Underlying the government's argument is the dispute over whether there exist positive legal limits to the President's constitutional war powers… as now
admitted by the Department of Justice in relation to torture.
The oral arguments in the appeal of the Plowshares Nuns case will be heard at 8:30 AM on Friday, October 1 at the 10th Circuit Court of Appeals at 1823 Stout St. in Denver, CO. Attorneys for
Sisters Ardeth Platte O.P., Carol Gilbert O.P. and Jacqueline Hudson O.P will have 15 minutes to present their arguments and brief. The government will then have 15 minutes to respond. The
basic argument that the attorneys will make is that Jackie, Ardeth and Carol should never have been charged with sabotage and that the government did not prove sabotage and that the judge
erred in his jury instructions by not letting the jury consider if the Sisters had a good faith belief that their actions were legal.
A 3 judge panel will hear the arguments and render a decision sometime later. There will be a later release concerning a post hearing press conference to be scheduled by the lawyers in the
For more information please call:
Susan Crane of Jonah House – 443-804-6938 (Jonah House is community in Baltimore MD which is the home of Sisters Ardeth Platte and Carol Gilbert. Susan will be in Colorado for the appeal
argument, the press conference following, and the support actions – Adopt A Silo – on October 2.)
Bill Sulzman of Citizens for Peace in Space – 719-389-0644 (Citizens for Peace in Space is based in Colorado Springs, CO and has done major support for the Sisters’ action. Bill will be in
court for the oral argument; he will be at the press conference; and he did much of the organizing for the action – Adopt A Silo.)
A message from the Sisters from Prison:
(This message was sent to be used around the press conference and, if possible, in the court.)
We acted consciously non-violently and symbolically to uphold the laws of war, that absolutely prohibit any threat or use of a weapon of mass extermination such as the Minuteman III. We
did exactly what the President was demanding of all other countries to show good-faith progress toward our common legal and moral obligation for non-violent nuclear disarmament. Our
non-violent and symbolic acts to expose and inspect a weapon of mass extermination on high-alert merely showed legal ways to achieve non-violent nuclear disarmament. There was no evidence to
support the trumped up! charge of the violent crime of sabotage. Further, the refusal to permit us any defense evidence also dangerously curtails our civil liberties. We acted as citizens to
stand up on the side of necessary universal adherence to the laws of war and for essential non-violent nuclear disarmament, a side the US itself purports to be on.
THE BASIC POINTS OF THE APPEAL
TO BE ARGUED IN THE 10TH CIRCUIT IN DENVER CO ON OCTOBER 1, 2004
Filed by: Susan J. Tyburski , Scott T. Poland, Clifford J. Barnard - Boulder, Colorado
The trial court erred by applying an unconstitutionally vague and overbroad definition of "national defense" without legally proscribed limits
By refusing to place any limits on what constituted "national defense" the court transformed sabotage into nothing more than an
“injury-to-any-government-property felony” without even requiring the government to prove injury of more than $1,000.
Thus, according to this jury instruction, national defense meant nothing more than a "broad connotation" regarding "military establishments" and "related activities of national
preparedness." Because "national preparedness" is the purpose of all military establishments, this definition of "national defense" would refer to any activity on any military establishment.
Defendants also maintain that the trial court’s definition of "national defense" makes it impossible to differentiate Count 1 from Count 2 of the Indictment. When "national defense" becomes
nothing more than a military establishment or property (i.e., a chain link fence), it becomes the same thing as "intent to destroy property."
The district court’s instructions in this case were so over-broad that they did not permit the Sisters to be placed on notice of the charges against them and made illegal the most innocuous
activities of an individual. This vague and over-broad application violated their Fifth and Sixth Amendment rights to due process of the law. The Sisters’ convictions for sabotage should be
overturned and they should be granted a new trial on this Count.
THE RECORD IS DEVOID OF EVIDENCE
ESTABLISHING SPECIFIC INTENT TO COMMIT THE CRIME OF SABOTAGE
In order to convict the Sisters of sabotage, the government has to establish that the Sisters knew that injury to the national defense would be
the result of their actions. The government concedes that the Sisters' motive - to eliminate weapons of mass extinction - is irrelevant to intent to commit sabotage. However, the government
argues that the requisite mens rea of sabotage can simply be "inferred from [the Sisters'] passionate opposition to the deployment of the minuteman missile," which arises from their good
faith belief that weapons of mass extinction are "legally and morally indefensible." This argument demonstrates a dangerous inclination to convict citizens of the crime of sabotage for their
passionate belief in, and desire for, sane weapons policies. The government admits that evidence of actual injury to, interference with or obstruction of the national defense is
"immaterial," and that the proper issue is the Sisters' specific intent to cause such a result. The government seems to imply that the Sisters' damage to three panels of the fence
surrounding the missile site somehow allows the jury to infer the requisite mens rea for the crime of sabotage. However, the specific intent required for the crime of sabotage cannot simply
be assumed from the Sisters' actions. Because the record is devoid of any evidence that the Sisters "consciously" injured, interfered with or obstructed the national defense, the Sisters'
conviction must be overturned.
