Religious Freedom Restoration Act motions hearings for Kings Bay Plowshares

Carmen Trotta, Patrick O’Neill, Clare Grady, Martha Hennessy and Mark Colville, five of the seven Kings Bay Plowshares (Liz McAlister and Steve Kelly were taken to the courtroom from jail)

from the Kings Bay Plowshares Support Group

The Kings Bay Plowshares, seven Catholic anti-nuclear weapons activists, with their lawyers and over 30 supporters, spent nearly 9 1/2 hours in federal court on November 7 in Brunswick, Georgia. This was the first day of a motions hearing to argue that the Religious Freedom Restoration Act (RFRA) applies to their case. They contend that the three felony and one misdemeanor charges the seven face for their entry onto and actions within the Kings Bay Trident nuclear submarine base on April 4 pose an excessive burden on their religious practice. They ask that the charges be dismissed or reduced. After 7 p.m., with two expert witnesses for the defense and one for the prosecution and only two defendants having been able to testify, Judge Benjamin Cheesbro adjourned the hearing to a future date.

Two expert witnesses testified on Catholic social teaching about nuclear weapons.

Jeannine Hill Fletcher, a Fordham University Theology Professor, reviewed Catholic teachings from writings of Popes and the 2nd Vatican Council. After referring to Pacem in Terris and Gaudium et Spes which condemn the use of nuclear weapons, she pointed to Pope Francis’ statement in 2017 that “The threat of their use, as well as their very possession, is to be firmly condemned.” She also spoke about the primacy of conscience going back to the 13th century teachings of Thomas Aquinas. She noted that Pacem in Terris affirms that, “laws and decrees passed in contravention to the moral order, and hence of the divine will, can have no binding force in conscience”.

Bishop Joseph Kopacz, from Jackson, Mississippi, also spoke to the primacy of conscience having led the activists to extraordinary action fully consistent with Catholic teaching.

The 1983 Peace Pastoral allowed for the possession of nuclear weapons for only a short time as a temporary step toward disarmament, but now after over 30 years nothing has happened. Actions, like the Plowshares “spiritual special ops team” have a chance of making change.

Jesuit Father Steve Kelly, his jailhouse shackles clanking as he crossed to the witness stand, testified that their action was religious, and constituted preaching the word of God that nuclear weapons are sinful. “This is very, very much a crisis, not only of existence,” he said of their message to base personnel, “but your souls are in danger.” He noted he will have spent 100 months in prison, half in solitary confinement, by the time of his 70th birthday in January.

Codefendant Clare Grady emphasized that her action was “nonviolent symbolic disarmament.” She movingly told of her upbringing in a faithful and activist family informed by Catholic social teaching. “My parents raised us with a sense of a loving, caring, compassionate God.” She believes that the plowshares action was prophetic and sacramental with the potential to change themselves, the naval base and the world.

Captain Brian Lepine, Commander of Naval Station Kings Bay, testified for over two hours and repeatedly refused to acknowledge the existence of nuclear weapons on the Trident submarines at their homeport at Kings Bay.

Codefendants Mark Colville, Martha Hennessy, Carmen Trotta, Patrick O’Neill, and Liz McAlister will testify at the next hearing (date to be announced).

Video footage, background information and updates can be found at the Kings Bay Plowshares Facebook page and website – kingsbayplowshares7.org.

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PLOWSHARES DEFENDANTS MAKE PITCH FOR RFRA DEFENSE

In a day-long U.S. District Court hearing following briefing and supplemental briefing, the Kings Bay Plowshares defendants laid out their basis for claiming protection under the federal Religious Freedom Restoration Act for their actions in April at Naval Submarine Base Kings Bay.

Under the cover of night — and freely admitted by the defendants — they traveled to the base where co-defendant and driver Father Stephen Kelly abandoned their vehicle. They proceeded to cut through part of the 23-mile perimeter fence, moved toward the nuclear weapons storage bunkers, cut through more fencing and concertina wire, then reached a part of the facility Kelly said Wednesday was lit up like a prison.

