LEGAL UPDATE November 19, 2018
Since the last update on 9.26.18, there have been two pre-trial hearings in federal court to allow the Kings Bay Plowshares to put on evidence about why their religious beliefs led them to take their actions and why this prosecution should be dismissed. One hearing was on November 7, 2018 and the second was on November 19, 2018.
The Kings Bay Plowshares asked the court to dismiss these prosecutions for several reasons. Nuclear weapons are illegal under US law. Nuclear weapons are illegal under US Treaty Law. Nuclear weapons are illegal under international law. And prosecuting peace activists for taking action based on their religious beliefs violates the Religious Freedom Restoration Act.
The court heard arguments on the motion to dismiss and then asked for more briefing on the Religious Freedom Restoration Act.
Additional briefs and affidavits on the Religious Freedom Restoration Act were submitted and are set out in the 9.26.18 legal update. As part of those pleadings, the Kings Bay Plowshares asked for an opportunity to tell the court what their religious beliefs are and why those beliefs led them to symbolically disarm the nuclear weapons at Kings Bay.
Two hearings resulted from that request, the first on November 7, 2018 and the second on November 19, 2018. During those hearings each of the Kings Bay Plowshares took the stand and told the court why they took the actions they did. The government put on a few witnesses as well arguing that there was no way the government could be expected to accommodate these actions by religious people.
At this time, the US Magistrate has not ruled on the pre-trial motions. Once the hearings are transcribed both the prosecution and defense will be given 20 days to submit short memos. Then the Magistrate will issue his report and recommendations on the various motions to dismiss filed by the defendants.
After the Magistrate issues his report and recommendations, those will be sent to US District Court Judge Lisa Godbey Wood for her decision. The Kings Bay Plowshares and the government will be given another opportunity to respond in writing and likely have oral argument on the pretrial motions to dismiss at that time.
Complicating all this is the fact that there is a new US Magistrate presiding over preliminary matters in the Kings Bay Plowshares federal prosecution. Benjamin Cheesbro replaced Stan Baker as Magistrate after Baker was nominated by President Trump and confirmed by the US Senate to become a new District Court Judge. Baker presided over the bond hearings and the first argument on the motion to dismiss. Cheesbro took over and presided over the last two hearings.
Here are some observations by supporters of the Kings Bay Plowshares about how those hearings went.
Court Hearing, November 7, 2018
On November 7, 2018, the Kings Bay Plowshares, 7 Catholic anti-nuclear weapons activists, their lawyers and over 30 supporters spent nearly 9 1/2 hours in federal court in Brunswick, GA. This was the first day of a motion hearing to argue that the Religious Freedom Restoration Act applies to their case. They contend that the three felony and one misdemeanor charge 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 7pm with two expert witnesses for the defense and one for the prosecution and only two defendants having been able to testify, Magistrate 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 Professor of Religion, reviewed Catholic teachings from writings of Popes and the second 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 of the moral order, and hence of the divine will, can have no binding force in conscience.” An extended version of her moving testimony can be found here: https://kingsbayplowshares7.org/rfra-evidentiary-hearing/
Bishop Joseph Kopacz from Jackson, MS, also spoke to the primacy of conscience having led the activists to extraordinary action as being 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.
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 for the prosecution and repeatedly refused to acknowledge the existence of nuclear weapons on the Trident submarines at their homeport at Kings Bay.
The court adjourned and resumed on November 19, 2018.
Court Hearing November 19, 2018
BRUNSWICK, GA – The Kings Bay Plowshares evidentiary hearing regarding the Religious Freedom Restoration Act has concluded after a second full day of testimony November 19. Five of the seven defendants testified at the hearing on Monday. The activists are facing three felony charges and one misdemeanor charge with a possible 25-year sentence. They were arrested 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.
Monday’s 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 Nov. 7. In addition to the remaining five co-defendants testifying Nov. 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 the 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 testimony for the trial for a 1983 Plowshares action in which she referenced a paper she and Elmer Mass had prepared, “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 the NY Catholic Worker, 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, NC Catholic Worker, 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, 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 religious 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, CT Catholic Worker, 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 what the Plowshares were trying to do in community with an image former CIA officer turned political activist Ray McGovern visualized 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 as our prayers,” he said, “and over the wall just beyond the smoke from the chimneys of the death camps, the ashes of our brothers and sisters rising upward… and the two streams of smoke mixing 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 into 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 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.”
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