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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA, ) Docket No. CR10-5586BHS)
Plaintiff, ) Tacoma, Washington) March 28, 2011
vs. ))
STEPHEN M. KELLY, )SUSAN S. CRANE, )WILLIAM J. BICHSEL, )ANNE MONTGOMERY, )LYNNE T. GREENWALD, )
)Defendants. )
)
TRANSCRIPT OF SENTENCINGBEFORE THE HONORABLE BENJAMIN H. SETTLEUNITED STATES DISTRICT JUDGE, and a Jury
APPEARANCES:
For the Plaintiff: ARLEN STORMBRIAN WERNERAssistant United States Attorneys1201 Pacific Avenue, Suite 700Tacoma, Washington 98402
For the Defendants:
Defendant Kelly: Pro SeStandby Counsel: ROGER A. HUNKO
Law Office of Wecker-Hunko569 Division StreetPort Orchard, Washington 98366
ANABEL DWYERPost Office Box 10918100 Edgewater BeachMackinaw City, Michigan 49701
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Defendant Crane: Pro SeStandby Counsel: PAULA TUCKFIELD OLSON
Law Office of Paula T. Olson524 Tacoma Avenue SouthTacoma, Washington 98402
Defendant Bichsel: Pro SeStandby Counsel: JEROME KUH
Federal Public Defender's Office1331 Broadway, Suite 400Tacoma, Washington 98402
Defendant Montgomery: Pro SeStandby Counsel: BLAKE I. KREMER
Law Office of Blake Kremer1105 Tacoma Avenue SouthTacoma, Washington 98402
WILLIAM QUIGLEYCenter for Constitutional Rights666 Broadway, Seventh FloorNew York, New York 10012
Defendant Greenwald: Pro SeStandby Counsel: THOMAS ALEXANDER CAMPBELL
Attorney at Law3204 Auburn Way NorthAuburn, Washington 98002
U.S. ProbationOfficers: Dan Acker
Becky MillerKalen Thomas
Court Reporter: Julaine V. RyenUnion Station Courthouse, Rm 31311717 Pacific AvenueTacoma, Washington 98402(253) 882-3832
Proceedings recorded by mechanical stenography, transcriptproduced by reporter on computer.
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TABLE OF CONTENTS
Page
SPEAKERS ON BEHALF OF DEFENDANTS:
William Quigley 13Bishop Thomas Gumbleton 18Ramsey Clark 22Paul Bigman 26Rozella Apel 30John LaPointe 32Theresa Power-Drutis 34Reverend Anne Hall 36Anabel Dwyer 40Jerome Kuh 43Roger Hunko 44Blake Kremer 44Thomas Campbell 47
STATEMENT BY PLAINTIFF 50
STATEMENTS BY DEFENDANTS:
Father Kelly 54Ms. Crane 56Father Bichsel 65Sister Montgomery 74Ms. Greenwald 78
SENTENCING BY THE COURT:
General Remarks 82Father Kelly 90Ms. Crane 94Father Bichsel 96Sister Montgomery 98Ms. Greenwald 99
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(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. CR10-5586BHS.
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
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Bichsel.
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
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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 28.
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
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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 6. To that is added two levels because the loss
amount is greater than $5,000 and less than $10,000. Here,
the loss amount is not the $7,405.06 originally asserted by
the government. Susan Crane objected to that amount for
restitution, and the government in a supplemental memorandum
adjusted the figure to $5300, 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
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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
3C1.1. 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
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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
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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.
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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.
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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?
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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 37 years; been married for 37 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 18 U.S.C. 3553, Section (a)(2)(A), to provide just
punishment for the offense, and Rule 2 of the Federal Rules of
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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 19th, 1873, 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
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of years ago, but there are books written about them. They
were lawyers in Germany who took cases challenging a rising
politician in the 1930s. 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 1st, 1955, 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
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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, 1911 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 1920.
It was illegal to form a union. Not until the 1930s was that
legal. Child labor was allowed. That was not prohibited
until 1938. Segregation was totally legal and accepted
through the 1960s. Discrimination against people with
disabilities was legal until 1990. Domestic violence and the
like.
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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
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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 500,
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
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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 52 years -- 56
years, and a bishop for 42 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 1943 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
1943.
I believe what the United States is doing with this
nuclear armament is something that is against international
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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 1982 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
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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 1983, 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 1961 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
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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 60 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 17
and 18, 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 18
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
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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
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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 1969 there were fewer than 20,000 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
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Booker, the Supreme Court itself has had to review the issue
of sentencing 11 or 12 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
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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 35 years and a
full-time union organizer and union representative for more
than 25 years. I'm currently the business representative for
Local 15 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 125
labor, faith, community, and student groups that mobilize non-
efficient 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
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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 2005 for his contributions to
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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
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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
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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 11 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?
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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.
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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 100 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
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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
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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
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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 24, 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
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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 27 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 1978, the members of Ground Zero, including Lynne
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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 1945. 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
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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.
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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.
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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.
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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
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in time they will be used.
So the question is, at what point do we all have
responsibility to step in? And we've all, all of us here, all
the defendants and many of the people in the courtroom have
tried very hard for many, many years to get these issues
discussed in a way which will make for proper, systematic
disarmament so that we can get on with our existence and deal
with all the other problems that we have to deal with.
I just want to say, again, with all the people who have
said this earlier, that imprisonment of these five people is
sort of outside of what the law should look like. In other
words, when we are all working toward disarmament, which we
must do, the question is, what is the rule of law? And so if
we are silencing people who are trying to say there is a
relation of laws problem here, or we are saying that nuclear
weapons are presumed to be legal, which they no longer are,
then we're having serious problems working through what is the
greatest, not only ethical problem of our day, but legal
problem of our day.
THE COURT: All right; thank you.
MS. DWYER: So I urge you please to continue the
discussion and make sure that the discussion is about human
beings, about humanitarian law, and about the future of
humanity.
Thank you.
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THE COURT: All right. Mr. Kuh.
MR. KUH: Your Honor, very briefly. I wanted to
actually thank the Court for what I view as its pragmatic view
of the role of standby counsel in this case. I think we've
all benefited from the liberties you have let us take. I have
been standby counsel before and never said a word to anyone
during the entire trial. I think all of us tried to be brave
and interject when we felt it was appropriate. We appreciate
your patience.
I am Bill Bichsel's standby counsel, and all I wanted to
say, I know Bill doesn't want you to consider this very much,
but Bill is in -- he's getting on. He's in failing health. I
want to point out that even the Sentencing Guidelines urge you
to consider in people with failing health, like Father
Bichsel, to consider alternatives to incarceration. I think
in some way it may be a somewhat selfish advice by the
guidelines because the Bureau of Prisons doesn't necessarily
want the burden of people with serious health problems. Bill
doesn't really want you to consider that in one way, but I ask
you just to consider that.
Then the final thing is that I expect to speak for all of
us, maybe even speaking for you, this is a very somber moment,
sentencing. This entire experience has been somber in some
ways, but also I suspect for all of us it's been enlightening,
and we've all come to know all five of these defendants as
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genuinely believing people. I suspect the Court has no more
doubt of that than the other people in the courtroom at this
point.
That's all I have to say.
THE COURT: Thank you, Mr. Kuh.
MR. HUNKO: Your Honor, I will be very brief. I just
think that the Court should consider the benefit these people
provided to our government.
We have five geriatric people who made it all the way
across one of the most secure bases in the United States.
They cut through two fences and were near the magazine where
the nuclear weapons were kept. We don't know that for sure
because that never came out.
I'm sure that the security at that base has improved
because of what these people did. I would like to thank them
for that, and I think our government should thank them for
that as well.
The terror indeed is that what if these weren't five
peaceful demonstrators and they could have gotten there and
they could have blown the door off one of those magazines. I
handled nuclear weapons when I was in the service. They
wouldn't fire until released.
That's all.
THE COURT: Thank you, Mr. Hunko.
MR. KREMER: Good morning, Your Honor. Blake Kremer,
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standby counsel for Sister Anne Montgomery.
Ramsey Clark mentioned Sister Anne's father, Admiral
Montgomery, who was a hero in the war in the Pacific.
My father, who is present in the courtroom, was the family
attorney for the Montgomerys, and Sister Anne became an
important part of our family. I have had the pleasure of
having Sister Anne living with me in Tacoma for the last year
and a half during the pendency of these proceedings, and I
have heard -- I've been able to share some amazing things.
The Plowshares are frequent dinner companions that come over,
and I've heard some amazing stories. Sister Anne hasn't had a
character witness. I would love to, with the Court's
indulgence, I would like to tell you one of the stories.
THE COURT: You may proceed.
MR. KREMER: Back in the winter of 2000, Sister Anne
was part of the Christian peacemakers in a town called --
SISTER MONTGOMERY: Beit Jala.
MR. KREMER: Beit Jala. Thank you, Anne.
There was a neighborhood on the hillside across from an
Israeli settlement guarded by tanks. Late at night, young
Palestinian men would sneak out on the hillside below the
neighborhood and shoot indiscriminately towards the tanks in
the neighborhood. The tanks would then respond by shelling
the neighborhood over where the shots were coming from and
damaging the houses.
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The Christian peacemakers decided to move into and live in
some of these homes to show solidarity with the Palestinians
that were living there and to try to deter the destruction
that was occurring.
