The Zinn Reader (52 page)

Desertions from the armed forces multiplied. We can't be sure of the exact number, but there may have been 100,000. Thousands went to Western Europe—France, Sweden, and Holland. Most deserters crossed the border into Canada; 34,000 were court-martialed and imprisoned. There were over a half million less-than-honorable discharges.

The GI movement against the war became organized. Antiwar coffeehouses were set up near military bases around the country, where GIs could come to meet others who were opposed to what was going on in Vietnam. Underground newspapers sprang up at military bases across the country—fifty of them by 1970. These newspapers printed antiwar articles, gave news about the harassment of GIs, and gave practical advice on the legal rights of people in the military.

The dissidence spread to the war front itself. When antiwar demonstrations were taking place in October 1969 all over the United States, some GIs in Vietnam wore arm bands to show their support. One soldier stationed at Cu Chi wrote to a friend on October 26, 1970, that separate companies had been set up for men refusing to go into the field to fight. He said, "It's no big thing here anymore to refuse to go." A news dispatch in April 1972 reported that 50 infantrymen of a company of 142 refused for an hour and a half to go out on patrol round Phu Bai. They shouted, "We're not going! This isn't our war." Others commented, "Why the hell are we fighting for something we don't believe in?" One army sergeant, captured by the Vietnamese, told later about his march to the prisoner-or-war camp, "Until we got to the first camp, we didn't see a village intact; they were all destroyed. I sat down and put myself in the middle and asked myself: Is this right or wrong? Is it right to destroy villages? Is it right to kill people en masse? After a while it just got to me."

The French newspaper
Le Monde
reported that in four months, 109 soldiers of the first air cavalry division were charged with refusal to fight. "A common sight," the correspondent for
Le Monde
wrote, "is the black soldier, with his left fist clenched in defiance of a war he has never considered his own."

In the summer of 1970, 28 commissioned officers of the military, including some veterans of Vietnam, said they represented about 250 other officers and announced the formation of the Concerned Officers Movement Against the War. In mid-1973, it was reported there were drop-outs among West Point cadets. A reporter wrote that West Point officials attributed this to "an affluent, less disciplined, skeptical and questioning generation and to the anti-military mood that a small radical minority and the Vietnam war had created."

There is probably no more disciplined, obedient, highly trained element of the armed forces than the fliers of the air force. But when the ferocious bombings of civilians in Hanoi and Haiphong was ordered by the Nixon administration around Christmas 1972, several B52 pilots refused to fly.

The massive civil disobedience against the Vietnam War—by men in the military, by draftees, and by civilians—cannot be justified simply because it was civil disobedience, but because it was disobedience on behalf of a human right—the right of millions of people in Vietnam not to be killed because the United States saw in Southeast Asia (as president John F. Kennedy put it), "an important piece of real estate."

Actions outside the law or against the law must be judged by their human consequences. That is why the civil disobedience of Colonel Oliver North, illegally sending military aid to the contras in Central America who committed acts of terrorism against Nicaraguan farmers cannot be justified. But the civil disobedience of those who wanted to stop the killing in Vietnam was necessary and right.

The congressional committee that interrogated Oliver North in 1987 as part of the Iran-Contra hearings did not ask him about the innocent people killed in Nicaragua because of what he had done. They concentrated, as the American court system generally does, on the technical question of
whether
he had violated the law, not on the more important question: for what
purpose
did he violate the law.

It is interesting to note that North did not hold to the rule of law over the rule of men. He was willing to break the law to obey the president. He told the hearing committee, "And if the Commander-in-Chief tells this Lieutenant Colonel to go sit in the corner and stand on his head I will do so."

Justice in the Courts

Those who run the legal system in the United States do not want the public to accept the idea of civil disobedience—even though it rests on the Declaration of Independence, even though it has the approval of some of the great minds of human history, even though some of the great achievements for equality and liberty in the United States have been the result of movements outside of and against the law. They are afraid that the idea will take hold, and they are right, because the common sense belief of most people, I think, is that justice is more important than law.

During the Vietnam War, not long after I got back from Hanoi, where I had visited villages devastated by American bombs, I was asked to testify at a trial in Milwaukee. Fourteen people, many of them Catholic priests and nuns, had invaded a draft board and destroyed documents to protest the war.

I was to testify as a so-called expert witness, to tell the judge and jury about the history of civil disobedience in the United States, to show its honorable roots in the American Revolution, and its achievements for economic justice and for racial equality.

I started out talking about the Declaration of Independence, and then about Thoreau's civil disobedience, and then gave a brief history of civil disobedience in the United States. The judge pounded his gavel and said, "Stop! You can't discuss that. This is getting to the heart of the matter."

The defense attorney asked me, "What is the difference between law and justice?" The prosecution objected, and the judge said, "Sustained." More questions about civil disobedience. More objections, all sustained. I turned to the judge (something a witness is not supposed to do) and asked, in a voice loud enough for the courtroom to hear, "Why can't I say something important? Why can't the jury hear something important?"

The judge was angry. He replied, "You are not permitted to speak out like that. If you do that once more I will have you put in jail for contempt of court." Later I felt I should have been more courageous and jointed my act of civil disobedience to that of the defendants.

What the judge wanted to hear about in his courtroom was merely the technical violations of law committed by the defendants—breaking and entering, destroying government documents, and trespassing. "This is a case about arson and theft." He did not want to hear
why
these usually upright and law-abiding citizens were breaking the law. He did not want to hear about the war in Vietnam. He did not want to hear about the tradition of civil disobedience.

