The Zinn Reader (53 page)

In other words, the jury must match the defendants' civil disobedience with its own disobedience of law, if, as a matter of conscience, it believes the defendants did the right thing. When it is submissive before the overbearing authority of a judge, it surrenders its own conscience. In the case of Dr. Spock and his other antiwar defendants who were found guilty by the jury, one of the jury members said later, "I was in full agreement with the defendants until we were charged by the judge. That was the kiss of death!"

Another juror in the
Spock
case, Frank Tarbi, wrote in the
Boston Globe
about his anguish:

How and why did I find four men guilty? All men of courage and individuals whom I grew to admire as the trial developed...As the father of three teen-aged sons, two eligible for draft, and a veteran myself, my abhorrence of war is understandable...Was I ready to commit my sons?...Rev. Coffin's thought-provoking argument struck home—"Isn't the Cross higher than the flag? Must we not obey God before we obey man?..." The paradox was that I agreed wholeheartedly with these defendants, but...I felt that technically they did break the law...

I departed to the waiting car and then to home. There I was embraced by my loved ones and I began to think and try to explain.... These four men were trying to save my sons whom I love dearly. Yet I found them guilty. To hell with my ulcer. After four or five stiff hookers (I lost count) I began to cry bitterly.

In the case of the Catonsville Nine draft board invaders, the Circuit Court of Appeals, while affirming their convictions, made a remarkable statement in support of jury nullification:

We recognize...the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence.... If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

Nevertheless, it is always a struggle in the courtroom to get the judge to agree to admit into evidence those things that will allow the jury to vote its conscience. In the period since the Vietnam War, political protesters against the arms race, or against military intervention in Central America, have tried to introduce the defense of "necessity," or "justification." This defense is based on the idea that while a technical violation of law has taken place, it was necessary to prevent a greater harm to the community.

In 1980, the "Plowshares Eight" invaded a General Electric plant in King of Prussia, Pennsylvania, and did some minor damage to nuclear nose cones, as a protest against the arms race. They were charged with trespassing and destroying property. The judge would not allow a necessity defense, and when the jury was out for eight hours, the judge speeded up their decision by threatening to sequester them overnight. The jury then came in with a verdict of guilty. Juror Michael de Rosa said later, "I didn't think they really went to commit a crime. They went to protest... We really didn't want to convict them on anything. But we had to because of the way the judge said the only thing you can use is what you get under the law."

When juries have been allowed to hear the evidence of "necessity," the results may be startling. In Burlington, Vermont, in 1984 "The Winooski Forty-four" were arrested for refusing to leave the hallway outside of a senator's office. They were protesting his votes to give arms to the contras across the Nicaraguan border. The judge accepted the defendants' right to a necessity defense. He allowed them to call various expert witnesses: a refugee from Central America, who told the jury about the terror caused by American military intervention; a former leader of the contras, who explained that he had left their ranks after he realized they were organized and financed by the CIA and were committing atrocities against the people of Nicaragua. I testified about the history of civil disobedience in the United States and its usefulness in bringing about healthy social change.

The prosecuting attorney told the jury to disregard all that testimony. He pointed to a large chart on the stand facing the jury—one of the exhibits, which was a map of the senator's offices where the defendants had crowded into the corridor and refused to leave. He said, "The issue is not Nicaragua, not American foreign policy .
This
is the issue— trespassing."

When he had finished, a woman lawyer for the defendants rose for her summation. She walked over to the chart of the senator's office and folded it back, to reveal something underneath—a large map of Central America. She pointed and said, "
This
is the issue." They voted to acquit.

At another trial shortly after, in western Massachusetts, a number of people (including activist Abbie Hoffman and Amy Carter, daughter of an ex-president) were charged with blocking recruiters for the Central Intelligence Agency who had shown up at the University of Massachusetts in Amherst. Witnesses were called, including ex-CIA agents who told the jury that the CIA had engaged in illegal and murderous activities all around the world. The jury listened and voted to acquit.

