UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Transcription

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 0 UNITED STATES OF AMERICA, ) Docket No. CR0-BHS ) Plaintiff, ) Tacoma, Washington ) March, 0 vs. ) ) STEPHEN M. KELLY, ) SUSAN S. CRANE, ) WILLIAM J. BICHSEL, ) ANNE MONTGOMERY, ) LYNNE T. GREENWALD, ) ) Defendants. ) ) APPEARANCES: TRANSCRIPT OF SENTENCING BEFORE THE HONORABLE BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE, and a Jury 0 For the Plaintiff: For the Defendants: Defendant Kelly: Standby Counsel: ARLEN STORM BRIAN WERNER Assistant United States Attorneys 0 Pacific Avenue, Suite 00 Tacoma, Washington 0 Pro Se ROGER A. HUNKO Law Office of Wecker-Hunko Division Street Port Orchard, Washington ANABEL DWYER Post Office Box 0 00 Edgewater Beach Mackinaw City, Michigan 0

2 0 0 Defendant Crane: Standby Counsel: Defendant Bichsel: Standby Counsel: Defendant Montgomery: Standby Counsel: Defendant Greenwald: Standby Counsel: U.S. Probation Officers: Court Reporter: Pro Se PAULA TUCKFIELD OLSON Law Office of Paula T. Olson Tacoma Avenue South Tacoma, Washington 0 Pro Se JEROME KUH Federal Public Defender's Office Broadway, Suite 00 Tacoma, Washington 0 Pro Se BLAKE I. KREMER Law Office of Blake Kremer 0 Tacoma Avenue South Tacoma, Washington 0 WILLIAM QUIGLEY Center for Constitutional Rights Broadway, Seventh Floor New York, New York 00 Pro Se THOMAS ALEXANDER CAMPBELL Attorney at Law 0 Auburn Way North Auburn, Washington 00 Dan Acker Becky Miller Kalen Thomas Julaine V. Ryen Union Station Courthouse, Rm Pacific Avenue Tacoma, Washington 0 () - Proceedings recorded by mechanical stenography, transcript produced by reporter on computer.

3 TABLE OF CONTENTS Page 0 0 SPEAKERS ON BEHALF OF DEFENDANTS: William Quigley Bishop Thomas Gumbleton Ramsey Clark Paul Bigman Rozella Apel 0 John LaPointe Theresa Power-Drutis Reverend Anne Hall Anabel Dwyer 0 Jerome Kuh Roger Hunko Blake Kremer Thomas Campbell STATEMENT BY PLAINTIFF 0 STATEMENTS BY DEFENDANTS: Father Kelly Ms. Crane Father Bichsel Sister Montgomery Ms. Greenwald SENTENCING BY THE COURT: General Remarks Father Kelly 0 Ms. Crane Father Bichsel Sister Montgomery Ms. Greenwald

4 0 0 (Defendants present.) THE CLERK: This is the matter of the United States of America versus Stephen Kelly, Susan Crane, William Bichsel, Anne Montgomery, and Lynne Greenwald, Cause No. CR0-BHS. Counsel, please make an appearance. MR. STORM: Good morning, Your Honor. Arlen Storm and Brian Werner on behalf of the government. THE COURT: Good morning. And the parties may introduce themselves, please. MS. CRANE: Good morning. Susan Crane. FATHER BICHSEL: Bill Bichsel. MR. KELLY: Stephen Kelly. SISTER MONTGOMERY: Anne Montgomery. MS. GREENWALD: Lynne Greenwald. MR. QUIGLEY: Bill Quigley, standby counsel. MR. CAMPBELL: Tom Campbell, standby counsel for Lynne Greenwald. MS. DWYER: Anabel Dwyer, standby counsel for Stephen Kelly. MR. KREMER: Blake Kremer, standby counsel. MR. HUNKO: Roger Hunko, standby counsel for Stephen Kelly. MR. OLSON: Paula Olson, standby counsel for Ms. Crane. MR. KUH: Jerome Kuh, standby counsel for Bill

5 Bichsel. 0 0 THE COURT: Good morning everyone. We are here for the sentencing of Stephen Kelly, Susan Crane, William Bichsel, Anne Montgomery, and Lynne Greenwald. Now, the defendants have asked for a joint sentencing hearing, which the government did not object, and the Court has granted that. At the outset, I want to tell you that I do not believe I have had a sentencing matter which I have spent so much time thinking about and reviewing materials. My comments here today have been for the most part reduced to writing because I hope to be as clear as possible. Because of this preparation, I have a pretty clear idea as to what the sentences are that will be given, but I never come to a sentencing hearing with my mind fully made up, and no determination will be made here until I've heard the arguments and comments of the parties and those who are here to make statements to the Court. The Court has received hundreds of letters from citizens in support of the defendants in this case. I believe I have reviewed every one of them. Some were form letters, but most were not. They were generally thoughtful and heartfelt. These letters came from all over the country and from around the world. It appears each student from an entire sixth grade class in Ukiah, California, sent me a non-uniform, individualized

