Thanks to you friends that have been wondering how the recent trespassing case against four Twin City residents, including myself turned out. The defendants were Sister Kate McDonald, Geri Eikaas, Steve Clemens, and Roger Cuthbertson. The simple answer is that we got off pretty easy. I always celebrate this type of result. Alliant Techsystems wasn’t on trial, except in a figurative way. Alliant Tech still gets to do its thing without restriction. If we are making any progress at all in turning around the military culture, it is at a glacial pace. And so it goes. Still, I am pleased with the judge’s decision. I think it was eloquent, compassionate and reasoned – about as good as you can hope to get.
Below, and attached is Judge Peter Cahill’s decision. Also below and attached is my testimony, the testimony of each of the three other defendants, our opening statement, our closing statement, the document we tried to carry into the office of Alliant Tech, the defendants’ proposed jury instructions, defendants’ memorandum in support of jury instructions, Steve Clemmens’ report about the case “A Difference Between Night and Day”, and letters to Alliant Techsystems CEO, Mark DeYoung and to Lt. Tracy Luke, Eden Prairie Police Department,
Roger Cuthbertson 4/27/10
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Remarks by Judge Peter Cahill at Conclusion of ATK Gandhi Action Trial Hearing . April 23, 2010
Well, I’ve had a week to think about this case. You’ve had not only a week, you’ve had much longer. I was curious to see what we would discover today and I found it compelling.
I’m going to start by explaining why I am not, as part of this disposition, imposing $100 in court costs. What I found was a group of people who were very sincere, very compassionate, and I have to give you credit for one thing I don’t always see among protesters: and that is humility. There is not an arrogance about your message, there is more a plea for, almost a desperation, to hear of the injuries of others as you try to stop the violence you see around the world. That’s refreshing. I think your actions are consistent with the highest standards of the traditions of civil disobedience, Dr. King and Gandhi, who you celebrated by doing the protest on his birthday, which I think is very appropriate. I commend you also that you were nonviolent, damaged no property, intimidated no individuals, but rather chose to subject yourselves to arrest in order to get your message across in a nonviolent manner.
Again, with all of you out-ranking me in age, you are the kind of people I want to be like when I grow older. Your message is serious and your message is compelling, as I said. The information you provided was very educational to me and worth my time. So, Mr. Cuthbertson, you don’t have to worry about inconveniencing the Court; it was not an inconvenience – it was actually some of the best time I’ve spent on the bench this week. Or this month. Or even this year. It was worthwhile.
How would a jury have handled this? I don’t know. I really don’t know how a jury – if it had been submitted to one – would have found you guilty or not guilty. Your claim of right defense seems to be thoughtful and not simply based on a moral belief that you can disregard the law but that there exists internationally and otherwise laws that gave you the right to do what you did. And so it is possible, certainly, that a jury would have found you not guilty. To some extent, I don’t have to make that decision today. I don’t have to find you guilty or not guilty because of the disposition we have entered into. I don’t have to make a finding of guilt or not guilty.
And that is why I am not imposing $100 in court costs; because of the seriousness and importance of the message that you have given today. It sounds like every Wednesday, besting the Post Office, neither rain nor sleet … (laughter in the courtroom)
Now I’m going to tell you why I am not going to impose zero dollars in court costs. And that is because I am familiar with not only the trespass laws but the claim of right defense. I was a Public Defender, a private criminal defense lawyer, a city prosecutor, and a county prosecutor in my career. And I’ve dealt with protest cases and let’s be clear – and I think the defendants are clear, there’s a difference between a right to enter on the property and a claim of right. If you have a good faith belief that you have a right, and, as set out in your proposed jury instructions, which are accurate, and have a good faith belief – even if you are mistaken that you have a right, is a defense to a trespass charge. As I said, there is a difference between a claim of right and a right.
My reading of the law through the years including not only the cases cited by the defense but also State vs Scholberg (sp?) is that you do not actually have a right to violate the trespass laws or the treaties. The difference being that following International Law or the Constitution as the supreme law of the land -which recognizes the Treaty power, may, you may be right, violate international laws to make such munitions. You may be right that depleted uranium munitions may violate international law. Cluster bombs might violate international law.
But that’s not why we are here today. And to be honest, I think it is way above my pay grade as a State Trial Court Judge to decide those weighty issues of international law. I’m here because we have a trespass case. And this case demonstrates the tension that exists between property rights and what we hold to be the most sacred rights, the Bill of Rights, the First Amendment rights to freedom of expression. And in reading today’s case law interpreting the First Amendment and the State Constitution, it is my understanding that private property owners can restrict protest activity, keep it off of private property, even if that private property is extensive, even a large shopping mall, a large hospital complex, – that private property owners are permitted to keep people off – even if those persons are engaging in First Amendment, protected, freedom of expression. That’s what the law is. I’m not saying if that’s right or wrong in any case, that’s what the law is. But, that’s one judge’s interpretation of whether you have a right or not. Again, that’s not to say if you have a claim of right. If your claim of right, based on international law, is sincere and in good faith, it would amount to a defense. What I’m saying is my analysis of the law that you don’t have a right to be there doesn’t not mean you don’t have a claim of right. And you can present it today to our “phantom” jury or to any future juries. I’m just giving you my opinion why I am not going to impose zero dollars court costs.
So, what am I going to do? For all four of you, I’m going to continue the case for six months for dismissal automatically without any further court appearance under the condition first that you not be arrested for any trespass activity at Alliant Techsystems. You are free to attend any of the Wednesday protests. This does not limit you in any way from doing that. It does prohibit you from any further arrests. If any further arrests happen, we’ll be back in court and this case will be reactivated. You will still have a right to a jury trial but the case will not be disposed of, it will be reactivated.
I am imposing $1 in court costs – or, by your conscience, one hour of community service – which can’t include protest activity at Alliant Techsystems. I would encourage you to consider devoting time, maybe your hour, to Gillette Children’s Hospital. My sister, my older sister who has now passed, had polio and was in a wheelchair or on crutches for pretty much her whole life. She was helped, and other children who were disabled were helped by the Children’s Hospital; it joined the Shriners’ Hospital. Given your emphasis today about the terrible effects it has on children, I hope you will consider devoting some of your time to our children; I’m sure you already do. But that is one thing that came to my mind – I’m offering that but I’m not requiring that you do it. The children of the world are obviously a huge concern to you and I hope this is one local place where you could spend an hour showing that your compassion embraces all the children – which I don’t doubt. And I leave that up to your conscience.
Someone might ask, Well, why a dollar? Its almost a joke -well, its not. The law has a long history of a dollar in damages being a symbol. And a symbol sometimes can be more effective. Will Eden Prairie Police or the City of Eden Prairie benefit, or the Fourth Judicial District benefit if I imposed $400 in court costs? It is a drop in the bucket compared to the budget deficits we face nowadays. I think it is more important that we have a symbol. It is my ruling that I believe that Alliant Tech has certain property rights but your message was important, nonviolent, and should be respected for what that message was. That is the courts ruling. You are at your conscience to obey – or not. But for today, we are adjourned.
Opening Argument in ATK Trespass Case- April 2010. Steve Clemens, Defendant pro-se.
The four of us who stand before you are morally opposed to the manufacture, sale, and use of indiscriminate weapons. There are significant moral reasons why thousands of people over the past 14 years have gathered outside the doors of Alliant TechSystems demanding that they stop making weapons of mass destruction. But that is not why we are here today.
If we only had moral arguments in our defense, if the only law we felt we were obeying was the law of our consciences, then we would stand up here, say, “Yes, we trespassed, because we felt we had to,” and then take whatever punishment you meted out to us. Along the way, we’d hope to bring you the jury some information to help you to understand what we believe the real dangers posed by Alliant Techsystems to be, but anything that happened beyond that would be out of our hands, and outside our purpose.
But in fact, the law provides for our act of entering Alliant Techsystems’ property and protects us from conviction for going on to it without their permission. The Minnesota State law on Trespass includes a provision called “Claim of Right”. You will hear us testify about why we believe that provision gave us a legal right – and a duty to go on to the property of Minnesota’s largest weapons manufacturer in order to obey a more important law. We do not believe we are guilty of trespass. We had a right and duty to be there.
Further, we believe that your duty as a citizen requires you to find us not guilty.
You might note that we have chosen not to use lawyers but rather to speak for ourselves. We may make mistakes in legal procedures for which Mr. Leach or the Judge will correct us. We just ask that you pay attention to what we have to say and the evidence submitted to you that documents our intent on the day in question last fall.
You will hear testimony that our intent on October 2nd was to deliver a letter and document about International Law to the CEO or one of the other corporate officers of Alliant Techsystems. The documents were about the liability of employees who make weapons that are outlawed according to International Treaties and resolutions. We asked if we could make an appointment to meet with the CEO when we were told that we could not enter the building. Instead, we were refused and then arrested.
You will hear testimony about what products this company makes, and we will focus more specifically on two of the weapons they make: cluster bombs and depleted uranium munitions. While the taking of human life is a very serious matter in any war, we will ask you to focus on the word INDISCRIMINATE. You will hear how most of the nations around the world have agreed that certain weapons should never be used because they endanger or kill civilians, not just soldiers.
You will hear testimony that the US Constitution binds the citizens of our nation to International Laws and Treaties. We will read from Treaties which forbid the manufacture, sale, and use of indiscriminate weapons – weapons which are inhumane, kill long after a war has ended, kill and maim outside of the field of battle, or poison the environment. You will learn that the United Nations has declared both cluster bombs and depleted uranium munitions as incompatible with International Law and as such are banned.
We are not guilty of trespass. We claim the right and duty to warn Alliant’s representatives about the illegality of these weapons. We claim the right and duty to enter Alliant’s property for the purpose of fulfilling International Law. We will cite the ruling of the War Crimes Tribunal at Nuremberg, Germany at the end of World War II which imposes a duty on citizens to speak and act to prevent war crimes and crimes against humanity.
We believe this duty extends to you, the jury, to uphold this law by finding us not guilty.
Testimony of Sister Kathleen McDonald at ATK Gandhi Day Trial, April 23, 2010
I’m 80. I think I’ll explain that we go to Alliant Tech every Wednesday from 7 until 8 o’clock and demonstrate and hold a vigil. We start our vigil by reciting a Commitment to Practice Nonviolence. I’d like to read it.
As peacemakers, we will reflect upon and abide by these commitments:
We will use our anger at injustice as a positive force for change.
We will refuse to return the assaults, verbal or physical of those with whom we disagree.
We will refrain from insults and swearing.
We will not damage property nor carry weapons.
If arrested, as members of a nonviolent vigil or demonstration, we will behave in a nonviolent manner.
We will not evade the legal consequences of our actions.
In the event of a serious disagreement about this commitment to practice nonviolence we will remove ourselves from the action.
Our attitude will be one of openness, friendliness and respect toward all people we encounter, including police officers and workers.
We will walk and talk love of opponent, love of neighbor.
I’ve been a member of the Catholic Community, the Sisters of St. Joseph of Carondolet since 1950. I’ve been living in the Cedar-Riverside area of Minneapolis since 1954. I was raised on a farm in Carver County. I’ve been an active member of the Peace Movement for about 30 years. When I say active, I mean participation in nonviolent public demonstrations for peace and justice – and also sometimes being invited (along with my three sisters who are also here today), we’ve been invited to speak at schools and colleges about our journey in the Peace Movement and invite young people to think about other ways of dealing with conflict than war, fighting, arguing.
