With the conviction and sentencing of four of the five defendants, the first phase in the Boston conspiracy trial has ended and a good moment has come for some consideration of the significance of the so-called “Spock case,” of what it means for the “peace movement,” and what it tells us about the state of American democracy.
Among anti-war activists there has been much discontent with respect to the conduct of the defense. Many had expected a far-reaching indictment of the government for its criminal behavior in Vietnam. Those who had been hoping for a “confrontation with illegal and immoral authority” are naturally disappointed, since no such confrontation took place. In fact, the defendants themselves did make strong statements about the illegality and barbarism of the American war in Vietnam. With the exception of Michael Ferber, a resister himself, the defendants took their stand, without qualifications, on the “Call to Resist Illegitimate Authority” (see this journal, October 12, 1967), which announced the intention of the signers to support resistance to the Vietnam war, and which insisted that actions taken in support of resistance “are as legal as is the war resistance of the young men themselves.” However, this aspect of the trial was barely reported in the press. Within the framework defined by the government, adopted by the Court, and accepted by the press, the issue of the legality of the war was not pertinent, nor was the question of the right, or even the duty, of resistance to American aggression.
Why should reasonable people have believed that a federal court might serve as an impartial referee in a dispute between the government and its critics, or even as a forum that might contribute to general understanding of the war? Recent history is probably responsible, in part, for the misplaced optimism and current disappointment. Since Brown vs. Board of Education in 1954, a series of decisions favoring civil rights activists and extending civil liberties has accustomed us to think of the federal courts as a branch of government devoted to the defense of human rights and social justice. A broader historical perspective, however, would reveal that only rarely are they willing to assume that responsibility. On the contrary, the courts are more likely to confirm a political consensus set elsewhere, and, in the process, to avoid intruding upon the prerogatives of the other branches of government, particularly with respect to the power to make war. The idea that the courts might uphold or even seriously entertain an argument on the illegality of the war or the abuse of executive power in waging war seems, therefore, rhetorical or naïve. In fact, the case was pursued by the government on grounds so narrow that the war was effectively excluded from consideration.
AS IN ANY DRAFT CASE, the government sought to limit discussion to the violation of a particular section of the Military Selective Service Act. When draft resisters come before the court for refusing induction, they are not permitted to explain their opposition to the war. Or when, occasionally, an extraordinary or curious judge permits an explanation, it is ruled irrelevant to the question of guilt or innocence and is admitted only to assess character or motivation, primarily for purposes of sentencing. Several draft refusers, including David Mitchell and Donald Weatherall, have attempted to defend themselves by citing Nuremberg Principle VII, that “complicity in the commission of a crime against peace, a war crime, or a crime against humanity…is a crime under international law.” But the federal judges in Connecticut, Illinois, and elsewhere have excluded such considerations from the court, and to win a guilty verdict, the prosecution has had only to show that the defendants had, in fact, refused induction.
Similarly, Judge Francis J. W. Ford of the Federal District Court in Boston limited discussion to the question of whether the five defendants had conspired to violate the Selective Service Act. Though the defendants individually were able to state their position against the war, there was no serious discussion of what they correctly regarded as the major issue: whether the government has conspired—to use the wording of the Nuremberg Principles—in the “planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances”; or whether it is engaged in “violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory…, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity”; or whether it is engaged in such crimes against humanity as “murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population….”
Nor was the jury permitted to consider testimony concerning a possible conspiracy by the government to deceive a naïve and uninformed Congress, so that it would accept what the former Attorney General regards as a “functional equivalent” of a declaration of war, nor could it consider whether the government’s systematic resort to lies and deceit to rally popular support for criminal acts is not evidence of conspiracy to commit crimes against peace.
Such questions would be raised in a tribunal concerned with fundamental issues of legality and justice, with the limits of a government’s legitimate authority and the character of a citizen’s responsibilities. Though the American courts cannot seriously be expected to deal with these questions, they are, nevertheless, the questions that must be considered by anyone who takes seriously his responsibility as a citizen. Had these issues been admitted in the Boston conspiracy case, the defendant would, in effect, have been the government; the five “conspirators” could have introduced evidence on the nature of the war and argued that resistance is justified by the Nuremberg Principles. If these Principles are accepted as valid (a question to which we return below), then one must conclude either that our system of law is ridiculous, or else that it guarantees immunity both to those who seek to avoid the complicity that these Principles specify as criminal and to those who aid them. Similarly, those responsible for true criminal acts would have to be restrained and perhaps brought to justice.