Kings Bay commanding officer Capt. Brian Lepine testified late Wednesday that the area with the bunkers has a loud public address system, that when triggered, alerts those in the area that they are not allowed to be there and that deadly force is authorized to deal with their presence.

Kelly testified earlier, “We could be plainly seen as older folks and not a threat,” and later added that the way they were dressed, it was clear they weren’t commandos. Regardless, as Kelly admitted, after a few members of the group put up posters and crime scene tape, spray-painted, spilled blood and tried to damage a decorative missile, armed Marines came at them from all directions. Lepine said that even with the amount of training of the security personnel, they were carrying loaded weapons on a sensitive military installation and sent out to deal with an unknown threat with unknown motivations, which put any number of people in danger.

The key here, from the perspective of the U.S. Attorney’s Office, is compelling interest. According to RFRA, if the government is to infringe on the religious rights of a person, the government has to show a compelling interest why that’s necessary.

Lepine addressed it in his testimony, but it’s also laid out in an affidavit filed with the court.

“Naval Submarine Kings Bay has a compelling interest to prevent unauthorized personnel from gaining access to the base,” Lepine stated. “Ensuring security of its facilities, assets and personnel that work and reside on base is vitally important. Any unauthorized personnel that access Naval Submarine Base Kings Bay may potentially endanger the safety of base personnel, the security of vital facilities and assets on base, and even their own safety.”

He goes on to state such activity also causes disruption and undermine’s the government’s ability to protect strategic national security interests, especially dealing with ballistic missile submarines, guided missile submarines and the Strategic Weapons Facility Atlantic.

That then gets to the second part of the government’s responsibility under RFRA, which is the least onerous punishment for violating the law while exercising sincerely held religious beliefs. The Justice Department feels the most appropriate action is to prosecute and if necessary, secure convictions on three felonies and a misdemeanor — conspiracy, destruction of property on a naval installation, depredation of government property and trespassing.

“Criminally prosecuting unauthorized personnel that unlawfully access the base is the least-restrictive means of furthering the government’s interest in limiting base access to authorized individuals and protecting government property and personnel from acts of destruction and depredation,” Lepine said in the affidavit.

Kelly freely testified that more than eight years of prison time hadn’t deterred him yet in similar actions, and neither would the present prosecution. However, he said he feels justified and authorized by his religion to act on ending nuclear weapons programs. Professor Jeannine Hill Fletcher, a theologian at Fordham University, said such deeply held Catholic beliefs on weapons of mass destruction go from Pope Francis on back to St. Thomas Aquinas of the 13th Century.

Francis said during a 2017 conference on nuclear disarmament at the Vatican that, “The threat of their use as well as their very possession is to be firmly condemned.”

Hill Fletcher said Aquinas maintained that a person’s conscience is not bound to unjust laws, which are human laws that do not have a foundation in eternal and natural law. The possession of nuclear weapons, when seen as thusly unjust, would provide provocation to the faithful to do something about that injustice. This also served as a philosophical underpinning for the actions most famously of the modern civil rights and women’s rights movements, along with a myriad others, including those of the defendants in this case.

Testimony in the hearing continued past press time Wednesday, and is set to resume at a time to be determined.

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Anti-Nuclear Plowshares Activists Finish Testimonies at Federal Hearing in Georgia

The Kings Bay Plowshares evidentiary hearing regarding the Religious Freedom Restoration Act (RFRA) concluded on Monday, November 19 after a second full day of testimony. Five of the seven defendants testified at the hearing in federal court in Brunswick, Georgia.The activists are facing three felony charges and one misdemeanor charge with a possible 25 year prison sentence.They were arrested on April 5 at Naval Station Kings Bay on the Florida border as part of their protest against Trident submarines and the D5 missiles they carry.

The seven Plowshares activists are asking the court to dismiss their charges because the government failed to offer them the least-restrictive means of resolving the charges against them.

