On a warm spring day in 1966, a nineteen-year-old Minnesotan by the name of Barry Bondhus broke into his local draft board and dumped two large bucketfuls of human feces into a filing cabinet, mutilating several hundred I-A draft records in protest against the Vietnam war. The offender and his eleven brothers, sons of a machinist who had threatened to shoot anyone who attempted to induct his boys into the American army, had fastidiously collected their organic wastes for two weeks in preparation for the raid.
This primordial deed is known in the annals of the anti-war protest as The Big Lake One action, in honor of Barry Bondhus’s hometown, Big Lake, Minnesota. Barry Bondhus, who had calmly awaited arrest after his performance, served an eighteen-month sentence at Sandstone Federal Correctional Institution and came home in March of 1968 to run his father’s machine shop. Big Lake One was hardly mentioned in the press, but Bondhus’s was “the movement that started the Movement.”
Since Bondhus in 1966, over sixty Americans have awaited arrest after destroying government draft records with the less rustic media of blood, paint, and fire. The Big Lake One was followed by:
The Baltimore Four (600 draft records defiled with blood by Father Philip Berrigan, Reverend James Mengel, David Eberhardt, Thomas Lewis, October 1967);
The Catonsville Nine (Father Philip Berrigan strikes again in the company of his brother Father Daniel Berrigan and seven other Catholic priests and laymen, destroying 378 draft files with home-made napalm, May 1968);
The Boston Two (several hundred draft records mutilated with black paint by students Suzi Williams and Frank Femia, June 1968);
The Milwaukee Fourteen (some 10,000 draft records napalmed, September 1968);
The Pasadena Three (some 500 records burned, May 20, 1969);
The Silver Spring Three (several hundred records of a Maryland draft board mutilated with black paint and blood, May 21, 1969);
The Chicago Fifteen (some 40,000 draft records burned on May 25 of this year);
Women Against Daddy Warbucks (several thousand records mutilated in a Manhattan draft board by the first all-women band of draft board raiders, last July 2);
The New York Eight (some 75,000 records mutilated in a Bronx draft board on August 1st, and several thousand more in a Queens draft board on August 15th, by a group of four women and four men, three of them Catholic priests).
There is no name for this radical core of the peace movement. The only noun given to its forays is the word “action”; the participants are called “actors”; the only verb assigned to their gestures is “act.” “When is so and so going to act?” Men and women who believe they have exhausted every other means of protesting the Vietnam war raid a draft board, haul out records and burn them, stand around singing liberation songs while awaiting arrest. The draft board actions have elements of both terrorist strike and liturgical drama. They aim to destruct and to instruct; to impede in some small way the war machine; to communicate its evil, at a time when verbal and political methods have failed, by a morality play which will startle, embarrass the community; to shame the Movement to heightened militancy, perhaps to imitation. The word “witness” is used by members of this ultra-resistance, with its historical implications of sacrifice and penance, of moral primitivism, of romantic egoism, of psychological violence. The draft board actions in which the raiders demand arrest are called “stand around” to differentiate them from acts of “hit and run” sabotage; they are grounded in the non-violent mystique that a man’s witness in jail can move the conscience of a nation; that it can abate the violence of its rulers, and, like a monk’s years of passive prayer, aid to purify society. According to this mystique, the presence of the man awaiting arrest, sacrificing his freedom to witness to his moral indignation, is the ingredient that transforms sabotage into a religious and instructive act. As in tragedy and liturgy, sacrifice is conceived of as the most powerful means of communication.
At first this Ultra-Resistance involved men who—like Father Philip Berrigan and his brother Father Daniel Berrigan—were exempt from the draft either because of their clerical vocation or their age. Their average age was thirty-five, and their apostleship was to witness with and for the thousands of young Americans who have preferred jail to induction. These early draft board raiders were predominantly Catholic. The controversy that has rocked the American Catholic Church in the past decade has pitted a fanatically radicalized minority against a Catholic majority which still remains the most right-wing and hawkish segment of the nation. The desperately theatrical means of the Baltimore Four and the Catonsville Nine were aimed not only at the government’s war-making structure but at that most reactionary structure of all, the Catholic Church. The moral absolutism of the Catholic tradition, as the last few years have shown, can lend itself to satanizing the Vietnam war as fervently as it did Communism in the Fifties. No wonder then that many of the draft board raids, like political intrigues of Mazarin’s time, have been plotted in abbeys, monasteries, convents, the rectory next door.
