Commentary on Transform Now Plowshares Case

Anabel Dwyer

February 2014

Nuclear weapons and the rule of law cannot coexist. So why are Sr. Megan Rice, Greg Boertje-Obed and Michael Walli ¹ in prison? What can grass roots organizers learn about next steps for nuclear disarmament?

This is the short story of an Old Nun and two Veterans who embarrassed the government by saying that no system of law can remain valid while accommodating nuclear weapons.

On a practical level the three merely insist on basic corporate and governmental honesty and accountability so that we can proceed with nuclear disarmament in good faith. 

But the real shock is that the federal courts and prosecutors in this case still refuse to see, address or resolve the fundamental conflict between US laws that fund and administer nuclear weapons policy or “maintenance of an effective nuclear arsenal” and laws that prohibit any planning, production, threat or use of such weapons of mass destruction.

On July 28, 2012, Sr. Megan Rice, Greg Boertje-Obed and Michael Walli cut through four non-functioning fences at the Y-12 National Security Complex in Oak Ridge Tennessee and wrote peace and disarmament messages on the wall of the highly enriched uranium building. 

“It’s the criminality of this 70 year old [nuclear bomb] industry” they said.

Once the Prosecutors and Courts admitted that Y-12 contractors continue to prepare and refurbish all US thermo-nuclear warheads for threat or use the unlawfulness (illegality and criminality) of this industry should hardly have surprised anyone. 

But no, while contractors certainly know they prepare each of these warheads so that they will “effectively” unleash vast heat, blast and radiation, the Courts and Prosecutors, Administrators and Congress still try to put on pretty and delusional glosses.

Early in the Transform Now Plowshares proceedings, the Prosecutor took mighty offense when it was suggested we are all war criminals for abetting, condoning such preparations for mass murder.  The Prosecutor used the old saw that, the International Court of Justice (ICJ Opinion, 8 July 1996) did not prohibit “possession” of nuclear weapons (as if we prepare all US nuclear warheads at Y-12 to possess).

The Prosecutor used nonsense enshrined in inaccurate interpretations of the ICJ Opinion and out of date federal court case summaries, that “an effective nuclear arsenal” is justifiable to deter unnamed “enemies” and that “international law” doesn’t specifically prohibit nuclear weapons (Y-12 warheads) so they are permitted.

No doubt if you’re a US Prosecutor or Judge, it’s embarrassing being told by an old Nun and two Veterans that deterrence/national defense is a fundamentally unlawful policy as pursued at Y-12 because none of the Y-12 nuclear warheads can be contained in space or time. The International Court of Justice Opinion merely summarized US law that each and all of these warheads in any guise or circumstance violate specific peremptory rules of international and domestic law; fundamental humanitarian law.

The trial court in this case even tried to put down Ramsey Clark’s explanation of the US’s Nuclear Non-Proliferation Treaty nuclear disarmament obligation by saying, “I can see these weapons are indiscriminate but uncontrollable? You are not a scientist.” Perhaps this is merely a younger generation’s failure to understand or be concerned about the horrors of nuclear weapons.

In short without going into Y-12 violations of the laws of war, military codes, the US criminal code, the Constitutional limits to the use of force, and treaties, claiming that the law permits nuclear weapons preparations at Y-12 because they’re for defense is like saying that slavery is just another form of employment.

Yet in this case the Courts and Prosecutors failed to recognize or admit these major crimes and treaty violations ongoing at Y-12 and chose instead to prosecute and convict in May 2013 these non-violent symbolic whistle-blower/trespassers for felonies of depredation of property over $1000 and sabotage (injury to the national defense).  

You may have heard that on Tuesday Feb. 18, 2014, U.S. District Court Judge Amul Thapar sentenced Megan, Mike and Greg to federal prison for 35 months, 62 months and 62 months respectively.

Judge Thapar said at sentencing, he wanted to “deter” other activists but he didn’t think they did any real harm at Y-12. The Prosecutor said they destroyed the "mystique" of the "Fort Knox of uranium.

The mystique they destroyed was that Y-12 and Oak Ridge are part of an infallible scheme to protect the country and its citizens.
 
