By JUDY BELLO
On Jan. 25, 2012, 17 people were arrested for symbolically blocking the gates at Hancock National Air Guard Base, near Syracuse, N.Y. This is a site where MQ 9 Reaper drones are piloted over Afghanistan, and the domestic center for training MQ9 Reaper pilots and technicians. We stood in front of the gates with banners and signs calling for an end to drone warfare, and read an indictment for crimes against peace and indiscriminate attacks on civilians—which are illegal under international law.
After more than two hours outside the gates, we were arrested and arraigned on charges of trespass and disorderly conduct. We were also issued Orders of Protection for Col. Earl Evans, a civil engineer responsible for material operations at Hancock. The orders were renewed by Judge David Gideon last November, and require us to stay away from the boundary of the base property, which extends into the middle of the public highway. Violating these OOPs, as we call them, carries potential misdemeanor or even felony charges.
On Jan. 3 of this year (2014), the Hancock 17 went to trial in DeWitt, N.Y. Fourteen defendants are going to trial pro se, i.e., they have waived their right to a lawyer so they can represent themselves before the court. We have prepared a defense based on the fact that we were not at the base to break the law, but rather to uphold the law. The way the drones are used in Afghanistan violates humanitarian law and human rights law. There is little coverage of Afghan casualties in the mainstream news, but according to a report by Press TV, there were 500 drone attacks in Afghanistan in the last year. We want to stop the illegal use of weaponized drones.
Going pro se entails some risk, but it is incredibly empowering as it allows the defendants to have a voice in the proceedings. After 12 hours in the courtroom on Jan. 3 and 6, the prosecution case is nearly complete. We had an opportunity to cross-examine Col. Evans at some length. We were very curious why he would ask for orders of protection against nonviolent citizens executing their First Amendment right to ask their government for redress of grievances.
There was also a lengthy Q&A with Chief Master Sergeant Ramsey about the definition of the boundaries of the base and the handling of events in a public thoroughfare. Ramsey agreed that the protesters were not violent or threatening. He first said that he closed the gates in advance of their arrival because he didn’t want to see anyone hurt, but later said that the order to close the gates came from the chain of command.
It is expected that the defense case will begin on Jan. 23 and continue on the 24th. We will argue that we were not breaking the law outside the gate of Hancock Air National Guard Base but rather upholding the law. Inside the base, pilots fly drones over Afghanistan, prosecuting an illegal war of choice, killing innocent people. The United States is a signatory of the United Nations Charter, which forbids Wars of Aggression, and a signatory of the Kellogg Briand Act of 1928, which makes all wars illegal.
Customary humanitarian law, the laws of war to which all countries are bound by the consensus of the majority of nations, requires that civilians never be targeted. It says that anyone not currently engaged in battle is a civilian. The principles of discretion and proportionality require that, in a battle, only combatants be targeted and no more force be used than necessary to secure the objective of the battle. Article 6 of the U.S. Constitution says that “treaties made by the U.S. shall be the supreme law of the land.”
Drones regularly and demonstrably violate these precepts. Our assertion is that we are upholding the highest law of the land at Hancock Air National Guard Base.
The judge has given us some latitude in our defense, but we are not allowed to raise evidence related to international law as a point of law. However we can raise the same point as it pertains to our intention at the time of arrest, and/or to our knowledge of the circumstances relevant to our presence on base property at the time of arrest. Conviction for disorderly conduct requires the intention to disrupt and alarm the public. The trespass charge requires that one knows they are on private property.
The judge is having a difficult time with considering customary international law, as he says it is not “codified.” I think what he means is that the rulebook isn’t written within U.S. law and there aren’t specific instructions with regard to what his specific responsibilities are in addressing violations of these precepts. Even so, it is clear that addressing these matters preempts business as usual.
Orders of Protection
Since Oct. 25, 2012, every protester arrested at Hancock Base has been issued a similar Order of Protection, either for Col. Evans or Base Commander Greg Semmel. Our OOPs are the standard Orders of Protection issued to violent felons and abusive spouses. They restrict the recipient from any kind of contact with the protected party or their family, and restrain him or her from approaching their place of work, in this case, Hancock Base. Initially, it was quite a shock to receive them, given that none of the recipients had any idea who Col. Earl A Evans might be or where he lives. And since we are not violent people, it is unlikely any of us will kick, hit, strangle, or sexually assault him or anyone else, so that’s a plus.
The only real requirement, however, is that we not approach Hancock Base. One might wonder why the OOP doesn’t say that. The answer is easy. It’s because Orders of Protection are written for vulnerable PEOPLE, not armed and fortified PLACES.
At the moment several individuals have been arrested for violating their OOPs; they have been charged with a misdemeanor with a potential sentence of up to a year in jail. Their cases are pending. Motions to dismiss based on precedents in case law where Orders of Protection were denied were not entertained by the judge.
The enforcement around the base is arbitrary. Generally, we are asked to stay across the street from the base, but last April, during a sizable permitted demonstration, protesters with OOPs were restricted from participating at all. On Oct. 30 of 2013, Orders of Protection were re-issued to the 17 protesters from the previous Oct. 25. There are currently about 50 people subject to Orders of Protection issued on behalf of Hancock officers.
We filed an Article 78 Appeal raising these issues, and it was denied on the basis that the judge was within his discretion. There has been some discussion about mounting a First Amendment defense in Federal Court. However, there is some disagreement over whether this is the way to go because some of us are concerned that any ruling that weakens the legal structure of Orders of Protection can undermine the instrument as a protection for people who are legitimately threatened with physical violence.
There is currently a case before the Supreme Court requesting them to strike down a Massachusetts law mandating a buffer zone outside Abortion Clinics to allow free access to patients. The Conservative Supreme Court justices are favorable towards this case because the plaintiffs have presented themselves as citizens who merely want to “talk” to the women entering the clinic. I think a woman has a right to arbitrary control over who can demand her attention with unsolicited opinions about her private business.
I would like to write another Article 78 appeal, a local appeal that questions whether the order, as a legal instrument, was used in a legitimate manner—i.e. whether the specific parameters of the law were met by the request. Judge Gideon’s nonchalant dismissal of any and all challenges to his authority to write these orders and refusal to discuss them in the context of reasonably applicable precedents in case law warrants a response. It is not enough to say broadly that the judge has discretion. Either the signatory judge or the Appeals Court should make some response to the specific concerns raised in the courtroom, and again in the appeal.
Judy Bello is a charter member of the Upstate Coalition to Ground the Drones and End the Wars. On Oct 25, 2012, she was arrested for the second time at Hancock Air National Guard Base, less than a week after meeting with Drone victims in Pakistan with a CodePink delegation. She administers the Upstate Drone Action website at http://upstatedroneaction.org, and keeps a blog at http://deconstructedglobe.com.
Photo: Kristin Mosher