by Ralph Hutchison, OREPA
HE WALKS AROUND WITH IT BY HIS SIDE
The judge interrupted the questioning of former Attorney General Ramsey Clark as he testified at a hearing in federal court in Knoxville, Tennessee on April 23 in preparation for the Transform Now Plowshares trial in May.
Bill Quigley, counsel for the defense, had just asked Clark if the threat of the use of nuclear weapons was imminent.
“It’s omnipresent,” said Clark.
“Excuse me,” the Judge said. “Are you saying the President intends to use nuclear weapons? Are you in a position to know that? Are you tied in with the President?”
Clark said, “It’s not academic. We continue to build and to modernize these weapons, for what other reason than that we intend to use them?”
“But wasn’t our last use World War Two?”
“No, there has been testing.”
“A fair point,” said the Judge. “But as to an imminent threat—does the President have his finger on the button?”
“Well,” said Clark, “he walks around with it by his side.”
The exchange was one of many during the nearly one and a half hours the 85 year old statesman was on the stand.
What follows is not a transcript following from start to finish. It is a compilation of excerpts that is a true and accurate reflection of the course of the testimony and arguments. Some moments fall away as repetitious, others mundane, and one or two maybe just because my hand was too tired to keep writing.
One bit of news: The trial will begin May 7 as scheduled, but jury selection will begin at 1:00pm on Monday, May 6. The court expects to call 70 prospective jurors for the first round of voire dire and will set up a closed-circuit TV room for the public and press.
The occasion was a hearing on the prosecution’s motion to limit testimony at trial. In responding to that motion, the defense asked the judge to hear the testimony, a “proffer” in legal parlance, before deciding. Judge Amul Thapar agreed, and so we found ourselves in Courtroom 1A at the federal courthouse on April 23, 2013.
After dispensing with the niceties—Ramsey Clark was in the Justice Department from the first day of the Kennedy Administration to the last day of the Johnson Administration and he served as Attorney General from September 1966 until January 1969—Bill Quigley, who questioned Clark for the defense. Quigley’s questions were primarily aiming to establish that the defendants’ beliefs were reasonable.
IT WILL DESTROY EVERYTHING IN ITS PATH
Quigley: The defendants believe that the nuclear weapons that are manufactured at Y12 are inherently uncontrollable and indiscriminate. Is that a reasonable belief?
Quigley: Can you explain?
Clark: It is widely known to be true.
Judge Thapar: They are indiscriminate, no one would argue with that. But uncontrollable, do you have scientific evidence or knowledge of that?
Clark: I haven’t thought of it as a physics matter. What happens when you release the energy in a thermonuclear bomb is uncertain.
Judge: So if you drop it, you can’t control the harm.
Clark: It will destroy everything in its path.
Judge: But only on release.
Clark: It is extremely dangerous. If someone were to get ahold of one.
Judge: Yes, when released. But if the government secures them…
YOU WILL DESTROY LIVES THAT ARE PROTECTED BY THE RULES OF WAR
That may have been the moment when it became clear how the day was going to go for the government. After the whole thing was over, a local reporter who has been following the case closely said it seemed to him the tables had turned and it was now the government that somehow was under indictment.
“If the government secures them…” the Judge had said.
Ramsey Clark took it up for him. “If you assume the government does its job. But if people can just walk in there, as these people did, people who were not equipped as, say, Rangers or Navy seals.”
Judge: But how easy would it have been to steal?
Clark: They were seventy-five to eighty percent there. All they had to do was get a truck and steal one.
Judge: Well, I don’t think they were ever standing next to one.
Clark: No, but if they were experts at breaking and entering, how hard could it have been to get in once they got where they got.
Bill Quigley took the steering wheel back from the judge. “Back to uncontrollable when they are used. The defendants believe indiscriminate weapons are illegal under US military code. Is that a reasonable belief?
Clark: By definition it follows they are illegal. If you can not control the direction of the blast, you will destroy lives that are protected by the rules of war.
WE DON’T BUILD THEM TO STORE THEM
Quigley: The defendants believe these weapons, by design, present an imminent risk to generations yet unborn. Is that reasonable?