6 0 0 letter. Nearly all letters I've received suggest that the Court should not consider a sentence including imprisonment. The contention is nearly uniform that these defendants, who have given their lives in service to others, should not be punished because they were justified in breaking into a military installation and destroying government property because according to them, the U.S. Government is in violation of the Constitution and international law. Many also assert the other defense that was raised in the case and precluded by the Court which was the defense of necessity. Not a single letter was received urging me to send anyone to prison. I especially appreciated one letter that didn't urge me to take any specific action. It simply read, "I am writing to express my prayerful support for you as you prepare for the sentencing of the 'Plowshares Disarm Now' group on March. I pray that the Spirit who indwells you and the brothers and sisters who will be facing you on that day may give you wisdom and courage to do what you believe to be the right thing." That was from Peter Ediger, from Pace e Bene, nonviolent service in Las Vegas. Of course, the Court has also read the presentence reports for each of the defendants, the individual statements of the defendants, and the government sentencing memorandum. The Court has indicated before, it will allow three witnesses on the broader subjects that are implicated in this

7 0 0 case that have application to all the defendants. These will be limited to five minutes each. In addition, the Court will permit family members or close friends to make brief comments to the Court that are directed to their personal knowledge of a particular defendant's personal character. This will also be limited to two persons unless an individual defendant can demonstrate that there is good cause to allow additional information that is not duplicative or essentially redundant. I will now go over the sentencing parameters and the United States Sentencing Guidelines that apply to all of the defendants. The maximum sentence that could be imposed is ten years of imprisonment. There is a base offense level in this case for all defendants of. To that is added two levels because the loss amount is greater than $,000 and less than $0,000. Here, the loss amount is not the $,0.0 originally asserted by the government. Susan Crane objected to that amount for restitution, and the government in a supplemental memorandum adjusted the figure to $00, indicating that that was the amount established at trial. That will be the figure used for calculating the loss and for restitution. In addition, another two levels is added because this crime involved more than minimal planning. This was a crime that was carefully planned out long in advance of the day in which it was committed. It involved the coordination of five

8 0 0 individuals taking tools, equipment, and other materials to accomplish their objective. For some of the defendants, the probation department suggested an increase by two levels for a couple of defendants because the offense involved a violation of a prior specific judicial or administrative order, injunction, decree, or process. Probation argues that this provision of the guidelines applies because these defendants were given bar letters from the Bangor Naval Base. The government in its memorandum to the Court requests that this guideline provision not be applied because case law makes it uncertain whether said barment letters would constitute the required administrative order. The Court will not apply this provision in its calculations. Additional two levels are added because the offense involved the conscious or reckless risk of death or serious risk of death or bodily injury. The conduct of the defendants risked death or serious bodily injury to themselves. They knew that lethal force could be used against them. In connection with Father Kelly, I will not apply two levels as suggested in the presentence report for obstruction of justice pursuant to the United States Sentencing Guidelines C.. This was suggested because Father Kelly was reported to have violated the conditions of his release pending sentencing by being arrested on Vandenberg Air Force Base in

9 0 0 California. Now, there have been no objections filed as to the application of these guidelines as I have now stated them. Does any party object to the application of the guidelines as I have now just summarized them? MR. STORM: The government does not, Your Honor. FATHER KELLY: Just a moment. THE COURT: You may. MR. KREMER: Your Honor, if we could ask -- Blake Kramer. If we could ask for a clarification. We didn't hear discussion of the acceptance -- two-point acceptance for responsibility. THE COURT: There's no acceptance of responsibility reduction in this case. I was going to address that later. MR. KREMER: Okay. THE COURT: In that connection, Anne Montgomery had indicated that she felt it was appropriate. The Court has not included it. Basically Ms. Montgomery's -- would you prefer to be addressed as Sister Anne, by the way? SISTER MONTGOMERY: I said that we took responsibility for the Constitution and international law in our action. We repeatedly said that during the trial, and our idea of responsibility is as citizens of the United States. I think the objection from the prosecutor to that was that you have to plead guilty to accept responsibility, which is

10 0 0 0 like forcing people to plea bargain. We would not plead guilty because we were convinced that we were upholding the law. And so, yes, we took responsibility, we said so, but for the law. THE COURT: Let me first again ask you, do you prefer to be addressed as Sister Anne or Ms. Montgomery? SISTER MONTGOMERY: Sister Anne, please. THE COURT: Sister Anne, the reason why the Court did not accept your request is -- and I know the government does not believe that you must plead guilty. There are some circumstances in which one can go through a contested trial and ultimately accept responsibility. It is clear that you admitted and acknowledged the events that transpired took place, but you did not admit that it was wrong to do so. That is the distinction that precludes the Court from giving you the acceptance of responsibility reduction. SISTER MONTGOMERY: I certainly cannot accept that it was wrong. It was right. THE COURT: And I appreciate that would be your answer. But the Court, I think, explained itself here. Other than this, are there any other comments about the calculation of the guidelines? MR. CAMPBELL: Yes, Your Honor. Tom Campbell, standby counsel.

