distinguished two types of civil disobedience: “Aggressive, assertive or offensive civil disobedience is nonviolent, willful disobedience of laws of the State whose breach does not involve moral turpitude and which is undertaken as a symbol of revolt against the State. . . . Defensive civil disobedience , on the other hand, is the involuntary or reluctant non-violent disobedience of such laws as are in themselves bad and obedience to which would be inconsistent with one’s self-respect or human dignity.” i In Gandhi’s terms, our civil disobedience at Hancock involves the first type; disobeying a Jim Crow statute would have been of the second type.ii He also states: “civil disobedience is the inherent right of a citizen. . . . [T]o put down civil disobedience is to attempt to imprison conscience. . . . A civil resister never uses arms and hence he is harmless to a State that is at all willing to listen to the voice of public opinion.”iii
Rawls defines civil disobedience as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government. … [I]t does not require that the civilly disobedient act breach the same law that is being protested.” Later, he elaborates: “[T]he civilly disobedient act is indeed thought to be contrary to law, at least in the sense that those engaged in it are not simply presenting a test case for a constitutional decision; they are prepared to oppose the statute even if it should be upheld.” Finally, he states: “The law is broken, but fidelity to law is expressed by the public and nonviolent nature of the act, by the willingness to accept the legal consequences of one’s conduct. . . . To be completely open and nonviolent is to give bond of one’s sincerity.”iv For Rawls, civil disobedience is a political act, and, while it involves breaking the law, it ultimately is faithful to the spirit of the law. Civil disobedience must be limited to “instances of substantial and clear injustice”v and legal alternatives must have been tried before engaging in it.vi I believe that the evidence we have produced of the harms, including harms to civilians and children, caused by weaponized drones satisfy the first condition and that my prior (and concurrent) legal attempts to address this issue satisfy the second. Rawls concludes: “Although this mode of action is strictly speaking contrary to law, it is nevertheless a morally correct way of maintaining a constitutional regime.”vii
I would submit that there are several ways that civil disobedience can operate, often simultaneously. First, as you argued in our first trial, civil disobedience can affect policy by the publicity it receives when the civilly disobedient person is arrested, convicted, and punished. Public outcry might lead executives or legislatures to change policy.
Second, civil disobedience can operate as symbolic action.viii Civil disobedience actions are often attempts to juxtapose symbols in a way that sparks insight, that enables persons in the audience to see things in a new way, to break out of fixed worldviews. In this sense, it has been called parabolic action, using the same principle as the parables Jesus used to shock people out of their worldviews by juxtaposing images in new ways (e.g., the Good Samaritan, in which the despised enemy is the one who comes to the rescue). Such symbolic actions would include the burning of draft records during the Vietnam War, the Plowshares actions initiated in 1980, blood poured on the Pentagon, and the symbolic die-ins we have used at Hancock. The juxtaposition of images (e.g., blood on the Pentagon) can be startling enough to shock some observers into a change of worldview, a change of paradigm if you will, that may be impossible through simple logical discourse. ix This approach is often related to the third approach to how civil disobedience “works.”
Third, from a spiritual or religious perspective, the practitioner of civil disobedience should be concerned with faithfulness rather than effectiveness. Catholic theologian Henri Nouwen put this distinction in terms of fruitfulness versus effectiveness. The responsibility of a person of faith is not to be effective but to be faithful (to the Gospel if one is Christian, as I hope I am). One must follow one’s conscience and bear the consequences, but the results will be up to God. Our responsibility is to plant seeds, not to achieve results. In many ways, civil disobedience as symbolic action ties in to this way of thinking – the symbolic interaction is the planting of a seed which may or may not take root. This approach challenges the very notion of effectiveness as an offshoot of industrial civilization and harks back to a more agricultural way of seeing the world. A prime example of fruitfulness was Franz Jaggerstatter, an Austrian peasant who was executed for refusing to be conscripted into the Nazi’s army. He accomplished nothing but leaving his wife and young children without a husband and father, and his story was almost forgotten. However, decades later, this story was uncovered by sociologist Gordon Zahn, who publicized it in his book In Solitary Witness. In 2007, Jaggerstatter was beatified by Pope Benedict XVI. His conscientious refusal now inspires Christians around the globe.