During the trial, the government presented no evidence that the Sisters intended actual injury to, interference with or obstruction of the national defense. The Sisters' unrebutted testimony
establishes that their actions were intended to be purely symbolic and incapable of affecting the national defense in any way. The Sisters knew that their books, blood and prayers could not
prevent the missile's deadly mission. As they explained in their testimony, by cutting three panels of the surrounding fence, the Sisters symbolically opened the area to public inspection.
They were careful to cause as little damage as possible while engaging in their symbolic acts; they did not attempt to hide what they were doing, and were cooperative during their arrest. It
never occurred to the Sisters that their peaceful and prayerful presence on the missile site could injure, interfere with, or obstruct the national defense.
THE SISTERS WERE ENTITLED TO A GOOD FAITH JURY INSTRUCTION WHEN THEY INTERPOSED THE DEFENSE OF GOOD FAITH
The District Court erred in denying the Sisters’ request for a Good Faith Jury Instruction. Since the sisters believed in good faith that their
actions were legal, they could not have had the specific intent to commit sabotage. The Indictment required the jury to find, in pertinent part, that defendants’ "willfully injured,
destroyed, or contaminated national defense material or national defense premises." Had the court given the good faith instruction the jury may have concluded the sisters lacked the specific
intent to commit sabotage.
The record is replete with examples of the authoritative material the sisters relied upon in forming their personal belief regarding the lawfulness of their actions. Since they knew these
nuclear weapons could be launched at any time, despite their presence on the site, they did not believe their actions constituted interference with the national defense. The record is devoid
of evidence to suggest the defendants intended by their actions to render these weapons inoperable
The sisters did not merely believe in the righteousness of their action, they believed in the lawfulness of their action and provided the court with overwhelming evidence in support of their
belief. The government incorrectly concludes that the good faith defense cannot negate the state of mind necessary for commission of the sabotage charge. This conclusion by the government
begs the question why the district court, throughout trial, permitted the Sisters to refer to a book or written article which they had read as being probative of their state of mind, though
not permitting the entire book or article to be admitted into evidence. This material – if admitted into evidence - could negate the specific intent necessary for the commission of the
The government seeks to convert this trespass into an act of Sabotage. The government must take responsibility for overcharging the three sisters. It is the government that argues that
interference with the national defense, as the government defines national defense, consists of any objection to nuclear weapons coupled with an act, no matter how slight. It appears to be
the government’s view that the act will be magnified in direct proportion to the level of opposition, be it legal, moral or religious, that the actor has to use a threat to use nuclear
weapons. Applied here, a somewhat aggravated trespass becomes Sabotage since the sisters’ opposition to nuclear weapons is so strongly held.
It is the sisters’ good faith belief in the lawfulness of their action that is directly relevant to the specific intent necessary to commit sabotage. As a result a good faith instruction
should have been tendered to the jury as it may have negated the intent necessary to commit the offense charged. The defendants good faith defense is premised on their subjective and
objective understanding of facts and law. According to public documents cited by the Sisters and reaffirmed at trial, the 335 kiloton Minuteman III, N-8 missile was, on that day, on
high-alert, fully prepared to unleash 20 times the uncontrollable heat, blast and radiation of the Hiroshima bomb within 15 minutes against named and targeted countries. The government's
argument that the Minuteman III, N-8 was justified as deterrence can only be an admission that the Minuteman III, N-8 was as determined by the Sisters, in the posture of a real and ready
threat for instant use.
The problem seems to lie not only in the government's failure to describe accurately the ready threat to use this uncontrollable weapon of mass extermination but also in the government's
lack of recognition of the positive law that prohibits any threat or use of such a weapon. The "foundation" of the Sisters good faith defense is not a "belief that the Minuteman III missile
was morally and legally unjustified." Rather the Sisters knew and confirmed that the missile is morally and legally unjustifiable. The Sisters knew precisely because it was on high alert
with known and intended indiscriminate and uncontrollable effects that it was a ready threat to commit absolutely prohibited war crimes and/or genocide as a matter of fact and well outside
the President's war powers.
Underlying the government's argument is the dispute over whether there exist positive legal limits to the President's constitutional war powers. The Nuns understood as now admitted by the
Department of Justice in relation to torture, that it is overly broad to find that "the President enjoys complete discretion in the exercise of his Commander in Chief authority and in
conducting operations against hostile forces." In addition to prohibitions against torture, the prohibitions against war crimes and genocide are earlier and similar peremptory crimes that
strictly limit the President's constitutional war powers. Because this case directly involves the Minuteman III, N-8, the alleged "instrument of national defense" these specific laws of war
are directly relevant.