11 0 0 Your Honor is determined to add two points for conscious or reckless risk of serious bodily injury or death, and we would take exception to that. As indicated in Ms. Greenwald's sentencing memorandum, they believe that they took every precaution not to create that serious risk of death. In fact, at the point when the marines accosted them, they were engaged in peaceful protest activities. Ms. Greenwald was holding up a yellow banner with both of her hands up, one holding up the banner and the other holding up a peace symbol. There is controversy about the execution of a living will prior to entering, and that, I think, has been misconstrued by probation as an indication of the acknowledgment of the risk of death or serious bodily injury, but instead it was more a statement, as indicated with the letter to the base commander, recognizing that every day that there are nuclear armaments, there is a risk of death or serious bodily injury simply by their presence. THE COURT: Your exception is noted, but the Court is not going to alter its view that this was a very risky operation that was performed by the five individuals, knowing that it was very risky. I will now allow defendants' request for three general witnesses who will be limited in their statements to five minutes. They need not be sworn, and they will address the Court from the podium.

12 0 0 MR. QUIGLEY: Your Honor, Bill Quigley, standby counsel. I just wanted to give you sort of the plan that we have for this morning, if that's okay. THE COURT: Yes. MR. QUIGLEY: I'm going to do just the legal. The lawyers are going to come in briefly. But the three witnesses, the first is going to be Bishop Thomas Gumbleton, G-u-m-b-l-e-t-o-n. He's a Catholic Archbishop. Susan Crane will bring him to the podium. The second general witness is Ramsey Clark, former Attorney General of the United States. Sister Anne Montgomery will escort him to the podium. The third general witness is Paul Bigman, and he will be escorted to the podium by Father Bichsel. At that point, then, after those brief comments, Father Kelly will have one personal testimony. Father Bichsel will have one, John LaPointe. Ms. Greenwald will have two, Theresa Power and Anne Hall. And at that point, then the rest of the attorneys who -- counsel who would like to make a comment will make them, and then we will end with each of the defendants addressing the Court briefly in the order that they have been doing it so far: Steve Kelly, first of all; Susan Crane, secondly; Father Bichsel; Sister Anne Montgomery; and then Lynne Greenwald, and then we will be finished. Does that sound okay to you?

13 0 0 THE COURT: I will accept that. I want to make this comment about standby counsel. The Court has been, I think, generous in terms of allowing standby counsel to have a role beyond that which is normally anticipated, but this is an extraordinary case, and so I'm going to continue to be a little bit relaxed with regard to that rule. So I wanted to make that comment. MR. QUIGLEY: Thank you. THE COURT: So I'm ready to proceed with hearing from your first speaker. MR. QUIGLEY: Judge, if you could, I had a couple of introductory comments on behalf of the defendants. Again, for the record, my name is Bill Quigley. I am a law professor at Loyola University in New Orleans. I've been practicing law for years; been married for years as well. I'm a Katrina survivor. And today's a very special day for me and I think for everybody in the courtroom. There are few cases in our lifetimes that our grandchildren might have a chance to read about, and I think this is one of them. And I have four points that I would like to make about the law. Point one is that the law is very clear that it asks for just punishment. And to that, I know the Court's already looked at U.S.C., Section (a)()(a), to provide just punishment for the offense, and Rule of the Federal Rules of

14 0 0 Criminal Procedure which asks for the just determination of every criminal proceeding and fairness in administration. So how do we find what is just? I think as lawyers, as judges, that we do a couple of things. We look to the law, we look to history. History helps us decide what is just punishment. On June th,, in a Federal District Courthouse in the Northern District of New York, there was Federal District Court Judge Ward Hunt. He was faced with a federal criminal case before him. A woman was charged with a crime. Her name was Susan B. Anthony. The judge asked her what she had to say in her defense for the crime of voting. She said that the same wicked laws that made it illegal to help runaway slaves, the same wicked laws prevented women from voting and it was her responsibility to vote. The judge said, "Nevertheless my decision is in accordance with the law," and he convicted her and he fined her. That case turned out to be the very most important case that Judge Hunt or anybody else in that courtroom had ever handled. Part of the way I think that we decide what is justice is what do we say to our grandchildren? And what does the case of Susan B. Anthony say to the grandchildren of all the people who were in the court? The second historical case is two lawyers, Max Hirschberg and Hans Litten, names that I had never heard before a couple

15 0 0 of years ago, but there are books written about them. They were lawyers in Germany who took cases challenging a rising politician in the 0s. They sued this politician and got him on the stand and they lost their case. The politician was able to have some response to that. Both of them were disbarred. Of course the defendant, the politician was Adolf Hitler. But these men, both lawyers, put Hitler on the stand. He had them disbarred. One fled the country in disgrace; the other died in prison. That case turned out to be the most important case that any lawyers or judges or prosecutors handled in Germany for many years. Part of the test is what do we think the grandchildren and great grandchildren think of the people who were in the courtroom that day? And the final one, the one we talked about earlier, December st,, the arrest of Rosa Parks. She asked the arresting officer, "Why are you doing this?" The officer said, "This is the law, and you are under arrest." She was convicted of segregation -- violating segregation laws, and disorderly conduct. She lost her job; ultimately had to move to another state. But all of our grandchildren study her case and recognize what was just now. So the challenge, I think, for us -- and I'm almost finished -- is that we have to distinguish the difference between law and justice, particularly at this time. The jury

16 0 0 has done their job and they have convicted these folks with the information that was available to them. But now it is time, as the law tells us, to apply justice. So how do we decide what's just, a just outcome in this case? I have taught several thousand law students and several thousand lawyers over the years the difference between law and justice, and I think it's our responsibility as lawyers to understand the difference between law and justice, and our job is to narrow that gap. And so when you are deciding -- and I believe that everyone believes you, that you have not totally decided this case, but you are very well prepared. How do we distinguish between law and justice in a case like this? And one of the ways that I have found most useful with law students is what I call the hundred-year rule. The hundred-year rule suggests to us to look back a hundred years, in this case, and look at what was totally legal but is clearly, in perspective, manifestly unjust. Women could not vote a hundred years ago, not until 0. It was illegal to form a union. Not until the 0s was that legal. Child labor was allowed. That was not prohibited until. Segregation was totally legal and accepted through the 0s. Discrimination against people with disabilities was legal until 0. Domestic violence and the like.