I agree with the well-known peace activist, Dorothy Day, when she said, “The biggest mistake sometimes is to play things very safe in this life and end up being moral failures.” I’m trying to be brave as world-famous Mahatma Gandhi when he said “I’m prepared to die – but there is no cause in the world in which I’m prepared to kill.” It was Gandhi’s birthday the day we chose to do our nonviolent act of resistance at Alliant Tech.
For the past 10 years I have been part of the Sisters of St. Joseph Literacy Program teaching immigrants from Vietnam, Cambodia, Laos, and Thailand. This has been a wonderful experience and a privilege and I am learning from them. When I hear their stories of why they had to leave the dangerous situations in their countries I realize more than ever how fortunate I am, we are, to be living here in the United States.
Yes, I was one of the four people who made an attempt to see the Chief Executive Officer of Alliant Tech and I was very respectfully invited off the property by an Alliant security officer. I refused as I truly believed we had a Constitutional claim of right to be there.
I strongly object to the indiscriminate weapons Alliant Tech is making available for sale. I’ve learned these weapons are killing more innocent people than soldiers. This is very wrong. I will continue to show my strong disapproval. I will continue to protest at Alliant — and advocate that they convert to products of peace that are life-giving – in other words, “Peace conversion with no loss of jobs.”
I welcome the opportunity to share my beliefs and thoughts and thank you for your respectful attention.
Testimony of Geri Eikaas at ATK Gandhi 4 Hearing 2010
I’m here today because I thought it was my moral duty to try to open a dialog with Alliant Tech company through their then CEO, Dan Murphy.
We have in the past made phone calls, sent letters, tried to attend stockholders meetings, in order to open a dialog about our concerns over the weapons they are making. None of those communications were reciprocal – so they were continuing to make their illegal weapons (according to international law), the Congress was not doing anything, no other governmental bodies were doing anything to curtail their weapons manufacturing so I personally felt I had to take another step. I had the right to go up to this company. So on October 2nd, 2009 with 3 other members of the AlliantACTION vigil, I walked up to the door of ATK in order to set up a meeting with the CEO Dan Murphy and also to give them a notebook which is entitled Employee Liabilities of Weapons Manufacturers Under International Law.
We were unsuccessful, as you know, and we were arrested; consequently, here we are.
Why did I think I could have any effect as an individual on this situation? I base it on the idea that individuals can and have accomplished great things. I have witnessed this many times as a member, since 1978, of Amnesty International. AI works for the release of Prisoners Of Conscience, that is, people who have been imprisoned for their non-violent political or religious beliefs.
Amnesty International began in 1961 when Brit Peter Benenson saw an article in the paper about 2 Portuguese students sentenced to 7 years in prison for raising their glasses in a toast to freedom. He decided this was not right and he would do something about it. He put an ad in the paper asking people to send letters for amnesty to the Portuguese government in support of the students. This idea gradually spread around the world, writing on behalf of prisoners of conscience – and it works. Amnesty International has up to this date helped free more than 40,000 political prisoners worldwide. This happened because one man thought this was not right. Each member personally decides that I’m going to write a letter, I’m going to call this person, I’m going to visit an embassy, … so each individual can do great, wonderful things. And that’s my goal. That person who sends a letter or e-mail or other action empowers themselves by taking action. They believe that they can make a difference and they do. It may take 1 yr or 5 or 10 to free someone but we don’t quit just because a government says no.
When gathering my thoughts to express myself I kept looking at a newspaper clipping I had saved. It shows two people at the Red Cross Center in Kabul, Afghanistan in 2004. It shows two people sitting on a wooden bench. Each one is missing a leg. They were injured by landmines left over by the Soviet Union invasion of 1979. And yet in 2004 these people had their legs blown off. That was the Soviet Union’s legacy to them. Is this going to be America’s Legacy – to leave behind the same destruction? Not only in Afghanistan or Iraq but other countries where ATK’s weapons are bought and used.
I can’t accept that as my country’s legacy, that is why I have to keep trying to stop the manufacture and use
of these weapons produced by ATK and Illegal by International Law.
I am going to now give you a quick introduction to Alliant Tech.
Alliant Techsystems or ATK is an aerospace and defense company with over $4.5 billion in annual sales.
ATK Headquarters is located in Eden Prairie and it is the largest MN based military contractor.
The company was formed in 1991when Honeywell spun-off parts of its military operations.
ATK has a presence in 21 states and sales offices or representation in 60 different countries.
Now I will describe a few of their products.
ATK supplies the rocket motors for many ground and air launched tactical military missiles. The company is the supplier for all three rocket motor stages of the submarine based 1st strike Trident II nuclear missile. Each fully loaded trident submarine carries over 8 times the total number of explosives used in WW II, including the
Hiroshima and Nagasaki bombs. The atomic bomb that was detonated over Nagasaki Japan had a yield of 21
kilotons. The Trident II has a yield of 3,800 kilotons.
For a point of reference 1 kiloton has the same explosive force as 1,000 tons of TNT.
The Cluster Bomb is a 1,000-pound bomb which is loaded with 202 detonating bomblets. Upon detonation
it can cover an area of 200×400 meters. Upon impact not all of the bomblets detonate.
The army estimates 5% of the bomblets fail to explode on initial contact, other experts estimate 20%.
This means for every 1,000-pound bomb dropped 10-40 live bomblets are left on the ground – waiting to explode if picked up or disturbed- often by children. These bombs are indiscriminate. They are not directed at a specific military objective and are potential killers/maimers of civilians as well as military personnel.
ATK is the world’s largest producer of Depleted uranium munitions. ATK has supplied the Department of Defense with over 16 million depleted uranium shells. Roger will testify more about this weapon.
ATK is the nations largest manufacturer of ammunition and a supplier of munitions to the Department of Defense. In the Dec 5, 2008 issue of “Finance and Commerce” magazine, Rod Blitz of ATK was quoted as saying, “If our American men & women are sent in harms way, we want to see them protected and we take that very seriously.” One of ATK’s most recent contracts is to provide ammunition to the government of Afghanistan. The ammunition is non-standard meaning it is not used by our US military, but it is used in such guns as the AK-47 rifle. In an article about this contract in “Business Journal”,Jack Figg, a spokesman for ATK Small Caliber Systems said, “This is part of a plan to go after international business to offset any slump in our business with the U.S. Army”. In as much as, most of the Afghan economy is based on the black market & these bullets are the exact same ones our enemies in Afghanistan use, how long do you think it will be before these same munitions are used on our American soldiers?
Who Profits; who Dies?
Now I’d like to talk briefly about the notebook we carried with us to give to ATK corporate officers. As I mentioned earlier, we wanted to give them a notebook entitled Employee Liabilities of Weapons Manufacturers Under International Law. [It was requested that this be offered into evidence as exhibit 1.] This document contains the following:
A letter signed by the four of us addressed to Daniel Murphy, the CEO of Alliant Tech.
The Nuremberg Principles
The Constitution of the United States, Article 6
The Geneva Conventions, Article IV
The Geneva Conventions, Protocol I
There are three case studies of industrialists charged with crimes against humanity that includes arms manufacturers.
From the published media we have three articles. The first one is about a Minnesota battalion clearing landmines. The second one is “Cluster Bombs Kill in Iraq” from USA Today. The third one is “Weapons of Self Destruction -Illness or Death of Veterans Exposed To Depleted Uranium”.
Thank you.
ROGER’S STATEMENT TO COURT 4/23/2010 REGARDING HIS ATK ARREST
On Oct 2, 2009, the date of Mahatma Gandhi’s 140th birthday, I attempted to walk into the front door of Alliant Tech, even after nearby police officers told me that if I proceeded, I would be trespassing and that I would be arrested. I would like to explain why I did what I did and why I feel that what I did was the right thing and not the wrong thing to do. I will tell you a little about myself, about what was going on at Alliant Tech (ATK), and about what I was trying to accomplish on the morning of my arrest.
My name is Roger Cuthbertson. I am 71 years old today. I am a retired teacher, having taught 32 years in the Minnetonka, Minnesota school system. For most of those years I taught 7th grade geography. Before teaching in Minnetonka, I spent two years in the Philippines as a Peace Corps Volunteer. I joined the Peace Corps in the very first years of the Peace Corps (1962-1964). So, I guess you could say that I have been a person interested in peace and justice and active citizenship, for about 50 years. I have been protesting against weapons production even before Alliant Tech was formed out of its parent company, Honeywell. In the early 70’s I owned one share of Honeywell stock that I hoped I could use to give voice to my concerns about some of the weapons products that Honeywell was producing, such as cluster bombs for use in the Vietnam War.
What I was trying to do on the morning of the arrest, was to help bring a document into Alliant Tech, to be presented to the corporate leadership, entitled “Employee Liabilities of Weapon Manufacturers Under International Law”. Our group, Alliant Action had sent letters of concern and had made phone calls questioning the legality of products currently or formerly made by ATK, including cluster bombs and depleted uranium munitions. We had received no response to those efforts. We could have just given up. But we believe that the manufacture and use of some of the weapons produced at ATK, in the context of illegal and aggressive wars in Iraq and Afghanistan is ethically wrong, and criminally wrong, according to International rules of law. To demand to be heard, in order to resist the crimes going on at Alliant Tech, brought us to the point of being charged with trespassing. To give up and do nothing is to be complicit in war crimes. We chose to peacefully resist. Henry David Thoreau, in his essay, On The Duty Of Civil Disobedience states that in times like this, (1848 illegal land grab war against Mexico), “every good citizen should be in jail”. So, following Thoreau’s example, if it is jail for me, this is preferable to being complicit in the far greater crimes that are being committed by Alliant Tech and the U.S. government. I don’t feel guilty of wrongdoing from my actions on Oct 2, 2009.
ATK is the world’s largest supplier of deleted uranium munitions, which are very hard, very high density, armor piercing, and fire-producing shells, much preferred by the U.S. defense department for use against enemy targets such as tanks. ATK has supplied the defense department with over 16 million dU shells. Depleted uranium is what is left over when fissionable uranium 235 is separated out of naturally occurring uranium. dU consists almost entirely of uranium 238. It produces mainly alpha radiation, which has little penetrating power and is not that dangerous to living things, unless it is inhaled or ingested. If it is inhaled or ingested, it is extremely dangerous. Symptoms that often result from radiation exposure include hair loss, fatigue, bowl disruptions, cancer, leukemia, increased birth defects, miscarriages, still birth and infant mortality. The half life of u-238 is about 4 ½ billion years, so depleted uranium remains dangerous for an incredibly long time – longer than the earth has existed.
It is estimated that 800 tons of dU has been dropped by the U.S. in Gulf Wars 1 and 2. According to the Army Environmental Policy Institute, as much as 70% of a dU penetrator can be aerosolized when it strikes a tank, forming micrometer sized uranium particles that can be inhaled or ingested. These particles, even though they are heavy, have been proven to scatter for miles around the point of detonation. Du shells self sharpen as they literally burn through armor. According to estimates used by the U.S. army, when a dU penetrator is fired at high velocity against armor, an estimated 10 % of it burns up and forms microscopic uranium oxide particles that are radioactive and that can be inhaled or ingested.
120 mm dU tank ammunition is produced by ATK for the cannons of MIA 1 and MIA 2 Abrams Battle Tanks which have a range of 3,000 meters. The weight of the dU penetrators in these munitions is over 10 pounds. So, you can see that a lot of radioactive material can be dispersed over a large area of the environment in a short period of time in battle.