To have the mechanical requirements of "due process"—a trial, contending arguments, and decision by a jury of citizens—is insufficient if the arguments are not fully made, if the jury does not know what is at stake, and if it cannot make a decision on the
justice
of the defendants' action, regardless of legality. Supposedly, it is the judge who sees to it that the law is made clear to the jury, but then it is up to the jury to see that justice is done. However, if the judge prevents the jury from hearing testimony about the issues, the jury is being compelled to stay within the narrow, technical confines of the law, and the democratic purpose of a jury trial is extinguished.

The courtroom, one of the supposed bastions of democracy, is essentially a tyranny. The judge is monarch. He is in control of the evidence, the witnesses, the questions, and the interpretation of law. In the mid-1980s I was called as a witness by some people in Providence, Rhode Island, who had done some small symbolic damage at the launching of a nuclear-armed submarine, in protest against the huge expenditure of money for deadly weapons and the escalation of the arms race. I was to tell the jury about the importance of civil disobedience for American democracy.

The judge would not let me speak. From the very first question— "Can you tell us about the history of civil disobedience in the United States?"—as I began to answer, the judge stopped me. "Objection sustained," he said loudly. I had not heard any objection from the prosecuting attorney.

Indeed, at this point the prosecuting attorney, a young man, spoke up, "Your honor, I did not object."

"Well," said the judge, "why didn't you?"

"Because," the prosecutor said, "I thought the question was relevant."

"I disagree," the judge said, with finality.

I was not able to say anything to the jury. It was clear that the judge was furious at these antimilitary protesters and was determined to send them to prison. They were facing a felony charge, calling for ten years in prison, and a misdemeanor, calling for one year in prison. The prosecutor, obviously not convinced that these defendants were dangerous criminals, perhaps a bit sympathetic to their cause, dropped the felony charge, telling the defendants, confidentially, that he did that because he was sure the judge would give the defendants the full ten year sentence.

The quality of justice in the United States is strained through the sieve of the power and prejudice of judges. Free speech in the courtroom does not exist, because the judge decides what can and cannot be said. In 1980, a New York City judge dropped a case against fifteen people who protested at a research facility for nuclear weapons on the advice of the prosecutor, who told him, "We want to prevent these defendants from using the Criminal Court as a forum for their views."

Judges are, for the most part, creatures of comfort—that is, they come from the affluent classes and tend to be conservative and hostile toward radicals, demonstrators, protesters, and violators of "law and order." They are also creatures of the American environment, subject to the dominant ideology.

But when the national mood changes, when the political atmosphere becomes differently charged, judges may be affected by that. If they then allow juries to hear the reasons why protesters acted, the common sense of juries comes into play. They may vote to acquit the defendants even if they have broken the law. Given the opportunity, when not bullied by judges, juries may choose justice before law.

By 1967 there was a formidable movement all across the country against the war in Vietnam. In Oakland, California, demonstrations that disrupted the normal operations of the Induction Center resulted in the prosecution of the Oakland Seven, charged with conspiracy to trespass, create a public nuisance and resist arrest. The judge permitted the defendants to tell the jury about their belief in the illegality of the war and told the jury they should take that belief into consideration in determining whether there was criminal intent in the defendants' actions. The jury acquitted all of the Seven. One of the jury members said later, "I'm not a puppet. I'm a free thinker."

Jury Nullification

The Camden jury had exercised a right that judges never tell juries about: the right to come to a verdict following their conscience rather than the strict requirements of the law—to choose justice over law.

That right of "jury nullification" goes back to eighteenth-century Britain, when jurors, despite being fined and jailed, refused to convict two Englishmen for speaking to a street crowd. A plaque in the famous Old Bailey courthouse in London commemorates the courage of these jurors and records the final opinion of the Chief Justice, "which established the Right of Juries to give their Verdict according to their conviction."

In America the principle of jury nullification was affirmed in 1735 when John Peter Zenger, a New York printer who was charged with seditious libel for printing material not authorized by the British mayor, was acquitted by a jury that ignored the instructions of the judge. The jury apparently followed the advice of the defense attorney to "see with their own eyes, to hear with their own ears and to make use of their consciences."

The antislavery preacher Theodore Parker, after the passage of the Fugitive Slave Act of 1850, spoke in New England about what he would do if a slave escaped from South Carolina to Massachusetts and "a Mr. Greatheart" helped her to escape, harbored and concealed her, and was then prosecuted, and he, Parker, was on the jury. He declared:

I may take the juror's oath to give a verdict according to the law and the testimony. The law is plain, let us suppose and the testimony conclusive. ... If I have extinguished my manhood by my juror's oath, then I shall do my official business and find Greatheart guilty, and I shall seem to be a true man; but if I value my manhood, I shall answer after my natural duty to love a man and not hate him, to do him justice, not injustice, to allow him the natural rights he has not alienated, and shall say, "Not guilty."

Around the middle of the nineteenth century, however, the courts began to rule that juries did not have the right to decide the law, only the facts, that they had to obey the judge's instructions as to the law. This does not really settle the matter. The jury may not have the right to rule on questions of law, but they don't have to write legal opinions when they give their verdict; they can vote their consciences, regardless of the law explained to them by the judge. A distinguished legal scholar, Wigmore, wrote in 1929 about the importance of jury nullification to achieve justice.

Law and Justice are from time to time inevitably in conflict. That is because law is a general rule;...The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case...The jury, and the secrecy of the jury room, are the indispensable elements in popular justice.

Another famous legal scholar, Roscoe Pound, had written back in 1910 that "jury lawlessness is the great corrective in legal proceedings.