Although draft-exempt men had originated this style of protest, the Ultra-Resistance is becoming more secular and youthful. The actions increasingly involve those young people who are threatened by the draft. The median age of the raiders came down from thirty-five to twenty-five in the Milwaukee action, to twenty-two in Chicago, Pasadena, and Silver Spring. The monastic stand-arounders, Barry Bondhus included, usually come from highly authoritarian and conservative backgrounds, which perhaps explains some of their differences from the permissively reared young people in the larger radical Movement.
Not the least of these differences is their disdain for amnesty, their sense that it is a positive act to go to jail. Many of them have had a more immediate exposure to the poor than the average college rebel, and feel drawn to the evangelic mystique of sharing, in jail, the powerlessness of the dispossessed. They place a greater stress on non-violence than the student movement—their symbolic destruction of property is meant, as a metaphor, to stress the sacredness of life. They incline to be apolitical—they tend to a personalistic Christian anarchism, or to Utopian socialism. And they claim to have a great distrust of rhetoric. “It’s not enough to just speak any more.” “I had to put my body on the line.” “It wasn’t just words, that’s basically it.” They reserve their rhetoric for the courtroom.
There is another important difference between the guerillas of the campuses and these jail-bound witnesses: however radical they are, the draft board raiders are distrustful of imported jargon. Their ideological heroes are apt to be Thoreau and A.J. Muste rather than Mao or Che; they want to do something “typically American”; and although they rebel as fiercely as the rest of the Movement against the familiar demons of capitalism, racism, colonialism, and militarism, they have chosen, up to now, to channel their protest against that uniquely American form of oppression, the Selective Service System.
The witness movement has thus created a curious form of non-violent guerilla activity. For beyond their symbolic, theatrical aspects the draft board raids do produce some tangible results. The files take some months to recompose, the boards remain closed for a few weeks or months, inductions temporarily cease. The protesters feel that they have liberated an area for a short while, that their acts will incite others to further and larger acts of liberation. The testimony of Robert Graf, a member of the Milwaukee Fourteen, at his trial last May describes the spiritual machismo of the witness actions:
I’m inside the draft board, and I’m taking files which I believe to be those of my brothers and neighbors…the only sensation I can remember that day was that of my arm being extremely tired as I was trying to do as much as possible to get as many people freed as I could. And in this act of liberation my arm was just getting tired, and I guess it’s like the stories you hear when someone is drowning and someone runs out to save him, his arm, his body, his whole body gets tired in the act of saving the drowning person. That’s how I felt, my arm, my body was at full extent of physical exertion in order to get those records out. I really felt within myself I was forming a small and simple but free act of liberation that day, something very immediate, taking pieces of paper that would free a great majority of my neighbors and brothers, people I love. So I took a bag or two, dragged them down the stairs and across the street into the center of the green, and I stood and waited for arrest, I stood in with my brothers quite joyfully, sang and listened to the Gospel, joining with my brothers in singing and rejoicing.
Another purpose of the draft board raids is to turn American courtrooms into political forums on the illegality and the immorality of the Vietnam war. The Baltimore Four and the Catonsville Nine, who fulfilled that goal with some success, have been tried, found guilty, and are free pending appeal. The Milwaukee Fourteen, which comprised twelve Catholics, five of them priests, was the most recent community of witness to come to trial, and it brought an important innovation to the Peace Movement. Twelve of the accused, a few days before they came to court, grandly dismissed a prestigious team of civil liberties lawyers headed by William Kunstler, and claimed their constitutional rights to defend themselves.