30mm dU ammunition is produced by ATK for the A-10 Thunderbolt II aircraft, commonly called the Warthog, for close air support against armored attacks. The A-10 uses a 30 mm GAU-8A Avenger Gattling-type cannon which fires dU armor piercing rounds at the fixed rate of 3,900 rounds/minute or 65-70 rounds per second. Each shell contains a half pound dU penetrator. The potential for scattering a lot of radioactive material into the environment in a big hurry is enormous and frightening. Studying this technology helps us to understand how 800 tons of dU has been dropped on the Iraq landscape in the two Gulf Wars.
Because of the scattering of radioactive particles, dU munitions don’t just kill the targeted enemy. The College of Medicine in Basra, Iraq studied cancer rates in children from 1976 to 1999. This study revealed a horrific increase in cancer rates in children between 1990 and 1991. The increase was 242% for cancers of all types and a ten fold increase in birth defects. Basra is in the south of Iraq, where many Iraqi tanks were destroyed in Gulf War I. Thousands of Gulf War I and II veterans are suffering from a wide range of symptoms, which have been called Gulf War Syndrome. Many people are convinced that these illnesses are at least in part due to exposure to dU. Think, for example, of the soldiers whose job it was to dispose of bombed out Iraqi tanks. According to many accounts, these soldiers did not wear protective clothing and were not informed of the ionizing radiation dangers to which they were exposed. The defense department disputes that dU has caused health problems to U.S. soldiers and Iraq civilians. To admit that there is such a problem would open the defense department up to culpability in war crimes and liability for health expenses for thousands of people. A weapon that kills inordinate numbers of civilians and which doesn’t adequately discriminate between civilians and combatants is illegal according to international law such as the Geneva Conventions. To produce and use such weapons would be a war crime. This is what we were trying to warn ATK about when we tried to enter ATK to talk to the corporate leaders about their production of dU munitions. Our warning could have been taken as a favor by ATK. Instead ATK had us arrested for trespassing.
I once heard a well known journalist, Chris Hedges, say that War destroys everything and everyone it contacts, on both the winning and losing side. I think there is a lot of truth in this statement. For example, one of the major early producers of dU in the U.S. was the company called National Lead, at Colonie NY. Very dangerous levels of radiation have been found in the neighborhoods around National Lead. There ensued a 19 year clean up program, which cost $155,000,000, not counting the health costs of individuals who were zapped by the radiation. The polluting dU that was removed was sent off to Utah and Idaho, where it may continue to be troubling to the people who live in that area for thousands of years.
Closer to home is the, now defunct, Twin Cities Army Ammunition Plant in the Arden Hills-New Brighton area of the Metro area. This sprawling plant produced ammunition for the army since 1941, including a period of time when dU munitions were produced, first by Honeywell and then by ATK. ATK refuses to release medical studies of depleted uranium workers who worked at TCAAP. This place has been a superfund cleanup site for years. Environmental studies have determined that contamination from TCAAP has migrated into the Minneapolis/St. Paul ground water supplies. I tried without success to ascertain how much of the contamination problem involves dU. The reports that I went through speak about heavy metals, but do not offer a breakdown that even mentions dU. Interestingly, ATK was to some degree put in charge of cleaning up its own area of production. I like them to be financially responsible for the mess they made, but I don’t really trust them to give a full disclosure of just how great a problem they have created.
I have my own personal encounter with dU. Last summer, my wife, my son and daughter-in-law and my grand daughter visited Arches National Park, near Moab, Utah for 3 days. We had a great time in this place of spectacular beauty. On the third day, we played for 4 or 5 hours, in company of several other families with children, on a huge sand dune, just across the road from the entrance to the park. My grand daughter thought that playing on the dune was the best part of the vacation. The day following the sand dune experience, I was watching the TV news in a Salt Lake City motel when I was startled to hear that there had just been a radiation spill near Arches National Park, while we were there and very close to where we had been hanging out. Grand daughters are pretty precious, so I checked the story out, thoroughly. It turns out that a truck carrying depleted uranium tailings from a pile near the now defunct Atlas Uranium mill had overturned. Even though the truck was going only 3 miles per hour, the waste container on the truck failed, and the contents were strewn about near the truck. I would estimate that this happened about a mile from where we were playing in the sand. The truck was one of many employed by a company called Energy Solutions, to remove 16 million cubic yards of dU tailings from the pile also located about a mile or two from where we were playing in the sand. Energy solutions had been also busy capping the site with rock and clay and keeping the site moist. Because of the spill all 250 employees of Energy Solutions were laid off temporarily. Energy Solutions had been hauling dU tailings from the old Atlas Mill to a new location near Crescent Junction, some 50 miles to the north. Why? Because an estimated 110,000 gallons of radioactive water per day was seeping into the nearby Colorado River from the tailings pile. The Colorado River furnishes drinking water for one in 12 Americans and irrigates 15% of our nation’s crops. Surface water near the Atlas mill was contaminated at 15 to 25 times that approved by the EPA in 1969.
To be honest, at the time of the spill, I was kind of thinking that one spilled truck load of dU tailings on site would be of less concern than the huge pile nearby. But the main point is that there was great concern about this stuff by the people that had to handle it. I don’t believe adequate warning was given to the people that played and lived near it. We certainly wouldn’t have been playing there if we had known more about the area. After this experience, I sure wouldn’t believe someone who would try to tell me that dU is safe.
In August, 1996, the UN Subcomission of Human Rights voted a ban on the use of depleted uranium radioactive weapons. In Feb, 2003, the European Parliament voted a ban on depleted uranium radioactive weapons. We should support these efforts. Alliant Tech should not be making profits on these weapons while innocent people die. Don’t the corporate executives of ATK have a conscience? Let me sum up my comments about ATK’s production of dU munitions by saying, “PU dU!” PU dU!
Another ATK product that we who were arrested on Oct 2 wanted to warn about is cluster bombs. ATK has been the largest producer of CBU-87 Cluster Bombs. The CBU-87’s are formerly known as Combined Effects munitions, because the bomblets have a combined anti tank and anti personnel effect as well as an incendiary capability. For attacks on heavy armored vehicles and other hard targets, ATK makes a lesser used Combined Effects Bomb called the BLU-97/B. While these cluster bomb weapons are not currently being produced, this fact is probably because ATK has a surplus supply at the present time. There has not been any public statement that I know of to the effect that ATK does not wish to profit by the sale of these weapons anymore. In 1994 ATK was successfully sued by the U.S. Department of Justice for price fixing in its cluster bomb production. But I doubt that the mere $2 million fine figured much into the fact that Alliant isn’t producing cluster bombs right now.
Cluster bombs are composed of a parent bomb, weighing about 1000 pounds, which has within it a couple hundred or so bomblets, typically of the size of a D battery or a soda can. The parent bomb is dropped. It opens up, dispersing the bomblets over a large area about the size of 3 football fields. The bombs are usually designed to go off in the air, some distance off the ground, but not too high up, so as to cause a devastating sheet of shrapnel and fire that would kill or wound everyone in the vicinity. It is a terrifying weapon. It often injures more people than it kills. This fact is thought by some war theorists to be an advantage, because by wounding people, you take out of the conflict the people that have to care for the wounded. “Superfluous injury and unnecessary suffering” is prohibited by the Geneva Conventions.
Cluster bombs are by their nature, a weapon that doesn’t pick out individual combatants, but rather ravage a general area. These weapons slice very effectively through traditional peasant homes as well as killing everything and everyone out in the open. Thus, they are of dubious legality, given the Geneva Convention prohibitions against indiscriminate killing of civilians and non combatants.
But the problem with cluster bombs goes much deeper then that. The engineering features that cause the bombs to go off at just the right distance above the ground are not as reliable as the features that make ordinary bombs explode on impact. An estimated 15 to 40% of cluster bomblets hit the ground without going off. Human Rights Watch has stated that the current initial failure rate (or dud rate) for even advanced US cluster munitions like the CBU-87’s (produced at ATK) are too high to be acceptable, estimating an initial failure rate of from 2% to 30% or more depending on conditions”. UN clearance experts estimated a 7% initial failure rate for CBU-87 bomblets used in Kosovo. Many of these bomblet duds will explode later when they are accidentally struck by a plow or picked up by children or jarred by some similar mishap. The many unexploded bomblets become a mine field that kill innocent people and wound innocent people, especially children, for years and years after the bombs are dropped. There have even been many reported instances of U.S. soldiers being killed or wounded by delayed explosions from cluster bombs that had been dropped earlier by U.S. forces. It is possible given the large number of cluster bomblet duds lying around the Iraqi landscape, that some of these are used by insurgents to make roadside bombs. Cluster bombs are truly weapons of indiscriminate killing and are illegal according to international law.
Cluster bombs have been used in recent years in Iraq, Afghanistan, Kosovo, and Lebanon. USA Today, December 16, 2003 declared that the U.S. used more than 40 million cluster bomblets in Iraq. This means that there are many million unexploded mine like devices in Iraq that will continue to wreak havoc on the innocent until they are, at great expense and great risk to the workers, located and removed. Who profits? Who dies?
ATK is the largest producer of anti-personnel land mines in the U.S. ATK and the Textron Company were recently awarded a $41 million cost plus incentive fee contract for the production of Spider XM-7 landmines. Only one bid was solicited and one bid received to produce this for the army. These new landmines are said to have a system that allows them to be remotely detonated. Still, it would seem that such mines could still be accidentally tripped by innocent civilians before they were remotely detonated. One would wonder too, what would prevent remote detonation from killing innocent bystanders. In any case, the system hasn’t proven itself yet. Landmines have caused thousands of deaths and injuries to innocent parties through the years. Children are still dying in places like Laos and Vietnam from land mines and cluster bombs used for warfare over 40 years ago. There are said to be over 10 million unexploded landmines in Afghanistan, which kill dozens of people every month. These mines were placed mainly by the Russians during their unsuccessful war with Afghanistan. I mention them only to show that land mines can be a very long lasting problem.
ATK is the sole supplier of all three rocket motor stages for the submarine based Trident II nuclear missile. Each Trident sub carries over 8 times the total explosive power of all of the explosives used in World War II by all parties, including the Hiroshima and Nagasaki bombs. Again, these weapons are illegal because of the indiscriminate and widespread suffering and death that goes way beyond any chosen target. The use of these kinds of weapons was, in the case of the Hiroshima and Nagasaki bombs, to create so much terror in the Japanese people that they would surrender. The modern horrific generation of nuclear weapons certainly has this indiscriminate terrorizing quality. Article 51 of the Geneva Conventions speaks to this type of weapon: Acts or threats, the primary purpose of which is to spread terror among the civilian population is prohibited.
What was resonating in my mind on Oct 2, 2009 when I tried to visit ATK was Gandhi’s statement, “Whatever you do may seem insignificant to you, but it is most important that you do it.” I read this statement out loud to my friends gathered at ATK before our action. I did do something that day. What I did was not violent or threatening in any way. I did not hurt any one. I am not trying to evade the consequences of my action. I do not feel guilty of any committing any offense. I did not destroy property. I thought long and hard about my action before taking it. I made sure I was reasonably well informed. I thought of my children and my grand children and the kind of world I want for them and for the millions of children like them around the world. Some people were a little bit inconvenienced by my action. This court is inconvenienced by my action. But that is all the harm that was done. What I did is to demand a chance to talk to the decision makers at Alliant Tech about their immoral, illegal activities. What ATK is doing is more than inconvenience. It is producing large scale violence and death for profit.