17 0 0 THE COURT: Mr. Quigley, I'm going to momentarily interrupt you here. As you know, the Court has limited it to three other speakers beyond the pro se defendants. You would be a fourth, which I have allowed here, but I would just want to remind you that it was the Court's restriction of five minutes to the other three speakers, and you will need to abbreviate your comments. I'm not sure how much time you planned, but I ask you to keep that in mind. MR. QUIGLEY: I will, Judge. I'm sorry. THE COURT: You may proceed. MR. QUIGLEY: I had written it down at a thousand words. I thought I could finish it in five. I'm sorry. So the hundred-year rule for us, I think, is what will people a hundred years from now look back at us today and say, what was totally legal but was manifestly unjust? And I think particularly when we are talking about nuclear weapons and weapons of mass destruction, if there's an earthquake off the coast or even more horrible, if one of these weapons was ever used, what people would look to us to say what we are doing is legal or just. The justice we seek, and I'm in conclusion, is the justice that the United States is calling upon across the world. We're telling the soldiers of Libya to not follow the law but follow justice. We are excited that tens of thousands of people across the countries of Egypt and Saudi Arabia and

18 0 0 Libya and Tunisia and other places are violating the law or risking arrest on principle to stand up for justice. Our country is supporting them, and that's, I think, a great illustration of us, the tension between law and justice. Augustine of Hippo, who was a bishop in the year 00, said, "Hope has two beautiful daughters, Anger and Courage. Anger at the way things are, and the Courage to do something else." So I would suggest on behalf of our folks here that a sign of hope and a truly just sentence for this Court would be in fact no prison, no probation, no fine, no restitution. Time served would be a just sentence. And so today, Judge, on behalf of the defendants, and on behalf of our grandchildren, we ask for justice. Thank you. THE COURT: Thank you, Mr. Quigley. I will then go to the first speaker. MR. QUIGLEY: Bishop Gumbleton. THE COURT: Again, sir, if you would just step forward to the podium here. MS. CRANE: He's going to speak on his own, or are we going to question him? THE COURT: He can speak on his own. MS. CRANE: Okay. BISHOP GUMBLETON: Give me the script, a good

19 0 0 guideline for me. Otherwise I might be ruled out of order and thrown out of court for talking too long. THE COURT: That's unlikely. BISHOP GUMBLETON: Thank you. I am Bishop Thomas Gumbleton from the Archdiocese of Detroit. I've been a Catholic priest for years -- years, and a bishop for years. I have worked in administrative positions, pastoral positions in New York Diocese and throughout the country. I speak on behalf of total leniency in this case, that these -- all five of these people would be allowed to go without any penalties, and there's a number of reasons why. I happen to be close friends, a close friend of a family in Germany -- or in Austria, I should say -- who experienced the loss of a father and husband in executed by the Nazi regime. His name is Franz Jaggerstatter and his widow is still living. I visited with her a month ago and the family. And he had the insight to see, in spite of the fact that the majority of the people were against him, to see that what Hitler was doing was evil; the whole ideology of Nazism and the war was an unjust war. He refused to serve in Hitler's Army. That was a crime -- treason -- and he was executed in. I believe what the United States is doing with this nuclear armament is something that is against international

20 0 0 0 law, but even more, against moral law. Weapons of mass destruction are totally immoral and, in fact, are illegal internationally. I believe it's the duty of citizens of the United States to oppose these armaments out of conscientious reasons. We can see how evil they are. You need only to review some of the circumstances of Hiroshima and Nagasaki to know the extraordinary, unspeakable evil that these weapons bring about. We have the clear intent to use those weapons. That's part of our public policy. I think we must work against that. When I say we have the clear intent to use the weapons, I heard that from Caspar Weinberger in in a personal meeting with him when I was involved with Catholic bishops in writing a document opposing nuclear weapons, and we asked him, "is this a threat or do we intend?" He said, well, we don't want to, but when we have to, we will. And you may be aware that just recently a young man in the military was asked to sign a document that when he was involved in nuclear weapons, that he would follow command to use those weapons. He said, "I can't do it." He had to leave the military, but he couldn't do it because he knew it was something totally immoral. And so I offer these as examples of the same type of activities that these five defendants have engaged in, efforts to oppose a policy that is clearly immoral, even though not

