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Nuremberg and the Courts

By Felton Davis

I recently attended a conference on drone warfare, and when one of the speakers there, former Colonel Ann Wright, was asked what we need to stop this runaway weapons program, she said unhesitatingly, "Irish juries!"  The blank looks of the audience suggested that unfortunately, her allusion did not ring a bell.

Attached to this message is a bulging collection of articles, cases, quotations and decision excerpts that have come my way over the years, arranged in chronological order.  Needless to say, this is just the tip of the iceberg -- the motions and appeals for just the first plowshares action at GE in September of 1980, went on for a decade and would fill a whole book.  Why do we have this continuingly growing body of cases and citations, a record of precedents good and bad?  We have this record -- not because prosecutors and judges were moved on their own to explore the implications of the Nuremberg trials -- but because for over thirty years people have stuck their necks out in the cause of nuclear disarmament: crossing the line, sneaking in, breaking in, blocking, trespassing, dropping banners, pouring blood, and using household hammers to make real the prophecy in the 2nd chapter of Isaiah.
No one knows why certain actions result in published or reported cases, and others do not.  No one knows when a judge or magistrate will respond in a thoughtful manner, acknowledging the relevance of international law or the pertinence of conscience.  A judge can a) disallow a defense entirely, or b) allow the defense to be made but only before the judge and not the jury, or c) allow the defense to be made fully in the presence of the jury.
Ten years ago, when New York City Judge Richard Weinberg cited the "Zinn/Fortas debate" during one of our local trials after arrests at the Intrepid Museum, he was tapping into a history that was very real to him as a young lawyer, when he served on the defense team for those arrested at the Pentagon in October of 1967.  Supreme Court Justice Abe Fortas and Boston historian Howard Zinn went back and forth on the nature and significance of civil disobedience.  But by the 21st century that was an obscure reference, and took some homework in order for us to learn about it.  "Zinn/Fortas debate" carried as much meaning for us as "Irish juries" carried for the audience in Brooklyn.
Similarly, in 1985, when the Presbyterian Church Advisory Council issued a strong peace statement, it was vividly real to me because my old minister, the late Rev. George Vorsheim, actually stopped by the Morris County Jail to give me a copy of it, and find out what I thought:
"Precisely because of such a high view of civil authority,
however, Presbyterians have regarded a government’s
neglect of its responsibility or abuse of its power as
very grave matters.  Thus, Presbyterian life and witness
at its best have always manifested strong efforts toward
social reform directed at changing the policies and practices
of government.  But our Reformed heritage also teaches --
and evidences -- that government may occasionally so
neglect or subvert the divine purposes of justice and peace
that it forfeits the presumption of legitimacy and its
claim on the obedience of citizens, including Christians.
When such circumstances arise, obedience to God
requires resistance to civil authority."
(Presbyterians and Peacemaking)
But did these fine words get much attention from the press, or generate a serious moral discussion in Presbyterian churches across the country?  I don’t think so.  There are circumstances in which the government can actually "forfeit the presumption of legitimacy"?  To 999 out of a 1000 church-going people that meant nothing. The Presbyterian Church should configure itself as a "resistance church," similar to the "confessing church" in Germany in the 1930's?  An unimaginable speculation -- who even remembers today that the study group considered that possibility?
In the middle of Stanley Kramer's classic film, "Judgment at Nuremberg," the defense attorney for one of the German judges on trial asks his client: Why can't we show film footage of Hiroshima and Nagasaki?  "Thousands and thousands of burnt bodies!"  Why was only evidence convicting the German officials and judges relevant, and not evidence incriminating the United States?  During his summation, the defense attorney demanded to know why the Vatican wasn't being held to account for signing an agreement with Germany in 1933, lending tremendous prestige to Adolf Hitler?  "And what about the American industrialists who funded and profited from Hitler's military buildup?" he continued, a futile but heroic attempt to take those partisan postwar tribunals, and raise them to a higher level.
The trivial and simplistic answer is that at the Nuremberg trials, German officials were held to account because Germany was defeated in World War II.  The first use of nuclear weapons on two Japanese cities was not at issue in those cases.  Had the United States been defeated, the situation would have been very different.
I have great hope that our speaker on March 15th, plowshares activist and DC Catholic Worker Paul Magno, will be able to rise above the trivial and simplistic answers, and give full dimension to the agonizing dilemma that has plagued every individual or group who ever carried out a direct action over the years: the arrestees are on trial, not the war machine or the corporations or the politicians or the commander-in-chief.
What do all these opinions and decisions come to?  Isn't it all just a bunch of gobbledygook that judges spew out before the door to the holding cells is opened, and the marshals slap on the handcuffs?  And haven't the authorities already dispensed with the niceties of due process whenever it is convenient?  Maybe so, maybe not.  Maybe the accumulated price that people have paid in sweating out these trials, and surviving long prison sentences, and coming back for a second or third round, is actually part of a slowly expanding awareness that will one day change the rules of the game, and enable the public to rise up and deal with nuclear weapons as the massive injustice and threat to all life that they have always been.
Either way, we owe it to Paul to do some homework on this before Friday, so he doesn't have to spend a whole hour rehearsing this long and twisted history, and can concentrate on the present situation of the Transform Now Plowshares in Tennessee, on trial for their lives, and for our lives as well.
PS. "Irish juries" is a reference to the Pit Stop Plowshares, a group that carried out a disarmament action at Shannon Airport ten years ago, asserting that it is a violation of Irish neutrality for them to allow the United States to utilize the (civilian?) airport for military trans-shipments and refueling.  Two years later, after their first trial was declared a mistrial, the second jury delivered an acquittal.  (See "The Pit Stop Plowshares: On Trial in Ireland," by Carmen Trotta, The Catholic Worker, January-February 2005.)
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