Defending Resistance

By Ellen Barfield

 

The theory and practice of nonviolent direct action—disrupting the system enough to risk arrest, to challenge war and warmaking—are living, evolving entities. Some frequent arrest-riskers have experienced a growing frustration with the inaccuracy of the still widely used term “civil disobedience” and are using the term “civil resistance” instead.

Disobedience means breaking a specific law that is or embodies the problem, such as African-Americans breaking racist Jim Crow municipal ordinances by sitting in at lunch counters legally prohibited from serving them, or Indians processing their own salt from sea water or spinning thread and weaving khadi cloth instead of buying them as legally required from the occupying British. While challenging oppressive laws when possible is valid, the complex web of laws and policies governments use to prepare for and perpetrate war do not lend themselves to direct breaking.

Peace and antiwar activists contend that what governments and corporations do to prepare for and perpetrate war is illegal, and they consider their own actions of civil resistance to the governments or corporations as obeying higher laws, be they international treaties and human rights agreements, national constitutions, religious tenets, or all of those. Those who do civil resistance uphold the Nuremberg principles that citizens have responsibilities to resist illegal government crimes of aggression, act out of the necessity to technically break a minor trespass or municipal order rule to prevent a much more serious tragedy or crime, or obey such religious admonitions as “Love one another” and “Thou shalt not kill.” 

The issue is more important than just a semantic quibble for several reasons. Prosecutors have argued in court that, if the protesters were doing civil disobedience, they already admitted that they broke the law, whereas civil resisters contend they are responsibly pointing out and objecting to law-breaking by their government. Classic civil disobedience includes accepting draconian jail sentences and filling the jails. 

Resistance is understood to include legally challenging the government’s behavior, and urging juries and judges to uphold the citizen’s right and responsibility to protest government wrong­doing by acquitting accused resisters. Juries are much more likely to be convinced by these arguments, since judges are usually beholden to the government officials who appointed them, so actions serious enough to get jury trials are necessary for activists working to establish legal precedent that resistance actions are legal. Below are a series of legal cases considered resistance that were found legally justified.

Law professor John Alan Cohan, in his 2007 law review article “Civil Disobedience and the Necessity Defense,” details a series of legal cases, many of which resulted in acquittal for the activists, who argued necessity or Nuremberg defenses. During the 1980s, juries found many activists not guilty charges  stemming from blockading weapons plans and military bases or sitting in at congressional offices to protest Central Intelligence Agency wrongdoing or repression in  Latin America and  South Africa. 

A 2008 Maine case involving the occupation of Sen. Susan Collins’s local office to protest the Iraq and Afghanistan wars saw 6 of the 13 protesters go to trial and discuss their “state of mind” opposing the government’s warmaking and trying to save lives when they acted as their attorneys argued they had the right to do. The jury acquitted all of them and noted in discussion afterward that they had learned a lot about the wars and appreciated the activists challenging the state. 

Even when judges do not acquit, they can show sympathy, as in a 2007 case where activists protesting the Iraq war occupied the office of Rep. John Salazar (D-CO) after repeatedly trying to get a meeting with him. After the activists readily admitted on the witness stand that they stayed past the closing time of the office but argued they were trying to save lives, the jury convicted the protesters of trespass, but the judge suspended the $50 fines and court costs.

More serious actions involving destruction of weapons, called Plowshares actions (Ploughshares outside the United States) from the Biblical injunction to beat swords into plowshares, seldom see acquittal and can result in years of jail time and thousands of dollars of restitution. But even Plowshares actions have recently resulted in activists’ victories in other countries.

After doing more than $3 million worth of damage to a U.S. warplane refueling at Shannon Airport in Ireland in 2003, five activists were acquitted by a jury in 2006 after arguing that Ireland is a neutral country and U.S. troops and military cargo bound for Iraq should not be hosted there and paid for with Irish funds. 

Three New Zealand (Aoteoroa) activists were acquitted in March 2010 after an April 2008 action destroying the vinyl dome cover of a radio transmitter dish at the Waihopai Echelon spy base, where messages are intercepted and transmitted to the U.S. National Security Agency to facilitate U.S. military activity in Iraq. The activists argued they had a “claim of right,” like the U.S. necessity, to expose the spying and challenge Aoteoroa’s connection to the Iraq war.

In June 2010, five British activists were acquitted of more than $250,000 worth of of damage in January 2009, during the Operation Cast Lead Israeli attack on Gaza, to an EDO MBM weapons factory in Brighton, England, manufacturing items to be sold to the Israeli military and used on Palestinians. The activists argued that the corporation was misusing export licenses to ship arms illegally, and they used a “lawful excuse” defense of their actions, comparable to the U.S. necessity defense.

While occasional courtroom exoneration for activists whom governments want to punish is satisfying and can encourage others to act, the war machine mostly rolls on, perhaps slowed slightly by the activist grit in the cogs. An exciting recent development, though, shows exactly what activists are working for. The actions damaging U.S. warplanes at Shannon Airport to dramatize that neutral Ireland should not be hosting soldiers and facilitating transport of war material—and acquittal of the activists—seem to have helped the brand-new Irish government decide to uphold the 1907 Hague Convention, which allows neutral countries to prevent the use of their territory for warmaking, as Switzerland has for years.

 

Ellen Barfield served in the U.S. Army from 1977 to 1981 to get the money to finish college. Later she co-founded the Baltimore Phil Berrigan Memorial Chapter of Veterans for Peace.  Ellen is a WRL National Committee member and serves on various WRL committes.