Finally, the impact of civil disobedience on policy can be mediated by the response of judges hearing civil disobedience cases. I believe that we need human beings acting as judges within the system (as opposed, to, say, artificial intelligences) precisely because, as John Rawls argues in his discussion of civil disobedience, no human legal system is perfect. Artificial intelligence may be able to apply the existing legal rules more accurately than a human judge; however, only a human judge can take into account the larger sense of justice which animates the law; only a human judge can identify a situation in which application of even a just law becomes injustice because the law is being used to uphold a larger injustice.
Judges who have become convinced that their obligation includes a wider view of justice have chosen a variety of ways to embody that obligation.
One approach can involve the decision itself. In a 2012 lawsuit against New York City police for wrongful arrest, Federal Judge Jed S. Rakoff found for the plaintiffs and wrote:
“What a debt this nation owes to its ‘troublemakers.’ From Thomas Paine to Martin Luther King, Jr., they have forced us to focus on problems we would prefer to downplay or ignore. Yet it is often only with hindsight that we can distinguish these troublemakers who brought us to our senses from those who were simply . . . troublemakers. Prudence, and respect for the constitutional rights to free speech and free association, therefore dictate that the legal system cut all non-violent protestors a fair amount of slack. Let us hope that other judges hear this decision and that nonviolent civil disobedience can continue to hold its rightful place as a cornerstone of our liberty.” x
In my own civil disobedience career, I have sometimes been found not guilty. Two of these verdicts were, I think, attempts to address a larger justice. When I was put on trial in 1981 for civil disobedience at the Pentagon, charged with depredation of government property, for pouring blood on the Pentagon in protest of U.S. nuclear weapons, the Judge dismissed the charges because the prosecutor had not “provided me with any evidence that the government owns the Pentagon.” My mother believes that verdict was a direct result of her prayers; I believe it was an indirect attempt to address the larger issues of justice. When I was charged with trespass at the Rochester Federal Building in 2003 for protesting the impending invasion of Iraq, Rochester City Court Judge Anne Pfeiffer found us not guilty because we had been arrested before we had gone through the metal detectors. In rendering her verdict, she apologized to me (I suspect, tongue in cheek) for not addressing my international law argument that the U.S. had no jurisdiction to charge anyone with trespass because they had just committed perhaps the largest act of trespass since World War II.
Brian Terrell, a Catholic Worker whom you may remember from the Hancock 38 case, along with four other demonstrators, was acquitted of trespass in Senator Charles Grassley’s Des Moines office in a July 2007 jury trial after presiding judge Odell McGee allowed Brian to read the text of the First Amendment to the jury. Judge McGee further instructed the jury that the defendants “were not justified in remaining on the property if the State proved . . . that the defendant(s) did not have a constitutional right to remain on the property.”xi
Gandhi’s standard procedure in civil disobedience was to plead guilty and ask for the harshest possible punishment. Yet, in doing, so, he still gave the judge a choice of whether to affirm the legal system or not. His first case of civil disobedience in India involved defying a government order not to enter the district of Champaran, where he proposed to conduct an inquiry into labor conditions. He appeared in court and pled guilty; however, before his sentencing date, the Lieutenant Governor ordered the case against him withdrawn, and he was allowed to pursue his investigation. Gandhi saw this conclusion as a victory for civil disobedience, despite the fact that he wasn’t sent to jail: “The country thus had its first direct object-lesson in Civil Disobedience. The affair was freely discussed both locally and in the press, and my inquiry got unexpected publicity.”xii Thus, Gandhi himself felt that civil disobedience could be fruitful even without conviction and punishment.