Thanks for taking the time to hear me explain myself in this court.
Roger Cuthbertson 4/15/10
Steve Clemens testimony for Alliant Tech Trespass Trial, April 15, 2010
I am a husband and the father of 2 young men, ages 27 and 24. I have been married 32 years and my wife works at United Hospital as a mother/baby nurse. I have worked for Habitat for Humanity and at other non-profits that build homes with volunteers for low-income families for more than 20 years. Since the recent war in Iraq started I traveled with HFH to Egypt/Jordan, building homes as a gesture of peacemaking and reconciliation between Christians and Muslims. I am a member of the Community of St. Martin, an ecumenical Christian worshipping community committed to peace and justice. Each year members take a vow of nonviolence. I am a Board Member of the local Pax Christi Chapter, a Catholic peace organization, as well as the Iraqi & American Reconciliation Project, a nonprofit working to support the work of the Muslim Peacemaker Team and to promote healing between Americans and Iraqis. My faith and religious beliefs are central to who I am.
As a freshman student at Wheaton College in 1968, I turned 18 and was forced to wrestle with the question of the morality of war as I was faced with the military draft for the war in Vietnam. After prayerful study, soul-searching, and discussion with others, I chose to register as Conscientious Objector, a person opposed to participation in all wars.
In my senior year of college in 1971, as part of an International semester abroad, I took an International law course in The Hague, Netherlands, the place where much of the international rules concerning behavior in warfare were originally developed. We also visited Geneva where the most current rules concerning warfare have been discussed and adopted. We had a discussion about Nuremburg Tribunals and their role in Int’l Law. The Nuremberg Tribunal was the trial of the Nazi leaders for War Crimes. Not only political and military leaders were tried but also some corporate leaders – German weapons manufacturers.
During that college course I visited the Nazi concentration camp at Dachau to witness the realities of “crimes against humanity”. It had a profound impact on my life to see what other humans were capable of doing to others. My interest in International Law led me to read a book written by a Chief Prosecutor at the Nuremberg Trials, Telford Taylor entitled Nuremberg and Vietnam. Reading that book helped me understand that even our own country must follow the Laws of War. In this book he identified the use by the US of napalm, Agent Orange, cluster bombs, and high-altitude bombing as War Crimes.
After college and grad school, I spent a year with Mennonite voluntary service in Washington, DC. in 1975. While there, my interest in nuclear and radioactive weapons was sparked by Philip Berrigan and Liz Macalister. I participated in a Bible and Book Study with them for a year on the Biblical Prophets and our need to speak out on the basis of our conscience and convictions.
Throughout the years since then, I have participated in numerous nonviolent witness actions against war and particularly against weapons which do not discriminate against non-combatants.
I moved to MN in 1990 and in 1996, I became familiar with Alliant Techsystems and the weapons they made. Weekly vigils on Wednesday mornings focused primarily with landmines then. The vigils continued with a focus on cluster bombs, and now Depleted Uranium munitions are a primary focus. For years we have attempted to nonviolently share our concerns with ATK officials. We’ve written letters, made phone calls, requested meetings- all with no response. I’ve written Letters to the Editor, to Members of Congress, participated in legal demonstrations and protests against weapons made by ATK that are clearly illegal.
On the morning of Oct. 2, Gandhi’s 140th birthday, I carried with me a letter addressed to the CEO of ATK as well as copies of relevant International Law, the US Constitution, and other documents, hoping to be able to meet with Admiral Daniel Murphy or one of the other corporate officers of ATK. [I asked to place exhibits into evidence, describing the documents. #2, 3.] These are copies. The originals were given to Lt. Luke of the Eden Prairie Police Dept. upon our arrest to be placed in our case files.
I want to share what I’ve learned about International Law …
In my study, I’ve learned that International Law is binding on us as Americans because the US Constitution in Article VI states that “all treaties made under the authority of the US shall be the SUPREME law of the land” and judges are bound thereby.
The US was a party to the Hague Treaty, the Geneva Conventions and its subsequent protocols, and was a main prosecutor of the Nuremberg Tribunals. As a signatory to the UN Charter, the Nuremberg Tribunal rulings have the effect of International Humanitarian Law. Int’l law is clear that weapons which are “indiscriminate” are banned. I’d like to briefly read a few excerpts from these treaties.
From the Hague Convention (1907): …
The right of belligerents to adopt means of injuring the enemy is not unlimited. …
In addition to the prohibitions provided by special Conventions, it is especially forbidden –
To employ poison or poisoned weapons; …
To employ arms, … calculated to cause unnecessary suffering …
From the Geneva Conventions: …
PART III METHODS AND MEANS OF WARFARE
Article 35.-Basic rules
1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.
2. It is prohibited to employ weapons, … and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. …
New weapons … In the … acquisition or adoption of a new weapon, … the Contracting Party is under an obligation to determine whether its employment … be prohibited by this Protocol or by any other rule of international law. …
PART IV CIVILIAN POPULATION
Article 48.-Basic rule
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
Article 51.-Protection of the civilian population …
Indiscriminate attacks are prohibited. Indiscriminate attacks are: …
(c) Those which employ a method or means of combat the effects of which cannot be limited … and … are of a nature to strike military objectives and civilians or civilian objects without distinction.
Article 55: Protection of the Natural Environment
Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage …
The CCW (Certain Conventional Weapons) Treaty of 1980 includes, in part, the following:
…the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience …
… to prohibit or restrict further the use of certain conventional weapons … with a view to putting an end to the production, stockpiling and proliferation of such weapons …
The Treaty which established the Nuremburg Tribunal (1945) described and defined Crimes against peace, War Crimes, and Crimes against humanity. In Article 8. It states: The fact that the defendant acted pursuant to order of his government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment …
Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal
There are 7 Principles. I will highlight 3 of them.
Principle II: The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. [Allow me to paraphrase that for us today: Just because Minnesota doesn’t have a law against making and selling indiscriminate weapons does excuse ATK’s responsibility under international law.]
Principle IV: The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. [Again, to paraphrase or restate it for today: Even if your government buys your indiscriminate weapons does not excuse the violation of the Laws of War.]
Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. [Again, to restate for today: For me, to remain silent when illegal weapons are made and sold is a crime under international law.]
The Nuremberg Tribunal Judgment declares, “International law, as such, binds every citizen, just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the government are criminal when done by a private individual … “The laws and customs of war are addressed to … anybody who is in a position to assist in their violation.”
I’ve learned that International Law is developed not only through treaties but is “found” through the Customs of Nations (Customary Law) and the writings of scholars. I have read scholarly articles about indiscriminate weapons and the relevance of International Humanitarian Law. Articles by R.J. Aurajo on landmines and Karen Parker on DU have led me to believe that treaties naming specific weapons to be banned are not needed since the broad provisions of the Hague and Geneva Treaties already have made them illegal. Karen Parker, an attorney who specializes in Human Rights has addressed UN Committees which are discussing Depleted Uranium weapons. I believe she is correct when she asserts that DU fails 4 tests for legal weapons. This is from a paper she delivered to an International Conference in Manchester, United Kingdom in 2000:
There are four rules derived from the whole of humanitarian law regarding weapons:
(1) Weapons may only be used in the legal field of battle, defined as legal military targets of the enemy in the war. Weapons may not have an adverse effect off the legal field of battle. (The “territorial” test).
(2) Weapons can only be used for the duration of an armed conflict. A weapon that is used or continues to act after the war is over violates this criterion. (The “temporal” test).
(3) Weapons may not be unduly inhumane. (The “humaneness” test).
(4) Weapons may not have an unduly negative effect on the natural environment. (The “environmental” test).
DU weaponry fails all four tests. (1) It cannot be “contained” to legal fields of battle and thus fails the territorial test. [the radioactive dust travels for miles] (2) It continues to act after hostilities are over and thus fails the temporal test. [the radioactive half-life is 4 ½ billion years!] (3) It is inhumane and thus fails the humaneness test. DU is inhumane because of how it can kill — by cancer, kidney disease, etc. long after the hostilities are over. DU is inhumane because it causes birth (genetic) defects thus effecting children (who may never be a military target) and who are born after the war is over. The use of DU weapons may be characterized as genocidal by burdening gene pools of future generations. (4) DU cannot be used without unduly damaging the natural environment and thus fails the environment test. [The radioactivity in the environment will essentially last forever until it is cleaned up.]
She and other experts on International Law led the UN Commission on Human Rights to pass a resolution banning the use of DU weapons, nuclear weapons, chemical and biological weapons, cluster bombs and other similar weapons in 1996 and 1997.That resolution is part of the evidence.
INTERNATIONAL PEACE AND SECURITY AS AN ESSENTIAL CONDITION
FOR THE ENJOYMENT OF HUMAN RIGHTS ABOVE ALL THE RIGHT TO LIFE
… use of weapons of mass or indiscriminate destruction … Convinced that the production, sale and use of such weapons are incompatible with international human rights and humanitarian law, and Believing that continued efforts must be undertaken to sensitize public opinion to the inhuman and indiscriminate effects of such weapons and to the need for their complete elimination, … Urges all States to be guided in their national policies by the need to curb the production and the spread of weapons of mass destruction or with indiscriminate effect, in particular nuclear weapons, chemical weapons, fuel-air-bombs, napalm, cluster bombs, biological weaponry and weaponry containing depleted uranium; …
August 1996. Adopted by 15 votes to 1.
Why I felt I had to act …
I had a moral, practical, legal, and personal responsibility to attempt to deliver the documents to ATK officials:
· Moral: as a follower of Jesus, I am called to love my enemy, not bomb them. I felt the need to put my faith, beliefs and “prayers for peace” into action. I feel the weapons ATK makes are immoral. “Putting my body on the line” was a way to continue to act on my convictions. To use theological language, I was incarnating my prayers for peace and my beliefs by carrying those prayers to the place where these ungodly weapons are designed and sold.
· Practical: politically, silence in the face of evil implies consent. What is done in my name, by my country, cannot go unchallenged. I have voted, written letters to elected officials, marched in the streets, and prayerfully vigiled. Taking an action which could bring this issue before the Judicial Branch of government is another way for us to challenge what we believe are crimes of war.
· Legal: The Nuremberg Tribunals require us to take a stand. International Humanitarian Law and Customary Law are clear that weapons which are indiscriminate are illegal and cannot be manufactured, sold, stockpiled, or used. The fact that there presently does not exist an active enforcement mechanism does not relieve us of moral and legal responsibility under the Nuremberg Principles. I repeat: Principle #7 of it states: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle 6 is a crime under international law. ATK must not be allowed to hide behind Private Property laws when they are committing War Crimes.
· Personal: Just prior to the beginning of the present war I was in Iraq as part of a Peace Team. While there, we were notified that our group leader, Kathy Kelly was nominated for the third time for the Nobel Peace Prize. When I visited the Children’s Hospital in Basrah, I meet with Dr. Jamal Nasser (Photo 4), the Pediatric Oncologist on the staff. He took us to one of his cancer wards and introduced us to She’hed (2 Photos 5,6) (a 6 year-old girl in final stages of leukemia) and next to her the 15 year-old Amira suffering from aplastic anemia (Photo 7). After discussion with Dr. Nasser, I believe these children suffered these diseases due to their exposure to depleted uranium left over from the first Gulf War. I have read numerous sources to confirm the huge rise in cancers in southern Iraq since the war in 1991. We also saw extensive photos of children born with birth defects at that hospital. Again, the chief OB/Gyn doctor told us it was his belief that the alarming increase in birth defects was due to the exposure of one (or both) of the parents to depleted uranium. Many of the deformities were so repulsive that I could barely look at the 3 notebooks filled with the photos of children born in that hospital.