Clark: Not only reasonable, it is inevitable.
Judge: You are not speaking as a scientist, but giving your opinion.
Clark: My judgment. No, I am not a scientist.
Quigley: Is it reasonable to believe these weapons pose a threat of death or serious injury?
Clark: That’s what they’re made for. If they’re used, it’s a disaster.
Quigley: If they are used. These weapons are made to be used, they are used as a threat?
Clark: I’m afraid so. We don’t build them to store them.
ATTENTION HAD TO BE PAID, AND IT ISN’T BEING PAID
At one point, Ramsey Clark noted the building of nuclear weapons has “gone on for years and years. It’s what causes proliferation. If we do it, others will do it. The magnitude of the expenditures. These weapons present a clear and present danger to life on earth.”
Quigley: But is there no reasonable, legal alternative?
Clark: This is the only way people have to tell the truth. You shall know the truth, and the truth shall set you free. If we keep on building them, we are on the path to total destruction. Attention had to be paid, and it isn’t being paid. We have to get the government to pay attention. That’s why this was necessary.
Quigley: Is it reasonable for the defendants to believe that weapons of mass destruction are illegal under US and international law?
Clark: It is reasonable. It also recognizes the violation of Article Six of the Nonproliferation Treaty—the obligation that is in the treaty we signed when I was the attorney general. The obligation of the weapons states was to stop the arms race and eliminate them from the planet.
THE LIFE OF THE PLANET IS AT RISK FROM THIS ONE PLANT IN TENNESSEE
Quigley: Is it reasonable to believe that what is being refurbished at Y12 are weapons of mass destruction?
Clark: It’s an established fact.
Quigley: And reasonable to believe they violate international law?
Clark: Reasonable. Under the NPT we agreed to eliminate them.
Quigley: And I believe I just heard today or yesterday that the Boston bomber was indicted for use of a weapon of mass destruction—that is part of our criminal code…
The Judge stepped in. “A weapon in the hands of a terrorist or a citizen is different than a weapon in the hands of the government. A machine gun, or a tank—is that a fair statement?”
Clark: It’s fair if you limit it to machine guns or rifles, but weapons of mass destruction—the US is in violation of the intent of the most important treaty we ever signed.
Quigley: Do you believe the continuing threat of the use of Y12 weapons constitutes a war crime?
Clark: It is a reasonable and fair statement of belief.
Quigley: And a soldier can commit war crimes?
Quigley: And using, or preparing to use weapons of mass destruction is a war crime.
Clark: That is reasonable to believe.
Quigley: The defendants believe the work at Y12 is preparation for genocide, could be carried out by civilians or armed services. But they believe the weapons activities at Y12 are in preparation for genocide and a violation of international law.
Clark: That is reasonable. Because of the magnitude of the program at this time. One sub, one sub can carry one hundred warheads. Eight submarines, on alert at all times, eight hundred warheads in a position to strike. Think of maps. Eight hundred places in Europe… or on the continent of the Americas. It is criminally insane.
Quigley: Not homicidal, but omnicidal.
Clark: The life of the planet is at risk from this one plant here in Tennessee.
Later, Ramsey Clark again noted nuclear weapons threaten all life of the planet. “Yet we proliferate,” he said. “I lived through Hiroshima and Nagasaki. In 1968, we came up to sign the NPT. We realized if we let weapons spread, they would threaten life on earth. So in Article I the non-nuclear powers agreed not to procure nuclear weapons, and in Article VI, the nuclear powers took on the obligation—it places an obligation on us. It was highly idealistic, even commits us to complete disarmament. We put it on the shelf. We didn’t read it.
Quigley: The defendants believe the United States is in violation of the Nonproliferation Treaty, specifically Article six…
Clark: If you’re an informed person, it’s the only belief you could have.
THE OBLIGATIONS ARE SERIOUS AND MUST BE OBEYED
When the subject turned to Nuremberg, Quigley asked the Attorney General about his knowledge. “I was there, for one day,” Clark said. “But I read about it.”
Quigley asked about the Nuremberg principles as binding US law. Clark said they were the supreme law of the land.