So Sister Anne was living in one of these homes on the
hillside. One night while she was living there, she heard the
small pop pop sound of small arms fire and she knew what was
going to happen next, so she started her rush towards the back
of the home. A tank shell landed on the street in front of
the home, blew out most of the windows in the house, and this
is in the middle of a cold Palestinian winter. She continues
to stay there, sweeping up the glass fragments.
The next night again, pop pop pop sounds. Sister Anne
moved as quickly as she could, and as she jumped up and
started to move quickly to the back of the house, a tank shell
pierced the wall of the house where she had been just moments
ago missing her head by almost nothing.
Well, several things happened shortly thereafter. The
U.S. consulate protested the shelling of the houses. The
Palestinians lobbied their local government to police the
neighborhood to stop the Palestinian men from sneaking out
onto the hillside. And the exchange of weapons on both sides
slowed down.
Sister Anne and the Plowshares, they served our country
and even the world. They're teachers. Sister Anne taught at
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the Albany Street Academy teaching some of the most difficult
students. Many of them are teachers. They are caretakers.
They have taken care of our sick, our elderly. They work with
people coming out of prisons. They offer us so much and they
ask for so little in return. They ask for almost nothing.
When you look at them right now, you see basically everything
that they own is with them.
What they bring us is a message, a message that shows that
they are fighting for all of us. They care about all of us.
They care about their countrymen, they care about their
country, they care about the world.
I hope that in passing sentence today that you find a way
to acknowledge that we all owe them so much for the courage
that they just routinely show every day.
Thank you for your attention.
THE COURT: Thank you, Mr. Kremer.
MR. CAMPBELL: Good morning, Your Honor. Tom
Campbell. I'm standby counsel for Lynne Greenwald.
Frankly, I come before the Court with a certain sense of
embarrassment this morning.
When the presentence report came out, it had a higher
guideline sentence than I think the Court has computed thus
far this morning. I spoke with Ms. Greenwald about her
personal circumstances and her concern for her family, as has
been expressed in the sentencing memorandum that came out to
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the Court on her behalf.
When she and I discussed this, I took my normal lawyerly
approach to things and tried to figure out ways to massage the
guidelines so that we could come up with a sentence that would
minimize her exposure under the guidelines and then give the
Court reasons for variance so that we could come up with a
legal approach that might suggest a more lenient sentence than
what was being recommended.
I attained her permission to file this document, and
ultimately the best we could do was come to a sentence that we
thought might be something that would fly. It recommended a
short term of imprisonment. It recommended an agreement also
on restitution. And frankly, I think that my legalistic
approach has been something that has taken her down a path
that she really, especially in light of all these comments
that we've heard here this morning, doesn't -- I mean, it's a
nice legal approach. But having heard everything that we have
heard this morning, to suggest a term of imprisonment for that
woman, I think is wrong.
That's something that, again, I feel embarrassed about
because I think that perhaps I may have taken the Court down a
path that isn't right. It's not her position.
When we came to the court this morning and I talked to
her, she told me that over the weekend she's had an
opportunity to discuss this matter with her family. They
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understand her circumstances, they understand her decision to
stand firm for her convictions and not to come before the
court protesting her innocence or asking the Court not to
consider what the Court has to do.
I guess what I'm saying to Your Honor is that not for any
legalistic reason, but for what's the right thing to do, the
Court should decide not to put any of these people in prison.
THE COURT: Thank you, Mr. Campbell. I respect you
for coming forward and doing what you think was the right
thing to do, but difficult.
MR. KREMER: Your Honor, could I suggest, would the
court consider taking a midmorning break?
THE COURT: If we are completed with the statements
here, other than the defendants themselves, that's exactly
what I intend to do. Then I will hear from the government
next, and that will be followed by defendants making
statements, which of course they do not have to make, but they
may make before the Court determines a sentence.
So we will take a recess, and we will resume in 15
minutes.
THE CLERK: All rise.
(Recessed from 10:35 to 10:52 a.m.)
THE COURT: Thank you. Please be seated.
At this time we will hear from the government on their
recommendation for sentence.
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Mr. Storm.
MR. STORM: Thank you, Your Honor.
Your Honor, when these defendants crossed the line and cut
through the fence at Bangor Naval Base and cut through the
fence in the MLA, a highly restricted area, they did more than
just cross a line. They crossed the line that protects us
all.
They portrayed this as a selfless action. We view it as a
very selfish action. We view it in that way because what they
did was they violated the rights of others, they violated the
rights of the United States military to have a secure
installation.
The United States military is dedicated to defending their
rights. It has rights. The servicemen and women who work on
that facility have rights, and it's not to be placed in
unnecessary risk of harming somebody else or being harmed
themselves.
The men and women who work there who are not working for
the military but are working in some other capacity have
rights. They have the right not to have their place of
employment shut down for a full day because these individuals
want to prove their point.
More than that, they created risk. They created risk to
themselves and they created risk to the men and women who
guard the MLA. If one of those men or women guarding the MLA
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had gotten excited and made the wrong decision, they would
have paid for that for life. They would have lived with it
for life, and those men and women are young people. Most of
them we heard from at trial were around 20 years of age. They
were put in a very unfair, unsafe position because these
defendants wanted to make a point.
Finally, their decision to go onto the MLA was selfish
because it did not fit within the democratic process.
In the time that I've been here, which is 20 years --
almost 20 years, it will be 20 years in September -- I have
worked with a number of individuals who felt very passionate
about a number of different issues. These individuals felt
passionate about one issue, and what strikes me is tax
protesters. I've worked with a number of them. They feel
very passionate about their issues, and they have a view of
the world that is 180 degrees different from these defendants.
Many tax protesters believe not that the government is too
hard, as these defendants do; they believe it's too soft.
They don't want it to be more involved with the world, as
these defendants do; they want it to be less involved with the
world. They don't want it to be more socialistic, as these
defendants do; they want it to be less socialistic. They view
the government as moving down a course which is headed towards
a socialistic government and they are opposed to that and they
want to deny funds to the government for that reason. These
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defendants view the very same government as being too
militaristic.
Despite having used the word that they are completely 180
degrees separate, they are almost identical in their approach
to the world. They feel so passionate about their position,
so right about their position that they believe that they are
above the law and above the democratic process, and they can't
be, because when people are above the democratic process, none
of us are safe.
We see this play out in country after country around the
world. One group believes that it is above the law, takes the
law into their own hands, and another group retaliates, and
nobody is safe. These defendants must be held accountable
under the law.
Even if you didn't look at those opposite groups, there
are groups that are in the middle that are the same. They
have the same passionate feelings. Environmentalists, for
example. A professor at the University of Washington wants to
feed the world so he makes -- he does experiments on genes
that involve plants that will feed the world. That's a
neutral issue for both the tax protesters and these
defendants, but there's somebody out there that has the
opposite view, and feels so right about that view that they
believe it's okay to burn down a building at the University of
Washington.
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So we can't have people, just because they're impassioned,
taking the law into their own hands and violating the rights
of others.
We ask the Court to sentence these defendants within the
guideline range. The Court has not calculated the ranges yet.
It has found the offense levels but not the criminal history
levels, but if the criminal history levels are as calculated
in the presentence reports, we would ask, first, in Father
Kelly's case, for 30 months, and in Susan Crane's case for 30
months imprisonment.
We believe that those sentences are warranted. We've
heard a lot throughout these proceedings about the words love
and peace. The defendants have cloaked themselves in those
words. If the Court looks at the uncontested facts of the
presentence report for Father Kelly, the actions that he has
taken for the last 15 years belie those sentiments. The
actions that Susan Crane has taken for the last 15 years belie
those sentiments. They have used both together, in tandem,
across the country, have used deception to get onto military
bases and installations, and have used violence against
property -- rage, even, against property, once inside those
military installations.
Stephen Kelly since being convicted has gone out and
violated his bond in this case and gone down to California and
been charged with a new crime down there. Charges in that
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case are pending.
Neither of them have accepted the responsibility for their
conduct, and I believe they will say that they would do it
again. Given that position, given their refusal to follow the
democratic process, and given the fact that they have a long
history of misconduct, we believe 30 months is a fair
sentence.
For the other three defendants we have recommended middle
of the guideline range sentences of five, six, or seven
months, and unless the Court has questions regarding those
sentences, we have nothing to add to our recommendations.
THE COURT: I do not. Thank you.
At this time I will take any statements from the
defendants, again, in the order that was previously mentioned.
I think this is the order of the indictment. So we would
begin with Father Kelly.
FATHER KELLY: These will probably be brief remarks,
and I appreciate the opportunity that you have provided to us,
Judge Settle, to speak. My remarks are addressed to you and,
as well, to Mr. Werner and Mr. Storm and the probation
officers.
It's very difficult to do what I have to do here as well
as the -- what was the contention at the base. I think I want
to reflect Peter Ediger's letter that I'm recognizing this
burden upon you, and even the burden to the prosecutor whose
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beliefs are sincere that we have really done something wrong.
I'm also aware I'm not -- I'm an amateur, obviously, when
it comes to the law. I think during the process of the trial
you recognized that one of the elements to prove -- the burden
that the prosecution had to prove -- was our mental state.
And I believe you even mentioned that it was, you know -- in
front of the jury -- that it was a narrow part of what they
could hear, the element of mental state, and you allowed
testimony from various witnesses that talked about our mental
state, the mens rea in this situation. And I appreciated that
very much. I think it wasn't easy; it was difficult.