I traveled to an area south of Basrah where depleted uranium weapons were used in the 1991 War. (Photo 8) This restricted area is a “graveyard” of vehicles destroyed during the first Gulf War on what was referred to as “the Highway of Death”. We were told to be extremely careful not to stir up any dust and we were allowed to be in the area only 20 minutes due to the contamination. This tank I am standing in front of had steel armor that was 2 ½” thick. I saw on the side of the tank a hole bored through that steel armor that appeared to me to be caused by projectile that completely penetrated the armor. I believe this tank was destroyed by a depleted uranium penetrator. I have read numerous accounts of how this weapon works and I learned that when fired from a gun or artillery, the DU actually burns in the air and according to the military “cuts through steel armor like a hot knife through butter”. As it burns, it also “aerosolizes” and 20-70% of the radioactive material is converted to minute particles of dust which can be swallowed, breathed in, or enter the body through any cuts or scratches. It remains radioactive for four and one-half billion years!
After viewing the destroyed tanks and civilian vehicles I gathered the 5 Iraqis who traveled with us and told them how sorry I was that my nation had used DU weapons in the past war. [photo 9] I told them that although I spoke out and demonstrated against that war, I still asked for their forgiveness for what was done “in my name”. As we cried and embraced, I gave them my solemn word that when I returned to America I would take action to prevent these weapons from being used again. I will continue to do all I can to nonviolently oppose the manufacture and use of these weapons.
A few years ago, I received an invitation to attend a fundraiser dinner to raise money to “clear landmines in Afghanistan”. When I read the invitation closer, it said the money raised would be used to clean up unexploded cluster bombs that were dropped there in the war in 2001. Why should local charities have to raise money to clean up these weapons? Why shouldn’t the clean up be paid for out of ATK’s profits? This company is seeking to profit from the marketing of death. There are still 30 million unexploded cluster bombs remaining in Laos from the Vietnam War. Every week another child or farmer is killed or maimed by them, more than 30 years after they were used!
In the immediate two weeks prior to the day I was arrested, I was part of a group that hosted 13 Iraqi leaders who came to Minneapolis to be part of a first Sister City delegation between Najaf, Iraq and Minneapolis. One of the group leaders was Dr. Najim Askouri (Photo 10), one of the few Nuclear Physicists remaining in Iraq. Many have been killed or left the country as refugees. Every chance he had to speak with governmental officials, University professors, or even at public receptions, Dr. Askouri talked about the scourge of contamination left in his country by the radioactive waste remaining from the use of depleted uranium. One of the reasons I chose to walk on to Alliant Tech’s property that morning last October was to clearly communicate to my new Iraqi friends my deep desire to advocate on their behalf by nonviolently opposing the manufacture and sale of these weapons. In fact, in a separate letter I carried, I stated in part:
Dear Admiral Murphy,
I come today to Alliant Techsystems at the behest of my new Iraqi friends, members of the Sister City delegation from Najaf. They have told me of the plague of disease and death wrought on their nation from the US military use of depleted uranium weapons, both in the 1991 war as well as the present war. Because ATK manufacturers, sells, and profits from making these toxic and illegal weapons, it is incumbent upon me to remind you of the illegality of indiscriminate weapons under treaties signed by our government as well as reminding you of the human cost of the use of these weapons. …
It is important to this case to ask: What was our intent? …
When I went to ATK that morning on October 2nd, a member of our group carried a copy of the handbook on Employee Liabilities of Weapons Manufacturers (exhibit 1). When we were told by the ATK security guard that we could not enter the building, I told him, with the Eden Prairie Police present that I was there pursuant to International Law and had a claim of right to be there. Included in the documents I carried was an excerpt from the Minnesota State Constitution. It is also my belief that a provision in the State Constitution also, like International Law, gives us a right to be protesting on ATK’s property. From the Constitution of the State of Minnesota:
ARTICLE I
BILL OF RIGHTS
Sec. 16. FREEDOM OF CONSCIENCE
…nor shall any control of or interference with the rights of conscience be permitted, … but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state …
Certainly, our actions were not of a licentious nature!
As I understand the “Claim of Right” provision of the trespass law, if we believed we had the right to enter the property and if there were reasonable grounds for that belief, we did not have a criminal intent. We are not guilty of the crime of trespass because we did not have criminal intent. The US Constitution has made the Treaties we have signed “the supreme law of the land”. Our nation has not only signed but also helped create the Hague and Geneva Treaties and the Nuremberg Principles. Those “laws of war” clearly outlaw not only the use but also the manufacture and sale of weapons which are indiscriminate and cause lasting damage to the environment. We have identified ATK as the manufacturer of both cluster bombs and depleted uranium weapons. We believe it is reasonable to infer our responsibility to nonviolently attempt to challenge the corporate leaders of ATK to recognize their liabilities under International law. I believe the Constitution places Treaties on a higher plain than trespass laws designed to protect private property.
I believe that the cluster bombs and DU weapons used against the Iraqi people were made by ATK and are illegal under International Humanitarian Law. I believe the Nuremberg Principles requires us with knowledge of these illegal weapons to take nonviolent action ourselves. I believe the state constitution of MN gives us the right to express our conscience in this matter. I believe that these laws gave us a claim of right to enter Alliant Tech property to try to prevent a greater crime against humanity.
The extensive reading I have done on International Humanitarian Law states over and over again that efforts must be made to “sensitize public opinion” as a primary mechanism to enforce compliance with the rules of war. The International Committee of the Red Cross is the organization charged by the UN with the promulgation and education of these rules of war. In their booklet, International Humanitarian Law: Answers to your questions, there is a section entitled, “What measures are available for implementing humanitarian law?” (I carried this document with me as well). The Red Cross urges spreading the knowledge of humanitarian law. It calls on national courts to fill their obligation to repress grave breaches considered as war crimes. And it states: “Diplomatic efforts and pressure from the media and public opinion also help ensure implementation of humanitarian law.”
I have committed acts of civil disobedience in the past (like ML King and Rosa Parks, Gandhi, Susan B. Anthony, and Fannie Lou Hamer and a host of others). However, this time I believe I did not violate the law because I believe I had a right under both the provisions of International Law as well as the State Constitution’s provisions of freedom of conscience. It was my intent to deliver the documents, not to break a law.
I am both proud and humbled to be a co-defendant with such a group of conscientious citizens who not only love the principles on which our country was founded, but also strive to love all the citizens of our planet. It is my hope that you will remember our planet in your verdict and add your voice to “public opinion”.
I wish to add one thing. Sister Kate forgot to include in her testimony the song we sing every week as we gather in our circle. It goes like this:
Who will speak if we don’t?
Who will speak if we don’t?
Who will speak so their voice will be heard?
Who will speak if we don’t?
We are here today to try to speak on behalf of the many victims of war. Unfortunately many of them are civilians, are innocent children. We want these weapons to be stopped from being manufactured, being sold, and being used.
Thank you.
Exhibits:
1. Employee Liabilities of Weapons Manufacturers Under International Law. (32 pages) – includes letter from 4 defendants to ATK CEO.
2. Letter addressed to ATK CEO Murphy from Defendant Clemens
3. Documents containing excerpts from US Constitution, International Treaties, Nuremberg Tribunal Principles, UN Resolution, International Committee of the Red Cross, and State of MN Constitution. (11 pages)
4. Photo by Defendant Clemens of Dr. Jamal Nasser, Pediatric Oncologist, Basrah Children’s Hospital. Dec. 2002
5. Photo of She’hed, 6 yr. old patient with leukemia, Basrah Children’s Hospital. Dec. 2002
6. Photo of She’hed with her mother.
7. Photo of Amira, 15-yr. old with aplastic anemia. Basrah Children’s Hospital. Dec. 2002
8. Photo of Steve at Highway of Death, south of Basrah, Iraq. Dec. 2002
9. Photo of 3 Iraqis at Highway of Death.
10. Photo of Dr. Najim Askouri, Iraqi nuclear physicist on visit to Mpls. Oct, 2, 2009.
Closing Argument for ATK Trial April 15, 2010
Every Wednesday morning one of the vigilers, usually one of the nuns sitting in the back of this courtroom, holds up a sign at the weekly ATK vigil. It reads, “Who Profits? Who Dies?” We have choices to make: Do we want to be a rogue nation or be part of the “community of nations”? Do we want to choose corporate wealth or commonwealth? Do we value Private Profit over Corporate Accountability?
We stipulated the facts in this case so we didn’t waste the time of the Eden Prairie Police by having to testify here at this trial.
We defendants readily admit that there is a Trespass Law on the books that is designed to protect the property rights of individuals, groups, and even corporations. The “Supremacy Clause” in the US Constitution clearly implies a hierarchy of laws. Not all laws are equal. Some have to be given more weight. The Constitution says Treaties are supreme law. In its wisdom, the State of Minnesota decided to include a provision within its trespass law that allows for an exception, a “Claim of Right”. It too recognizes that laws to protect private property might be out weighed by other laws, rules, or statutes. The Judge will instruct you on the law itself. The Judge will explain to you that any claim of right has to be made “in good faith” and “be reasonable”.
We don’t have to be legal scholars. We don’t have to be experts on International Law – but you have heard testimony from Steve Clemens about how he has studied and researched it for many years. He testified in this trial about meeting with both medical doctors and nuclear physicists to learn from them about their own convictions that the depleted uranium weapons are causing a catastrophic effect of the health of Iraqi citizens in the areas where these weapons have been used.
You have heard testimony that these weapons are made by Alliant Techsystems, a corporation with its world headquarters here in Hennepin County, in Eden Prairie, MN.
You have heard testimony about how the US Constitution makes Treaties signed by the federal government “the supreme law of the land” and how treaties like the Hague and Geneva Treaties inform us that indiscriminate weapons are illegal. Other treaties inform us that we may not remain complicit when war crimes and crimes against humanity are being committed.
You have heard testimony that the United Nations has specifically declared the manufacture, sale, and use of cluster bombs and depleted uranium weapons as illegal. The International Committee of the Red Cross tells us, according to the testimony you heard and the documents in evidence that one of the ways the laws of war are enforced is through sensitizing public opinion, in the media, and through the national courts.
It is up to you, the jury, to weigh the evidence, to see if our claim of right is reasonable, is in good faith. Our system of “checks and balances” allows the judicial system, the courts, a “jury of our peers” to say these weapons must never be made, sold, or used. You can do that by finding us “not guilty” of the charge of trespass because we had a claim of right to try to stop a greater evil from being perpetrated by a corporation which puts profits ahead of human life.
-Geri Eikaas, Defendant Pro Se
Defendants’ Proposed Instructions to the Jury
STATE OF MINNESOTA DISTRICT COURT
County of HENNEPIN FOURTH JUDICIAL DISTRICT
Court File Nos.
State of Minnesota, DEFENDANTS PROPOSED JURY INSTRUCTIONS
Plaintiff,
Vs.
Clemens, Stephen (Steve)
Cuthbertson, Roger
Eikaas, Geri
MacDonald, Kathleen
Defendants.
