Appeal Denied for Guilty Verdict of CIA Action Against Killer Drones

WHAT DO YOU DO WHEN A CHILD IS ON FIRE?
By Joy First, Mt. Horeb, WI                

As a member of the National Campaign for Nonviolent Resistance (NCNR), we have been working in a number of different ways to bring an end to the illegal drone assassination program being perpetrated by the White House, the CIA, and the Pentagon.  We know that thousands of innocent people have been murdered, and that the program continues to kill families in Afghanistan, Pakistan, Iraq, Somalia, Yemen, and other places around the world.  So many people are suffering so greatly because of our government’s actions. 

On Friday February 7, in the US District Court for the Eastern District of Virginia, members of NCNR appealed our conviction from an arrest at a vigil against drones at the CIA on June 29, 2013 when about 50 people rallied at the gates in Langley, VA.  After several speakers, six members of NCNR walked to the police line and attempted to deliver a letter to CIA Director John Brennan, trying to set up a meeting to talk about the drone assassination program.  After being denied a meeting and engaging in street theater Malachy Kilbride, Max Obuszewski, Phil Runkel, Janice Sevre-Duszynska, Cindy Sheehan, and myself were arrested and charged with trespass.  Five of us went to trial on October 22, and were found guilty (Cindy was not able to join us and pled guilty).  There were so many things that were not right about the trial and we decided to appeal.

We also decided that while we were at the courthouse for the appeal we would try to visit Assistant US Attorney Eugene Rossi since he is in the same courthouse building.  Six activists from NCNR had a 40 minute meeting with Mr. Rossi on May 21, 2013.  His office, the Eastern District of Virginia, has jurisdiction over the CIA.  We delivered a criminal complaint against Obama, CIA Director Brennan, and others at the CIA who are involved in the killer drone program.   During the meeting Mr. Rossi was over-the-top friendly in a very artificial way.  He was good at his job and tried to placate us, while constantly trying to change the subject to friendly small talk.  We left the criminal complaint with him and he said he would send it up to his boss.  Over the last several months, we have followed up with him several times, but, as expected, they are not taking our complaint seriously.  We can’t let this drop and so we decided to pay him a visit on February 7.

In preparing for our appeal, we were not able to obtain an attorney, and so we decided we would do the best we could as pro se appellants.  Several days before the appeal, we filed a written brief that was authored by Max.  There were six arguments made in the brief.  In summary:

1)      Our First Amendment right to free speech was infringed upon.

2)      The government did not present sufficient evidence to show that the order to leave was lawful or that we were on CIA property.

3)      The arrest and conviction violated our due process rights under the Fifth Amendment.

4)      We were denied sufficient discovery to present an effective defense.

5)      We were not allowed to present evidence regarding our First Amendment activities or intent during the trial.

6)      The Nuremberg Tribunal charges us all to take action against war crimes, and we were not allowed to bring this up in our defense.

Just the day before the appeal hearing, Attorney Stacy Chaffin, on loan to the US Attorney’s office from the CIA and the prosecutor in our October trial, filed a written brief that was very weak and not supported by case law.

Feeling anxious about what would happen during the hearing, Malachy, Max, Phil, and I walked into the 9^th floor courtroom a few minutes before 9:00 am.  We were joined by several others who were there for support.  Janice received a waiver to appear because of a family matter, but was allowed to join onto Max’s motion.  Judge T.S. Ellis III would be hearing the case.

What really surprised us that morning was to see that Assistant US Attorney Rossi was in the courtroom along with his boss, Acting US Attorney Dana Boente.  Rossi was the person we met with when we delivered the criminal complaint last June.  I don’t suspect that their schedule often allows them to be sitting in on cases in a courtroom, and we wondered why they were there.

There were two other cases that were going to be heard before our case, and this gave us an opportunity to see how the judge operated.  During the second case, a young man was before the judge for using cocaine three times while on probation.  Judge Ellis went into a long lecture about how some people claim that a drug addiction is a disease.  However, Ellis disagrees.  He thinks it is a personal choice and that you always have a choice as to whether you take a drug or not.  He told the story of his mother who was a smoker.  She had surgery four times on her lungs, and it was only after the second surgery that she quit smoking.  He said she was addicted to smoking, but the addiction was not a disease, it was a choice.  To hear a judge sitting on the bench going against all the scientific medical research that has been done in the important area of addictions was simply astonishing.

