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The Triumph of Necessity

Commonwealth vs. Caldeira is its official name. What it means is that the CIA lost out to an all-American jury of six last week in Northampton.

By Stephanie Kraft

originally published on April 20, 1987

In Nicaragua, terror is constant and unpredictable. Gunfire and shell explosions at night rip into the sleep of villagers. In some parts of the country, the work of peacetime -- planting crops, building schools and housing, immunizing children against disease -- proceeds as though under siege, or has to be halted entirely.

Imminence is the sense that disaster is occurring now, perhaps in a distant place, and that the pattern of disaster must be combatted now, where one is.

For some people, now was a cold night in November 1986. That night, Amy Carter and 49 protesters sat in front of two buses that were about to leave UMass/Amherst. The buses carried about 50 people who had been arrested that day for refusing to leave Munson Hall, the building that houses the University's Office of Public Affairs.

The demonstrators had occupied Munson to protest against the presence of CIA recruiters on campus 10 days before. The object of the demonstration was to get the University to ban CIA recruitment on campus, in order to "cut the lifeline" for CIA activities in Nicaragua and elsewhere. In the end, 60 demonstrators were arrested and arraigned in Hampshire County District Court on charges of trespassing and disorderly conduct.

The issue was not a simple one. What did freedom of speech mean in a context that included other students who wanted to interview for possible jobs with the CIA? Anti-CIA demonstrations on November 13, 14 and 24 had been met with loud counterdemonstrations by students who insisted on their right to meet with CIA operatives, and who believed that the national security depended on the ability of the agency to carry out covert operations.

But by the week of November 24, news that the CIA had sold arms to Iranian terrorists to get money to pass on to the contras had left even the President unable to escape the question of whether the CIA was out of control.

Arguments in the trial of Amy Carter, Abbie Hoffman and 13 other defendants who participated in the actions of November 24 ended last Wednesday. Held in the beautiful old Superior Court room in Northampton's baroque stone courthouse, the trial was as mellow as its setting.

"The courtroom is magnificent, the judge is congenial and everything feels right for a good trial," lead defense attorney Leonard Weinglass told the Advocate soon after the proceedings began on April 6. The only confrontational note came from outside the court house, where pro-CIA demonstrators spent a rainy morning chanting slogans like "Hey, hey, ho, ho, Amy Carter has to go."

The basic facts about the actions of the defendants at UMass on November 24 were not disputed by either side. They had been spelled out in stipulations agreed to in advance by both the defense and the prosecution. Rather, the issue was whether the case should be decided as a simple legal action involving charges of trespass by those who occupied Munson Hall, and disorderly conduct by those who sat in front of the buses, or whether their actions could be justified by the defense of necessity: the necessity of stopping covert actions of terrorism by the CIA in Nicaragua and elsewhere.

The Northampton District Attorney's office gets too steady a trickle of peace activists to be very upset about misdemeanor charges arising from demonstrations. Thirty-one cases resulting from the November 24 action had already been concluded before this trial began, most with no penalty.

Partly in return for getting to run 15 cases at once through a court that has enough arson, assault and other serious crime to keep it busy, the District Attorney's office agreed to let the defense air the necessity argument at length. Last Monday, in fact, District Attorney Michael Ryan came to hear the part of the proceedings involving former Attorney General Ramsey Clark as a defense witness. Quipped Ryan, "We allowed the necessity defense so I could hear Ramsey."

Simple trespass -- or historic protest against the CIA's methods of making war without the consent of the American people? When opening arguments began on April 9, Assistant District Attorney Diane Fernald told the jury, "This case is about whether 12 defendants are guilty of trespass. This case is also about whether three defendants are guilty of disorderly conduct for sitting in front of buses that were attempting to leave the UMass campus with those people who were arrested for trespass. You will hear many references to the CIA. You may hear some things that you don't know, some things that are alarming to you. Keep in mind what the issues are."

Sticking to a neat, cleanly defined, understated prosecution for these specific charges, Fernald avoided defending the CIA. Her style was businesslike, seldom aggressive. In general, the trial was quiet, slow, devoid of grandstanding or bullying on either side.

Weinglass, a veteran of such much-publicized cases as the Chicago Seven and the Patty Hearst kidnapping, was quiet, mannerly, unhurried, never without a polite word and a little joke for anyone who approached him between sessions. But he had to manipulate a scheme of logic using varied testimony from the defense witnesses -- not just to pile up anecdotes about atrocities in Nicaragua, but to lay an intricate legal foundation for the necessity defense.

Weinglass put the heart of the necessity defense before the jury in a few soft-spoken, simple sentences. "Trespass is not a rigid doctrine," he told them. "One may go upon the land of another to extinguish a fire" is the analogy most often used to explain this defense.

In Massachusetts (not in all states) the laws about trespass and disorderly conduct stipulate that in order to be judged criminal, an act must have been committed without any legitimate purpose. Building on the argument of legitimate purpose, the defense worked to construct its answers to these questions:

Does the CIA violate national law, and international laws that the Supreme Court and the Massachusetts Supreme Judicial Court have said take precedence over other laws in local courts?

Between them, the defense witnesses cited law after law that is broken by the CIA. Many of them are broken in actions that by now are widely publicized, but the laws are not all well known to the public.

For instance, William Schaap, an attorney with the Center for Constitutional Rights and editor of Covert Action Information Bulletin, cited a law dating from Washington's presidency that prohibits financing or training of mercenaries on American soil to fight countries the U.S. is at peace with. (The U.S. is officially at peace with Nicaragua and maintains diplomatic relations with that country, but it maintains training camps for contra mercenaries fighting Nicaragua.)