Defendants, attorneys and supporters sharing a moment of prayer and reflection before going into court in Brunswick, GA for the second half of the Religious Freedom hearing. Photo by Bill Ofenloch

The November 19 hearing was the conclusion of two days of testimony regarding the RFRA. The defendants explained their “deeply held religious beliefs,” and how their practice of their religion has been burdened by the government’s response to their actions. The RFRA requires the government to take claims of sincere religious exercise seriously.

Defendants Fr. Steven Kelly, S.J. and Clare Grady gave their testimony on November 7.In addition to the remaining five co-defendants testifying on November 19, the prosecution called its second of two witnesses, a civilian communications official for the base.

After the testimonies, Magistrate Judge Benjamin Cheesbro denied motions from several co-defendants requesting a lessening of their bond restrictions, including removal of ankle monitors for the five defendants who are released on bond. They challenged the government’s contention that the five are a “danger to community safety.” Kelly and Elizabeth McAlister remain incarcerated in the Glynn County Detention Center.

In their testimonies throughout the day, several defendants noted that Trident nuclear weapons are the greatest threat to all of God’s creation.

Elizabeth McAlister, from Baltimore, who turned 79 years old a few days ago while in jail, recounted her trial for a 1983 Plowshares action in which she testified, “The government has set up a religion of nuclearism. It is terrifying and dead, dead wrong. It is a form of idolatry in this culture, spoken about with a sense of awe. It’s a total contradiction to our faith.It puts trust in weapons, not trust in God.”   

“God is our strength,” McAlister said, then quoting scripture: “Be still and know that I am God.”

Carmen Trotta, from Manhattan, said that the government’s possession of nuclear weapons imposes a burden on all religious faith. He quoted the Catholic Church’s Vatican II documents:

“The arms race is a treacherous trap for humanity. Nations should mature to take care of one another. Nuclear weapons prevent us from having mutual cooperation with each other rather than mutual destruction.”

Patrick O’Neill, from Garner, North Carolina, said everyone in the courtroom had much more in common, that the defendants and the prosecution truly shared a compelling interest to prevent nuclear war.

“It is our universal burden,” he said. “We can’t separate our religion and our faith from our lives, they are the same thing. Our Catholic faith calls us to uphold the sanctity of life and to preserve creation.”

O’Neill said the real sin present at Naval Station Kings Bay are the Trident II D-5 nuclear missiles on the Ohio-class submarines for which the base serves as the home port.

Martha Hennessy of New York, granddaughter of Dorothy Day, the co-founder of the Catholic Worker Movement, spoke of the formation of her faith. Hennessy said early on she learned that nuclear weapons threaten all of God’s creation, and are directly opposed to her beliefs.

“I’m a grandmother, as a few of us are here,” Hennessy said. “I don’t care just for my children, but all the children in the world.”

Mark Colville, of New Haven, Connecticut, testified his faith forms the foundation of his conscience.

“It’s the rudder of the ship of my life,” he said. “The sins of omission interfere with my faith in God.”

Colville spoke of former CIA officer turned political activist Ray McGovern’s comparison of what the Plowshares were trying to do in community, through a story about the cathedral near the World War II concentration camp at Buchenwald. 

“The incense of the ceremonial prayers within the church outside Buchenwald, rising upward to God,and over the wall just beyond,” he said, “The smoke from the chimneys of the death camps, the ashes of our brothers and sisters rising upward… and the two streams of smoke meeting above. Whose prayers are being answered by God? Kings Bay Naval Base is labeled as a death camp for the entire world in the waiting.”

“What I’m charged with just seems so very petty compared to nuclear annihilation,” Colville said. “Yes, we went in the night and cut through the fence. We’re called to go into the darkness, to bring in light, to expose what is hidden.”

It is not known when Judge Cheesbro will make his ruling following this hearing. The parties have 20 days to file additional written arguments. If he rules against the defendants’ motion to dismiss, a date will then be set for their trial.

The Plowshares movement began in the early 1980s and advocates active resistance to nuclear weapons and war, usually involving symbolic protest and the damaging of weapons and military property. There have been about 100 Plowshares protests worldwide.

“The victory of the day,” said Patrick O’Neill after the hearing, “Was that truth was spoken by all defendants.”

“It is clear that is the threat.”