One juror, a hospital worker named Ann Gaffney, said later, "I was not that familiar with the CIA's activities. I was surprised. I was shocked...I was kind of proud of the students." Another juror, Donna Moody, said, "All the expert testimony against the CIA was alarming. It was very educational." The county district attorney himself, Michael Ryan, had this reaction: "If there is a message, it was that this jury was composed of middle America.... Middle America doesn't want the CIA doing what they are doing."

In this case the judge allowed the defense of necessity and gave the green light to the jury in considering human rights more important than a technical violation of law. But the courts will continue to remain barricades against change, stiff upholders of the prevailing order, unless juries defy conservative judges and vote their consciences, commit their own civil disobedience in the courtroom, and ignore the law to achieve justice.

Or perhaps we should say "ignore man-made law, the law of the politicians" to obey the higher law—what Reverend Coffin and Father Berrigan would call "the law of God" and what others might call the law of human rights, the principles of peace, freedom, and justice. (Daniel Berrigan's elderly mother was asked by a reporter, when Dan went underground, how she felt about her son defying the law; she responded quietly, "It's not God's law.")

The truth is so often the total reverse of what has been told us by our culture that we cannot turn our heads far enough around to see it. Surely, it is obedience to governments, in their appeals to patriotism, their calls for war, that is responsible for the terrible violence of our century. The disobedience of conscientious citizens, for the most part nonviolent, has been directed to stopping the violence of war. The psychologist Erich Fromm, thinking about nuclear war, once referred to the biblical Genesis of the human race and the bite into the forbidden apple: "Human history began with an act of disobedience and it is not unlikely that it will be terminated by an act of obedience."

Does Protest Matter?

It is not easy to prove that protest changes policy. But in the case of the Vietnam War, there is powerful evidence. In the government's own top-secret documents, the "Pentagon Papers," we find anxious government memos about "public opinion...increasing pressure to stop the bombing...the breadth and intensity of public unrest and dissatisfaction with the war...especially with young people, the underprivileged, the intelligentsia and the women...a limit beyond which many Americans and much of the world will not permit the United States to go."

And in the spring of 1968, with over half a million troops in Vietnam and General Westmoreland asking President Johnson for 200,000 more, he was advised by a small study group in the Pentagon not to escalate the war further. There would be more U.S. casualties, the group said, more taxes needed. And

The growing disaffection accompanied as it certainly will be, by increased defiance of the draft and growing unrest in the cities because of the belief that we are neglecting domestic problems, runs great risks of provoking a domestic crisis of unprecedented proportions.

Johnson, right after this report, refused Westmoreland's request, announced a limitation on the bombing of North Vietnam, and agreed to go to the peace table in Paris to negotiate with the North Vietnamese.

Even President Nixon, who had said of the growing antiwar activity that "under no circumstance will I be affected whatever by it," confessed in his memoirs, nine years later,

Although publicly I continued to ignore the raging antiwar controversy,...I knew, however, that after all the protests and the Moratorium [the nationwide protests of October 1969], American public opinion would be seriously divided by any military escalation of the war.

Thoreau, Jefferson, and Tolstoy

The great artists and writers of the world, from Sophocles in the fifth century B.C. to Tolstoy in the modern era, have understood the difference between law and justice. They have known that, just as imagination is necessary to go outside the traditional boundaries to find and to create beauty and to touch human sensibility, so it is necessary to go outside the rules and regulations of the state to achieve happiness for oneself and others.

Henry David Thoreau, in his famous essay "Civil Disobedience," wrote,

A common and natural result of an undue respect for law is, that you may see a file of soldiers, colonels, captains, corporals, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart.

When farmers rebelled in western Massachusetts in 1786 (Shays' Rebellion), Thomas Jefferson was not sympathetic to their action. But he hoped the government would pardon them. He wrote to Abigail Adams:

The spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the atmosphere.

What kind of person can we admire, can we ask young people of the next generation to emulate—the strict follower of law or the dissident who struggles, sometimes within, sometimes outside, sometimes against the law, but always for justice? What life is best worth living—the life of the proper, obedient, dutiful follower of law and order or the life of the independent thinker, the rebel?