Our case began at 10:00 and lasted for less than an hour.  Stacy Chaffin represented the government and sitting beside her at the prosecutor’s table was Assistant US Attorney Eugene Rossi.  Acting US Attorney Dana Boente was also sitting in the courtroom.  It appears they are paying attention to what we are doing.

Judge Ellis began by saying that this was an appeal for an arrest for demonstrating to show opposition to drone attacks.  He continued by saying that he doesn’t sit on the bench to determine whether drone attacks are good or bad.  Someone at the CIA or in the White House does that.  And then he chuckled.  That was the first of many inappropriate laughs we heard from him throughout the trial.

Max spoke powerfully about why the responses to our arguments from the prosecutor’s brief did not hold water.  The judge had a lot of questions and comments for Max. 

One theme that Ellis kept went back to over and over was that we live in a democracy and obviously most people don’t agree with us or we wouldn’t have drone strikes.  He also said that we should be going to Congress rather than to the CIA.  Max responded that we have made many visits to Congress to talk about this issue.

The judge said if that is the case, then our voices have been heard and we need to just let it go then.  He said that some people think drones are good and some people think they are bad.  That’s just the way it is in a democracy and if we let our members of Congress know how we feel, then we have done what we can.  It seemed very inappropriate for the judge to be arguing about whether drones are good or bad, and whether we should be protesting against them or not.

Max also talked about how we have written letters to various officials, including CIA Director Brennan, and we don’t get a response.  The judge lectured about how government officials are not obligated to respond.  We can write all the letters we want to, but they don’t have to respond to us.

In the government’s brief it said that our intention was to get arrested.  Judge Ellis asked Max if we weren’t there to get arrested.  Max responded that we were not.  “Was this not an act of civil disobedience?” asked Judge Ellis.  Max responded that it was not.  Max explained that we were not breaking an unjust law for the purpose of changing it.  Rather we were trying to stop our government from breaking the law through the drone assassination program that is responsible for killing thousands of innocent people.

Phil talked eloquently about the Nuremberg Principles and why our actions were an attempt to uphold international law and are binding upon all citizens under customary international law.  He also stated that each of us has the duty to prevent crimes against peace and humanity from occurring, even if domestic laws must be broken in the process.

After the government prosecutor made her arguments, the judge handed down his ruling. 

Judge Ellis said that he said he did not doubt our sincerity and that we are all intelligent people.  However, he said that you could get a group of people who thought drones were good and another group who thought they were bad, and asked who really knows whether they are good or bad.  But he did think that probably more people approved of drones than disapproved because otherwise our country wouldn’t be using them.  He talked about how there are laws that say our government can use drones.  First of all, his arguments didn’t even make sense.  It is not simply a matter of opinion about whether using drones to illegally kill innocent people is good or bad.  It is bad.   Second, there are many legal scholars who would argue that the CIA assassination program is illegal.  Third, it is not his job to argue with us about drones, but rather to look at the previous case and determine if procedures were violated during our trial.

Even after Max told him we were not committing an act of civil disobedience, I don’t think the judge understood what Max was saying.  He talked about a famous case of nonviolent civil disobedience when Henry David Thoreau did not pay his taxes during the War of 1812.  However, the judge got it wrong; it was the Mexican-American war that Thoreau opposed.  To me this shows that the judge is not careful in making sure that he knows the facts before he speaks out about something from the bench.

At one point during the hearing Judge Ellis said, “You say innocent people are dying.  Maybe they are and maybe they aren’t.  It doesn’t really matter.”  This statement was followed by his inappropriate laugh.  This was one of the many outrageous statements he made.

It was unclear whether he had really read and studied our brief.  In his ruling, he briefly and inadequately addressed our first two arguments.  He said again that we do not have the right to a meeting or a response from public officials.  He said that the officer testified to the boundaries of the CIA and that was enough evidence to prove we were on CIA property. 

Regarding our last argument, he said that Nuremberg does not have the force of law.  What is it going to take for our courts to start upholding international law?  As David Barrows pointed out after the trial, according to the constitution treaties are the highest law of the land.  

We will be appealing this appalling ruling to the next level.

Once the hearing was over, Malachy walked over to US Assistant Attorney Rossi and asked if we could meet with him about the criminal complaint we had filed in May.  He said he didn’t have time, though he and the Prosecutor Chaffin went into a room for several minutes, presumably to look up how many days we had to file for the next level of an appeal.  Again, he acts like the nice guy in trying to help us, but he refuses to address why we are there.  We waited for him in the hallway.