The Milwaukee Twelve’s decision in favor of lay advocacy was an intended blow at the State of Wisconsin, which had planned the trial in such a way as to prevent political issues from being raised in court. Wisconsin had been “out to get them,” as the protesters put it, ever since the day of the action, when a judge by the name of Christ Seraphim had arraigned them on State charges of burglary, arson, and theft and put the preposterous bail of $400,000 on their heads. The State of Wisconsin had been scheduled, from the start, to try them in May, a month before the Federal trial. The Fourteen had tried hard to get a Federal trial first, arguing through their lawyers that Federal charges took precedence in what was a clearly political act. For the consequences of a first trial by the State in such a civil disobedience case are grave. State judges are notoriously deaf to broad constitutional arguments. Conditions in State prisons are tougher than in Federal penitentiaries. There is less possibility of appeal in the State legal system. Most important, the State charges of arson, burglary, and theft obscured the Federal charges of interfering with the Selective Service System, and therefore the educational purpose of the witnesses was lost.
In fact, both of the Milwaukee District Attorneys assigned to the case recommended that the State trial be put aside in favor of the Federal trial, and Judge Charles Larson, on the morning of May 5th agreed to postpone his State trial until June 23rd, well past the Federal date. But three hours later, reportedly under the influence of “a political pressure very high up,” he broke his word and set the trial back to May 12th, a week away. During that morning, some of the defendants who had already flown home had to be paged at airports, and were recalled to Milwaukee the same day to prepare for the trial. Enraged by these machinations, twelve of the defendants proceeded to prepare their own defense. This was a new tactic and one that probably will be repeated in other movement cases coming to trial this year.
It is certainly the first time in legal history that gum-chewing seminarians cross-examined each other while walking barefoot to the water fountain. There was a bizarre contrast between the genteel provincial decorum of the Milwaukee County District Court and the aggressive, impertinent informality of these self-styled lawyers and of their frazzled supporters. One of the two district attorneys who carried on the prosecution was black, the other white and Jewish. They were both twenty-nine years old, both dressed with Edwards and Hanley nattiness, both noted doves who had supported Eugene McCarthy’s Wisconsin campaign. “The immorality of this war bothers me more than its unconstitutionality,” Deputy District Attorney Allen Samson would say during a court recess. “We have to accept the Viet Cong as a fact of life. We’re using Vietnam the way Russia used Hungary and Czechoslovakia. If I were boss I’d have our boys home by tomorrow noon. I’m more violently anti-war than any one in the courtroom, but I don’t burn draft records, it’s bad for the Peace Movement.”
“I’m as violently anti-war as anyone in the courtroom,” his assistant, Harold Jackson Jr., would say. He is from East Harlem and had gone through Groton and Colgate on scholarships. “Our draft laws are obscene. The Wyzanski decision* was great. It shows what one judge can do. But these draft-file burners are the worst thing that could happen to us liberals. They’ve polarized the community so I thought I would have to resign.” The two D.A.’s, looking lonely and uncomfortable at the prosecution bench, would glance apologetically, frequently, nervously at the Fourteen’s supporters behind them.
Confronting the shiny hardware of the Court, jamming its seats to capacity, sat the spectators from the Movement, whose rage at the system was intensified by the facts that D.A. Jackson was black, that D.A. Samson was a heavy contributor to Resist, that his radical kid brother was a prominent peace organizer at the University of Wisconsin, that they should not have taken the case. The priests, students, and defendants’ relatives were decorated as thickly as Bolivian generals with Resistance buttons.
There were several Movement celebrities: Tom Cornell, a prominent Catholic pacifist who had recently served a jail term for a protest career illuminated by the burning of nine consecutive draft cards; George McVey, the Movement dentist from Rochester who, out of devotion to his former Holy Cross classmate Philip Berrigan, drills resisters’ teeth at no charge late into the night; Father Bernard Meyer of the D.C. Nine, a group comprising four other priests and two nuns which had ransacked the offices of the Dow Chemical Company the preceding March in what was called “the first witness attack upon the military-industrial complex.” (“It’s very easy for us priests to go to jail after all those years of seminary,” observed Father Meyer, who faces a maximum sentence of thirty-five years, “three square meals and no women anyway.”) In the front row of the courtroom, chewing on raw carrots, pawing at each other like puppies in a litter, lounged a large contingent of pink-cheeked teenagers from a Summerhill-type school in Canada. Their year’s study consisted of a course in “Crime and Punishment,” and they had been taken to the Milwaukee trial as their school outing of the year.