____________________________________________________________________________________
At the trial of the matter, Defendants respectfully request that this Court instruct the jury as follows:
1. Trespassing – Defined
The Statutes of Minnesota provide that whoever intentionally trespasses upon the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor thereof is guilty of a crime.
Minn. Stat. S 609.605, Subd. 1; CRIM JIG 17.20.
2. Trespassing — Elements
The elements of trespassing are:
1. Defendant intentionally trespassed upon the premises of another;
2. Defendant refused to depart from the premises upon the demand of the lawful possessor;
3. Defendant acted without a claim of right; and
4. Defendant’s act took place on or about October 2, 2009, in the City of Eden Prairie, County of Hennepin, State of Minnesota.
If you find that each of these four elements has been proved beyond a reasonable doubt, Defendant is guilty of trespassing. If you find that any of these elements has not been so proved, Defendant is not guilty.
CRIM JIG 17.21.
3. Claim of Right – Defined
A claim of right is not limited to a claim of title or ownership. If Defendant acted in good faith under claim of right, even if Defendant was mistaken as to his or her right, you must find the defendant not guilty, unless the Defendant committed the act with force or violence or a breach of the peace.
State v. Hoyt, 304 N.W.2d 884, 889-90 (Minn. 1981).
4. Claim of Right — Elements
“Claim of right,” as pertinent in this case, is defined as:
A bona fide claim by Defendant that permission is given to defendant to be upon the premises by a statute, rule, regulation or other law.
State v. Hoyt, 304 N.W.2d 884 (Minn. 1981); State v. Paiqe, 256 N.W.2d 298 (Minn. 1977); Comment to CRIM JIG 17.21.
5. Statute, Rule, Regulation or Other Law — Defined
Defendant acted with a bona fide claim of right if:
1. He/she believed he/she had a right to enter the premises; and
2. There were reasonable grounds for such belief based on a statute, rule or regulation duly promulgated by a federal or state agency.
A “statute, rule, regulation or other law” constitutes any law enacted by the federal or state government, any treaty to which the United States is a party and any rule of international law.
See State v. Hoyt, 304 N.W.2d 884 (Minn. 1981); U.S. Const. Article VI(2) ; The Paguete Habana, 175 U.S. 677, 700 (1900). State of MN Constitution Article 1, Section 16.
6. Sources of International Law
Sources of International Law include:
1. A rule of international law that has been accepted as such by the international community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles to the major legal systems of the world.
2. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.
3. International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.
Restatement (Third) of the Foreign Relations Law of the United States § 102.
7. Customary International Law
Customary international law provides that states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. Continued use, manufacture or employment of depleted uranium weapons and/or cluster bombs violates customary international law because these weapons threaten the welfare of non-combatant civilian populations and present an on-going threat to the earth’s environment.
International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. 809 (1996); R.J. Araujo, Anti-Personnel Mines and Paramilitary Norms of International Law: Argument and Catalyst, Vanderbuilt Journal of Transnational Law (Jan. 1997); Karen Parker, The Case Against the United States: Violations of International Law, War Crimes, Genocide and Crimes Against Humanity in its Actions Against the Territory of Iraq and the Iraqi People, International Educational Development / Humanitarian Law Project (March 1999).
7a. Alternatively to Instruction #7, Defendants request this Court instruct the jury with respect to customary international law, as follows:
Whether a rule has become a rule of customary international law is determined by:
(a) the judgments and opinions of international and national tribunals;
(b) pronouncements of states;
(c) the writings of scholars.
Restatement (Third) of the Foreign Relations Law of the United States § 103.
8. Freedom of Conscience –
The Constitution of the State of Minnesota (Article 1, Section 16) states that an individual shall not have his/her rights of conscience “controlled or interfered with” providing the individual’s actions are not “licentious” or threaten the peace or safety of the state.
9. Claim of Right — Burden of Proof
The State bears the burden of proving all essential elements of the charge of trespass, including the burden of proving that Defendant acted without a claim of right.
State v. Brechon, 352 N.W.2d 745, 749-50 (Minn. 1984).
The requested instructions are based on the cited authority and such other and further points and authorities as may subsequently be presented to this Court.
Respectfully submitted,
Dated: _______________ By: _____________________________
Steve Clemens on behalf of Defendants
Pro se
DEFENDANTS’ MEMORANDUM IN SUPPORT OF JURY INSTRUCTIONS
STATE OF MINNESOTA DISTRICT COURT
County of HENNEPIN FOURTH JUDICIAL DISTRICT
Court File Nos.
MEMORANDUM IN SUPPORT OF
State of Minnesota, DEFENDANTS PROPOSED JURY INSTRUCTIONS
Plaintiff,
Vs.
Clemens, Stephen (Steve)
Cuthbertson, Roger
Eikaas, Geri
MacDonald, Kathleen
Defendants.
INTRODUCTIONS
The 4 Co-Defendants in this case appear before this Court charged with misdemeanor trespass, in violation of Minn. Stat. § 609.605, Subd. 1(b) (3). The charges against Defendants stem from a nonviolent, conscience-motivated protest at Alliant Techsystems Corporation (“Alliant Tech”) in the City of Eden Prairie, County of Hennepin, State of Minnesota. The Defendants entered onto the premises at 7480 Flying Cloud Drive to deliver documents to Alliant Tech corporate officers in protest of Alliant Corporation’s development of indiscriminate weapons. Certain weapon systems developed and marketed by Alliant Tech Corporation cause indiscriminate loss of civilian life, injury to civilians and damage to civilian objects in violation of established international humanitarian law.
The parties will stipulate that each of the 4 Defendants entered the property at 7480 Flying Cloud Drive in Eden Prairie, without the consent of the property owners after an Alliant Tech Corporation representative informed the gathered group that they were not permitted to remain on Alliant Tech Corporation property; that none of the above-named Defendants have title to or ownership to the property; and that the Defendants’ actions took place in the City of Eden Prairie on October 2, 2009. Defendants’ theory of defense is that they acted pursuant to a bona fide claim of right, believing they had permission to be on the premises pursuant to statute, rule, regulation or other law.
ARGUMENT
The ordinance pursuant to which Defendants have been charged, Minn. Stat. § 609.605, provide that a Defendant is guilty of misdemeanor trespass where she “trespasses upon the premises of another, without claim of right, and refuses to depart from the premises on the demand of the lawful possessor thereof.” Minn. Stat. § 609.605 Subd. 1(b) (3) (emphasis added). Defendants’ theory of defense is premised on their claim of right to enter Alliant Tech Corporation to call a halt to its violation of United States, Minnesota and International law.
Defendants have a fundamental right to present the theory of their defense. State v. Brechon, 352 N.W.2d 745, 750 (Minn. 1984). The Minnesota Supreme Court deems it “fundamental that criminal defendants have a due process right to explain their conduct to a jury” in asserting a claim of right. Id. A defendant also has the right to jury instructions which correctly define the law and clarify the issues at dispute for the jury. See State v. Murphy, 380 N.W.2d 766 (Minn. 1986). The instructions requested by Defendants in this case correctly state the applicable law and provide the jury with necessary legal guidance for evaluating the analytical concept of “claim of right” regarding the trespass charge.
“Claim of Right is a concept historically central to defining the crime of trespass.” Brechon, 352 N.W.2d at 749. A claim of right under Minnesota’s trespass statutes and ordinances is considerably broader than a mere claim of title or ownership. State v. Hoyt, 304 N.W.2d 884, 889 (Minn. 1991). A claim of right is inexorably intertwined with the concept of criminal intent. State v. Ouinnell, 277 Minn. 63, 70-71, 151 N.W.2d 598, 604 (1967); see also Brechon, 352 N.W.2d at 749 (“[i]f the defendant has a claim of right, he lacks the criminal intent which is the gravamen of the offense”) .
At its core, Minnesota case law stands for the proposition that a defendant has a claim of right if (1) she believed she had a right to enter the property; and (2) there were reasonable grounds for such belief. Hoyt, 304 N.W.2d at 890-91; Comment to CRIM JIG 17.21. Indeed, a defendant can assert a claim of right based even upon a mistaken belief that she had a right to enter the premises at issue:
If the act prohibited is committed in good faith under claim of right . . ., although the accused is mistaken as to his right, unless it is committed with force or violence of a breach of the peace, no conviction will lie, since it will not be presumed that the legislature intended to punish criminal acts committed in ignorance . . . .
Hoyt, 304 N.W.2d at 890-91.
Additionally, claim of right is not an affirmative defense, but rather an essential element of the crime of trespass. Brechon, 352 N.W.2d at 748-50. Thus, the State bears the burden of proving a defendant did not have a claim of right. Id at 749. A defendant can claim a right to enter premises based upon a bona fide claim that permission is given by a statute, rule, regulation or other law. State v. Paige, 256 N.W.2d 298 {Minn. 1977); Comment to CRIM JIG 17.21.
In addition to the form jury instructions regarding trespass and claim of right, the jury in this case would benefit from a definition of the term “statute, rule or regulation” which is the crux of Defendants’ theory of defense. The jury should be instructed that statutes, rules and regulations include not only legislation enacted by Congress and state legislatures, but also treaties and customary international law. Article VI(2) of the United States Constitution provides:
The Constitution, and the Laws of the United States which shall be made in Pursuance there of; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. Article VI(2).
Additionally, the United States Supreme Court has recognized, for almost a century, that:
International law is part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.
The Paquete Habana, 175 U.S. 677, 700 (1900).
Further, because international law constitutes a “statute, rule or regulation” for the purpose of the Minnesota trespass statute, the Court also should instruct the jury about what constitutes international law.
Sources of International Law include:
1. A rule of international law that has been accepted as such by the international community of states:
a. in the form of customary law;
b. by international agreement; or
c. by derivation from general principles common to the major legal systems of the world.
2. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.
3. International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.
Restatement (Third) of the Foreign Relations Law of the United States § 102.
At trial, the Defendants intend to offer proof that their actions were based upon a reasonable belief that they had permission, pursuant to customary international law, to enter upon the premises of Alliant Tech Corporation in an effort to prevent its indiscriminate violations of international law. Defendants’ theory of the case is based upon various, well-established sources of international law. For example, the 1907 Hague Convention Respecting the Laws and Customs of War on Land forbids states from employing “arms, projectiles or material calculated to cause unnecessary suffering”. Hague Conv. (1907), Art. 23. Similarly, the Charter of the Nuremberg War Crimes Tribunal relied upon customary laws of war to define crimes against humanity as “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population.” Charter of the International Military Tribunal, Aug. 8, 1945, Art. 6, 82 U.N.T.S.. 279 (emphasis added).
More specifically, in 1977, member states enacted the Geneva Protocol I, entitled “Protection of the civilian Population,” which provides:
Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military target;
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
1977 Geneva Protocol I Additional to the Geneva Convention of 1949 and Relating to the Protection of Victims of International Armed Conflicts, 1977 U.N. Jurid. Y.B. 95, 16 I.L.M. 1391 (1977). Similar language can be Found in the 1990 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional \Weapons which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects adopted at Geneva, Oct. 10, 1980, and entered into force for the United States, Sept. 24, 1995, 19 I.L.M. 1524 (1980).
Most recently the International Court of Justice echoed these pronouncements. International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 35 I. L.M. 809 (1996). The Court opined:
States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.
Id.