Unfortunately, the jury instructions didn't allow for the
jury to take into consideration, in a satisfactory nature for
us, the consideration that, you know, the defendants acted
with the conviction that supplies a reasonable look at not
criminal activity. So thank you for letting me state that and
articulate it as it is.
We went there to the base -- I will speak for myself, but
I think it's been said over and over. We went to the base to
uphold a higher law.
At the same time, in my effort to love the people here
that are involved, is that I see -- the difficulty I see, the
burdens that you have -- but I'm calling those burdens chains,
and I think that we have an opportunity to drop our chains of
these nuclear weapons.
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So I think if you feel that I have -- oh, whatever we
might call it -- that I'm a whistle-blower, perhaps, or that I
am not really some kind of dedicated vandal or something, that
I'm a well-meaning person, whatever, or if you were to
consider me innocent, that you would be bound to let me go.
But if you really are convinced that those nuclear weapons are
threatened by me -- and I don't mean people -- and even though
we are using nonviolent means, is that I really do see
under -- in God's created order that these weapons are not
coming at all from God and that I have to shield anyone that
is being targeted by them. And I think even though it wasn't
allowed -- and I think that's the problem with the judiciary
now. I know you didn't pass these laws, but you were
convinced that you had to act on precedent, but nonetheless it
is still true and I don't accept what Mr. Storm is saying that
this was simply to get my way; that this was an act to shield
people from death.
Thank you.
THE COURT: Thank you, Father Kelly.
Then Susan Crane.
MS. CRANE: So, Judge Settle, I hope you got my
sentencing memo.
THE COURT: I did. And I read it.
MS. CRANE: Thank you. And so I hope it's clear
from -- regardless of many things that have been said, I'm
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not -- I have never been successful at supervised release. I
can't do it. I won't do it. And I hope you don't sentence me
to that.
When we started out this morning, you mentioned that you
had read letters from a school in Ukiah, from the River Oak
School, and I was quite surprised to see those letters, also.
I have taught in Ukiah and raised my children in Ukiah,
California, and the local paper, the Ukiah Daily Journal, had
a little article about our trial. And so this teacher at the
River Oak School, it's a charter school, was teaching about
the Middle Ages, he wrote to me in the email, and they were
teaching about -- they were talking about Robin Hood and that
sort of moral dilemma someone might find themselves in. And
he said, "Well, do you want to hear a story about a modern day
Robin Hood?" And the students all said yes, and he read them
the article from the Ukiah Daily Journal. And then the
students said, "Oh, well, we want to write to the judge." And
so the teacher laid aside his curriculum for that morning and
the students wrote letters.
And thank you for reading them. I was very surprised to
read them myself.
So these past couple of months since the trial, I've been
traveling, visiting my family in California. And my first
grandchild was born the day before our trial started, and so I
was able to hold him and listen to his sounds and just enjoy
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that new life.
And it made me realize that, again, that all life is
precious. You know, this young child I'm holding in my arms
is precious and all life is sacred. It just brought home to
me, you know, in my heart that the children of people in
Afghanistan or Iraq or Iran or our grandchildren, all
children's lives are sacred and are precious. And really,
that's why we went on the base. That's why I went on the
base.
Not only does my faith teach me that all life is sacred,
but that I'm supposed to love my enemies and put away the
sword. And even Jesus gives us a new commandment, to love one
another. So all of these things, you know, wrapped together
just call out to me to say no to these nuclear weapons that
indiscriminantly kill people.
Now, it feels to me like this culture that I'm living in
is so focused on death, you know, spending over half of every
federal tax dollar on the military and having this big machine
in our nation where the economy basically is very much
building nuclear weapons, building other kinds of armaments.
It's a big part of our economy, the whole warfare. And we
have some of our most gifted engineers and most loving young
people work for this death dealing, you know, in Lockheed
Martin or at Livermore Lab or building the Trident or going
into the military.
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So I've been reading some of Robert J. Lifton, and he
talks about how sometimes things can get so horrendous that
the pictures, the images are so horrendous that it's hard for
us to deal with them; it's hard for us to actually let them
into our mind.
And certainly the pictures from Hiroshima and Nagasaki are
very hard to look at. It's hard for us to let them into our
hearts. And Lifton argues that it's almost impossible for us
to let them in because if we do really pray on the
horrendousness of these weapons, we would spend all of our
time working for the common good to stop them.
And so since we can't do that all the time, like, you
know, I go to an exercise class, I have to set it aside a
little bit. I hold my child; I have to set it aside a little
bit. Since we can't think about it all the time we end up
being in denial. And as a nation, we are in denial a lot
about these weapons. You know, we can't -- we're not -- our
psyche has become numb to the horrendousness of these weapons.
So I'm thinking about all of these things, and then we
have a trial with you in the courtroom. And I was looking
forward to the trial hoping that we could really talk about
nuclear weapons. Of course, in the motions hearings it became
clear that maybe that wasn't going to be the case. But
it's -- I told you several times during the trial, I'm trying
to tell the truth. I want to tell the truth. And I still
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don't understand why we couldn't.
You know, the U.S. Constitution, as I read it, it isn't
complicated. It's something that's not hard to understand,
that the treaties the U.S. is a part of are supposed to be
upheld in every court by every judge. And that's like flat
out, easy to understand English, and I don't understand why
treaties that the United States is a part of can't be talked
about in this courtroom and why you, as a judge, who is sworn
to uphold the Constitution, don't, in my opinion. And I -- I
mean, I just don't understand that. It's like there's a -- we
have treaties that say, you know, weapons that
indiscriminately kill civilians are illegal; that weapons that
can't be controlled in time and space are illegal under the
Geneva, under the Hague, you know, under all this humanitarian
law. U.S. is a party to those treaties, and why we couldn't
bring it up in the courtroom is confusing to me. And I just
wonder if there's an answer to that. I don't know.
But anyway, so the whole -- the whole going into the trial
and not being able to talk about the weapons, your refusal to
take judicial notice that there were nuclear weapons at the
base felt to me like just willful blindness. I don't
understand why you didn't want to take notice, judicial notice
of the weapons. And we brought you what anyone would consider
evidence that the weapons are there, and still that wasn't
enough.
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And I don't understand how a court of law can be against
the Constitution or ignore the Constitution. I don't know;
it's a puzzle to me, especially when there's such a danger.
You know, all that's happening in Japan just reminds me every
day of one of the articles that we attached to the motion of
the Harvey and Michalowski study that was done about the
Trident warheads and how dangerous they are, and how dangerous
they are to the people in this area and how if they were
dropped or there was a fire. I mean, they are just made in
such a dangerous way that we wouldn't -- even the military
wouldn't allow them to be made the way they have been made if
they were being designed now.
You know, there could be a plutonium plume in this area,
these scientists, Harvey and Michalowski, talk about, and yet
the jury sure didn't hear about that, and it wasn't because we
didn't try.
Anyway, we went on the Navy base to sound the alarm, you
know, and symbolically convert the weapons and saying no to
these weapons and try to say yes to life.
As I tried to prepare myself to go on the base, as I tried
to prepare myself for trial and today for sentencing, I've
been thinking about how important it is to not be inordinately
attached to be successful, say, or instead of not successful
or effective, instead of noneffective or not be attached to
being in jail or out of jail or in good health or poor health,
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but to try to stay faithful to what I believe in and try to do
what my understanding of -- that I should try to be faithful
to my understanding of what I should do to reach my faith.
So I was thinking about that in preparation for today, and
I was also thinking about, you know, what if I had lived in
World War II Germany and what if there was a concentration
camp 20 miles from where I lived, just like Bangor base is
about 20 miles from here, and what would I do if I lived in
Germany then? I don't know what I would have done, but I hope
that I would have done something. I hope I would have tried
to cut the fence and bring food or help people escape or, I
don't know, cut the pipes that took the Zyklon B gas to their
death chambers.
Those nuclear weapons that are in the D5 missiles are like
flying ovens. So there's not a concentration camp, but there
are ovens that are kept there, and they are like flying ovens
that fly through the air and come down and incinerate whole
cities of people. And I feel very responsible for those
weapons.
You know, there's been a lot of talk back and forth with
the probation department and Arlen about responsibility. I
certainly feel I was trying to take responsibility for those
weapons. And I think -- I've been thinking about -- I really
thank Arlen for bringing up the whole thing about
responsibility because it's given me a reason to really think
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about what does it mean to take responsibility, and it seems
to me that many of us go through life and we put on different
roles, like you're a teacher sometimes, you're a mom. You put
on different uniforms. People become firemen, policemen, in
the military, a judge, and sometimes those roles are -- or
uniforms urge us or compel us or let us -- I don't quite know
know exactly what it is, but they end up making us do things
that we wouldn't ordinarily do. Sometimes things we regret.
And so what I'm really resolved to do is really take
personal responsibility for my decisions, and not let some --
a uniform or a role or expectations of other people to get in
my way. And, you know, from such a little thing as someone
who is a really good and kind person ends up, you know,
working for social services and really can't help people all
the time, and ends up saying things or putting the case file
on the bottom or doing things that they wouldn't do ordinarily
because ordinarily they are kind and compassionate. So that's
what I was thinking about.
And I was thinking about where I am on this chain of
complicity with these nuclear weapons. How complicit am I in
the manufacture of them and poisoning the earth and killing
the people that are downwind and all the people that wind up
in the Marshal Islands. How complicit am I in ending all life
on earth?
So those are the questions I've been thinking about before
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the action, before the sentencing, before the trial, and then
now.