The defendants sat at a long book-laden table at the left of the courtroom well, reading from law volumes, taking notes, raising their hands to address the Court, looking like a graduate seminar at a respectable university. The Milwaukee twelve were a mixed bag. Their ages ranged from twenty-two to forty-seven, they were dressed in a startling variety of attires—blue jeans, business suits, clerical blacks—and their only common denominator was their idealism and their rather formidable scholarship. A local sheriff had described them, with civic boastfulness, as “the classiest bunch of defendants ever.” One felt at times that Milwaukee was proud of them, as of its beer.
At the right of the table, by the prosecutor’s bench, sat the eldest and most scholarly of this brain trust, Christian Brother Basil O’Leary, head of the Economics department at St. Mary’s College in Minnesota, B.A. in economics from Loyola, M.A. in economics from the University of Chicago, PhD. in economics from Notre Dame. Brother O’Leary, forty-seven years old, a wry and spectacled scholastic in an impeccable pin-striped suit, was a contributor to Commonweal and an associate editor of Continuum, in which he had recently published an article entitled “The Role of Moral Theology in the Universe of the Person.” Referring to the events of September 24th, 1968, as “a symbolic, somewhat bizarre conduct to awaken my fellow citizens,” Brother O’Leary was to testify that he had gone into the Milwaukee action because, after due reflection, he had found no reason not to do so.
Others sitting around the defendants’ table:
Fred Ojile, 25, B.A. in philosophy from Catholic University, one year at the University of Michigan Law School, was a wiry youngster whose sunken cheeks, abundant hair, and stalking stride gave him a startling resemblance to Nureyev.
Doug Marvy, 28, the only Jewish member of the group, a graduate student in mathematics at Yale and at the University of Minnesota, was the author of several teachers’ manuals for grade school mathematics classes.
Robert Graf, 26, six years a Jesuit seminarian, B.A. in philosophy from St. Louis University, was completing his Master’s in sociology at Marquette.
Daniel Cotton, 25, also a former seminarian, had earned his B.A. in psychology at St. Louis University, where he had been a co-chairman of SDS, after two years of field work in Appalachia with the Glenmary Missionaries.
Father Alfred Janicke, 34, an enormously popular parish priest from St. Paul, Minnesota, had represented his archdiocese in the Minneapolis Urban Coalition.
Father James Harney, 28, who kept saying to the Court, “Don’t cut us up, Judge,” was an angular and inflammable Boston Irish curate.
Reverend Jon Higgenbotham of the Church of Scientology, 28, obese and bearded, the only defendant whose appearance bordered on the hippie style, had participated in the raid with particular elation, loudly singing “Ding Dong, the Witch is Dead” as he danced around the burning draft files.
Father Robert Cunnane, 35, a powerfully built, jovial Boston Irish priest with the remains of a brogue, had been provoked into joining the Milwaukee Fourteen by his rage at the six-year sentence imposed upon Philip Berrigan for the Baltimore Four action. (“I said to myself, wow, this country is really bad when a priest pours some blood on draft files and gets six years in prison, these courts are digging their own graves.”)
Father Lawrence Rosenbaugh, 34, a gentle, round-faced priest who had worked as a longshoreman on the Milwaukee docks, belonged to the Order of the Oblates of Mary Immaculate, a society which bans Commonweal, America, and Worship from its seminarians’ bookshelves as being subversive. Rosenbaugh, who joined the action “because Christianity wasn’t moving like a Movement should,” said he looked forward to prison life as being “just like seminary, with more time and freedom to read.”
Father Anthony Mullaney, 40, a tall, very handsome Benedictine monk with a Ph.D. in clinical psychology, a former teacher at Boston University, had been radicalized by two recent years of social work in the Roxbury section of Boston. He used formidably scholastic language. “Picketing and burning draft files are not discrete variables, they are a continuum of action.”