21 0 0 recognized as such by most people in this country. The Catholic church has spoken out very strongly against them. In that document that we wrote in, we said "any use of a nuclear weapon cannot be justified morally." And so these defendants have been acting according to a moral law that I believe this Court should back up. Even though it's against the -- they've been convicted within the framework of law, they have done something that proves our laws need to be changed, and an action on the part of this court to free them without penalty would be a clear statement that the Court agrees with that, and that could well move it in the direction of spreading the word throughout our country: Nuclear weapons must be abolished. And, in fact, I can conclude very quickly, I guess, in my just saying that -- repeating something that John Kennedy said in when he appeared before the United Nations and said the whole planet is threatened. At any moment it could be destroyed. He said we are under the sword of Damocles, a nuclear sword, and the thread holding that sword could be severed at any moment. So his conclusion was, we must abolish these weapons from the face of the earth before the earth is destroyed. So that is the goal of the defendants here, to abolish these weapons. Their being set free would be a very clear statement that what they have done is the right thing and

22 0 0 should not be punished by our law. Thank you. THE COURT: Thank you, Bishop. I believe the next speaker is Ramsey Clark. MR. CLARK: Good morning, Your Honor. I thank you for permitting me to place you twice in jeopardy by testifying today before you. This May I will have been a licensed lawyer for 0 years. I also have a ten-year service pin from the Department of Justice, with eight years of active duty. They tacked on the two years I spent in the United States Marine Corps, age and, to make a total of ten federal years. The year after I left the office of the Department of Justice, I'm with the Plowshares people. I was lead counsel in a case called the U.S. -- I don't remember which defendant had the lead name, but there were seven defendants. They were charged, we spent the whole winter, three-and-a-half months, in Harrisburg, Pennsylvania, trying the case. A brutally cold winter. It flooded the courthouse later that spring. And in the ten counts, some of the most serious crimes in Title against property and life were alleged. There were acquittals on nine counts, a conviction on one count of unauthorized sending a letter out of prison, which was overturned by the Third Circuit. That's where I met the Plowshares people. In my life I

23 0 0 have not encountered a more loving, selfless, serving group of people. They live their lives in poverty. They seek those who need help the most. Father Berrigan worked for some years in a hospice for children with terminal cancer, about three blocks from where I live in Manhattan. That's typical of the service they've all sought. They're not unaware of war personally or the military. Father Phil Berrigan fought in World War II in the Battle of the Bulge and stood by the general who said nuts to the order or command to surrender. Ms. Anne Montgomery was born into a naval family. Her father was a ranking officer when she was born, and an admiral. She lived her childhood and youth on naval bases and wept when he went away to war in World War II as an admiral. We are aware of all of these things, and yet they do what they do. It's a side work for them because their greater work has been, until this overcame them, selfless service to the poor. Anne had an inheritance. She gave it away to the poor, carefully and meaningfully. Dan Berrigan is a poet and he once tried to explain why they do what they do. It was on the witness stand in King of Prussia -- a town in Pennsylvania, unlike the name -- and he said that he found it impossible not to do. As a poet, he probably read Dante, who said in The Inferno, "the hottest places in hell are reserved for those who at the time of a

24 0 0 moral crisis do nothing." These people see as the great moral crises of our time, and I believe they see it clearly and truthfully, violence and the search for ultimate violence and the growth of the nuclear threat. The nuclear threat here in this general town, if all those warheads were set off over all the major cities in the world it would kill hundreds of millions, hundreds of millions of people, and perhaps by themselves destroy life on the planet. We see the risk today in Japan from our unwary use of this new power we found in the atom. I have always been wary of prisons. I've been tormented by the growth of our prison population. When I left the government in there were fewer than 0,000 prisoners in the federal system. Anymore, there's sixfold that number. It's a form of madness and self destruction. The United States has over three million people at this moment in custody: federal, state, and local, three million in jails around the country. Three million. There's been nothing like it in history. You would be hard pressed to find people who are more wrongfully in prison than to put people who spend their lives meeting the needs of the most helpless and poorest, but simultaneously revising if we don't save us all, saving and serving the poor who wind up useless. I think that Booker has made a great opportunity for reform of our sentencing system. It's been a rough go. Since

25 0 0 Booker, the Supreme Court itself has had to review the issue of sentencing or times. The courts have been turmoiled by it. And this very Friday, there will be a conference by the Supreme Court in a case called Isey from the state of Florida in which cert was granted. But the case that -- of all the circuits, a case I've been working on for about two months now, the Ninth Circuit has a better go at it than most, but the best opinion that I've seen is the opinion in a case called Turko, U.S. v. Turko. In there the court departed from the guidelines in a serious case. He gave no jail time. It was a marked departure. The Third Circuit affirmed it en banc, eight to five. Hard cases make bad law. But they affirmed, and most importantly, perhaps, for our purposes, the United States did not seek certiorari. They accepted the en banc decision of the Third Circuit and gave no jail time. It seems to me, of all the people I can think of that I have ever known or heard of, I can think of none that, for which there can be no justification in sending these people to jail. If they're in jail, they ought to be serving others. That's their lives. That's what they dedicate themselves to do. And they could not, not do, as Daniel Berrigan said. They did it because they could not, not do it. It's painful for them, very painful. Just the idea that they're confronting

