Three Nuns, the Rule of Law, Torture and War Crimes
Anabel Dwyer, June 26, 2004

The Justice Department's August 2002 memo to the White House justified torture as a matter of law claiming that "the president enjoys complete discretion in the exercise of his commander in chief authority and in conducting operations against hostile forces." Similarly Bush in a Feb. 1, 2002 memo blamed terrorists for "the new paradigm [that] requires new thinking in the laws of war."

But this is not something new. Rather, this interpretation of the President's (and Congress's) Constitutional war powers as unlimited by law has been used since 1945 to justify the US's threat and use of nuclear weapons. We welcome the Justice Department's June, 2004 conclusion that the President's war powers do not supercede federal statutes and treaties prohibiting torture or cruel and inhuman treatment in any circumstance. Since at least Nuremberg, we have understood that in matters of universal crimes, international and domestic law must be consistent. Thus, saying the Aug. 2002 memo is over broad in relation to torture alone is insufficient. Other equally fundamental and universal prohibitions exist as a matter of positive customary, treaty and statutory law including war crimes, crimes against peace, crimes against humanity and genocide. As a matter of known fact, any threat or use of any nuclear weapon by any country, entity or individual constitutes a threat or comm! ission of one or more of one of these most heinous crimes.

The question of course is how to move beyond the dead-end view of "justice" conceived of as violent retribution. As a practical matter, it does not take revelations of the horrors of torture at Abu Ghraib to realize that threat or use of torture can not stop torture. Neither can threat or use of weapons or tactics of mass destruction stop threat or use of weapons or tactics of mass destruction. While the Bush administration has exacerbated the flouting of statutes, treaties and the rules and principles of humanitarian law, the problem is systemic.

Over many years the Courts and the Justice Department have had many opportunities to make it clear to Congress and the President that their war powers are indeed limited but they have not done so. In numerous cases of US citizens' non-violent resistance to US threat or commission of torture and war crimes, especially federal trial and appeals courts have frequently held that the laws of war are not relevant to US acts. For example, if the Justice Department has indeed woken up to the reality that specific rules and principles of law limit the US war powers (as well as those of all other countries), Ashcroft would request the immediate release of three elderly nuns currently in prison.

Let me explain. In October 2002, amid Bush's vilification of "evil tyrants who threaten and use weapons of mass destruction and ignore international law" Sisters Ardeth Platte, Carol Gilbert and Jackie Hudson acted on the conviction that our democracy rests on honesty, truthfulness, openness and consistency. They illustrated an imaginative, measured and legal solution to threat or use of weapons of mass destruction by conducting a surprise non-violent citizens' nuclear weapons inspection in a farmer's field in northern Colorado. Dressed in hazardous material suits, the Sisters cut to links in two chains to enter one of 500 Minuteman III nuclear missiles silo sites and to confirm the missile's high-alert status. They exposed the ongoing crimes at the site by carefully lowering 32 feet of perimeter fence and marking the missile for essential disarmament with 6 crosses in their own blood on the 120 ton silo cover. The reaction of the Justice Department and the GW Bush appointe! d federal judge could not have been less consistent with a democracy and adherence to the rule of law. The US attorney proved incapable of facing the illegality and criminality of a high-alert 335 kiloton nuclear weapon fully prepared to unleash 20 times the mass extermination of the Hiroshima bomb within 15 minutes of Bush's order. Instead, the Sisters were charged and convicted of two felonies, sabotage and depredation of government property over $1000. During pre-trial and trial proceedings, the US attorney and the judge desired primarily to punish the nuns not to look at the legal questions the prosecution itself raised. They sneered at distinguished expert testimony showing that the laws of war prohibit any threat or use of such a weapon and that citizens have a right, duty or privilege to non-violently expose and resist threat or instant commission of war crimes or genocide.

An underlying issue on appeal that the trial court refused to consider is whether the US's legitimate national defense can include any threat or use of a 335 kiloton nuclear weapon. Of course the 10 th circuit should say that it is not a crime in these United States to point out, non-violently and symbolically, ongoing U.S. threats to commit war crimes. But will it?

The nuns merely showed a way to move beyond the institutional and ideological hump that has to do with finding non-violent solutions to threat or use of nuclear weapons [or force in general]. They acted directly and eloquently, illustrating infinitely more practical non-violent solutions than bombing to end bombing. Intelligent solutions, they said, involve open declaration, inspection and non-violent disarmament one heinous weapon at a time.

So if we citizens [Democrats, Republicans or independents] have learned any legal, environmental or economic lesson from Abu Ghraib and the entire Iraq debacle it should be manifest by some positive actions. These must be consistent with adherence to certain basic positive and universal rules of law upon which the legitimacy of any state rests and which constitute our main hope of ending terrorism. We look to all candidates to institute a program that includes: 1. beginning and completing good-faith negotiations for complete nuclear disarmament under strict and effective international control in accordance with our commitments under the Nuclear Non-Proliferation Treaty; 2. training citizens, service men and women, and especially lawyers, federal prosecutors and judges regarding the content and proper application of the fundamental laws of war including statutes, treaties and the rules and principles of humanitarian law; and, of course 3. releasing and honoring the nuns and ! other US political prisoners, whose "crimes" are non-violent resistance to US threat or commission of war crimes or torture.

Anabel Dwyer, June 26, 2004