When Rossi came out of the room, he told us we had 14 days to appeal.  We tried to talk to him about the criminal complaint and he said over and over like a broken record, “I gotta go.  I gotta go.”  He refused to listen to anything from us and within a minute or so, he was in the elevator.  Jack McHale commented that this is who he really is.  He acts like the nice guy, but this is who he is.  Rude and controlling.  Malachy commented that if he listened to us and didn’t do anything, he would be held accountable.  Once you know a crime is being committed, you are responsible and therefore, he totally shut out everything we were trying to say by saying “I gotta go.”  Max thinks he may be conflicted and if so, that is what we need to play to in the future.

We spent a couple of hours discussing what had happened and talking about what our next steps are.  We have a lot of work to do in filing for an appeal, and continuing our follow up of the criminal complaint.

The next day, Saturday, was the regular monthly vigil against killer drones at the CIA.  I was glad to be in town so that I could attend the vigil.  It was a moving experience to be at the vigil after the stress and tension of the previous day in the courtroom.  It is always wonderful to gather together with friends that I have made through this work and who I have come to know and love like family.  We go through so much together and our experiences create strong bonds. 

As I approached the CIA and saw the crime scene tape across the driveway, it brought back memories of the day last June when I was arrested there.  Several people said a few words and I read a piece about the just war theory.  I also shared that in Wisconsin we have five grandmothers who will be on trial soon for attempting to deliver a war crimes indictment to the head of Volk Field during our monthly vigil against drones there last May.

We read the names of children who have been killed by drone strikes and while each name was read we placed a stone on the driveway at the gates of the CIA.  This was very moving and made it was important to slow down and really think about why we are really doing all of this with the arrests, going to court, monthly vigils etc.  Jack McHale’s 5-year-old granddaughter was there and laid a stone on the driveway representing a child who died.  It brought tears to my eyes to think that it is children just like her who we are killing with the drones.

Art Laffin led us in song, remembering our hero Pete Seeger by singing If I Had a Hammer at the beginning of the vigil and Step by Step at the end reminding us of the importance of all of us working together for a more peaceful and just world.

Afterwards many of us joined together for lunch at Malachy’s.  It was such an enriching experience to spend time together and talk about stories from the resistance, what we learned, and discuss how we could move forward.

Later in the afternoon, Malachy, David, and I watched the movie The Camden 28 about a group of 28 non-violent activists who broke into a local draft board office in 1971.  The movie started with one of the defendants asking, “What do you do when a child is on fire?  Write a letter?”  That statement hit me so hard because there are hundreds of children burning up from drone attacks and this is what compels me to continue working on this issue.  What do you do when a child is on fire?  Writing letters can be important, but it is a critical and an urgent situation.  We have to act now and we have to do more.  Children are dying.  They are burning, and we must take immediate action.  We don’t have time to write letters and wait for and hope others will respond.

I flew back to the sub-zero weather in Wisconsin on Sunday morning thinking about next steps.  What is coming up and next is a nationwide Spring Days of Action Against Drones and it is something everyone can and should get involved with.  We will be doing some organizing in Wisconsin, and NCNR will be organizing an action at the NSA in April as part of this.  It is more important than ever to target the role of the NSA in the killer drone program.  Glenn Greenwald and Jeremy Scahill have just written about the “shocking interplay between digital surveillance [from the NSA] and Obama’s assassination program.”  In the fall Campaign Nonviolence and World Beyond War are working to bring people together and act in resistance.  This can provide an opportunity to build towards actions against killer drones.    

We will definitely be following up with our criminal complaint in Virginia.  I feel like filing this criminal complaint with the proper authorities could be a very important path to continue on.  I would like to encourage others to think about how you could file a criminal complaint with authorities in your area.  This could be an organizing idea to use around the country during Spring Days of Action Against Drones.  NCNR will be putting out more information with details on how this can be done.  In the meantime, if you want more information or want to talk about how you might do this, please contact me.

What do you do when a child is on fire?  This is the reality of life for too many families that are being attacked by drones overseas.  We don’t have time to wait.  It is NOW we must join together and take action.

On a personal note, my 7^th grandbaby will be born in October.  It is all the children of the world that we have to continue the resistance for.