26 0 0 people nonviolently, and they are a very gentle people, but their conscience tells them they have to do it. And I say that God will bless them for it, and the laws of the United States should, too. THE COURT: Thank you, Mr. Clark. And third speaker, then. Is it Bigman? Thank you. And identify yourself again for the record, please. MR. BIGMAN: My name is Paul Bigman. THE COURT: Bigman. MR. BIGMAN: I want to start by thanking Your Honor for allowing us to have this opportunity to address the Court on the sentencing. I've been a labor activist for more than years and a full-time union organizer and union representative for more than years. I'm currently the business representative for Local of the International Alliance of Theatrical Stage Employees for Western Washington Stage Hand Union, an officer of Washington State Jobs for Justice, a coalition of labor, faith, community, and student groups that mobilize nonefficient worker's rights. I want to stress that I don't claim to be speaking for the labor movement as a whole, or for the Jobs for Justice. But I did want to talk about why this is an issue for labor. War in general are working people. It's working people

27 0 0 who go and die in the wars. As President Eisenhower pointed out, every dollar spent in war is stolen from the needs of foreign working people, and when wars come, labor, as well as anyone who seeks any kind of dissent, faces repression and the diminution of their civil liberties. And with nuclear war, that's accelerated enormously. In thinking like this, would you mind it if, quite some years ago when the ACLU (American Civil Liberties Union) took a position against nuclear war, and when they were challenged and said, but shouldn't you be sticking to issues of civil liberties, their response was, in the case of nuclear war, we will have no civil liberties, we will have no Bill of Rights. We will all be dead. And that's true for the labor movement as well. The history of labor, if I could review the civil rights movement, has been one of refusing to accept legal restraints of doing what was right, doing what was necessary to protect working people and achieve justice, even when that meant violating the law. And that's the same position that the defendants find themselves in today. I, like many of the defendants, have spent my life working for social justice and recognize that there's a connection between the effort for peace and the effort for economic justice for working people in this country. And I think it's worth mentioning that Father Bichsel was honored by Washington State Jobs of Justice in 00 for his contributions to

28 0 0 bringing those two movements together, for understanding we can't have peace without justice, that we can't accept the use of war to attack the right of workers to organize. What the defendants did was what my friends in the faith movement call moral witness. Certainly nobody, I'm sure, including the defendants, believe that the five of them could have by themselves stopped nuclear war, or even seriously impeded it. What they did was in the finest tradition of civil disobedience, use themselves to call attention of society to the immorality of nuclear war, but not only to the immorality because it goes way beyond the political question or even a moral question, the insanity of nuclear war. The reminder that, as the ACLU pointed out, in the event of nuclear war, we all die. There is nothing left. I want to stress that I think prison in this case would serve no real purpose; for the judicial system, for the community, for the nation, even for national security. I have, before I was a full-time labor organizer, worked on prisoners' rights, and in fact was a law librarian in a maximum security prison, and I constantly thought about, what's the purpose of putting people in prison? Certainly, this would have no deterrence effect. These people are motivated by their faith and what they believe is right and their moral obligation to seek peace and justice. It would certainly serve no rehabilitative purpose because

29 0 0 they don't need rehabilitation. They stand as moral compasses for the community. I want to say that I am not a religious person. As was said about the president of one of the international unions I worked for at his funeral service, my house of worship is the union hall and my religious rights are on the picket line. I'm not a Catholic. I am Jewish by heritage, and like all Jews lost relatives in the Holocaust because people refused to disobey immoral laws. And in fact, when I say I'm not religious, I am a third generation atheist. I could not be more different than these defendants in my approach to faith. But, Your Honor, if the concept of saintliness has any meaning, these folks are saints, and society does not really benefit by putting saints in prison. Thank you. THE COURT: All right. Thank you. MR. QUIGLEY: At this point, Your Honor, we're going to call the individual people to the stand. THE COURT: All right. FATHER KELLY: If it please the Court, may my witness be seated? THE COURT: Yes. FATHER KELLY: I would like to call Rozella Apel to the stand. THE COURT: No, right here would be fine, from the

30 0 0 0 podium. I'm sorry, I didn't quite understand -- FATHER KELLY: I just wanted to give her a chance to been seen by everyone. THE COURT: The podium will be fine, and you can give your statement first by identifying yourself. MISS APEL: Your Honor, my name is Rozella and I am here on behalf of Steve. THE COURT: Rozella, what's your last name? MISS APEL: Apel. A-p-e-l. THE COURT: And how old are you? MISS APEL: I'm years old. I've known Steve for five years and he has been a good friend of ours. When I was eight years old my dad had a heart attack and he came to help us from the Catholic church in Guadalupe. And I am really here just to thank him for what he did. And I believe I don't have much other to say that everyone else hasn't already said. But he's been so great to have around, and if he goes to prison, our spirits will be with him. THE COURT: Thank you. FATHER KELLY: Thank you for addressing the judge, Rozella. I just have a couple of questions for you. It's a formality. I will share the microphone with you. You've seen me in various places. Have I ever threatened anyone that you can remember?

31 0 0 MS. APEL: Never. It includes being nice even to... THE COURT: I didn't hear that. Would you -- MS. APEL: I have a hard time being nice. THE COURT: Would you say that again, please, because I didn't hear that last statement? MS. APEL: He even takes care of the pets, which I haven't even done. FATHER KELLY: You were together with me, at some distance, but you could still observe me at Creetch Airforce Base in Nevada. Did I threaten any of the officers arresting me there? MISS APEL: Never. He didn't. THE COURT: All right. Thank you. FATHER KELLY: And again, in Sunnyville, California, at Lockheed, did I do anything -- did I show any display of anger or did I try to hurt anyone? MS. APEL: No. FATHER KELLY: And you've known me for five years? MS. APEL: Yes. FATHER KELLY: And you value what the truth is? MS. APEL: I do. And I have a clear image that when I grow up I'm going to try to do the exact same thing as each of these people. THE COURT: All right. Thank you very much. FATHER KELLY: Thank you, Rozella.