Scholars have applied the forgoing principles to conclude that the further use or production of anti-personnel mines, weapons containing radioactive depleted uranium, and/or cluster bombs, such as those manufactured by the Alliant TechSystems Corporation, is in direct contravention of established principles of international law. See, e.g., R.J. Araujo, Anti-Personnel Mines and Paramilitary Norms of International Law: Argument and Catalyst, VANDERBILT JOURNAL OF TRANSNATIONAL LAW (Jan. 1997). Mr. Aruajo, a renowned professor of international law, concludes that:
Further use of anti-personnel mines must be both arrested and discontinued … This response is, in large part, founded on the principle that the practice of introducing this type of weapon in military theatres which subsequently cease being places of armed conflict unlawfully threatens the welfare of noncombatant civilian populations.
Id. At 4.
Karen Parker, a distinguished attorney who practices human rights and humanitarian law consults and serves as an expert witness in legal disputes involving the application of armed conflict law. She is currently the chief delegate for International Educational Development – Humanitarian Law Project, a nongovernmental organization (NGO) accredited by the United Nations Economic and Social Council (ECOSOC). She frequently testifies before the U.N. U.N. Commission on Human Rights in Geneva. In a statement given to the International Conference in Manchester, UK, Parker claims:
The laws and customs of war (humanitarian law) includes all treaties governing military operations, weapons and protection of victims of war as well as all customary international law on these subjects.2 In other words, in evaluating whether a particular weapon is legal or illegal when there is not a specific treaty, the whole of humanitarian law must be consulted.
There are four rules derived from the whole of humanitarian law regarding weapons:
(1) Weapons may only be used in the legal field of battle, defined as legal military targets of the enemy in the war. Weapons may not have an adverse effect off the legal field of battle. (The “territorial” test).
(2) Weapons can only be used for the duration of an armed conflict. A weapon that is used or continues to act after the war is over violates this criterion. (The “temporal” test).
(3) Weapons may not be unduly inhumane. (The “humaneness” test).
(4) Weapons may not have an unduly negative effect on the natural environment. (The “environmental” test).
DU weaponry fails all four tests. (1) It cannot be “contained” to legal fields of battle and thus fails the territorial test. (2) It continues to act after hostilities are over and thus fails the temporal test. (3) It is inhumane and thus fails the humaneness test. DU is inhumane because of how it can kill — by cancer, kidney disease, etc. long after the hostilities are over. DU is inhumane because it causes birth (genetic) defects thus effecting children (who may never be a military target) and who are born after the war is over. The use of DU weapons may be characterized as genocidal by burdening gene pools of future generations. (4) DU cannot be used without unduly damaging the natural environment and thus fails the environment test.
2. Customary international law, which includes: The Hague law (governing military operations); and Geneva law (governing protected parties in time of war) is binding on all countries. The United States Supreme Court has consistently upheld the binding nature of customary law, including customary humanitarian law. All of international law, including the UN Charter and Statute of the International Court of Justice, reflects the binding nature of customary law.
Karen Parker, Campaign Against Depleted Uranium, International Conference statement (Nov. 4, 2000)
The Defendants are entitled to present evidence that the foregoing principles of international law gave rise to a reasonable, and actual, belief that they had a claim of right to enter the property. As Judge Randall pointed out in interpreting the Minnesota Supreme Court’s Brechon decision,
With full knowledge of the clear political/protest nature of the acts of the Brechon trespassers, the Minnesota Supreme Court went out of its way in a carefully crafted opinion to protect the rights of those trespassers/protesters to tell a criminal jury what they were doing, why they were doing it, and why they felt they had a right to do it.
State v. Rein, 477 N.W.2d 716, 721 (Minn. App. 1991) (Randall, J., dissenting).
The defendants make an additional claim of right based on the provision of Freedom of Conscience enumerated in the Bill of Rights in the Constitution of the State of Minnesota:
Sec. 16. FREEDOM OF CONSCIENCE; NO PREFERENCE TO BE GIVEN TO ANY RELIGIOUS ESTABLISHMENT OR MODE OF WORSHIP. The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries. (Article 1, Section 16, emphasis added).
Defendants will testify that their behavior on the day in question was neither licentious nor threatened the peace or safety of the state.
The Defendants also have a right to the assistance of this Court in clarifying the issue for the fact finder to determine. The instructions requested accurately state the law and fairly highlight the disputed issues of fact which the jury must determine. See Brechon, 352 N.W.2d at 750 (“we hold that the jury, not the court, decides the sufficiency of the evidence presented to establish a claim of right”).
CONCLUSION
For the foregoing reasons, the 4 Defendants in this action respectfully request that the Court instruct the jury as described in Defendants’ Proposed Jury Instructions.
Respectfully submitted,
Dated: ___________________ By: _____________________________
Steve Clemens on behalf of the Defendants
Pro se
612-724-3255
A Difference Between Night and Day: A Tale of Two Judges
by Steve Clemens. April 25, 2010
My trials were 7 months apart, almost to the day. One was in neighboring Ramsey County, the other in my home county of Hennepin. Both were for the same charge: criminal trespass and both ended with a somewhat similar sentence: continuance towards dismissal with conditions. In Ramsey County it was “no same or similar for 1 year”; in Hennepin it was “no arrest for trespass at ATK for 6 months.” However, the Ramsey sentence, besides being longer in duration also harbored a more threatening restriction – no arrest [for protest] anywhere in the world, whereas the Hennepin County Court Judge, instead of threatening told us we were welcome to “return to the scene of the crime” (so to speak) by attending the weekly Wednesday morning vigil; we were just to avoid going on Alliant Techsystems property for the next six months. But, if we did, we’d still qualify to get the jury trial we originally planned for -albeit not a speedy one.
I think the differences we experienced in court demonstrate how subjective justice can be with our present system. Much of the experience depends on the judge assigned to one’s case. On the surface, I’d suppose that an African American judge might be somewhat more sympathetic to civil disobedience and principled public protest because without precisely that happening 50-60 years ago during the Civil Rights struggle, we would likely not have many jurists of color on the Bench. That said, one only has to look at the record of Clarence Thomas on the US Supreme Court to disabuse one of stereotyping Black judges as progressive.
But it was an African American District Court Judge I faced in September 2009 for the prior year’s arrest at the Republican National Convention. Judge Edward Wilson, however, had no patience whatsoever with our desire to discuss the US Constitution, International Treaties and Laws, UN Resolutions, or even the MN State Constitution in our “Claim of Right” defense for the trespass charge. Never before had I faced a judge so controlling in this my 5th jury trial on identical charges. In fact, 3 of the prior 4 juries found me “not guilty” after hearing our testimony; the only guilty verdict coming in the wake of 9/11 and the initial popularity of the Afghan War.
So, given Judge Wilson’s hostility, especially evident when I attempted to testify in my own behalf and was interrupted about 30 times by either the Judge or the Prosecutor, it was no surprise that the Ramsey County Judge slapped a $100 fine (or 20 hours of community service), insisting that it also be done in his county, not “anywhere in the world” like his “no arrest” restriction plus $81 in “court costs” which could not be substituted with community service.
The contrast in the Hennepin County Courthouse this week couldn’t have been more pronounced. At first, our trial date was set for April 15th, Income Tax Day. The assigning judge instructed us to go to Courtroom 753 and present our case to Judge Peter Cahill. I’ve written elsewhere about that experience (A Hearing in Lieu of a Trial) which concluded in an official Court Hearing on Friday, April 23rd. Over the weekend I wrote letters to ATK’s new CEO, Mark DeYoung as well as to Eden Prairie Police Lieutenant Tracy Luke inviting them and other arresting officers to attend the Hearing to see what we had to say. Email requests for media coverage were sent to local reporters as well in the days prior to the Hearing.
Promptly at 9 AM, Judge Cahill took the bench and welcomed us. I made a few prefatory remarks about how we wished to proceed and thanking Lt. Luke for her presence in the Courtroom. I made an Opening Statement on behalf of all the four defendants and then Sr. Kate McDonald took the stand. The 80-year old nun began by reading the “Commitment to Practice Nonviolence” statement that is read every Wednesday morning at the beginning of the circle of sharing time during the vigil by the driveway entrance to Alliant Techsystems. She described how she and 20-30 others come every week to call for the end of the production of indiscriminate weapons, calling instead for “peace conversion with no loss of jobs”. She talked about her present literacy teaching work with immigrants and why she felt the need to walk up the driveway on that October morning in an attempt to talk with the CEO of Minnesota’s largest weapons manufacturer.
Geri Eikaas, a 71-year old grandmother who joined the weekly vigil two years ago as the company was moving to Eden Prairie from Edina, took the stand next. She talked about her long involvement with Amnesty International in working to free political prisoners and prisoners of conscience. Recounting how that world-wide movement was sparked by the efforts of one man, Englishman Peter Banenson, who wanted to protest an unjust imprisonment of two students he had never met before who were given a 7-year prison sentence for “toasting freedom” in Portugal, Ms. Eikaas stated that individuals can do great, wonderful things. While she continues to write letters on behalf of political prisoners half a world away, she also wanted to personally address what was happening in her own backyard. On the witness stand she looked at a newspaper photo from 2004 of two Afghanis sitting on a wooden bench at a Red Cross center in Kabul. Both had lost a leg to Soviet landmines that had probably been planted in 1979. Those victims, she said, were part of the Soviet legacy. Noting Alliant’s manufacture of landmines, cluster bombs, and depleted uranium munitions, she said she didn’t want more victims as America’s legacy in that same nation. That is why she felt compelled to act.
Noting ATK’s claim that “If our American men & women are sent in harms way, we want to see them protected and we take that very seriously.” quoting Rod Bitz, one of their public relations staff, Geri went on to describe another spokesman for ATK’s ammunition division announcing their plan to “go after international business to offset any slump in our business with the U.S. Army.” Showing that ATK is now selling AK-47 bullets to Afghanistan, while also noting the estimate that about 1/3 of all material given to the Afghani Government ends up on the black market, she wryly asked, “How long do you think it will be before these same munitions are used on our American soldiers?” She ended with a sad question: “Who profits? Who Dies?”
The Judge was seen taking notes and was obviously engaged with the testimony. He paged through the 32-page document, Employee Liabilities of Weapons Manufacturers Under International Law, which the group had carried with them to give to the CEO; now the Judge had a copy, marked Exhibit 1 after it was put into evidence for the case. As Ms. Eikaas finished, he started to ask a question about some of these weapons but then said he’d wait to hear the rest of the testimony because he felt it might answer some of the questions he had. With that, he called another 71-year old defendant to the witness stand.
Roger Cuthbertson often flies one of his colorful kites on days when the wind is right during the vigil. One of the kites he likes to fly over the parking ramp in front of ATK’s entrance reads “PU DU” referencing his personal disgust and outrage over the manufacture, sale, and use of depleted uranium weapons. Roger described in greater detail how depleted uranium weapons and cluster bombs work in battle and continue to kill, maim, and cause serious health issues, primarily to civilians, long after a war has ended. His description of these weapons confirmed how indiscriminate they are in affecting not just other enemy combatants but also our own soldiers and civilians.
Mr. Cuthbertson told the court he had been a public school teacher for 32 years after serving two years in the Philippines as a Peace Corps Volunteer at its very beginning during President Kennedy’s Administration. He said, “I guess you could say that I have been a person interested in peace and justice and active citizenship, for about 50 years. I have been protesting against weapons production even before Alliant Tech was formed out of its parent company, Honeywell.”