So Arlen has said that we're arrogant and trying to get
around the democratic process and above the law. And I know
you all heard us say we think we are upholding the law. And
also there's been poll after poll done of the American people,
and people want nuclear disarmament. And to me it's the
corporations and politicians who are the ones that are getting
in the way of the role of the American people. I mean, this
isn't a major poll, but I've stood in front of the Ukiah post
office year after year. We have a table out there on tax day,
and we give everyone who comes up a bunch of pennies, and they
can put them in the military jar, the school jar, the parks
jar. You know, all the different places where federal money
goes. And at the end of the day we look at those, you know,
count the pennies, and there's a bunch of pennies in the
military jar, and there's a bunch of pennies in the education
jar, more. And people -- you know, Ukiah is not a real --
it's not known for it's liberality. It's sort of a rural
redneck area. But it's not 50 percent of all the pennies in
the penny jar -- in the military jar. And that's a pretty
valid poll to me.
And then I think of bonds. You know, when you go to vote,
if we're going to build a new school in Ukiah or a new
library, we have to vote for a bond. We have to float a bond,
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and people have to vote on whether or not to float that bond.
As a nation, we never get to float a bond about a military
project. So we never get to vote. There's a new submarine,
hopefully -- and new submarines cost about $70 billion -- but
that's already in process, and we never got to vote on that.
I don't think the American people would vote for something
like that.
So, anyway, we stand here today in front of you and we
stand with a lot of people in Tacoma and Seattle and people
around the United States. We stand with the people of Cuba
and Afghanistan and the suffering people around the world who
say that we all share the same sky, and we want to live
without war.
And the poor people of this country, the regular working
people of this country, the people around the world appeal to
you, Judge Settle, and to the judges and politicians, others,
other than here. We want a world without war. We want these
nuclear weapons disarmed and abolished, and this is something
that's possible. And we want you to join us. So I would ask
that you come out to the gates of Bangor with us and cross the
line with me the next time.
Thanks.
THE COURT: Thank you, Ms. Crane.
Father Bichsel.
FATHER BICHSEL: Good morning, Judge Settle. I have
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a few notes with me. At times I can see them, and sometimes I
can't see them. It's sort of like an eye chart there.
But thank you for being able to come here. I just want to
express the profound gratefulness that I feel with our
community, with the support, with people not wanting war, not
wanting nuclear weapons. But it's a great help having the
love and support that's come to us. It's very humbling. I'm
so, so profoundly moved by that.
And I'm so grateful for the action that we did together,
you know. So grateful for entry into that base; you know, for
trying to take the message of nonviolence into that area of
death machines. Nuclear weapons are the ultimate, ultimate
death. They are the ultimate sense of fear and hopelessness.
But what we see, what was very important for me, and I
think for us to -- personally was we go there to witness the
transforming and the powerful community calling together love
of our God. And I speak, you know, from my own Christian
background, but I respect and include those of other
traditions, other faith, what their convictions are that lead
them to look to faith. They have to work for peace as well.
And so I -- pardon me. But I just want to say that that
transforming love, in fact, it was important for me to be
there face to face with those items, with those items of
destruction, you know, and to be able to profess that the
overwhelming heart of God was able to negate the destruction.
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And so I'm very, very happy.
And we entered in, we entered in, in the sense of
nonviolence. Not in the sense, but the reality of nonviolence
when we went in. And we walked also in the nonviolence of
Gandhi, who through his nonviolence was able to bring about
the liberation of India from Great Britain; come in the
nonviolence of Martin Luther King who broke down the barriers
of racial prejudice; and we come in the example and the
tradition of Dorothy Day who pointed out the uselessness of
trying to do various maneuvers to avoid death in a nuclear
attack, when the real solution to avoid death is get rid of
those things, you know.
So we come very much in the sense, we move in the sense of
nonviolence, nonviolence. We've been practicing nonviolence
for 35 years or so.
And then in the nonviolence -- certainly the nonviolence
of Jesus, there is always the background music of Isaiah 11
where the lion and the calf will lie down together, the child
will have a playmate, and have a playmate that is an adder.
We walk also in the vision of Isaiah who saw a world where
swords were beaten into plowshares; where nations would not
teach war anymore. So we walked very firmly in that belief.
And so one of the charges there was that, what if one of
the soldiers, sailers -- I mean, marines -- what if they had
shot us and killed us? What trauma that person would suffer.
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What I can say to you as far as nonviolence, if you try to
live it and practice it, as we are trying to follow in the
footsteps of King and Gandhi and Jesus and Dorothy Day, and
that, in our personal relationships we have to forgive one
another, we have to continue not to try to get the upper hand
over one another, but at the same time not being doormats,
being able to express what we want. But in nonviolence, when
you practice, there's a certain quality that it has. There's
a certain quality that is able to disarm.
I don't think any of the Plowshares' actions, the history
of Plowshares' actions, and there's been over a hundred of
them, where anyone was injured, either a Plowshares activist
or the person who might have been a keeper or a guard of the
weapon system itself. There was no violence. And that's the
type of nonviolence we walk in.
And so we prepared ourselves, you know, that we know there
is an aura, there is something that helps to disarm. Even the
sailers when they saw us with the banners and so forth, they
put down -- they didn't put down their automatics, but they
did lower them. So all I want to say is that is the quality
of nonviolence.
And in ourselves, you know, we take the responsibility for
not killing. We can't take the responsibility for killing,
you know. If that's the military stance, that's where their
responsibility is. But we take responsibility for
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non-killing. We trust in the nonviolence that we have
learned, that we have been trying to practice. And it's
something that becomes very manifest.
Another thing I think was brought up in one of the
charges, that some of us carried in living wills, you know.
And by that it was -- it was reasoned by the attorneys to show
that we were trying to commit suicide or trying to be killed
or something. For myself, I also took -- I did have that
living will with me. I also took a great bag of medicine with
me, too, and it was almost -- almost needed a truck to carry
them in, but I would not be taking those medications if I
wanted to die. I want to live, you know. But I want to live,
too, without fear or hopelessness, as all the people do. So
that living will -- you know, as a matter of fact, we were
expecting to be put into prison or put in jail and then be
imprisoned, you know, because we knew that, you know, we would
have to come before the federal court, and we know that the
federal judges are the most likely to say precedent rules, you
know. And we think that that is a ruling of legal --
legalism.
I would just like to refer to Shakespeare a little bit
about where is the justice? When is that? Where is that?
And I'm not trying to downplay you as a person; I think you
are a very kind man. But I think, you know, just if we recall
Shakespeare and the Merchant of Venice, Portia, who has
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assumed the role of attorney, she says -- and I will
paraphrase a little bit -- says the quality in the -- the
original is the "quality of mercy," and I want to put in, the
quality of justice flows down gently from heaven and it is a
part and a benefit and a blessing to the one exercising it as
well as to the others who receive it.
And so I think, you know, that we try to walk very much in
that spirit. And so, you know, we knew that that would be a
possibility, being in court, as happened, and so forth.
There was another charge by the government, you know, that
we arrogantly tried to take the law in our own hands and
subverted the democratic order. I think the only law we're
trying to carry is God's law in our hands, you know, which we
all can carry, we all do. But to carry it and know that the
love of your neighbor, the love of one another calls for
action, you know, calls for us to reach out when that's
necessary with one another.
So when they say we democratically -- or pardon me -- we
try to subvert the democratic order and, you know, all I can
say is for over 35 years we've used every means possible in
order to petition our government, as the first amendment gives
us the privilege and the right and the duty to do, to seek
redress of grievances, you know, which the First Amendment --
was the First Amendment. The First Amendment was there to
seek, redress grievances. And we know very well at the center
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of democracy, the heightened core of democracy is dissent.
That has to be protected. And the First Amendment does
protect that. So for us to walk in that spirit as well, in
the spirit in the first place, also to walk in the fact that
we're walking in the law of God.
And we petitioned Congress year after year. We've
marched, we've vigiled, we've visited the representatives, the
senators' offices. We write letters. We would pray. We do
for 35 years, and though we know, I think we're all very aware
that our Congress does not touch the military budget. We've
been in a war economy for 70 years. You know, ever since the
horrific -- no, before the horrific bombing of Hiroshima and
Nagasaki and other bombing of other parts of Japan. But we've
been in a war economy where our legislators are tied into that
very, very deeply. And the budget has not been changed at
all, and each year -- the military budget, I'm referring to,
sir. Each year it gets stronger and stronger.
And so -- and for any representative or any senator to
kind of listen to our pleas seeking redress, which we've tried
to do time and again, they are so locked in, I would say.
Corporations play a big part in that, you know, how we are now
called to do a lock-step democracy. And we're not about that.
I don't think any of these people want to be about that, you
know.
So we're about living according to the law of God, which
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is a law for all of us, as well as being faithful to the
commandments that we receive.
So after petitioning, trying to petition, petition
efforts, I think we have to take steps, as they were very
aware of that in Boston during -- when the tea was dumped into
the bay, you know. They sought grievances, sought to redress
grievances, and so that was the response.
I think we also walked in the spirit of Harriet Tubman
who, you know -- the only way that she could give aid to her
people was to help them escape from slavery, you know. So we
walk in that particular tradition.
I would pray that some way or another all of the money
that we are using, wasting, pouring in the ground, it's well
over half of the budget is going into weapons and making
corporations, nuclear-like corporations very rich and
profitable while people starve. We would embrace a cruise
missile -- our government will embrace a cruise missile while
children die in the sands of Iran, Afghanistan, and Pakistan.