Another approach is to address issues of broader justice at sentencing, in the sentence itself and/or in a sentencing statement. I have previously cited the case of Federal Judge Miles Lord, who in 1984, sentenced Barbara Katt and John Laforge to a six month conditional discharge and gave one of the most powerful critiques of justice in America ever presented from that side of the bench. I cite a part of his sentencing statement:
“It is the allegation of these young people that they committed the acts here complained of as a desperate plea to the American people and its government to stop the military madness which they sincerely believe will destroy us all, friend and enemy alike.
They have made a plausible argument that international law prohibits what our country is doing by way of manufacturing mass weapons of destruction. Common sense should, in my own personal view, dictate that such manufacture be curtailed.
The anomaly of this situation is that I am here called upon to punish two individuals who were charged with having caused damage to the property of a corporation in the amount of $33,000. It is this self-same corporation which only a few months ago was before me accused of having wrongfully embezzled from the U.S. Government the sum of $3.6 million. . . .
“If there be an adverse reaction to this sentence, I will anxiously await the protestations of those who complain of my attempts to correct the imbalance that now exists in a system that operates in such manner as to provide one type of justice for the rich and a lesser type for the poor. One standard for the mighty and another for the meek. And a system which finds its humanness and objectivity is sublimated to military madness and the worship of the bomb.”xiii
In another case, it was the sentencing itself that was significant. On March 5, 1986, Scott Schaeffer-Duffy of the Worcester MA Catholic Worker and Carol Bellin were tried and found guilty of trespassing and disorderly conduct at an anti-war protest at the GTE plant in Westborough MA. The DA recommended sentences of thirty days for the trespass and sixty days for the disorderly conduct, to be served consecutively. Judge Paul LeConto asked the defendants if they would pay a fine or do community service. Scott replied, “No, your honor. We could not pay a fine in good conscience, and we believe that our actions at GTE were a community service.” The judge called for a recess, and, when he returned, said simply: “Guilty finding. You are free to go.” xiv
Sometimes, judges have changed their mind and reversed their positions, even after sentencing.
As one example, in November, 1978, four protestors were arrested for nonviolent civil disobedience at the First Annual Military Electronics Exposition in Anaheim, California. After spending a night in jail, they were given one year probation. In October, 1979, two of the protestors, LA Catholic Workers Jeff Dietrich and Kent Hoffman, were again arrested at the exposition, two weeks before their probation ran out. Robert Fitzgerald, the same judge who had ordered the probation, gave them six month sentences in the county jail, double the recommendation of the DA. And yet, he ordered their release two months later. Kent met with Judge Fitzgerald not long after that, and, as Kent recounted:
“He spoke of the confusion he experienced, of the influence provided by receiving over 700 letters of concern on our behalf, of the movement from distrust to appreciation for our sincerity and tenacity of commitment. He had gone through a rare agony for one so solidly entrenched in power and the pride of power. He had chosen to admit openly and publicly the mistake he had made.”xv
Kent told the judge of a dream he had had, of Judge Fitzgerald standing beside him serving Christmas dinner to the homeless guests at the LA Catholic Worker. Judge Fitzgerald told him of someone he loved who had died on Skid Row and said he would be honored to serve Christmas dinner at the Worker.