32 0 0 THE COURT: And the next speaker. And I'm going to limit the speakers to speaking, not being asked questions. MR. QUIGLEY: John. MR. LA POINTE: Good afternoon, Your Honor, and thank you for this opportunity. My name is John La Pointe. I'm a member of the Swinomish Tribe, which is about 00 miles north of here, up there in Skagit County. I've been asked by a dear friend of the family, Father Bill Bichsel, to share with you a few words. THE COURT: All right. MR. LA POINTE: Peter Blue Cloud, a Mohawk poet, once wrote, "Will you ever begin to understand the meaning of the very soil beneath your feet? From a grain of sand to a great mountain, all is sacred. Yesterday and tomorrow exist eternally upon this continent. We native people are guardians of this sacred place." So much has changed in the world since Peter Blue Cloud's words challenged the collective conscience of America as it struggled through its own adolescence. From a worldwide viewpoint, America is yet a very young nation which continues to demonstrate this short-sightedness and illusions of invisibility. Peter Blue Cloud's words resonate still today like a desperate parent pleading with their adolescent child to open their eyes before their own self-grandeur destroys them and any hope for the transference of wisdom, wisdom that

33 0 0 can only be achieved through the collective conscience of our elders through countless generations. As a native American, I can say there's at least one universal teaching that still exists among the first people of this youthful nation. We are still taught and continue to teach our youth to not only respect our elders, but most importantly, listen to them. There was a time not long past when Blue Cloud's words rang true when he wrote, "We natives are guardians of this sacred place." Sadly, today we can only plead for the support and advocacy of others. Progress and the American dream have left the guardians of old decimated, reduced to the perpetual state of mourning and recovery. We continue to mourn the relentless tyranny of dominion that ravages our mother earth. Today our elders stand tried and convicted by a system that fails to hear their plea, just as we failed to hear Peter Blue Cloud decades ago. Today we stand in solidarity with our elders and guardians (Susan Crane, Anne Montgomery, Lynn Greenwald, Steve Kelly, and Bill Bichsel) as they challenge the collective conscience of today asking us: Will we ever understand the meaning of the very soil beneath our feet? Will we ever fully fathom the threat and breadth of destruction our nation's nuclear arsenal is capable of inflicting on humankind, our mother earth, and

34 0 0 all of creation? Our elders are pleading with us. They're pleading for us to open our eyes and our hearts. They're telling us to grow up and start caring for one another in a global manner. Please listen to them with compassion for they are our wisdom teachers. They are the guardians of this sacred place. THE COURT: All right. Thank you. The next speaker who is going to be a character witness for an individual will be? MS. GREENWALD: Theresa Power-Drutis. MS. POWER-DRUTIS: Good morning, Your Honor. THE COURT: Good morning. Please identify yourself. MS. POWER-DRUTIS: I'm Theresa Power-Drutis. I'm the director of Irma Gary House, New Connections, which is a home for women released from prison. So keep me in mind, you guys. First of all, I'm here to talk about Lynne Greenwald. THE COURT: That's what I'm wanting to do, is to hear from speakers now who are speaking about a specific individual that they know and want to speak on behalf of. MS. POWER-DRUTIS: Right. Lynne is essentially an employee of mine, but she's never really been an employee; she's always been a partner. She works with the women as they come out of prison and provides them with not just assistance in getting their needs met and not just finding a way to get an education and employment

35 0 0 wherever they can which, as you know, is difficult, but she also stays at the house, she lives there, and she is the heart of the Irma Gary House. I can't say enough about the lengths of her compassion with the women of the house and also with the neighborhood. I also live in the neighborhood and so very well know the other folks here. I have known Bix since I was, which was a little while ago, and he has been a force in this neighbored as well. I've gotten to know the other defendants as they've come here. I know them all to be people of deep character. I'm here as a character witness, and I want to say that it takes a lot less character to hear our government threaten to use nuclear weapons over and over again and hope that they never do, than it does to come in to something like this and stand up and say, I will risk being called basically a vandal for desecrating property instead of what they are really trying to do, and the character that they bring to this is to shadowbox with nuclear weapons. There's a reason you didn't get any letters saying we think they should be imprisoned. There's a reason there was no one standing up for the nuclear weapons industry in this court. It hasn't really been allowed to be a discussion. It's such a shameful thing that the people here representing the government will not even say that they exist, where they

36 0 0 exist, and yet they are standing up trying -- doing everything they have in their power to fight their opponents that won't even show up for the match. I love all five of these people, and as a member of this community, I cannot tell you what a loss it would be to not have them working on this. I didn't even want them to do this because selfishly I wanted them to be here, and it's a terrible position to be in where you have to choose between serving the community that loves and needs you and serving the broader community that needs you even more. So I ask you to consider that, consider us and what they mean to us. Thank you. SISTER MONTGOMERY: Reverend Anne Hall, please. REVEREND HALL: I'm Anne Hall. I'm one of the pastors at the University Lutheran Church in Seattle. I have known Lynne Greenwald for years. I first met her when I joined the Ground Zero Community For Nonviolent Action. Lynne and her husband and her three young children had moved to Kitsap County to be a part of the experience and not the experiment of nonviolence that was happening at Ground Zero. Since, the members of Ground Zero, including Lynne