So I don't think we're called to do that. I don't think we're
called to be that.
And so I just -- I would just like to say, too, maybe, in
point. As far as cutting through the fences, you know, I no
more want or would try to do a type of restitution there
anymore than I would if we're cutting through the fence, as
Susan mentioned, to a concentration camp, you know, or cutting
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through the fences of the people in Auschwitz, those who were
sequestered there -- children, women, men -- in order to go
into the gas chambers. To me it would be -- it would be,
again -- so our act of going into that base involved cutting
fences where this ultimate death is placed, where this
ultimate death is situated. And so I think those are the
steps that we took, we took in faith.
I would also say, you know, that as far as my own
situation, it's a matter of suicide -- or pardon me, it's a
matter of supervised release or something, I don't know how I
would ever -- I could not -- how I could ever go along with
that.
Some of the people, my codefendants, I work with in the
community. I think some of the things are impossible. No way
at all do I intend to stop working for peace through the --
pardon me -- to what little time, who knows. I think I'm in
pretty good health, you know. So, you know, every morning I
wake up and say what are you doing here? So.
So I thank the public defender for his good words, but I'm
amazed and -- I'm so amazed at the great sense of life that is
here and the great sense -- great sense of life that can be
conveyed out of this place, out of our Tacoma, which for so
many years has struggled under the pulp and the arsenic coming
from the smelter and so many other things. But we could be a
very lively city, a very lively city. And you could be a part
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of that, Judge. You know, you could very much. We invite
you, as Susan did. It would be lovely to have you.
Okay. Thank you.
THE COURT: Thank you, Father.
Sister Anne.
SISTER MONTGOMERY: I'm grateful for your generosity
in allowing so many speakers, and I think it was very
important for all of us to hear them.
There's only one point I would differ from them on, and
it's the word hero or heroin was mentioned; you know, that we
are supposed to be these wonderful people. I think the
opposite of that has been on my mind these past days as I've
thought about today and praying.
I've had to pray with my own fears, with my own sense of
my own failings, but I think that's very important because
change does come from ordinary people from the bottom. No
change has come otherwise. And I think what we can say, and
we need this wonderful community to say with us, is that we do
it together. That's what gives us strength.
So I've had to look at my own violences, my own
selfishness, my own fears, and realize that that is part of
nonviolence. We have to change within as we seek, as Bix
said, to influence others just by our presence and actions.
And so I've been hoping to grow in that throughout my
life. Blake mentioned and Ramsey mentioned my father in the
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Navy. I love the Navy; I love the people in it. I still,
when I see a uniform of a sailor, an officer, and I feel it in
my heart, but I feel that that Navy has become sort of a
technological monster in the use of nuclear weapons.
So I have been on a journey. I would consider it almost a
religious pilgrimage since 1980 when I did my first Plowshares
action, hoping to follow more faithfully the nonviolent
journey of Jesus to Jerusalem. He offered stories and images
to his disciples to describe his way of speaking truth to
political and religious authorities in solidarity with those
who are voiceless and in need of healing from a sense of
helplessness and fear.
So I just offer three brief stories from my own journey,
the first which is distant geographically from Bangor, comes
from a journey to Basra in Iraq between the two Gulf wars. In
the maternity hospital, I stood beside the bed of a woman who
knew she would give birth to a baby without a brain, helpless
to console her. I was then shown a room with unimaginable
photos of deformed infants never before experienced in Iraq,
the result of contamination by the depleted uranium used to
harden U.S. tank shells in the battles in the south.
This is nuclear war. We don't usually think of so-called
depleted uranium as nuclear war, but it is. The use of
insidious weapons of mass destruction that pollute wherever
they penetrate: infants, our own soldiers who are getting
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souvenirs from the tank. Wherever they penetrate: the water,
the earth, and it's growing things in whatever way they are
mined or used in the blasphemous effort to control and
dominate creation.
The second image comes from a another pilgrimage; this one
a five-day walk to Guantanamo in Cuba in 2005 where we
vigiled, fasted, and prayed at the last gate we could reach.
At night we could look down on the lights of the prison where
human beings were tortured and guards dehumanized.
A friend of mine had previously compared torture and
nuclear weapons as two forms of fear creating dominance and
control, the ability always to go to a higher level of
violence. Someone being tortured feels helpless and they know
something worse will happen if they don't tell lies and
confess, do whatever they are asked to do.
Our conventional weapons, which are also being upgraded to
be more destructive than ever, are sort of protected by this
umbrella of nuclear weapons because other countries know we
can always use something more.
So the Trident submarines that are on patrol or stored at
Bangor are such a threat as these more devastating
conventional weapons are created and used in countries that we
know we can subdue just by the use of such weapons.
The so-called vision of the space command states bluntly
that the have-nots of the earth will come to claim a just
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share of the earth's resources and therefore our military must
control space as well as land and sea. They say this right
out: We can't let these poor nations ruin our way of life
because we would have to share with them.
I would like to suggest a different vision. It comes from
the Bible -- I forget which prophet it was, perhaps Amos.
"Without a vision, the people perish." As we scattered
sunflower seeds on our four-hour walk through the base, we
hoped to embody the hope that the vision would be realized
through the nonviolent resistance and active love of ordinary
people.
The final images of other lights as we entered SWFPAC, the
blazing artificial lights over the bunkers, but beyond them,
it was just dawn and I looked up and saw the gentle blowing,
changing colors of the dawn and revelry was playing in the
distance. It was all such a contrast. These lights offered
life; very gentle, but so opposite to those hardened bunkers
right in front of us.
This vision echoes the lines from a sequel in our
statement which challenged us to transform the dead hearts of
stone to hearts of living flesh, the concrete bunkers to homes
for those without homes, to new school buildings for those who
are having their budgets cut, and so forth and so on.
This was a journey first within my own selfish and fearful
heart, and then finding the change comes not from me but from
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the power of the loving and healing spirit of Christ inspiring
a beloved community in which we act and the larger community
of Puget Sound and those worldwide who struggle without such
support and care and love as we experience here. Those
deprived by our wars and military budget of a human way of
life.
THE COURT: Thank you.
Ms. Greenwald.
MS. GREENWALD: As my codefendants mentioned, I also
am grateful for the opportunity to have had other people speak
to the Court today and would like to speak briefly.
There comes a time when voting and writing letters and
signing petitions and even crashing the blue line is not
enough, and although I have great respect for the idea of a
democratic process, I also believe that the democratic process
is broken, and so with my life, I will do what I can to show
that nuclear weapons are wrong.
The shirt that I'm wearing is written in Arabic and Hebrew
and English, "We will not be silent," and it could be written
in many more languages than could fit on one shirt. But the
reality is, is the nonviolent resistance to injustice around
the world is part of the community that we stand with, and
you've heard that today in court.
I bought this shirt in Washington, D.C., the October
before we did our All Souls Day action at Bangor. I bought
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the shirt and I also went to the Supreme Court and the White
House protesting some of the policies that this government is
responsible for.
I stand in solidarity with the resistance throughout the
time that has spoken out against the injustices in Germany and
other places. Franz Jaggerstatter was mentioned today. The
White Rose resistance, a small group of young people who gave
their lives to leaflets, to hand out papers against the Hitler
Nazi regime.
And I'm not saying that, because as Father Bix mentioned,
that I have this suicide wish or anything. But the reality
is, is that when I was in my 20s, I went to the Pentagon at a
demonstration, and at that point we were allowed in the center
of the Pentagon, the concourse. It was during Holy Week, and
there was a pouring of ashes and a die-in where people lay on
the floor. This was all symbolic to the reality of nuclear
war, killing people and turning cities and even people into
ashes.
At that moment, it literally brought me to my knees and I
knew that with my life I had to do everything I can to show
that nuclear weapons are wrong. And I recognize this through
all my trainings, upbringing, that this conscience, this voice
in my head and my body won't go away. Because, believe me,
this is not the life that I would have chosen before this
situation happened.
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In 1982 -- I'm sorry, a little before that -- I had an
opportunity; I was living on a farm -- and this is my ideal
life. This is the environment that I wanted to have children
and raise my children in. I was living on a farm. I was part
of a cooperative, a land trust cooperative, and growing food
and making yogurt and granola and all those wonderful things,
those nurturing things that I had hoped to be a part of. And
it's interesting that today is the anniversary of the Three
Mile Island accident. And the farm that I lived on was on the
border between Maryland and Pennsylvania, and we were 30 miles
from the nuclear plant.
Turning on the radio, the second day of the release of
radioactive materials, turning on the radio -- the air raid
sirens were going off, first off, from the Pennsylvania town
which was called Freeland, Pennsylvania. And turning on the
radio, and the announcer is saying "This is not a test. Be
prepared to evacuate," and then directions were given on what
to do.
And I bring that up, it's just an interesting relationship
in what's happening in Japan, and also the understanding about
nuclear power, nuclear weapons, and the connections that they
have for jeopardizing all life.
In 1982 I was in Montana, and that's the year that the
U.S. policy was that the United States can win a nuclear war.
During Reagan's presidency, there was talk about being able to
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win a nuclear war. And we had the systems: the air base,
land base, sea pump -- the air-based, land-based, and
sea-based nuclear weapons.