A second example is contained in a piece by Frank Cordaro, of the Des Moines Catholic Worker, from November 5, 2009. The day before, there had been a civil disobedience action at the “Space Weapons Bazaar” in Omaha, Nebraska. Four “out of state” demonstrators were held overnight in Douglas County Jail and appeared with a group of about 60 persons, mostly poor and black, before Judge Darryl Lowe the morning of the 5th. The court session went on, in assembly line fashion, for hours, and the four protestors were the last to come before the judge. Father Louie Vitale pled “no contest” and was sentenced to five days. The Judge added “If you had pled guilty it would have been three days. Next.” Father Jim Murphy was up next. Upon pleading guilty, he was sentenced to three days. When the third protestor, Steve Clemens, approached the bench, Judge Low asked “What were you guys doing at the Qwest Center in the first place?” Steve replied, “Your honor, we were there to protest the Strategic Space Symposium. We were there to protest the selling of space weapons technology to STRATCom!” Frank, still awaiting his appearance, called to the judge “And you just sentenced two Catholic priests to jail!” As Cordaro recounts:
“Judge Lowe just assumed the four of us were arrested for intoxication. He just thought we were four old drunks. . . . ‘Catholic priest! Protest!’ exclaimed Judge Lowe … ‘Bring those two priests back before me. Give me their files.’ The judge asks me to join them all at the bench. We explained to him what our nonviolent protest was all about. He congratulated us for our witness. He said he believed in nonviolent civil disobedience. He said more of it needed to be done. He told us his father was active in the civil rights movement.”
Judge Lowe shook each of their hands, and they were all sentenced to time served. Judge Lowe concluded by saying “I hope you all come back again next year!”xvi
Finally, in a more radical approach, judges can engage in civil disobedience themselves. The most powerful case I know of occurred in Germany. Although it occurred outside the United States, it may be of interest particularly because of your father’s involvement in the Nuremberg Trials. On January 12, 1987, twenty German judges were arrested in the small town of Mutlangen for blocking the road to the base which housed Pershing II nuclear armed missiles. Their action was part of a nonviolent campaign in which over 1,000 persons had been arrested by that time. One of the twenty, Judge Ulf Panzer, stated:
“Fifty years ago, during the time of Nazi fascism, we judges and prosecutors allegedly ‘did not know anything.’ By closing our eyes and ears, our hearts and minds, we became a docile instrument of suppression, and many judges committed cruel crimes under the cloak of law. We have been guilty of complicity. Today we are on the way to becoming guilty again, to being abused again. By our passivity, but also by applying laws, we legitimize terror: nuclear terror. Today we do know. We know that it needs only the push of a button and all Germany, Europe, the whole world, will be a radiating desert without human life. It is because we know this that we have to act. Many of us judges have organized ‘Judges and Prosecutors for Peace.’ We have raised our voices in warning against nuclear death. We have worked with local peace groups, advertised against nuclear armaments, demonstrated and submitted resolutions to our parliament …. Our warnings have died away unheard. That is the reason why we today block the U.S. air base in Mutlangen. We hope that such an action will be heard more loudly than all our words before.” xvii
There had been 1,096 guilty verdicts in the Schwabish-Gmund court for blocking the base. Four days after the action of the judges, there were seven acquittals, the first in the campaign.
In light of this memorandum, Judge Gideon, I make one request – that at my sentencing you make a statement that includes your conclusions about the morality and legality of using weaponized drones. For five years, you have heard evidence about weaponized drones such as those flown out of Hancock. You have heard arguments about international law as it affects drone killings. You have heard from people who have been in Afghanistan and Iraq talk about their encounters with people living under the drones. You have heard excerpts from the United Nations Assistance Mission to Afghanistan which document that drones have killed civilians, on a regular basis. You have heard that a classified report authored by Larry Lewis concluded that drones in Afghanistan were significantly more likely to kill civilians than were “manned” aircraft.
Judge Gideon, you are an intelligent, thoughtful person. You stated in your written opinion for the Hancock 38 that you have struggled with the issues we have raised. I would very much like to know your reactions to our evidence and arguments, whether those reactions be for or against the piloting of weaponized drones out of Hancock. I understand that such a statement would not be appropriate in the context of a trial or a verdict. However, I believe it can legitimately be done at sentencing and I hope you will consent to do that.
Thank you for your attention and engagement in this discussion. I look forward to seeing you on March 9th.
Professor of Sociology
i M.K. Gandhi, Non-Violent Resistance, Bharatan Kumarappa (ed.). (1951: New York: Schoken), p. 175
ii Gandhi, it seems, used the terms civil disobedience and civil resistance interchangeably. I will use the former in this memorandum.