Morton Halperin, a former Defense Department official and author of The Lawless State -- a book dealing with the unconstitutional activities of the CIA, FBI and other federal agencies -- testified that the CIA continually violates the laws that require it to furnish Congress with information about its activities such as the Intelligence Oversight Act.

Other witnesses testified that the CIA's attacks on health workers and facilities in Nicaragua, and systematic killing of Nicaraguan civilians violate internationally recognized rules of war laid down in the Geneva Accords and the Nuremberg agreements.

Did the protesters have no alternative but to commit civil disobedience in order to affect CIA operations?

Congress has failed to control the CIA, defense witnesses said, because the agency withholds information about what it is doing. Edgar Chamorro, a Nicaraguan, was a contra leader who worked for the CIA until becoming disillusioned with U.S. control of the contras. Chamorro testified that the CIA systematically distributed false information about what the contras were really doing, and who was supporting them, to Congress as well as to the press and public in this country and in Nicaragua.

Speaking to the question of whether the courts can be used to challenge CIA policy, William Schaap, an attorney with the Center for Constitutional Rights and editor of Covert Action Information Bulletin, testified that he had represented a number of Congressmen and others in suits challenging CIA activities, and that the suits had always lost. Suits against agencies like the CIA are stymied, he explained, because of a clause in U.S. law that prohibits courts from interfering with government policy on behalf of people bringing suit.

Do actions like those the defendants participated in actually have an effect?

Daniel Ellsberg told the court that he spent hours "crying in a men's room" after meeting peace activist Randall Kehler of Colrain, Mass. in 1969, when Kehler was on his way to prison for evading the draft in protest against the Vietnam war. Said Ellsberg, "Within days I decided to give to a Senate committee the evidence I had of crimes, murder, aggression [the accounts of events in Vietnam contained in the secret Pentagon Papers], even though I expected that for that I would go to prison for the rest of my life."

And Amy Carter pointed out that the CIA was banned from recruiting at Brown after an action on that campus in 1985.

Inside the courtroom and out, the defense witnesses expressed their convictions that the CIA's covert operations threaten the security of the U.S. as well as the nations they target. Capping off testimony about how the CIA had given him and other government officials false information about its covert operations during his years as Attorney General, Ramsey Clark said in answer to a question by prosecutor Fernald that he believed the activities of the CIA last November, while the defendants were engaged in demonstrations, were a threat to the security of this country.

Ellsberg told the Advocate that he believes many CIA actions are not only criminal but irresponsibly managed. Said Ellsberg, who was a consultant to the Defense Department and to the National Security Council in the 1960s, "The reason they are secret is because they are usually ill-advised. reckless, dangerous. Why do we end up with such incompetent thugs and creeps as our allies in Third World countries? We end up with guys who don't know any English except two words, 'Yes, sir.' The U.S. has no interest in getting into a war in Nicaragua, and that's where these operations are heading us."

A Precedent Setting Case

For Weinglass and his colleagues on the defense team -- Northampton attorneys Tom Lesser and Steve Schlang, and Betsy Tomlinson, who has moved her practice from Northampton to Philadelphia -- constructing a defense with 11 experts from all over the country was rather like having to put together a documentary with no chance to rehearse or edit.

No one could accuse the court of making it difficult. Judge Richard Connon more than earned his plaudit for "congeniality" by delaying the opening of court for an hour on the afternoon of April 13 because Attorney General Ramsey Clark arrived late. In an instance of the court's indulgence of the necessity defense, Fernald allowed Edgar Chamorro an historical excursion back to 1926, when Northampton's own Calvin Coolidge sent the Marines to Nicaragua, before calling time out.

But for Connon, tolerance did not mean letting things get out of hand. One of the funniest moments of the trial occurred on the last day of testimony, when Weinglass chose to identify Ramsey Clark by asking Clark what the highest position he had ever held with the government was. By then the court had heard so many stories of crises of conscience and changes of life on the parts of former government officials that Clark's meaning was clear, but his phrasing was hilarious, when he answered, "It depends on which way is up."

The next move -- the local District Court judge ordering the former Attorney General of the United States to confine himself to straight answers -- nearly brought down the house.

On the last day of the trial, a crucial issue hung on how Connon would instruct the jury. Though the court had rolled out the red carpet for the necessity defense, it still had the option of refusing to allow the jury to consider it. But in his instructions at midday, Connon told the jury of six that the necessity defense was allowable. Late in the afternoon the jury returned its verdict, acquitting all the defendants on all counts.

The victory of the necessity defense in this case sets an historic precedent. It strengthens what seems to be a growing willingness on the parts of courts to allow arguments of necessity and international law to be applied to local cases. Lisa Sheehy, a defendant in the Northampton case, said she participated in the action at UMass partly because of the example of the "Winooski 44," a group that occupied the offices of Vermont Senator Robert Stafford in 1985 to protest against his votes in Congress on Nicaraguan policy. They were acquitted by the necessity argument.

In Massachusetts, the Supreme Judicial Court specifically allows the necessity defense. That does not mean, however, that it always prevails. This past January, for instance, a group that demonstrated at Otis Air Force Base on Cape Cod lost their case, though they invoked the necessity defense.

Critics of the defense point out that it can be used to justify violent or self-serving actions by groups who can then lay the blame on large political conditions. The Massachusetts Supreme Judicial Court has tried to guard against that by setting specific criteria for the way the defense can be used. They include a requirement that an action must be proven effective in combatting whatever is presented as the greater evil.

The Northampton case represents an outstanding victory for the necessity defense, particularly in the context of the Irangate scandal and investigations of the CIA by Congress. It is expected to presage a wider use of the defense in cases centering not only around the CIA, but other issues such as apartheid and nuclear power. There is little doubt that it will add momentum to planned demonstrations against CIA in Washington on April 25 and 27, and may send a message to candidates in the upcoming Presidential election.

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