Leo Tolstoy, in his story, "The Death of Ivan Illyich," tells of a proper, successful magistrate, who on his deathbed wonders why he suddenly feels that his life has been horrible and senseless. '"Maybe I did not live as I ought to have done...But how can that be, when I did everything properly?'...and he remembered all the legality, correctitude and propriety of this life."

2

T
HE
P
ROBLEM IS
C
IVIL
O
BEDIENCE

By the latter part of May, 1970, feelings about the war in Vietnam had become almost unbearably intense. In Boston, about a hundred of us decided to sit down at the Boston Army Base and block the road used by buses carrying draftees off to military duty. We were not so daft that we thought we were stopping the flow of soldiers to Vietnam; it was a symbolic act, a statement, a piece of guerrilla theater. We were all arrested and charged, in the quaint language of an old statute, with "sauntering and loitering" in such a way as to obstruct traffic. Eight of us refused to plead guilty, insisting on trial by jury, hoping we could persuade the members of the jury that ours was a justified act of civil disobedience. We did not persuade them. We were found guilty, chose jail instead of paying a fine, but the judge, apparently reluctant to have us in jail, gave us forty-eight hours to change our minds, after which we should show up in court to either pay the fine or be jailed. In the meantime, I had been invited to go to Johns Hopkins University to debate with the philosopher Charles Frankel on the issue of civil disobedience. I decided it would be hypocritical for me, an advocate of civil disobedience, to submit dutifully to the court and thereby skip out on an opportunity to speak to hundreds of students about civil disobedience. So, on the day I was supposed to show up in court in Boston I flew to Baltimore and that evening debated with Charles Frankel. Returning to Boston I decided to meet my morning class, but two detectives were waiting for me, and I was hustled before the court and then spent a couple of days in jail. What follows is the transcript of my opening statement in the debate at Johns Hopkins. It was included in a book published by Johns Hopkins Press in 1972, entitled
Violence: The Crisis of American Confidence.

I start from the supposition that the world is topsy-turvy, that things are I all wrong, that the wrong people are in jail and the wrong people are out of jail, that the wrong people are in power and the wrong people are out of power, that the wealth is distributed in this country and the world in such a way as not simply to require small reform but to require a drastic reallocation of wealth. I start from the supposition that we don't have to say too much about this because all we have to do is think about the state of the world today and realize that things are all upside down. Daniel Berrigan is in jail—A Catholic priest, a poet who opposes the war—and J. Edgar Hoover is free, you see. David Dellinger, who has opposed war ever since he was this high and who has used all of his energy and passion against it, is in danger of going to jail. The men who are responsible for the My Lai massacre are not on trial; they are in Washington serving various functions, primary and subordinate, that have to do with the unleashing of massacres, which surprise them when they occur. At Kent State University four students were killed by the National Guard and students were indicted. In every city in this country, when demonstrations take place, the protestors, whether they have demonstrated or not, whatever they have done, are assaulted and clubbed by police, and then they are arrested for assaulting a police officer.

Now, I have been studying very closely what happens every day in the courts in Boston, Massachusetts. You would be astounded—maybe you wouldn't, maybe you have been around, maybe you have lived, maybe you have thought, maybe you have been hit—at how the daily rounds of injustice make their way through this marvelous thing that we call due process. Well, that is my premise.

All you have to do is read the Soledad letters of George Jackson, who was sentenced to one year to life, of which he spent ten years, for a seventy-dollar robbery of a filling station. And then there is the U.S. Senator who is alleged to keep 185,000 dollars a year, or something like that, on the oil depletion allowance. One is theft; the other is legislation. Something is wrong, something is terribly wrong when we ship 10,000 bombs full of nerve gas across the country, and drop them in somebody else's swimming pool so as not to trouble our own. So you lose your perspective after a while. If you don't think, if you just listen to TV and read scholarly things, you actually begin to think that things are not so bad, or that just little things are wrong. But you have to get a little detached, and then come back and look at the world, and you are horrified. So we have to start from that supposition—that things are really topsy-turvy.

