from the pages of November 1996

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Navy ELF Antenna

Pole Cutters Not Guilty of Sabotage

By John M. LaForge

 

Ashland, Wisconsin, Sept. 18 -- In a sharp reversal of the government's case against nuclear resisters in Wisconsin, Donna and Tom Howard-Hastings were found not guilty of sabotage -- even after openly acknowledging having cut down three of the nuclear Navy's Project ELF antenna poles. The acquittal was a dramatic affirmation of over 20 years of citizen opposition to what opponents call this naval "nuclear war starter pistol."

The ELF (extremely low frequency) transmitter sends crude, one-way commands to submerged nuclear-armed submarines around the world. The "Laurentian Shield Plowshares" action shut down 'the ELF system on Earth Day, April 22, 1996, when the Howard-Hastings felled three poles using handheld Swede saws. The pair -- who named their disarmament action the "Laurentian Shield Plowshares" after the granite bedrock that underlies Northern Wisconsin and which is utilized by the antenna -- was tried on felony charges of sabotage and criminal damage to property. The acquittal on the sabotage count relieved them of a possible ten years in prison and $10,000 in fines.

An Ashland County jury of seven men and five women deliberated for three hours before returning with split verdicts. The Howard-Hastings' were convicted on the lesser charge of criminal damage. That conviction carries possible maximum penalties of five years in prison and $10,000 in fines. Sentencing will take place in October. The Howard-Hastings remain free on bond and intend to appeal the criminal damage conviction.

Ashland County District Attorney J.B. VanHollen was up-ended in what he argued was "an open and shut case of sabotage against the United States." Ultimately, however, the case was not about what happened -- Donna and Tom openly acknowledged cutting down three of the 40-foot treated poles -- but why it happened.

The disarmers presented an "affirmative" defense, in which the act 4in question is admitted, but the surrounding circumstances negate the commission of a crime. The Wisconsin sabotage charge requires proof that the defendants: (1) interfered with preparations for defense; (2) acted with criminal intent; elements the prosecution failed to establish beyond a reasonable doubt.

Defense attorneys Kary Love, of Holland, Michigan, and Katya Komisaruk, of Oakland, California argued that shutting down the Project ELF antenna poles couldn't interfere with legitimate "preparations for the defense of the United States" -- because ELF can only be used militarily in a pre-emptive, sneak attack. The jury heard the expert testimony of a retired submarine captain, an international law professor and a former missile design engineer, as well as the personal testimony of Donna and Tom.

U.S. Navy Captain James Bush, (Ret.) with 26 years of experience, including a dozen years as a Captain of missile-firing subs, testified that the missile submarines no longer are able to deter nuclear war, that their only function is to threaten or attack small, non-nuclear Third World states that pose no threat to the United States. Captain Bush is currently Associate Director of the Washington-based Center for Defense information.

Former Trident missile designer Robert Aldridge, director of the Pacific Life Research Center, testified about the accuracy of the thermonuclear weapons aboard Trident submarines. Accuracy, he said, is not needed for deterrence, but only for attacking another country's missiles or air fields before their weapons have been launched. Such a pre-emptive attack is exactly what deterrence is supposed to prevent. The radical change in 'U.S. nuclear war plans (from deterrence to aggression) moved Aldridge to resign his prestigious engineering position at Lockheed -- and blow the whistle. Aldridge also used a diagram of the ELF system, produced by Wisconsin artist Fran Hart, to explain how the transmitter's signals are too slow to be useful in a retaliatory nuclear attack.

International law professor Francis Boyle, of the Univ. of Illinois, then explained to the jury that" all three U.S. military service manuals forbid any sneak attacks for whatever reason. Furthermore, Pentagon regulations all restrict military attacks to combatants alone, and require GIs to disobey orders that would result in indiscriminately attacking civilians or civil-Ian objects. Since the effects of nuclear weapons cannot be limited, Dr. Boyle explained, any use of them would necessarily kill civilians in vast numbers. The expert testimony effectively put the Trident and ELF systems on trial and showed that they may constitute a crime-in-progress -- an illegal threat, similar to any threat to commit murder -- with which the defendants were privileged to interfere.

In laying the legal framework for the trial, the local judge made several objectionable rulings that the Howard-Hastings intend to appeal. In July, Ashland County Court judge Robert Eaton denied a defense motion to excuse himself. Judge Eaton is a former Ashland County District Attorney, and has previously prosecuted dozens of ELF resisters, including Tom Howard-Hastings. Judge Eaton nevertheless ruled that he could be free of bias.

During pre-trial arguments made out of the presence of the jury, Judge Eaton repeatedly ruled to exclude evidence and defenses that would have provided the Howard-Hastings with a case against the felony criminal damage charge.

The defense wanted to argue that the ELF system is the "instrumentality of a crime." As such, the ELF transmitter's machinery is not legally property but contraband. Like cocaine, assault weapons or other controlled substances, contraband is not protected by rights of possession and is always able to confiscation or citizen's arrest.

The defense was prepared to show that as the instrumentality of a crime, ELF is further liable to physical interference by conscientious individuals who are privileged to go to the aid of potential victims. This crime prevention defense was ruled "unavailable" by Judge Eaton, and the defendants intend to appeal the criminal damage conviction because of the ruling. They'll argue that refusing to allow the jury to hear the defense created an unfair bias, by forcing upon the jury a "mandatory conclusive presumption" of the defendants' guilt.

The ELF facility has been the object of over 20 years of citizen opposition, Congressional condemnation and nonviolent resistance. Since 1991, over 368 arrests have taken place at the remote site where Nukewatch and Stop Project ELF have sustained a regular schedule of nonviolent resistance actions. Since the end of the cold war, over 27 months have been served in county jail by those ELF resisters who have refused to pay trespass fines. In 1995, three ELF resisters spent a total of 20 months in jail for nonpayment. Organizers hope that the publicity generated by the sabotage trial will be a boost to the resistance campaign.

 

John M. LaForge is member of the Nukewatch staff.