Quigley asked, “Is it reasonable to believe they outlaw crimes against humanity?”
Clark: Not only reasonable, but highly desirable.
Quigley: And they not only outlaw the killing, but planning and preparation.
Clark: That is the only way to prevent the killing.
Quigley: The principles do not obligate people to wait until after, but confer on them the right and obligation to act to prevent…
Clark: If you can only punish, and not prevent, that is not sufficient for human survival.
Quigley: So it was reasonable for the defendants to believe they had a right and a duty to act to prevent?
Judge Thapar broke in: Could the defendants be convicted of a war crime?
Clark: They might be convicted of trespass, though I don’t consider it trespass.
Quigley: Your honor, the defendants believe it is the government that is committing the war crime.
Clark: The conduct of the US government—it was a treaty we signed, we should be the first to respect it. The obligations are reasonable and serious and must be obeyed.
At one point Clark inserted a historical note for context: “If you look at the threat to life on the planet in 1945, one country had atomic bombs and others were seeking them. It’s a sad fact, but if two countries have a controversy, a dispute, or a difference of ambitions, and if one country has nuclear weapons and the other doesn’t, they have to get them in order to be free, to live free.”
THESE DEFENDANTS SOUGHT TO PRESERVE SOCIETY
Quigley: The defendants believe international treaties are binding law, is that reasonable?
Clark: Reasonable belief and a correct statement of the meaning of the Constitution.
Quigley: And the NPT is binding law…
Clark: It is the supreme law of the land.
Quigley: The defendants believe the program at Y12 which modernizes nuclear weapons violates the NPT.
Clark: It is the only reasonable belief. Our laws have to seek to preserve society. These defendants sought to preserve society.
BY A GOOGLE
Quigley: A moment ago, the judge asked if the government has the right to criminalize trespass. Is the trespass of these defendants miniscule compared to the crimes they are trying to prevent?
Clark: They were justified. There is a long history of justifying minor infractions to prevent grave injury. The only requirement is courage. If they had to cut through a fence, so be it. It was a minor infraction to prevent calamity.
Quigley: The law of proportionality favors the defendants. Is it reasonable to believe the small matter of harm they did is less than the harm that would come from nuclear weapons?
Clark: By a google.
Quigley: Since the use of these weapons on Japan, there have been thousands of tests around the world.
Clark: Yes, it was a race. Proliferation.
Quigley: And the defendants believe these tests have caused harm to thousands, on Bikini, the Marshall Islands, downwind of the Nevada Test Site—in ways that violate our treaties.
Clark: Based on clear knowledge, and a lot more than you have described.
Greg Boertje Obed closed the initial questioning of Clark with a question about drone warfare. Referencing the statement read by the Transform Now Plowshares resisters when they were at the Highly Enriched Uranium Materials Facility on July 28, 2012. “Is it reasonable to believe that drone warfare is illegal?”
Clark answered: As used, in a time of peace, they are clearly illegal because they are indiscriminate. They are also lawless—first we execute, then the trial.
It was 11:56. Ramsey Clark had been on the stand for an hour.
I COULD IMAGINE A COURT IN THE FUTURE…
Under cross examination, Clark was patient, plain spoken, and profound. Assistant District Attorney Jeff Theodore, specialist in national security, asked, “Are you contending that operations at Y12 are criminal?”
Clark: They are unlawful. Had we met our obligations, we could be living in a world where these acts could not be committed. But there is no specific statute.
Theodore: You don’t believe these are war crimes, do you?
Clark: I could imagine a court in the future…
Theodore: But you don’t believe that.
Theodore turned the conversation to international law, pointing out that Congress is not bound by international law. Clark noted the Supremacy clause of the Constitution declares treaties to be the Supreme Law of the Land.
“So court opinions to the contrary are wrong?” Theodore asked. Clark said he would have to read the opinion. Judge Amul Thapar broke in, “Does supremacy mean Congress can not ignore international law?”
Clark: Congress can. But when we sign a treaty, and it enters into force, it becomes the supreme law.
Judge: But a treaty doesn’t trump the Constitution.
Clark: It’s in the Constitution.