Video footage and additional details are available on the Kings Bay Plowshares Facebook page, and the website kingsbayplowshares7.org has background information, legal updates and court filings.

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from The Brunswick News, November 20, 2018

Plowshares RFRA case closes in on ruling

by Wes Wolfe

After two full days of testimony, the attempt by the Kings Bay Plowshares defendants to get their charges thrown out as violations of the federal Religious Freedom Restoration Act isn’t over yet. U.S. Magistrate Judge Benjamin Cheesbro, after a request by defense attorney Bill Quigley, announced he would allow additional but limited briefing, and is putting together an order to that fact.

The seven defendants all face charges of conspiracy, destruction of property on a naval installation, depredation of government property and trespassing for their roles the evening of April 4 and the early morning of April 5, breaking into Naval Submarine Base Kings Bay and allegedly vandalizing areas near the storage of nuclear weapons and a static missile display.
Defendants Martha Hennessy, Mark Colville, Carmen Trotta, Elizabeth McAlister and Patrick O’Neill took the stand Monday, following Nov. 7 testimony from co-defendants Father Stephen Kelly and Clare Grady.

Hennessy, the granddaughter of Dorothy Day — a woman who was called in a 2012 New Yorker article on her possible canonization “perhaps the most famous radical in the history of the American Catholic Church” — discussed at length what she learned growing up, and especially from Day, on how faith is to guide actions. Hennessy said her actions at Kings Bay were as “as profession of my faith and my responsibility as a citizen.”

Day was a founder of the Catholic Worker movement, and the ideals of that movement have been a key discussion point during the two days of testimony, including strong beliefs of pacifism and against war in all its forms, but nuclear war in particular, and how those beliefs have a basis in religion.
Hennessy said she would have sinned by omission by not acting to do something that would move the nation forward to denuclearization. She said her conscience wouldn’t allow standing by and accepting what she called the idolatry of nuclear weapons and the acceptance of the permanent war economy.
Unsurprisingly, further testimony from the defendants ran along these lines, as they did at the Nov. 7 hearing — a lifelong commitment to the Catholic faith, and how that strong faith moved them to act numerous times to bring light to and counter what they see as evil and injustice.
Kings Bay’s very existence, Colville said on the stand, conflicts with God’s law. He said to allow Kings Bay to continue its operations without doing anything would be a sin of omission and interfere with his relationship with God.
“I went there for repentance in my complicity with nuclearism…,” Colville said.
In addressing part of the RFRA matter — whether the government went about doing what it needed while placing the least possible burden on those practicing their religion — prosecutors repeated a process from defendant to defendant, bringing up their criminal record. The defendants each have lengthy histories in Catholic social justice efforts, and a number of those efforts ended up in arrests and, for some, convictions.

Remarks by the prosecution in the case thus far have gone to the argument that anything less than criminal prosecution could not dissuade the defendants. But, as noted by the criminal histories entered into evidence, the defendants are not strangers to being prosecuted, especially by federal authorities. Several of the defendants admitted in testimony that they served years in prison as a result of other acts against perceived injustice.

In other matters, Cheesbro decided not to change the conditions of O’Neill’s pretrial release, though a probation officer submitted a petition to revoke his bond. Assistant U.S. Attorney Karl Knoche said at the outset that the U.S. Attorney’s Office was not pushing for him to be remanded to jail, and further discussion between O’Neill and Cheesbro appeared to paint a picture of honest confusion. Knoche asked the judge to preset O’Neill with a last- warning admonishment, which Cheesbro did at the end of the discussion.
A number of the defendants who are presently on pretrial release, but subject to ankle monitors and curfew, presented passionate arguments about why they should now be allowed release on personal recognizance bonds, but Cheesbro said their circumstances hadn’t really changed since the former magistrate signed the current set of bond modifications.

Attorney Stephanie McDonald, speaking for Grady, said Grady at least needs to end the ankle monitoring, because it’s exacerbating a medical condition involving the defendant’s nervous system. Cheesbro said he would reserve judgment on whether to modify Grady’s bond specifications until she was able to provide documentation from medical personnel explaining the need.