After speaking at length about some of ATK’s indiscriminate weapons, Cuthbertson concluded, referencing the arrest took place during a special vigil honoring Mahatma Gandhi’s 140th birthday, “What was resonating in my mind on Oct 2, 2009 when I tried to visit ATK was Gandhi’s statement, “Whatever you do may seem insignificant to you, but it is most important that you do it.” I read this statement out loud to my friends gathered at ATK before our action. I did do something that day. What I did was not violent or threatening in any way. I did not hurt any one. I am not trying to evade the consequences of my action. I do not feel guilty of any committing any offense. I did not destroy property. I thought long and hard about my action before taking it. I made sure I was reasonably well informed. I thought of my children and my grand children and the kind of world I want for them and for the millions of children like them around the world. Some people were a little bit inconvenienced by my action, but that is all the harm that was done. What I did is to demand a chance to talk to the decision makers at Alliant Tech about their immoral, illegal activities. What ATK is doing is more than inconvenience. It is producing large scale violence and death for profit.”
It was shortly after 10 o’clock when I took the witness chair. I’m always a little nervous or anxious every time I’m called to testify although it seemed easier this time without the awkward position of having the Judge seated on one side of you and the jury on the other side. This time it was only the Judge, Court Reporter, the Court Clerk, and many friends in the audience section of the courtroom. Fortunately my wife had the day off from work and was able to be there in support. Besides a copy of what I had to say, I also carried photos, a letter, and a collection of other documents I carried on the day of my arrest which I hoped could be placed into evidence. Juggling all those things and trying to remember to pour a glass of water for my parched throat added to my own personal drama.
I described a little about myself and how a semester abroad in college sparked my interest in international law. My commitment to peacemaking saw its genesis when I had to register for the Draft during the height of the Vietnam War. Quoting what is known as “the supremacy clause” of the US Constitution, I then read brief excerpts from Treaties signed by our federal government that now are considered (according to the Constitution -if not most US Judges) “the supreme law of the land.” I read from The Hague and Geneva Conventions, the CCW Treaty of 1980, the Treaty establishing the Nuremberg Tribunals and the Nuremberg Principles. All of this to the effect of highlighting the prohibition in international law of “indiscriminate weapons.”
I recounted my journey to Iraq just prior to the start of this present war as part of the Iraq Peace Team. Showing photos of a Pediatric Cancer doctor and two of his patients, I shared what he told me about the dramatic rise of cancers in the area where depleted uranium was used in the 1991 War. I showed photos of myself and Iraqis in the area called “the Highway of Death” to see some of the destruction wrought by depleted uranium weapons in that first war. Showing an additional photo taken the day of the arrest of a new Iraqi friend, I described the Sister City visit of Dr. Najim Askouri, an Iraqi nuclear physicist, to Minneapolis in the two weeks prior to October 2 and how the letter I carried with me that day told ATK’s CEO about the Iraqi delegate’s deep concern and anger at the contamination of their country by dU weapons make by his company.
I concluded my testimony by describing how the International Committee of the Red Cross, charged by the United Nations with promulgation and promotion of the Laws of War, calls us to “sensitize public opinion” and use the national courts and the media to help implement it. That is one reason we think raising these concerns within the Judicial Branch of the government is necessary to help stop the scourge of these already illegal weapons. I ended by reciting the words to the song we sing each week as we gather for the vigil:
Who will speak if we don’t?
Who will speak if we don’t?
Who will speak so their voice will be heard?
Who will speak if we don’t?
We were in court to try to give voice to those thousands victims of war – especially the children who are disproportionately crippled, maimed, sickened, and killed by these indiscriminate weapons.
Our testimony had taken about 90 minutes. The Judge announced a recess so the Court Reporter could have a break and he said it would be a longer recess so he had time to consider written memoranda we gave him which better described the case law basis for our “claim of right” defense. When the Court resumed, Geri Eikaas gave a Closing Argument and then we awaited a response from Judge Peter Cahill.
Judge Cahill told us he was a Public Defender, a private criminal defense lawyer, a city prosecutor, and a county prosecutor before becoming a judge. He said he was curious about what we would have to say in our defense and then remarked, “I found a group of people who were very sincere, very compassionate, and I have to give you credit for one thing I don’t always see among protesters: and that is humility. There is not an arrogance about your message, there is more a plea for, almost a desperation, to hear of the injuries of others as you try to stop the violence you see around the world. That’s refreshing. I think your actions are consistent with the highest standards of the traditions of civil disobedience.”
He went on to say, “With all of you out-ranking me in age, you are the kind of people I want to be like when I grow older. Your message is serious and your message is compelling, as I said. The information you provided was very educational to me and worth my time.” …
“You may be right that depleted uranium munitions may violate international law. Cluster bombs might violate international law. But that’s not why we are here today. And to be honest, I think it is way above my pay grade as a State Trial Court Judge to decide those weighty issues of international law. I’m here because we have a trespass case. And this case demonstrates the tension that exists between property rights and what we hold to be the most sacred rights, the Bill of Rights, the First Amendment rights to freedom of expression.”
The Judge said he couldn’t speculate how a jury might have decided the case. He did admit, “If your claim of right, based on international law, is sincere and in good faith, it would amount to a defense.” Because of the disposition we had already agreed upon in choosing to accept a Hearing in lieu of a jury trial, the Judge did not have to determine our guilt or innocence. It seemed, at least to this defendant, that he was relieved that we had already decided that matter.
Then he told us, “I am imposing $1 in court costs – or, by your conscience, one hour of community service – which can’t include protest activity at Alliant Techsystems. I would encourage you to consider devoting time, maybe your hour, to Gillette Children’s Hospital.” He went on to tell us that his now deceased older sister had suffered from polio all her life and what wonderful care she had received at the local Children’s hospital. He sensed our own compassion and hoped we could channel some of it toward local children like he had received on behalf of his sister. I could tell we had connected on a human level. It was no longer an authority figure looking down at some criminals from the bench but rather fellow citizens wanting to make our community a better place for everyone.
It wasn’t just the sensitivity of the sentence imposed. It was the tone and demeanor of the Judge in the Courtroom that gave me the impression that I really had been heard. What a complete difference between those two Courtroom experiences, one on the east side of the Mississippi, the other on the west. I want a justice tempered by mercy, informed by compassion – calling us to a community that embraces those marginalized and too often victimized in the process. My morning in Courtroom 753 on Friday April 23 was a sign of hope that at least one Judge is ready to listen.
The defendants sent letters to Mark W. DeYoung, CEO of Alliant Techsystems and to lt. Tracy Luke, Eden Prairie Police Department, inviting them or others on their staff, familiar with the case, to the court hearing. This would be another failed attempt to establish a format where the decision makers at Alliant Techsystems could hear our concerns and have a conversation of sorts with us, as no one representing Alliant Techsystems showed up in court. In contrast, Lt. Luke did observe the entire court proceeding. What follows next is the letter to CEO DeYoung, followed by the letter to Lt. Luke.
April 16, 2010
Mark W. DeYoung, CEO
Alliant Techsystems
7480 Flying Cloud Drive
Minneapolis, MN 55344
Dear Mr. DeYoung,
For the past 14 years, a group of us has gathered every Wednesday close to the entrance to the corporation that you now have been selected to manage as its CEO. You are most welcome to stop by to talk with us any Wednesday morning between 7 and 8 AM but we thought it fitting to give you a special invitation to a hearing next week.
Four of us from the AlliantACTION vigil group attempted to meet with your predecessor, Daniel Murphy, on October 2, 2009. We realized in walking up to the entrance of your building that we might be arrested for trespass and we were. Yesterday was scheduled as the date for our trial (after numerous pre-trial appearances) and when the judge asked us why we sought a jury trial rather than settling the case with a plea bargain, I responded that we felt addressing our concerns to the court and the general public was appropriate given the advice of the International Red Cross that violations of International Humanitarian Law should be addressed by national courts and that “pressure from the media and public opinion help insure implementation of IHL”.
Peter Cahill, the Judge assigned to our case, suggested we consider his offer of foregoing a jury trial in exchange for a public hearing in his courtroom, giving us greater freedom of expression than some of the limits usually allowed in testimony or evidence before a jury. After much discussion, the four of us consented to his suggestion. The hearing is scheduled for 9-12 AM on Friday, April 23 in Courtroom 753 of the Hennepin County Government Center. It is our intention to have the four of us testify as we had planned to do before the jury only this time with just the Judge and the public in attendance.
If you would like to hear what we have to say, please come. If your schedule doesn’t permit it, please send other employees or Board Members as you see fit. We are committed to nonviolence and we pledge to continue to honor the affirmation we recite every Wednesday morning at our vigil which includes: “…Our attitude will be one of openness friendliness and respect toward all people we encounter, including police officers and workers. …”
While we remain committed to nonviolently oppose what we understand to be the manufacture and sale of indiscriminate and illegal weapons, and hope to urge your corporation to adopt “peace conversion with no loss of jobs”, it is our desire to engage you in dialog as a neighbor rather than as an adversary. We welcome the opportunity to meet with you to discuss our concerns and think this hearing might be an opportunity for you to hear some of what motivates us.
Sincerely, in peace,
Steve Clemens, defendant
And on behalf of Sister Kate MacDonald, Roger Cuthbertson, and Geri Eikaas, co-defendants
April 16, 2010
Lt. Tracy Luke
Eden Prairie Police Dept.
8080 Mitchell Rd.
Eden Prairie, MN 55344-2298
Dear Lt. Luke,
On Thursday April 15th in court, the Judge we were assigned for our trial on trespass charges at Alliant Techsystems on October 2, gave us an option of testifying at a hearing in his courtroom in exchange for foregoing our right to a jury trial. After a lot of discussion amongst ourselves (the 4 defendants and the 10-15 supporters in the courtroom), we chose to experiment with this different approach and accepted his offer.
Judge Peter Cahill will hold a hearing on April 23 from 9-noon in Courtroom 753 of the Hennepin County Government Center in downtown Minneapolis which is open to the public. The four of us who are defendants plan to offer the same testimony which we would have given to the jury had we proceeded that way. I don’t know at this time if the Judge plans any cross-examination or exactly what the procedure will be although he has stated he does plan to allow us some more latitude than we would normally have if a jury were present.
We have no intention of calling any of your officers or ATK personnel to testify but I am sending a letter to ATK’s new CEO, Mark DeYoung, inviting him to be present if he’d like to hear what we have to say and encouraging him to sit down with our vigil group sometime. I also would like to extend an invitation to you and any of your officers, especially those who may have participated in the arrest or who do private duty work on Wednesday mornings if you would like to hear what we have to say.
As I reminded Mr. DeYoung in my letter to him, our vigil group pledges to honor the affirmation we recite every Wednesday morning at our vigil which includes: “…Our attitude will be one of openness, friendliness and respect toward all people we encounter, including police officers and workers. …” . If you chose to come, we welcome you in uniform or in plain clothes. The focus of our testimony is on ATK and what it makes rather than the arrest itself that will only be mentioned in passing. All of us felt we were treated with respect and professional courtesy at the time of arrest.
So if it fits in your schedule and seems appropriate to you, we would welcome you or any other Eden Prairie officers to sit in the Courtroom audience to hear what we have to say. We take no offense if you choose not to attend but want to be clear that we welcome your presence.
Sincerely, in peace,
Steve Clemens, defendant
(612) 724-3255 (h); (612) 432-7355 (cell)
On behalf of Sister Kate McDonald, Roger Cuthbertson, and Geri Eikaas, co-defendants
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