The Sister's good-faith, objective understanding of existing law that justified their acts was that citizens have a right, duty or privilege to stop threat or commission of war crimes or
genocide and that they used proper and legal methods that could achieve that objective. While the threat was imminent, the Sisters knew that such crimes must be stopped non-violently through
elucidation of the law and through non-violent nuclear disarmament as agreed in Article VI of the Nuclear Non-Proliferation Treaty. Building blocks for obligatory complete non-violent
(legal) nuclear disarmament surely involve declaration and inspection and clear identification (such as with red crosses in blood) of weapons that must be disarmed.
The government's misunderstands the role of the rule of law in these dangerous circumstances. We are deeply shocked that the government would presume that only threat or use of unlimited
force has relevance. Whether or not there can be a presumption of legality of the threat or use of the Minuteman III, N-8, the Nuns were entitled to a rebuttal of that presumption. The nuns
stated clearly that threat or use of weapons or tactics of mass destruction cannot stop threat or use of weapons or tactics of mass destruction. They illustrated what they knew to be a
better and legal way to move beyond the horrors of such weapons or tactics. The Sisters knew that as a matter of law the President can do or threaten to do wrongs outside his war powers and
that the judicial branch of this government has jurisdiction when citizens are charged with crimes for exercising their legal right, duty or privilege to step in non-violently and
symbolically to point out and end those most heinous wrongs.
The Nuns were charged with two specific intent crimes. Yet their basic due process rights were violated because they were never given "an opportunity to rebut the government's assertions in
a meaningful manner." No defense evidence of any kind was permitted and the Court instructed the jury that "the legality and lethality of the Minuteman III was not an issue."
The government argues that interference with the national defense as the government defines that term, consists of any objection to nuclear weapons coupled with an act, no matter how slight.
The government’s view is that the act will be magnified in direct proportion to the level of opposition, be it legal, moral or religious, that the actor has to the use or threatened use of
nuclear weapons. Applied here, a trespass and vandalism becomes sabotage since the sisters’ opposition to nuclear weapons is so strongly held and since the government’s support for nuclear
weapons is so strongly held.
Sisters Carol Gilbert, Jackie Hudson and Ardeth Platte formed a Citizens Weapons Inspection Team to speak a straightforward truth: "Here's a weapon of mass extermination on high-alert. CWIT
and Disarm. It's the law!" These elderly women informed the government of the obvious, that any threat or use of the Minuteman III, N-8 is not only immoral but goes well beyond positive
legal limits to constitutional war powers. Such notice should hardly have been surprising in October 2002 since the U.S. itself sought to make it clear that any threat or use of any weapon
or tactic of mass destruction was fundamentally illegal and criminal. Why then would the prosecutor stretch so far as to turn the tables against the nuns calling them invaders, raiders? They
could not possibly harm the national defense by stating that there are limits to national defense. They could not possibly encourage terrorists by saying that a ready threat to use a nuclear
weapon is unaccepted nuclear terror. In fact, all the nuns were saying was: “Give non-violent inspections and lawful solutions a chance!” They reasoned that if our threat or use of even one
335 kiloton nuclear weapon is justifiable for "preemption" or "defense" for us, then such acts must likewise be equally justifiable for any other state or actor(s). Such abandonment of the
rule of law cannot provide a lawful way out of a dead-end nuclear dilemma.
The nuns presented to the court and prosecutors the uncontrollable horrors that the use of this nuclear weapon 20 times the Hiroshima bomb were known to inflict and what its high-alert
threatened use did to make our collective future highly perilous. The Nuns had also studied thoroughly the intransgressible laws of war as applied to any threat or use of nuclear weapons,
and presented the 1996 decisions of the International Court of Justice on this precise issue. They knew that the ICJ had concluded that there was a legal solution when it found, "There
exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control." They
took hope in the fact that this body of law was consistent with basic principles of morality but they acted on their knowledge of positive rules of consistent international and U.S. law. But
after September 11, 2001, the nuns observed how the U.S. flouted these laws of war and formal promises in increasingly dangerous ways. They decided to show how open, non-violent declaration,
inspection could lead to obligatory non-violent nuclear disarmament one weapon at a time. That citizens might assume responsibility for a positive role in achieving non-violent nuclear
disarmament may have been novel or daring, but the legal and practical reasonableness of open declaration and inspections was well established as a means of arriving at obligatory nuclear
disarmament. In short, the nuns knew that their carefully measured acts were justifiable and that no threat or use of the MM III, N-8 could ever be justified. It is the high-alert threat to
use the MMIII, N-8 that imposes terror of global magnitude. It is the beauty of simple acts of taking non-violent responsibility to admit and end our own wrongs that give us a lawful way
beyond escalating war crimes and genocide. There is a certain irony in three Nuns elucidating positive rules of U.S. and international law and knowing that the rule of human law is not
impotent or silent in the face of the most egregious violations of those binding, peremptory laws of war. In good-faith, these Sisters understood that adherence to the laws of war provides a
way out. The over-zealousness of this prosecution and unfair trial and punishment can not stand. It is not worthy of our great democracy in which certain specified limits to threat or use of
force and due process of law are basic tenets.
This Court should reverse the convictions on Count 1 and remand the case to the trial court for a new trial on this Count.