And despite this not being on my criminal record -- I
guess maybe it didn't exist if it's not on my record -- but on
Easter Sunday of 1982 I crossed the line at Malmstrom Air
Force Base which was part of 200 missile silos that were aimed
at the Soviet Union at that time. And on November 1st of
1982, I climbed over the fence of that missiles -- one of the
missile silos and holding the belief that I do not authorize
the use of deadly force against any other person. And I knew
that that missile was aimed for people, innocent people, and
the threat to eliminate their life was wrong.
And everything I have done in my life, a number of people
in these courtrooms sat with me on the railroad tracks
blocking the warheads that were coming into Bangor in 1985.
And during that trial in Kitsap County I was pregnant with my
daughter Alissa, who is in the courtroom today, and the jury
found us not guilty. Not guilty. We were sitting on the
railroad tracks when this shipment of warheads was coming from
Pentax, Texas, and Amarillo, Texas, from the Pentax plant to
the Trident base.
And as we sit here, we know that there are plans to extend
the potential of the nuclear weapons at Trident. In fact the
planning for the next 60 years of Trident. So unless I get a
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calling for some other thing in the world, I have to do
everything I can to abolish nuclear weapons.
We moved to Kitsap County because it was a point to be
neighbors and to do everything we can to share that belief
that nuclear weapons are wrong and that we can together create
a society where it's easier to be good and where there can be
peace with justice.
And finally, I brought this prayer shawl that was -- we
were all given prayer shawls from the community where each
stitch was made with a prayer. I bring this to share because
there's enough prayers and love to go around to everyone in
this room and everyone in this town, and I know that that is
here for all of us; that somehow we can come together and do
what we can to stop nuclear weapons from ever being used, from
being created, and then for being dismantled.
Thank you.
THE COURT: Ms. Greenwald.
I think we will be going into the noon hour because we are
going to complete this sentencing hearing.
I first want to make some general remarks that have
application to the sentencing considerations that apply to all
the defendants. Following that I will address each individual
defendant and the sentence to be given to each.
This case, as evident by the interest expressed in it, in
the attendance at this hearing -- the largest audience to any
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sentencing hearing I have conducted -- is an extraordinary one
in many respects.
There are several reasons why this sentencing is
extraordinary. Just some of them are that it involves issues
of national significance; the defendants have all appeared pro
se and represented themselves at all stages of the
proceedings, including at trial; it has drawn a great deal of
interest and comments from citizens; and finally, because the
people before me are themselves extraordinary in each of their
life stories.
I cannot remember a case in which a defendant who appeared
before me was not someone who engaged in a crime to satisfy
some urge to gratify his or her own greed or further some
other selfish purpose. Whether the case has been drug
trafficking, bank robbery, possession of child pornography,
human trafficking, fraud, or some other crime, I do not see
people who willfully violate the law with the motive, as has
been stated in so many letters written to me, to "make the
world a better place."
Each of you has engaged in this conduct fully knowing that
you would be arrested and brought before a court. Most
criminals who appear before the court engaged in criminal
activity with the expectation, or at least the hope, that they
won't be caught and be punished. Each of you didn't just
expect to be caught, but knew that you would be. That was
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part of the plan. You might say that you didn't expect to be
punished because you intended to be found innocent, but that
was a hope, not a realistic expectation.
Most of you have been here before. You've violated the
law against trespassing or destruction of property, asserting
the same defense as you have here. You were found guilty then
and you were found guilty in this case by a jury of your
peers.
Federal trial judges such as I would be violating the oath
of office by not upholding the Constitution and the law of the
United States if a premise was accepted that no sentence
should be ordered in a case such as this because the trial
judge disagrees with the law as it has been clearly
interpreted by the United States Supreme Court, the Circuit
Courts of Appeal, including the Ninth Circuit.
You must know now, if you had a different expectation
before, that the actions such as yours that occurred on
November 2nd, 2009, would not only result in your arrest, as
you knew that it would, but that you would be also convicted
and sentenced.
Your legal arguments in this court were not new or novel
and have already been decided by higher courts than this one.
If your arguments are to change the law, you will have to make
them to the only court which can overturn that case law that
binds the courts of appeal and trial courts, including this
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court. Otherwise, your goals can only be achieved legally by
using the political processes in the other two branches of our
government to change the laws that you don't like.
Arriving at a fair and just sentence is always a task for
the sentencing judge that again calls on him or her to uphold
the Constitution and the laws of the United States. This
means that I must consider the factors Congress has instructed
me to consider as well as the guidelines also approved by
Congress.
Congress has directed me to look at what we refer to as
the 3553(a) factors, and I have done that. I will mention
most of them. No one factor is more important than the other.
I will come back to those in a moment.
In addition, Congress has established the United States
Sentencing Guidelines Commission which adopts uniform
sentencing guidelines approved by Congress. Until a few years
ago, those guidelines bound sentencing courts absent specified
exceptions. The Supreme Court has determined that these
guidelines, in order to pass constitutional muster, are
advisory only; that is, the Court's not bound by them but must
consider them, as I have in this case.
In viewing the 3553(a) factors, I ordinarily would begin
discussing the history and the characteristics of the
defendants. Because, again, at the defendant's request, this
is a joint sentencing hearing, I will leave this factor to the
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last when I address the sentence of each individual defendant.
One factor common to all defendants is the nature and the
circumstances of the offense. This factor is closely related
to another, which is that the sentence imposed needs to
reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense.
At the outset I want to say that the seriousness of the
offense can be, and some have, understated it. While the
damage to the government's property here was not great in
value, it cannot be forgotten what the purpose of the property
was that was damaged on that early morning. The purpose of
the property was to protect a military installation from
trespass and sabotage.
While some may argue that the fortification of this
particular installation could have been more effective, we
know this about what was in place: There was first an outer
chainlink fence, and after that two additional fences that
were wired to set off an alarm if anyone attempted to breach
the perimeter. There were warnings that anyone unlawfully
going beyond that perimeter would be exposed to lethal force
being used against them. It is unclear whether this warning
was not taken seriously or that the defendants, by taking the
actions they did, believed that there was a strong possibility
they would not survive the criminal enterprise to see another
day.
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The defendants were all dressed in dark clothing and
entered the base in the early morning predawn hours of that
day. They were carrying backpacks and other items that could
signal to those charged with protecting the base that there
was something much more sinister afoot. This was precisely
the type of activity that they were trained for and for which
they were allowed to use lethal force. This, of course, means
that one or more of the defendants could have been killed
while engaging in this unlawful activity.
It's been argued that the defendants were prepared to lose
their lives that day and that therefore no innocent lives were
at risk. This thinking is far too superficial. Death in this
instance would be tragic and a consequence far too great for
the offense of trespass and destruction of property.
Also, it seems little thought was given to the
consequences that such a result would have had on the young
men who were called upon to fulfill their sworn duty. Indeed,
even where no physical harm was suffered by the defendants by
these men, this was an event that clearly created anxiety
within them.
This planned event, though motivated, I believe, by a
genuine desire of the defendants to see a safer and more
peaceful world, was in fact a form of anarchism. If anarchism
goes unchecked, then it will ultimately lead to a complete
breakdown of the social order. If we're not a nation of laws
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but of men, then the very ends the defendants seek of a safer
and peaceful world would be thwarted and society would devolve
into chaos.
As I indicated in the calculation of the guidelines, there
is no evidence of acceptance of responsibility in this case
for any one of the defendants. Indeed, there is no indication
of remorse, for each of the defendants have steadfastly
maintained that their actions were justified. The only thing
I can surmise is that if the opportunity presented itself,
each would commit this crime again.
In this respect, this case is again exceptional. I have
never before had a defendant before me who told me that the
conduct for which he was being sentenced is acceptable or
excusable. I have had defendants insist on their innocence
before, but in those cases the defendants have denied the
conduct that constituted the crime, not a claim as asserted by
these defendants that the conduct, even if proven by the
government, was itself not a crime.
When viewing two other statutory factors to be
considered -- that are related -- are that the Court is both
to consider what is warranted to protect the public from
further crimes of the defendants and deterrence of the
defendants from engaging in criminal conduct in the future, I
will address these considerations as I address each individual
defendant's sentence.
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The Court must also look to deterring others from engaging
in similar conduct. This is no less important than the other
factors, and this factor has been considered in the context of
each of the defendants and their respective backgrounds and
criminal histories. What this Court does here today in
arriving at a fair and just sentence will likely receive more
publicity than a lot of the sentences this Court has imposed.
A very clear message must be sent that our system of
government has established lawful means to achieve political
ends and it is those means and not illegal means that must be
pursued. This is one of the great strengths of our
constitutional form of government: the separation of powers
and the rule of law. There can be no room for taking the law
in one's own hands. This is not the same as saying that some
conduct that would otherwise be criminal is not because
there's some immediate necessity to do something that in a
different context would be unlawful.
These defendants have urged the Court to allow the defense
of necessity and used the analogy that while it may be
trespass to enter the home of another without permission, if a
passerby observes a child in a burning house, the entry of the
house without permission is authorized. I ruled as a matter
of law, consistent with the precedent that I am bound by, that
this doctrine has no application in this case.
I offer no comments on the question of whether this
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country should be maintaining an arsenal of nuclear weapons
other than to say it is an extremely complex one and that it
has been the goal, I believe, of every administration since
that of President Truman to find a way to rid the world of
them. That such weapons still exist in the world despite this
important goal nearly all would agree is a bad thing. It will
be a great day when we can say that they exist no more.
I have considered the kinds of sentences available, and
finally, I have looked at the importance of the principle that
sentencing courts need to avoid unwarranted sentencing
disparities among defendants with similar records who have
been found guilty of similar conduct.