James Forest, 28, whose bushy mustache and steel-rimmed glasses gave him the air of a Victorian intellectual, was a prominent Catholic pacifist to whom Thomas Merton had dedicated his last book. Son of a Communist Party organizer, a convert to Catholicism, Forest had almost become a Benedictine monk, and had been founder and co-chairman, along with Philip Berrigan, of the Catholic Peace Fellowship.
Four of the twelve—Graf, Marvy, Forest, Ojile—were married. The wives sat calmly through the trial, admiring their husbands’ competence at the bar. “Jim has six ways of making any one point and he always chooses the best way,” Linda Forest would say.
Two members of the original fourteen had decided to retain counsel: Jerry Gardner, 26, a graduate student of mathematics at Marquette University; and Michael Cullen, 27, an Irish immigrant who had left a lucrative job selling insurance for Omaha Mutual to start a Catholic Worker house of hospitality in Milwaukee, and had become a hero of the city’s peace movement after a much-publicized ten-day protest fast in the Milwaukee cathedral.
The defendants, on good days, referred to their judge as “grandpa,” a kinder name than the Movement has given to any other man on the bench. A benign, gauche man in his sixties, he was officially called “Ozaukee County Judge Charles Larson.” His manner evoked some folksy early morning TV show like Captain Kangaroo, on which a fumbling jurist presides over a court of rebellious puppets. He was tall, mournful-faced, heavy-lidded, thin-lipped, cauliflower-eared, and his favorite word was “inflammatory.” He was the Wisconsin Commander of the American Legion, and, at the time of being offered his first judgeship twelve years ago, had “reluctantly and with a heavy heart” stopped his campaign for the Legion’s National Commandership to step up to the bench. Former prosecutor at the Brooklyn Navy Yard, father of Vietnam veterans, chairman of the Wisconsin Chapter of Crusade for Freedom, little acquainted with the history of the Vietnam war, Judge Larson was also a devout Roman Catholic.
The presence at the defendants’ table of five priests, to all appearances the safest kind—regular guys, jovial, ball-playing, Bingo-organizing Irish curates—must have added much to the grief and confusion of his small blue eyes. One could not help pitying this pious provincial for whom priests were replete with an authority and sacredness undistinguishable from that of policemen and National Guardsmen, and whose allegiances to God-and-country were suddenly sundered by having to judge the saviors of his soul. For Judge Larson was a loyal, soft-hearted, sentimental man, an ardent amateur poet who was fond of quoting couplets he had written in honor of girls’ weddings: “She is blessed with qualities rare,/ Statuesque, impeccably attired/ Always knowing when to wear/ That which makes her most admired.”
“These defendants are very intelligent, honest men,” Judge Larson said one morning in his chambers, “but look, this morning at five a.m. I was reading Newsweek, and it said in Newsweek that Ho-Chi-Minh…what’s his post up there in North Vietnam?” “President of the Republic,” someone suggested. “Thank you,” he continued, “it says in Newsweek that their President Ho-Chi-Minh has executed fifty thousand people and jailed another one hundred thousand for not agreeing with his way of doing things, and if we pull out of there it will be wholesale slaughter. Why don’t we hear a bit about that too in the courtroom?”
Yet he looked more grieved than annoyed, and one felt that he was not so much a war-lover as a man who devoutly followed any dictate of his state or church. “Wyzanski, Wyzanski,” he muttered distantly when he was asked what he thought of the recent Massachusetts decision. “Never heard of the man. Never heard of the ruling. Don’t see how any part of the Selective Service laws could be found unconstitutional.” And upon that he had walked into the courtroom to preside over the trial of twelve men who were pleading that they were innocent in committing burglary, arson, and theft upon property which they “reasonably believed to be illegal and unconstitutional”; that they had committed these acts “with the intent of saving lives,” at the biddance of “a moral law higher than that of any nation”; and that they had been bound to act by their religious consciences, which they defined as “the contact point between an individual and God.”