And our topic is topsy-turvy: civil disobedience. As soon as you say the topic is civil disobedience, you are saying our
problem
is civil disobedience. That is
notom
problem.... Our problem is civil
obedience.
Our problem is the numbers of people all over the world who have obeyed the dictates of the leaders of their government and have gone to war, and millions have been killed because of this obedience. And our problem is that scene in
All Quiet on the Western Front
where the schoolboys march off dutifully in a line to war. Our problem is that people are obedient all over the world, in the face of poverty and starvation and stupidity, and war and cruelty. Our problem is that people are obedient while the jails are full of petty thieves, and all the while the grand thieves are running the country. That's our problem. We recognize this for Nazi Germany. We know that the problem there was obedience, that the people obeyed Hitler. People obeyed; that was wrong. They should have challenged, and they should have resisted; and if we were only there, we would have showed them. Even in Stalin's Russia we can understand that; people are obedient, all these herdlike people.

But America is different. That is what we've all been brought up on. From the time we are this high—and I still hear it resounding in Mr. Frankel's statement—you tick off, one, two, three, four, five lovely things about America that we don't want disturbed very much.

But if we have learned anything in the past ten years, it is that these lovely things about America were never lovely. We have been expansionist and aggressive and mean to other people from the beginning. And we've been aggressive and mean to people in this country, and we've allocated the wealth of this country in a very unjust way. We've never had justice in the courts for the poor people, for black people, for radicals. Now how can we boast that America is a very special place? It is not that special. It really isn't.

Well, that is our topic, that is our problem: civil obedience. Law is very important. We are talking about obedience to law—law, this marvelous invention of modern times, which we attribute to Western civilization, and which we talk about proudly. The rule of law, oh, how wonderful, all these courses in Western civilization all over the land. Remember those bad old days when people were exploited by feudalism? Everything was terrible in the Middle Ages—but now we have Western civilization, the rule of law.
The rule of law has regularized and maximized the injustice that existed before the rule of law, that is what the rule of law has done.
Let us start looking at the rule of law realistically, not with that metaphysical complacency with which we always examined it before.

When in all the nations of the world the rule of law is the darling of the leaders and the plague of the people, we ought to begin to recognize this. We have to transcend these national boundaries in our thinking. Nixon and Brezhnev have much more in common with one another than we have with Nixon. J. Edgar Hoover has far more in common with the head of the Soviet secret police than he has with us. It's the international dedication to law and order that binds the leaders of all countries in a comradely bond. That's why we are always surprised when they get together— they smile, they shake hands, they smoke cigars, they really like one another no matter what they say. It's like the Republican and Democratic parties, who claim that it's going to make a terrible difference if one or the other wins, yet they are all the same. Basically, it is us against them.

Yossarian was right, remember, in
Catch-2Z
He had been accused of giving aid and comfort to the enemy, which nobody should ever be accused of, and Yossarian said to his friend Clevinger: "The enemy is whoever is going to get you killed, whichever side they are on." But that didn't sink in, so he said to Clevinger: "Now you remember that, or one of these days you'll be dead." And remember? Clevinger, after a while, was dead. And we must remember that our enemies are not divided along national lines, that enemies are not just people who speak different languages and occupy different territories. Enemies are people who want to get us killed.

We are asked, "What if everyone disobeyed the law?" But a better question is, "What if everyone obeyed the law?" And the answer to that question is much easier to come by, because we have a lot of empirical evidence about what happens if everyone obeys the law, or if even most people obey the law. What happens is what has happened, what is happening. Why do people revere the law? And we all do; even I have to fight it, for it was put into my bones at an early age when I was a Cub Scout. One reason we revere the law is its ambivalence. In the modern world we deal with phrases and words that have multiple meanings, like "national security." Oh, yes, we must do this for national security! Well, what does that mean? Whose national security? Where? When? Why? We don't bother to answer those questions, or even to ask them.