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Press Statement Prepared by Jeannine Hill Fletcher, November 7 motions hearing

On April 4, 2017, The Kings Bay Plowshares undertook a sacramental action to sound the prophetic call that is at the heart of the Christian Gospel: Love God with all your heart, soul, mind and strength; and your neighbor as yourself. (Mark 12:30-31; Matthew 22:36-40; Luke 10:27). They placed themselves in Christ’s greatest directive of love: “no one has greater love than this, to lay down one’s life for one’s friends” (John 15:13)

After years of prayer and discernment, listening deeply to the call of conscience and the prophetic call of the Gospel, these courageous Catholics set forth to make sacred what had been profaned. As Catholics, we take seriously the message of the Bible that the earth and all its creatures are God’s (Psalm 24:1). But the chain-link fence of the Kings Bay Trident Naval Base stands as a visible sign that some among humanity claim that they can determine the future and fate of the earth and all its creatures. In prophetic and sacramental witness, the Kings Bay Plowshares cut through the false security of the chain-link fence to make present for all who have eyes to see, the false security of nuclear weapons. For it is God alone who has the power to give life and to take it away; and it is at the heart of the Catholic faith that God alone is our security. The Kings Bay Plowshares were compelled by their faith to undertake a sacramental action that would consecrate what had been desecrated, by the sprinkling of blood and the prophetic reminder of the heart of the Gospel, spray-painting the prophetic message: Love Thy Neighbor.

For this prophetic action, the Kings Bay Plowshares are being prosecuted for breaking the law. But, Doctor of the Church, Saint Thomas Aquinas made a crucial distinction between a just and an unjust law, on the basis of its origin and its end. A just law has as its end human good and “the law does not exceed the power of the lawgiver” (Summa Theologica, Part II, Question 96, Article 4). An unjust law, does not have as its end human good, and has been created by someone in such a way “that goes beyond the power committed to him.” A just law, aligned with the natural law of God, makes a demand on our human conscience. An unjust law, requires of our conscience that it not be followed. In Aquinas’s words, “Laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, ‘we ought to obey God rather than man.’” Catholic Social Teaching maintains this distinction between just and unjust laws, as well as the role of conscience in determining the righteousness of law. In the words of Pope John XXIII in Pacem et Terris (1963): “laws and decrees passed in contravention of the moral order, and hence of the divine will, can have no binding force in conscience, since “it is right to obey God rather than men’.”

In accordance with the teaching of Jesus found in the New Testament, the Catholic Christian tradition places one law above all others: you shall love God and love your neighbor as yourself. The maintenance of nuclear warheads is in direct violation of this law.

Catholic Social Teaching has named nuclear weapons such as those housed at Kings Bay Naval Base as “offenses against humanity and the common good” (Holy See, “Nuclear Disarmament: Time for Abolition” (2014). The documents of Vatican II named the use of any weapons “aimed indiscriminately at the destruction of entire cities of extensive areas along with their population” as “a crime against God and [humanity]” that “merits unequivocal and unhesitating condemnation.” (Gaudium et Spes, #80) In the words of Pope Francis “The threat of their use as well as their very possession is to be firmly condemned.” The principles of Catholic Social Teaching demand Catholics denounce unjust laws which compromise the dignity of each human person, destroy the common good, fail in our stewardship of the earth, global solidarity and the promotion of peace. Catholic Social Teaching has denounced nuclear weapons as contrary to the principles of the faith.

In his message on nuclear disarmament, Pope Francis lifted up the words of Pope John XXIII that the process of disarmament must be thoroughgoing and complete, and it must reach into our very souls. Standing in solidarity with humanity, the Kings Bay Plowshares attempted to reach the very souls of fellow Catholics and Christians that we must “wake up” to the threat to humanity and the affront to God that is our nuclear weapons arsenal through the sacramental action of sprinkling blood and inscribing the words “Love One Another.”

The defendants were motivated by deeply held religious beliefs and have acted in accordance with Catholic Social Teaching and the prophetic call of the Christian tradition.