Judge: But if there is a contract…
Clark: It says, “The Constitution and Treaties” are the supreme law of the land.
Judge: But take this case on chemical weapons. Whether Congress can pass a law in accordance with a treaty in the absence of another basis. If international law said marijuana was legal. Can Congress pass a lawmaking it illegal?
Clark: If Congress signed a treaty?
Judge: We can have statutes that are inconsistent with customary international law.
Clark: You’re talking about international law, not a treaty.
Judge: I think I understand.
THAT’S THE ADMIRABLE THING ABOUT IT. SOMEBODY HAD TO ACT, AND THEY DID.
Later, the Assistant DA tried to hammer Clark on whether or not the Plowshares activists had other alternatives to civil disobedience. He appeared to confuse written statements from another prospective witness, but Clark took up the discussion.
Theodore: Do you agree their action was civil disobedience?
Clark: It could also be for the greater good.
Theodore: But if it was civil disobedience, was it direct or indirect?
Clark: Mostly I would say it was indirect. Their motivation was clearly affirmative.
Theodore: But there are alternatives. There are always alternatives. Always the political process.
Clark: There are always alternatives. But they are not restricted to them, especially if they don’t seem to work.
Theodore: But the court said, after Schoon…
Clark: The alternatives may not be adequate.
Theodore: But just because they don’t get the result they want, the democratic process does work, doesn’t it?
Clark: It’s not working on this.
Theodore: But on any number of issues, people’s views have changed.
Clark: Yet militarism has grown and grown.
Theodore: But we have had a reduction in the number of nuclear weapons since 1969.
Clark: Not in the destructive capacity. You think of the power of the warheads on just one submarine. It is unbelievable.
Theodore: But democracy works, doesn’t it?
Clark: It’s pretty darn good on most things.
A moment later, after a discussion of Nuremberg during which Theodore attempted to limit the imperative of Nuremberg to cases where citizens were being forced to undertake unlawful acts, he said, “They weren’t compelled, these three.”
Clark answered, “That the admirable thing about it. Somebody had to act, and they did.”
Theodore drew his cross examination to a close: “A minute ago, you testified that the activities at the Y12 site were unlawful. Are the people who work there criminals?”
Clark: They are engaged in a criminal enterprise.
WE COULD NOT FEEL THEIR PAIN
Bill Quigley, on redirect, reached through the tangle of legalese for the heart.
“Mr. Clark, in the 1960’s, when you were in the Justice Department, was it necessary for African Americans to commit civil disobedience to force you to act?”
Ramsey Clark was silent for just a moment. “Sadly, yes,” he said. “We could not feel their pain. We could not feel the misery of their lives. We came to understand it, finally, but without their initiative, we would not have the Civil Rights Act or the Voting Rights Act or any of that. Without Martin Luther King…”
Then, suddenly, the Judge entered the discussion, agreeing that Martin Luther King was an apt example. “It shows that civil disobedience may be honorable, but still illegal.”
Clark: We always hope the law understands the moral value of conduct.
Judge Thapar: But as Attorney General, that was your call, a prosecutorial discretion call.
Clark: Not just discretion.
Judge: But it, take an onerous example, one I think or I hope we would all find—the Klan. If a prosecutor brings charges, and if the judge is sympathetic, he is not then at liberty to ignore the law. If the prosecutor decides to bring the case, the judge’s action flows from it. Civil disobedience, though moral, is maybe not legal.
Clark heard the judge’s plea for absolution but did not grant it. “The final call is with the judiciary,” he said. “The judge disposes.”
Thapar: In accordance with the law.
Bill Quigley reentered the conversation with a question to Clark. “Did Nuremberg prosecute judges?”
“I believe they did.”
“I believe there were some.”
IT IS AN HONOR TO BE HERE
By now, Ramsey Clark had been on the stand for more than an hour and a half. Bill Quigley led him to the close. “Is there anything else you would like to say?”
Clark allowed a brief smile. “I could make a speech, but I will restrain myself.” And then he was serious. “It is an honor to be here.”
Yes, Ramsey Clark, it was an honor to be there.
Judge Thapar indicated he would issue a ruling within a week.