I am now prepared to address the sentences of each of the
individual defendants. The order will be taken, again, the
same as it is in the indictment.
I will first turn my attention to Father Kelly. Before
anything else, I need to return to the guideline calculations.
I have already indicated that each defendant begins with a
total offense level of 12. To this number is factored in the
individual criminal history of each defendant. In Father
Kelly's case, he has 12 criminal history points. This places
him in the criminal history category of V. The highest
criminal history category for a federal felon is VI, and in
some sense, this very point points out that the guidelines can
be misleading. So the guidelines suggest a prison sentence of
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27 to 33 months.
In addition to all the hundreds of letters I've read of a
general nature of this case, I've read the memorandum of
Annabel Dwyer, as I mentioned earlier, and she was serving as
standby pro hac vice legal counsel.
Father Kelly, you have provided an extraordinary written
statement. It's short enough that I will read it. These are
his words:
"Defendant Kelly maintains innocence according to
international law: In conscience, defendant Kelly refuses all
fines, restitutions, fees, and any form of supervised release;
in all sincerity, defendant Kelly further asserts that this is
a matter of justice and that it will save time for everyone
involved."
In effect, Father Kelly, you have said do what you will,
but you will not voluntarily cooperate in any way with the
Court's jurisdiction over you. Because you assert that you
are innocent, that is enough, apparently, for you to justify
no further compliance.
In this regard, I believe that no restitution has been
paid by you in previous sentences imposed.
Is that correct, Mr. Storm, as far as you know?
MR. STORM: Your Honor, I believe that is correct,
but I don't have the facts in front of me.
THE COURT: That's what was reported to the Court.
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It's not unusual for a defendant convicted after a jury
trial to maintain his innocence. What is unusual is a
statement going into sentencing that a defendant informs the
Court that he has no intention of following the Court's
orders. This must be taken into consideration on sentencing
factors relating to deterrence and protecting the public.
The Court notes that Father Kelly has already been
convicted of multiple similar crimes and has been sentenced to
terms of imprisonment of ten months in 2001, 21 months in
1997, 27 months in 1999, and five months in 2006. In
addition, you served 18 months for violating conditions of
your supervised release. It is apparent that imprisonment has
not served to deter you from engaging in similar conduct, and
I can only conclude that whatever sentence I give you will
probably not be a deterrent in the future. This conclusion is
bolstered by your recent arrest at the Vandenberg Air Force
Base.
Apart from this criminal history associated with your
protest on American military installations, Father Kelly,
you've been a man of service to your fellow humans. I know
that you regard your criminal history as part and parcel of
that service. I cannot, however, view the intentional
destruction of property as part of that good service you have
provided.
The sentence that the Court finds is sufficient but not
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greater than necessary to achieve all the objectives of
sentencing is a sentence of 15 months in prison. This
represents less time than was given to you in two previous
sentences for similar crimes. I believe this lesser sentence
is warranted because the damage to the government property was
not as extensive, and because this sentence is sufficient but
not greater than necessary to achieve the objectives of the
sentencing factors that I outlined.
Ordinarily, the case can reasonably be made, as the
government has, that this sentence should be greater because
of the repeat nature of the type of offense that's been
committed here. That argument in most cases should apply.
This is simply not most cases.
This prison sentence will be followed by one year of
supervised release. I understand you intend now not to comply
with the conditions, but I cannot conclude that you could not
have a change of mind while in prison. I considered simply
accepting your statement now and giving you additional prison
time, but I think in this case that would be inappropriate.
Many of the conditions that are routinely imposed
following a federal prison sentence as part of the supervised
release are not indicated in your case. Apart from your
recidivism in connection with protest actions, you, like your
other codefendants, are not in need of close supervision. One
year is sufficient for you and the other defendants on
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supervised release because I believe we will know in that year
whether you're going to be law abiding in this area of
government trespass and destruction of property or not.
So the conditions that will be imposed on supervised
release are that you cooperate in collection of DNA, as
directed by the probation officer.
You are prohibited from possessing a firearm or
destructive device.
You shall submit your person, your residence, any property
that you own to a reasonable search conducted at reasonable
times in a reasonable manner where there's a belief that you
have violated a condition of your supervised release.
Restitution shall be paid in the amount previously stated,
which I believe is $5300. Any unpaid amount is to be paid
during the period of supervision in monthly installments of
not less than ten percent of your gross monthly household
income. Interest on the restitution will be waived.
You will not enter into any United States military
property without prior written permission from your probation
officer.
I find you do not have the ability to pay a fine, but you
must pay a special assessment in the amount of $220.
Now I will turn to Ms. Crane. I calculated the guideline
provisions for you to be as stated in the presentence report
and as I summarized them earlier. Therefore, your total
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offense level is 12. You have ten criminal history points,
and that places you in the criminal history category of V.
The guidelines suggest a range of 27 to 33 months.
You have participated in other criminal acts with Father
Kelly. For similar crimes, you have been given ten months in
prison in 1995, 21 months in prison in 1997, 27 months in
1999. You have also been returned to prison for a total of 13
months for two separate violations of your supervised release.
My comments directed to Father Kelly regarding the lack of
any deterrent effect on him of the sentence given to him have
similar application to you.
You also by letter to the Court, as has been referenced
here this morning, indicate that you do not intend to pay
restitution for damages you did at Bangor and you don't want
to be on supervised release.
Like Father Kelly, apart from your criminal history for
crimes similar to the one on which I'm sentencing you, you
have made some very valuable contributions to humanity. Your
work in the Peace Corps and your ministry to the poor through
the Jonah House and other community service makes it very
difficult to arrive at a fair and just sentence.
Even so, the Court views the sentence that it should
impose on you as not in any material way different than that
of Father Kelly's. While you have not shown that prior
criminal sentences have deterred you, I cannot say again with
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assurance that the sentence I will give you will or will not.
You shall be sentenced then to 15 months imprisonment,
followed by one year of supervised release with the same
conditions as I indicated for Father Kelly.
As to Father Bichsel. The guidelines calculations again
here is 12 -- the same as it was for Father Kelly and Ms.
Crane. Father Bichsel has one criminal history point which
places him in the criminal history category of I. The
resulting guidelines then suggest an advisory range of 10 to
16 months.
While Father Bichsel has also had a history of criminal
offenses involving trespass and some damage to property, his
history is not as extensive as Father Kelly's or Ms. Crane's.
Still it appears that the prior sentences totaling less than
three years has not deterred Father Bichsel from continuing
his criminal activity.
All of the defendants have the support of literally
hundreds of people who have commended them for their
humanitarian commitments and service in the past. Father
Bichsel is someone who is known especially in this community
as a man of uncommon service and who has humbly and
sacrificially given to the needs of others. He also has lived
out his faith in serving his Lord by serving the least of us,
as Scripture refers to those in need of food or shelter.
Very few law abiding citizens have given of themselves as
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some of these defendants have, especially you, Father Bichsel.
It's not easy to sit in judgment over people who have led such
sacrificial lives. One letter writer said this about you:
"Unlike many of us Bix doesn't just preach the Gospel, he
lives the Gospel. He doesn't just talk the talk, he walks the
walk."
You have lived a humble life, seeking little for yourself.
The Scriptures you and others here believe in say that if you
did not receive your reward from man, you will receive your
reward from your Father who is in Heaven. You believe that He
is the ultimate judge, and I do, too. But I'm here not to
judge the person of Father Bichsel or anyone who appears
before me, but to determine a fair and just sentence for their
conduct. There is a difference.
I'm cognizant, Father Bichsel, of your precarious health,
and even though you have not invoked this, it will be
reflected in the sentence.
The sentence for you will be three months in prison,
followed by six months electronic home monitoring. There will
be one year supervised release with the same conditions that
were imposed for the others.
FATHER BICHSEL: Pardon me, Your Honor. I cannot go
along with the -- with the imposed sentence of home
imprisonment, you know. To me that would be like moving the
BOP, the Bureau of Prisons, into our house and then having to
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pay for it on top of it. I would not be a good candidate. I
don't want to do that.
THE COURT: Well, I respect your preference, but it
is the Court's sentence as imposed, Father Bichsel.
FATHER BICHSEL: Well, Your Honor, I don't want it.
I refuse.
THE COURT: I heard you, and that is the sentence of
the Court.
Now with regard to Sister Anne. Again, we begin with the
guideline calculation of 12. Sister Anne has zero criminal
history points, putting her in a criminal history category of
I. While she has had prior convictions all related to her
peace activism and civil disobedience, they are too old to
count as criminal history for the purpose of guideline
calculations. As a result, the advisory guidelines provide a
range of imprisonment of 10 to 16 months.
Sister Anne also has given lifetime service to others as a
nun. You have a long history of peace activism and supported
your convictions in very constructive ways. You have
demonstrated civility here in this process, and it has been
appreciated. Like Father Bichsel, you have led a remarkable
life of sacrifice for others.
Because of the limited criminal history and that being so
remote as not counting in your scoring for the guideline
purposes, your age and general health and all the other
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factors, I view your case as one justifying two months of
prison, followed by four months electronic home confinement.
You will be on supervised release for one year, and you will
have the same conditions as the others.
Finally, I now turn to Ms. Greenwald. Again, like the
others, your guideline calculation begins with the offense
level of 12. You have two criminal history points, which
places you in the criminal history category of II, with a
suggested guideline range of 12 to 18 months imprisonment.