The law conceals many things. The law is the Bill of Rights. In fact, that is what we think of when we develop our reverence for the law. The law is something that protects us; the law is our right—the law is the Constitution. Bill of Rights Day, essay contests sponsored by the American Legion on our Bill of Rights, that is the law. And that is good.

But there is another part of the law that doesn't get ballyhooed— the legislation that has gone through month after month, year after year, from the beginning of the Republic, which allocates the resources of the country in such a way as to leave some people very rich and other people very poor, and still others scrambling like mad for what little is left. That is the law. If you go to law school you will see this. You can quantify it by counting the big, heavy law books that people carry around with them and see how many law books you count that say "Constitutional Rights" on them and how many that say "Property," "Contracts," "Torts," "Corporation Law." That is what the law is mostly about. The law is the oil depletion allowance—although we don't have Oil Depletion Allowance Day, we don't have essays written on behalf of the oil depletion allowance. So there are parts of the law that are publicized and played up to us—oh, this is the law, the Bill of Rights. And there are other parts of the law that just do their quiet work, and nobody says anything about them.

It started way back. When the Bill of Rights was first passed, remember, in the first administration of Washington? Great thing. Bill of Rights passed! Big ballyhoo. At the same time Hamilton's economic program was passed. Nice, quiet, money to the rich—I'm simplifying it a little, but not too much. Hamilton's economic program started it off. You can draw a straight line from Hamilton's economic program to the oil depletion allowance to the tax write-offs for corporations. All the way through—that is the history. The Bill of Rights publicized; economic legislation unpublicized.

You know the enforcement of different parts of the law is as important as the publicity attached to the different parts of the law. The Bill of Rights, is it enforced? Not very well. You'll find that freedom of speech in constitutional law is a very difficult, ambiguous, troubled concept. Nobody really knows when you can get up and speak and when you can't. Just check all of the Supreme Court decisions. Talk about predictability in a system—you can't predict what will happen to you when you get up on the street corner and speak. See if you can tell the difference between the
Terminiello
case and the
Feiner
case, and see if you can figure out what is going to happen. By the way, there is one part of the law that is not very vague, and that involves the right to distribute leaflets on the street. The Supreme Court has been very clear on that. In decision after decision we are affirmed an absolute right to distribute leaflets on the street. Try it. Just go out on the street and start distributing leaflets. And a policeman comes up to you and he says, "Get out of here." And you say, "Aha! Do you know
Marsh v. Alabama,
1946?" That is the reality of the Bill of Rights. That's the reality of the Constitution, that part of the law which is portrayed to us as a beautiful and marvelous thing. And seven years after the Bill of Rights was passed, which said that "Congress shall make no law abridging the freedom of speech," Congress made a law abridging the freedom of speech. Remember? The Sedition Act of 1798.

So the Bill of Rights was not enforced. Hamilton's program was enforced, because when the whisky farmers went out and rebelled you remember, in 1794 in Pennsylvania, Hamilton himself got on his horse and went out there to suppress the rebellion to make sure that the revenue tax was enforced. And you can trace the story right down to the present day, what laws are enforced, what laws are not enforced. So you have to be careful when you say, "I'm for the law, I revere the law." What part of the law are you talking about? I'm not against all law. But I think we ought to begin to make very important distinctions about what laws do what things to what people.

And there are other problems with the law. It's a strange thing, we think that law brings order. Law doesn't. How do we know that law does not bring order? Look around us. We live under the rules of law. Notice how much order we have? People say we have to worry about civil disobedience because it will lead to anarchy. Take a look at the present world in which the rule of law obtains. This is the closest to what is called anarchy in the popular mind—confusion, chaos, international banditry. The only order that is really worth anything does not come through the enforcement of law, it comes through the establishment of a society which is just and in which harmonious relationships are established and in which you need a minimum of regulation to create decent sets of arrangements among people. But the order based on law and on the
force
of law is the order of the totalitarian state, and it inevitably leads either to total injustice or to rebellion—eventually, in other words, to very great disorder.