Mike Greg and Megan effectively said, “Let’s stop pouring billions into false and impossible security.” This second message delivered too with great courage in the face of fences that read “deadly force authorized” relies on faith in the power of non-violent resistance but is actually quite mundane.

The three could walk into the Y-12 site because the mystique of the impregnable nuclear defense edifice crumbles. Their action revealed many instances of institutional corruption endemic to the nuclear system including intentional misrepresentation of fact, gross negligence, and fudging of figures.

 It’s simple enough to realize that because of the well-known horrors of these grotesque weapons the only legitimate business at Y-12 is dismantling and disassembling nuclear warheads and environmentally sound clean-up and treatment of chemical and radioactive wastes.

So we best not sacrifice these three or forget them in prison because they exposed highly dangerous Cold War institutional inertia. Understanding the details of how military corporations now call the shots without accountability can help us move forward unequivocally and irreversibly toward nuclear disarmament.

The Department of Energy and its semi-autonomous National Nuclear Security Administration administer the US nuclear weapons program in name only and without essential independence from the weapons corporations. As this case showed Congress funds and with the DOE/NNSA colludes with corporations to continue to produce “the most dangerous materials on the planet including nuclear weapons.”

No one can now name any conceivable beneficial use of the more than 2000 Y-12 produced nuclear warheads now on submarines and missiles ready for accidental or purposeful detonation, let alone the additional thousands “stockpiled.”

At Y-12 corporations and consortiums no longer even pretend they “maintain an effective nuclear arsenal” to fight or deter any enemy.

They just fight for a $22.8 billion ten year contract to continue to produce or refurbish thermonuclear warheads and construct a new Uranium Processing Facility (UPF) at Y-12.

This shell-corporation game over this contract involves “unsubstantiated” figures presented to DOE/NNSA by Consolidated Nuclear Security (CNS) led by Lockheed and Bechtel National and challenged by Nuclear Production Partners, LLC headed by Northrop Grumman, Honeywell and Babcock and Wilcox (BWX) Technologies and Integrated Nuclear Production Solutions LLC, (Jacobs & Flor) (c.f. Government Accountability Office (GAO) Record of Decision, B-407948, et seq, Apr. 29, 2013).

At the January 28, 2014 sentencing hearing in the Transform Now Plowshares case, the prosecutor made another of a series of errors if not outright fabrications each excused by the Court as insignificant. The Prosecutor put Rod Johnson on the stand to list “unsubstantiated” restitution to be paid to the Government by Megan, Mike and Greg. 

Mr. Johnson a retired US Army General testified he worked for Babcock & Wilcox as Y-12’s deputy manager for security. Actually he works for a separate entity called Babcock & Wilcox Technical Services Y-12, LLC whose Y-12 contract DOE/NNSA terminated one year ago in January, 2013 because the same lax failure to document whether or how they had met contract obligations.  

You probably haven’t heard how embedded this corporate game is. Bloomberg Business Week as of Feb. 1, 2014, continues to tout investment opportunities in that very company whose Y-12 security, management and production contract the DOE/NNSA terminated one year ago and has extended eight times since.  “Babcock & Wilcox Technical Services Y-12, LLC engages in the production, refurbishment, and dismantlement of nuclear weapons components, storage of nuclear material, and the prevention of the proliferation of weapons of mass destruction…. Babcock & Wilcox Technical Services Y-12, LLC is a joint venture between BWX Technologies, Inc. and Bechtel National, Inc.”

Of course, it’s impossible and oxymoronic to “prevent the proliferation of weapons of mass destruction (WMDs)” and at the same time “refurbish WMDs.”

Worse than that fundamental prevarication is that BWX Technologies and Bechtel National or their CEOs and lawyers rake in fees while fighting over the $22.8 billion prize to continue produce or refurbish entirely useless thermonuclear warheads at Y-12, to flout our disarmament obligation and to prevent environmental cleanup of the Oak Ridge Superfund site.

This is not unfamiliar stuff for these corporations, Congress or the Administration of the nuclear system. The question is whether Megan, Mike and Greg’s service and their Transform Now Plowshares case give us insights into ways to support grass roots organizers such as the Oak Ridge Environmental Peace Alliance (OREPA) and build coalitions and “creative campaigns”² to achieve nuclear disarmament in all its aspects.