37 0 0 and Bix and many others, have committed themselves to ending the unimaginable violence that is the Trident nuclear weapons system. Ground Zero members, like Lynne, know and have long understood that Trident is a first strike weapon, that it's designed to be so accurate that it can destroy enemy missiles in their silos before they are fired. But even if the Trident nuclear weapons were not desired to strike first, we would still be working on a nonviolent Navy to eliminate them with every ounce of energy that we have in our bodies because we have seen, as the whole world has seen, what nuclear weapons did in Nagasaki and Hiroshima in. We know that they burn and blast and destroy everything in their path; that the radiation continues to destroy lives for the rest of the life of people who experience it. We know that nuclear weapons can't discriminate between combatants and noncombatants and that they cause unimaginable suffering, and for that reason they are illegal under every rule of war that the United States has signed and every treaty regarding rules of war that we have signed, and therefore under our Constitution that they are illegal. But even if they weren't illegal, we would continue to do everything in our power to eliminate them because they are profoundly immoral. What religion in the world would ever condone burning up a baby with nuclear fire or destroying or causing unimaginable

38 0 0 suffering to the population of an entire city or destroying all life on earth? THE COURT: I respect what you're saying here, but at this point we're limiting comments not to the general issue but to the specific defendants here. I think you have come here on behalf of Ms. Greenwald, and perhaps others who you know, and you can speak to that. REVEREND HALL: And I will. And so the members of Ground Zero, including Lynne Greenwald and Father Bix and others like Susan Crane and Father Kelly and Sister Anne Montgomery, have dedicated their lives to eliminating these illegal, immoral, horrendous weapons. When we do this work we look first to finding internal violence within us. And when we understand that we are responsible for the weapons on Bangor, as responsible as the people who manufacture them or guide them or operate them. So we reach out, and Lynne reaches out and Bix and Steve and Anne and Susan, to the sailers on the Trident submarines and to the thousands of people who work on the base and to government officials and to the millions of taxpayers who pay for Trident, including all of us, to say that we have to do this together. They will only be eliminated when we all take responsibility for them and say no more, never again. Never again.

39 0 0 THE COURT: All right. Thank you very much. REVEREND HALL: Thank you. I just want to close by saying that these brave ones, these five brave ones, are our heroes and heroines, and if they were condemned and punished for their actions, then that would be a sin that we all would share in the same way that we share responsibility for these weapons. And so my hope is that instead of punishing them we would thank them for what they have done and commit ourselves to do the work of eliminating nuclear weapons from the earth. Thank you. THE COURT: The next speaker. MR. QUIGLEY: That's all the individual character speakers, Your Honor. At this point we're going to have any of the other standby counsel to make brief comments, and then each of the defendants will speak. THE COURT: I'm going to -- just a moment. I'm going to ask the government to make its recommendation before I hear from the individual defendants. If there are any other comments, I would ask you to make them brief from the standby counsel. As they well know, they are here not as advocates, but as assistants to the defendants. But I, again, will allow a certain amount of flexibility here. So if you want to make brief comments, the Court will proceed.

40 0 0 0 MS. DWYER: Your Honor, my name is Anabel Dwyer. I have been an attorney working with some of these defendants for quite a few years and on these cases for many years. The problem is that nuclear weapons and the rule of law can't exist side by side. The other problem is that we cannot disarm nuclear weapons unless through the rule of law. In other words, we're in a conundrum here where the weapons are so horrendous and so difficult to control in terms of their effects that they're profoundly illegal and immoral, as you've heard. But the worst part is that the disarmament that is required cannot happen through use of these things because the use of these weapons ends everything. Now, you've heard all this before, but what happens is that we get caught in this question of the Americans doing this terrible stuff. So people recoil from the idea of our being compared to the German high command, for example. Yet what we are in is a situation in which the only solution for continuance is the use of proper application of the rule of law. So that -- THE COURT: Ms. Dwyer, I indicated that I wanted brief remarks, and of course I have received your -- MS. DWYER: Yes. I just want -- THE COURT: -- brief and read it.

41 0 0 MS. DWYER: I will be very brief. I'm trying to -- what I'm trying to reemphasize is, is in fact that the rule of law, when people talk about law versus ethics or law versus justice or law versus morality, that in this case we have to work on these things together if we're going to continue our existence. This is what these defendants have been trying to say, and my point in my brief to you was that their acts and the defendants' acts and the prosecution raise these problems of law, and then we're having the problem of not being able to face them so that the solution comes out to be an avoidance of the issues which are raised. Now, the issues have to do with the relation of law. What's the relationship between the laws of war and the trespass statute? That's one issue. The issues have to do with continuance itself, with the rule of law itself, and the existence of the planet. And then the main issue is who is responsible for the kind of changes that have to happen? In other words, how do we work through this conundrum? Well, we've been to the international court of justice. I was part of that case. We have attempted to work from the top down to make it clear that nuclear weapons are illegal under current basic standards of war or of use of force. But we continue to perpetuate the system which plans and prepares for use, making it clear that