Early in the trial the defendants moved that the charges of arson and theft against them must be dropped, arguing that 1) market value, not replacement value as the State defined it, determined the value of stolen property and that 2) the State had failed to prove that the market value of the draft records was beyond one hundred dollars, the sum which distinguishes felony from misdemeanor. The prosecution’s witness against this argument was Major Lane, a crew-cut, perspiring Army officer who serves as Administrative Officer of the State Selective Service System in Madison. He testified that it had cost him seventeen dollars a day to stay in Milwaukee during the time he was busy reconstructing the burnt draft files, thus hiking the State’s replacement cost to several hundred dollars.
Father Mullaney: Seventeen dollars a day for room and board for Mr. Lane, that’s kind of staggering to my imagination. I don’t know why that should be against us. That it takes seventeen dollars a day.
James Forest: I am flabbergasted by the price that he spent for room and board. I want to know if this was the cheapest he could find.
Doug Marvy: We are all living now, and have been for quite some time, on one, two, three dollars a day.
The Court: Yes. Well, if you register in any of these Wisconsin hotels, the Schroeder Hotel or the Pfister, or Holiday Inn…seventeen dollars a day is not an exorbitant figure, to meet those costs.
Robert Graf: I can’t afford that.
The Court: Son, I’m merely answering an inquiry…concerning the cost which they thought was exorbitant.
Fred Ojile: The reason for the surprise is that most of us live very well on twenty or thirty dollars a month, and that we see money as very much the root of the evil in society….
The Court: All right, fellows, all right.
A few minutes later the defendants tried to confront the Major with the morality of their action, which triggered the Court’s futile, hourly ruling that no discussion of the Vietnam war should be allowed in the courtroom.
Robert Graf: Just a very simple question. Would you consider the value of property to be more important than the value of human life?
Mr. Samson: If it please the Court, I object to the question on the grounds that it is not material and it’s not relevant and it’s inflammatory.
The Court: And it is, inflammatory.
Mr. Samson: No question about it being inflammatory.
Robert Graf: I’m inflamed about the deaths.
The Court: I just advise you, you must not ask a question that is intended to inflame the jury on an issue that is entirely apart from the subject matter the witness is testifying to.
Robert Graf: I think that’s a point of view. To me the lives of my brothers in Vietnam is not apart from the Selective Service System.
The Court: None of us like to see this happen. It is most sad and unfortunate … but this is not the issue before the Court.
Robert Graf: It’s my issue, and that’s why I’m here in Court. Those lives are my issue.
The Court: You tell that to the jury, Mr. Graf, at the time you wish to argue.
And the judge, mild in manner but predictable in his ruling, denied the defense’s motion for dismissal, ruling that the State had established a prima facie case against the defendants and that they were guilty of destroying property whose replacement value was over $100. The prosecution rested its case with a flourish of evidence—screwdrivers, policemen, cleaning women, photographers, charred draft records, gasoline cans. It was an academic display, since the defendants in this unorthodox case had readily admitted to having committed the material acts of which they were accused and were asking for acquittal on moral and political grounds.
As the defendants’ testimonies began to unfold on the sixth day of the trial, it became clear that the defense’s first tactic was to invoke the so-called “defensive privilege”—statute 939.48 in the Wisconsin legal code—which states that actions ordinarily punishable under the criminal code may be considered privileged, i.e., non-criminal, if the action is taken with the “reasonable belief” that it may prevent bodily harm to another party. Claiming “privileged” action, the defendants argued that the events of September 24th were “efforts to forestall injury to third persons, third persons being drafted into a war of doubtful legality.”
They also pleaded that they had tried every legal recourse they could to stop the war, and that their act of civil disobedience “had the purpose not of disobeying the law, but of demonstrating its unconstitutional character.” Crucial in the defense’s argument, because it involved the admissibility of evidence, was its contention that in order to prove “reasonable belief” the defendants were entitled to offer as exhibits scholarly opinions contained in books, documents, and legal journals testifying to the illegality of the Vietnam war, and to the Christian teaching that the individual must follow his own conscience when his government’s conduct is of doubtful legality.
