Somebody’s gotta go do it, guys. Oral argument’s coming up in the Sixth Circuit…. No, we can’t just dismiss the charges.
Yes, you have to do it with a straight face.
C’mon. I need a volunteer here.
Okay, then I’m just gonna pick somebody…. <scans room, everyone avoids eye contact> Jeff. You were late today, so you can handle this one. Yep. It’s all you, buddy. Have fun. Break a leg.
I assume something like that happened earlier this year in connection with the case of Sister Megan Rice, the 85-year-old peace-activist nun who led a daring commando raid on the Y-12 nuclear weapons complex at Oak Ridge, and by “daring commando raid” I mean they used bolt cutters on the fence and walked in without anybody noticing. See “Government Bravely Prosecutes Nun for Embarrassing It,” Lowering the Bar (Feb. 10, 2014).
And when they got to the heart of this place where we store all our weapons-grade uranium, which I again stress that they did without being noticed, they put up some banners, sang songs, and prayed. To be fair to the government, I should point out that they also threw some blood on the building and chipped some pieces off the corner of it with a hammer. Your typical terrorist stuff. When guards eventually arrived, they surrendered peacefully. The only effect on the facility was that the government shut the place down for 15 days while it tried to figure out who to blame for how to address the obvious lack of security.
For this, Rice and her two accomplices were prosecuted for sabotage; specifically, for violating 18 U.S.C. section 2155(a), which says this:
Whoever, with intent to injure, interfere with, or obstruct the national defense of the United States, willfully injures, destroys, contaminates or infects, or attempts to so injure, destroy, contaminate or infect any national-defense material, national-defense premises, or national-defense utilities, shall be fined under this title or imprisoned not more than 20 years, or both….
There is no doubt they were trespassing, but that’s a different issue. Under this charge, the question boils down to this: do you think that this evidence shows that these people “willfully injured national-defense premises” with the “intent to injure, interfere with, or obstruct the national defense of the United States”?
As you can probably guess from the above, I do not. But at least two judges do, and a minimum of six jurors did, because not only was this charge allowed to go to a jury, that jury convicted the defendants and the trial judge then sentenced them to a minimum of three years in prison.
The Sixth Circuit heard their appeal in March, which is when I started writing this post. Never finished it, but since the panel has now voted 2-1 to reverse the conviction (the dissenter is the second of the two judges mentioned above), now seems like a good time to dust it off.
Originally I was going to base this entirely on the audio of the oral argument, which was available almost immediately. I listened to the whole thing and took notes, and I can tell you there was a great deal of hooting from me as I listened to Jeff Theodore, the Assistant U.S. Attorney who came in late or lost a bet or drew the short straw or whatever it was, try to argue that a nun with a tiny hammer posed a threat to the national defense of the world’s only superpower.
One of the first hoots was triggered by Jeff’s verb selection, as he argued (for example) that Sister Megan and her two companions had “penetrated” the perimeter fence and “targeted” a building for their dastardly deeds. Seems like those would be more appropriate for a lightning raid by Soviet commandos, not a two-hour stroll by three unarmed civilians with a combined age of 202, but I guess he felt that he needed to spice things up a bit.
More hoots followed as he tried to respond to questions from an obviously skeptical judge. There was actually a debate about the size of the hammer the nun used to chip pieces off the corner of the building. Let me repeat that. The size of a nun’s hammer was debated in a U.S. Circuit Court of Appeals in a case involving the national defense. “Did they have the intent to injure the national defense by hammering the building?” the judge asked. Jeff thought they did! What about putting up a banner? Was their intent in doing that “to injure the national defense”? Is a banner even capable of injuring the national defense? “It certainly could, your Honor, absolutely,” were words that came out of Jeff’s mouth in response to that question.
At a number of points there was audible hooting from the courtroom audience as well.
Based on the argument, it was pretty clear there was at least one vote to reverse and probably one to affirm. The third judge didn’t say much, as I recall. But in the opinion released yesterday, the panel voted 2-1 to reverse.
The defendants conceded that the government proved they “injured national-defense premises.” To call the damage here an “injury” to the building I think is again hoot-worthy. But given that concession, the issue on appeal was whether the government proved the defendants acted “with intent to interfere with the national defense.” Could a reasonable jury have found that they did?
The opinion turns on what “the national defense” means, and I think the court’s holding that it is not some abstract concept is pretty important. “[T]he national defense is a function,” the court wrote, “not a resource, object, or idea…. Thus, to show some injury or interference with the national defense, it is not enough for the government to speak in terms of cut fences or delayed shipments or pens stolen from the Pentagon.” The defendant’s actions must have been “consciously meant or practically certain to impair the nation’s capacity to wage war or defend against attack.” There was no evidence here that the defendants thought their actions would be anything more than symbolic, and zero chance that their actions could have impaired the nation’s capacity to do anything.
Had they tried to blow up the building, the majority concluded, that’d be a different story, but this was just a protest. “[V]ague platitudes about a facility’s ‘crucial role in the national defense’ are not enough to convict a defendant of sabotage. And that, in the last analysis, is all the government offers here.”
Wait—it offered one more argument, one I really find hard to believe:
Finally, we reject the government’s argument that the defendants intended to interfere with the national defense by seeking to create “bad publicity” for Y-12. First Amendment issues aside, it takes more than bad publicity to injure the national defense. The defendants’ convictions under § 2155(a) must be reversed.
The government actually argued in a court of law that making it look bad could be criminal sabotage punishable by up to 20 years in prison. That’s an actual thing that happened.
The law it was waving around here is one of those that get passed during a crisis to “protect the nation” from external threats but which always end up getting used mostly against citizens. The list is depressingly long: the Alien and Sedition Acts (1798) the Espionage Act of 1917, the Sedition Act of 1918, Executive Order 9066, the McCarran Act, and of course our current favorite the USA PATRIOT Act. Not a great track record, really.
And obviously, the arguments in support of them aren’t getting any better.