But the aim of the government in prosecution is to ensure obedience to its orders by punishing those who refuse to obey and threatening others who might be tempted to do so. It will not voluntarily open the door to an inquiry into its right to enforce these demands on the citizenry. This is as true of the Boston conspiracy trial as it was of the trial of Sinyavsky and Daniel and their supporters. It is characteristic of political trials that there are sharply conflicting interpretations of the fundamental issue at stake. Not surprisingly, the court accepted the interpretation defined by the prosecution. For those who take the view that the real issue is the abuse of executive authority and the criminal violence of the government, the court proceedings will therefore border on farce. Since the government is not held accountable for its acts and is permitted to determine the nature of the court proceedings, the question is no longer whether justice will be done, but rather whether persecution will succeed.
THE INDICTMENT charged that the defendants conspired (1) to counsel, aid and abet Selective Service registrants to evade military service and to refuse to carry “draft cards,”1 and (2) to interfere with the administration of the Selective Service Act. The factual basis for the government’s case reduces to the following. On October 2, 1967, Raskin, Spock, Coffin, and Goodman, along with a number of others, appeared at a press conference called to announce the “Call to Resist Illegitimate Authority.” The Government made no attempt to show, what was in fact false, that the defendants had organized the press conference or had agreed on its substance, except to the extent that they agreed that the press conference would make public the “Call to Resist.” Each participant in the press conference stated his beliefs with respect to the war and his reasons for associating himself with the “Call to Resist.”
The second factual item in the Government’s charge was that on October 16, Reverend Coffin and Michael Ferber spoke at the Arlington Street Church in Boston and received draft cards, in a ceremony that was organized by others who were not defendants, as was brought out in testimony that was not contested. Thirdly, on October 20 a group of some 500 people assembled at the Justice Department to transmit to representatives of the Attorney General draft cards collected around the country on October 16 (including some turned over on October 20). Mitchell Goodman and Reverend Coffin were among those who planned this action. All five of the defendants were present. All except Ferber entered the Justice Department with the various documents that had been collected. Of the eight men who entered the Justice Department four were indicted. These eight men were selected at the last minute, in the rather haphazard fashion that will be familiar to everyone who has been involved in anti-war activities, and they made statements, as individuals, to the representative of the Justice Department. Fourth, Dr. Spock and Mitchell Goodman took part in a demonstration at the Whitehall Induction Center in New York, a demonstration that was planned by others, as was brought out in uncontested testimony by David McReynolds and Mayor Lindsay. This is the substance of the Government’s argument that the five were involved in a conspiracy.
IT WAS AGAINST such vague charges that the defendants chose to defend themselves in court. The legal and political difficulties any defense would have encountered were compounded further because the defense itself seemed to contradict the rhetoric used widely in the anti-war movement. Such rhetoric encouraged the view that many people, including the defendants, were simply defying the government and its laws. After the indictments, for example, thousands signed what they called statements of “complicity”; hundreds, in public ceremonies that were often televised, “aided” and “abetted” draft resisters by handing them money or accepting their draft cards. The impression created was that many people were willing to break the law—indeed, that they were already breaking it—in order to bring the war to an end. In truth many of those who joined in the militant rhetoric and symbolic acts assumed that the threat of filling the jails with prominent Americans would help to “bring the Administration to its senses”; if that threat were to remain credible, prominent opponents of the war could not appear to be trying to avoid jail.
Such strategy leads directly to the argument that the defendants should have pleaded guilty, taking the position that the indictment was correct, but that they were right to commit the alleged “crime.” There are a number of reasons why this course of action would have been a mistake—questions of the validity of such a political strategy aside. First of all, the defendants refused to admit that the government’s charges were correct. They could not honestly plead guilty to conspiracy when they did not view themselves as involved in any conspiracy. Furthermore, a plea of guilty would imply that they regarded their actions as “illegal,” though justified on other grounds, in short as a form of “civil disobedience.” For many in the peace movement, this remains a reasonable characterization: they believe that the most honorable and effective strategy for a moral man is to break an unjust law and, like Socrates, accept the penalty meted out for that act, however unjust. But most of the defendants regarded their acts as an attempt to uphold the law. Their position is that formulated in the “Call to Resist” to which we have already referred. To quote more fully, the “Call” states: “We firmly believe that our statement is the sort of speech that under the First Amendment must be free, and that the actions we will undertake are as legal as is the war resistance of the young men themselves.”
One of the ironies in the Government's prosecution is that the Justice Department seems to have decided not to take men to court for nonpossession itself, but to wait until they refuse induction and prosecute for that violation. In effect, then, the men in Boston were being tried for being accessories to a "crime" the Government has felt it best not to prosecute.↩
One of the ironies in the Government’s prosecution is that the Justice Department seems to have decided not to take men to court for nonpossession itself, but to wait until they refuse induction and prosecute for that violation. In effect, then, the men in Boston were being tried for being accessories to a “crime” the Government has felt it best not to prosecute.↩