The offenses are again related to trespass on military
installations in connection with your protest activity, and
you have been convicted of trespass twice in the last three
years. The sentence flowing from these most recent
convictions did not deter you from trespassing, and this time
the activity included destruction of property.
Again, your life has been generally a very productive one.
Using your nursing degree and being a registered nurse, you
have been engaged in a healing profession. You are valued in
your current employment as a resident manager at the Irma Gary
Community House here in Tacoma.
When viewing all the sentencing factors in your case, a
sufficient but not greater than necessary sentence will be six
months imprisonment. Imprisonment will be followed by one of
year supervised release with the same conditions as were
imposed on the others with the added requirement that you do
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60 hours of community service.
Each of you has the right to appeal not only your
convictions but your sentences, and if you were to do so, you
would have to file your appeal within ten days of today's
date. The standby counsel, I'm sure, can assist you and
inform you as to how that is done.
Mr. Storm, you're preparing a judgment or judgments that
conform here?
MR. STORM: I am, Your Honor.
THE COURT: Ms. Crane.
MS. CRANE: I have a request. My family is in
northern California. I wonder if you would be so kind as to
ask the BOP, if possible, to put me in FCI Dublin?
THE COURT: The Court will adopt that recommendation,
and it can be incorporated in the judgment. I'm sure, as you
know, that's simply a recommendation.
MS. CRANE: Yes.
THE COURT: The Bureau of Prisons will make a
determination based on many factors, one of which must be
considered is the Court's recommendation.
MS. CRANE: Thank you.
MR. KREMER: Your Honor, a clarification.
THE COURT: Yes.
MR. KREMER: One thing that we run into again and
again is that the presentence investigations frequently
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refers to them as being represented by counsel. I think
that it would help a lot in your sentencing order to specify
that they represented themselves, and that with regard to
post-sentencing proceedings, they need to be able to have
access to each other, they need to be able to assemble.
Merely talking on the phone isn't going to be adequate. We're
going to have to --
(Mr. Campbell confers with Mr. Kremer.)
THE COURT: I guess you got your answer.
MR. CAMPBELL: Your Honor, in reviewing the
provisions for supervised release, it was my understanding
that you were not imposing the standard conditions of
supervision?
THE COURT: I'm sorry, the standard conditions are
imposed, and I meant to say that, in addition to the special
conditions.
MR. CAMPBELL: Okay. There are some concerns then.
I think that's what Mr. Kremer was wanting to get to.
Specifically, the special condition number 9, that the
defendants not associate with any persons engaged in criminal
activity and shall not associate with any person convicted of
a felony unless grant permission by probation.
I note specifically with Ms. Greenwald's situation, she
works at a home for women who are being released from prison
on felony convictions, and so that would be a particular
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difficulty by implication.
THE COURT: That was repeated in the special
conditions. I do not intend that to be the case.
MR. CAMPBELL: So can we strike condition number 9?
THE COURT: I will hear from Mr. Storm on this, but
that's my intention.
MR. STORM: Your Honor, the government has no
objection. I don't know if probation wants to be heard on
that also.
THE COURT: Apparently not. I understand that this
is extraordinary, but the Court believes, again, this is an
extraordinary case, and so it's being treated differently in
this regard.
MR. STORM: Your Honor, one of the judgments, Ms.
Crane's, has a check in the box for remand. The Court has not
yet ordered that. I crossed it out, and Ms. Crane has asked
me why I've crossed it out. So I guess we should address the
Court about that.
THE COURT: Well, I intended to bring up the matter
of remand. What's the government's position with respect to
remand for each of the defendants?
MR. STORM: Your Honor, we are requesting remand for
Father Kelly. Specifically, we're asking for that remand
because he has a long history of being engaged in this
conduct. He's refused to cooperate with probation on this
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case. He has not even been interviewed by probation; has sent
the Court a letter saying he will not cooperate with
supervised release. And in addition to that, he's been
charged with a new crime post trial in this case. So for all
of those reasons, we're asking for remand in his case.
We are not seeking remand with respect to the other
defendants.
THE COURT: Then I will direct to Father Kelly, you
can respond.
FATHER KELLY: I concur with Mr. Storm in this sense.
I guess I'm innocent until proven guilty, but there's a matter
of the Vandenberg case being contested as to whether or not we
were actually trespassing.
But in the meantime, I just want to state, our first
initial appearance in Tacoma in federal court was with the
magistrate and I tried to point out to her that I'm accused of
a lot of crimes in the interest of doing nuclear abolition.
Some stick, some don't. And so if you really feel that I'm a
danger to these nuclear weapons, I really would be about, you
know, defending myself. So I would recommend that we begin
the sentence.
THE COURT: All right. Remand for Father Kelly.
As to the other defendants, I will go through one by one.
The court needs the assurance that you will self report as
required.
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MS. CRANE: Well, I still maintain that I was trying
to stop crime, an ongoing crime. And I certainly won't
promise that I won't try to stop another crime.
THE COURT: All right. You will be remanded as well.
Father Bichsel.
FATHER BICHSEL: Yes, Your Honor, and there's no way
at all that I can assure you that I won't take up my
activities towards stopping -- the abolition of the nuclear
weapons. I cannot give you that assurance. I would not --
what we did was perfectly -- was following the laws that we
have, and the laws that are applicable to us are that we are
not guilty. And I stick by that.
Thank you.
THE COURT: All right. Then you will be remanded as
well.
I will go to Sister Anne. The Court is asking for
assurance, just as was given when you were on personal
recognizance pretrial, as we pointed out. In this, what the
Court is directing now is self-reporting would occur sometime
within a month, and the question is will you self report?
SISTER MONTGOMERY: I'm ready to go now to do my
sentence.
THE COURT: All right. Then you will be remanded as
well.
Ms. Greenwald.
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MS. GREENWALD: I'm ready to go also.
THE COURT: All right. For each, then -- and do we
have marshals present here to take them into custody? Then
that will be the Court's order.
Have you reviewed the proposed judgments?
MR. KREMER: Your Honor, if I could seek another
clarification. That's what I was originally asking. These
people do represent themselves. Once they are taken into
custody, their ability to communicate with each other
regarding post-sentencing issues is going to be almost
impossible. If the Court could enter an order that reflects
and directs the marshals that they specifically be allowed an
opportunity to assemble and meet since they are their own
legal counsel. Otherwise they are effectively denied the
right to represent themselves if they can't meet and discuss.
THE COURT: I'm not going to interfere with the rules
of the Bureau of Prisons with regard to that. I have not
entered an order, generally speaking, under the standard
conditions, but in terms of the Bureau of Prisons and their
managing of them, the Court will not make any extraordinary
direction.
MR. KREMER: Your Honor, the problem, again, is that
repeatedly throughout this process the court system has
recognized them as being represented by other people, and if
you don't provide any additional special instruction, that's
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likely to continue effectively preventing them from being able
to cooperate.
THE COURT: There can be communication, if the Bureau
of Prisons precludes it otherwise, through third parties,
including standby counsel.
MR. KREMER: But attorneys can't communicate with
each other. Because they are parties, they need to be able to
work together.
THE COURT: Well, I have made my determination.
MR. KREMER: With regard to two other conditions
under standard conditions -- this is a small concern -- but
once they complete their imprisonment, most of the work that
they have done has involved them working in dangerous areas
with people who are frequently before the court, and for that
reason I would ask the Court to strike standard conditions 5
and 8 which prevents them from -- would require them to work
at a regular, lawful occupation, unless excused by probation.
And also that they shall not frequent places where controlled
substance are illegally sold. There's no concern in this case
that these defendants might violate this; however, their work
frequently takes them to places.
THE COURT: I'm not particularly concerned about that
either, Mr. Kremer, but this is a matter for probation on
supervised release. They understand and know that they have
the ability to authorize this kind of living arrangement, and
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so forth, and I am going to leave it in that normal process.
MR. STORM: Your Honor, I have received Ms.
Greenwald's judgment. May I approach?
THE COURT: Yes.
All right. The Court finds that the judgment as prepared
as to defendant Greenwald is consistent with the Court's
sentence imposed, and I'm signing the judgment.
MR. STORM: I also have the judgment of Ms. Crane.
May I approach?
THE COURT: Yes.
I also find that the judgment as prepared for defendant
Crane is consistent with the Court's sentence, and I'm signing
the judgment.
MR. STORM: Your Honor, I also have the judgments for
Father Bichsel and Father Kelly.
THE COURT: You may approach.
MR. CAMPBELL: Your Honor, while we're reviewing
that, could Ms. Greenwald have permission to hug her daughter
before she's taken by the marshals?
THE COURT: I have no problem with that.
I find that the judgment as prepared for defendant Kelly
is consistent and conforms with the sentence imposed here this
morning and I have signed it.
Also the judgment prepared for defendant Bichsel is
consistent with the Court's sentence imposed, and I'm signing
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it.
I find that the judgment prepared with regard to defendant
Montgomery is also consistent with the Court's sentence
imposed, and I'm signing it as well.
I would just say this in conclusion, that it was said that
this was a solemn occasion. I don't think anyone can disagree
with that. I want to commend all who have been in the
courtroom for the last three hours and a half or so for the
dignity that was preserved for the courtroom.
Court, unless there's something else, will be in recess.
(Recessed; 12:40 p.m.)
C E R T I F I C A T EI certify that the foregoing is a correct transcript
from the record of proceedings in the above-entitled matter.
/s/ Julaine V. Ryen May 31, 2011JULAINE V. RYEN Date