The offered exhibits—some three dozen in number and all rejected by the Court—ranged from the Congressional Record’s list of the war dead and Pope John’s encyclical “Pacem in Terris,” to Gordon Zahn’s book on the Catholic Church in Hitler’s Germany and the New Testament. Judge Larson overruled the prosecution, which had agreed to admit the New Testament as an exhibit, on the grounds that “to admit [the New Testament] into evidence may create substantial danger of undue prejudice or of misleading the jury.”
(“That’s beautiful,” Fred Ojile had yelled out.)
Judge Larson also objected to the defendants’ plea of “privileged action.” “Anybody who’s about to cross the street here, Juneau Avenue,” he said, “runs a chance of being run over…shall we stop them crossing the street for that reason?” He preferred not to distinguish between acts against persons and acts against property. “Mr. Forest,” he asked, “was John Wilkes Booth justified when, believing he was acting for the welfare of the Confederacy, he shot and killed Abraham Lincoln?” Forest, a disciple of Eric Gill and of Prince Kropotkin, was a brilliant high school drop-out who had had a multifold career as free-lance writer, editor of the Catholic Worker, draft counselor, college lecturer and artist. He showed talent and evident relish in his new career as a self-styled lawyer.
I would simply point out that, one: the only charges against us are property damage, damage to property, not to persons, and that, in fact, we were trying to prevent people from getting killed. So, the direction is opposite. I’m not saying that the jury should find us innocent. I’m simply hoping that the Court will allow us to try to demonstrate the reasonableness of our belief and to decide for themselves whether, in fact, it was reasonable. The jury must determine whether the threat was apparent…whether we could reasonably believe as we do. Therefore, all the evidence relevant to establishing either one of these points we believe must be admitted into evidence, so that the jury can decide these points…. The Court, in Weston Versus State 28 Wisconsin 2nd, 136 of 1964, agrees with this analysis. The Court here allowed evidence to be introduced under 939.8, self-defense, and then, gave an instruction to the jury explaining that theory….
It was an admirable argument. But after four hours the prosecution objected that the defense still had failed to prove that Selective Service offices constituted an “imminent” threat to anyone’s life. Judge Larson upheld the objection, cleared his throat ominously, and ruled that section 939.48 of the Wisconsin penal code regarding privilege was “not applicable in this case.”
“Jesus Christ,” Reverend Higgen-botham blurted out.
Larson looked sadly at the defendant and said: “Well now, Reverend Higgenbotham, was that proper?” The judge let the impertinence pass without a threat of contempt, and he continued to do so until the end of the trial:
The Court: I shall not permit any testimony about the fairness of the draft or the fact that it discriminates against some, and as far as the Vietnam war is moral or anything else, it is not relevant here.
Fred Ojile: Oh for God’s sake, don’t give me that. What do you think we’re playing, tiddlywinks?
The Court: Who do you think you are talking to?
The Milwaukee defendants, earlier, had grandly subpoenaed General Hershey and the auxiliary bishop of St. Paul, Minnesota as defense witnesses. Declaring indigency (Reverend Higgenbotham testified that his sole worldly possession was an automobile with a market value of fifty-five dollars on which he still had two hundred dollars to pay), the twelve had asked that Milwaukee County pay for the witnesses’ transportation costs. This request went unfulfilled, and the accused used their defense funds to fly three expert witnesses from the East Coast to testify on the “reasonableness” of their views on the war and on civil disobedience. The three—Howard Zinn, John Fried, and Marvin Gettleman—seemed to make Judge Larson highly uncomfortable. Howard Zinn’s hour and a half on the witness stand was Grand Guignol. The prosecution objected at every few words that the defendants’ cross-examination was immaterial or that Dr. Zinn’s opinions were irrelevant; the judge sustained the objections, pounding the gavel like a Guignol policeman batting down the hobo when he tries to rise. Nevertheless the courtroom audience burst into frenzied applause at Zinn’s truncated testimony.
Howard Zinn: The tradition of civil disobedience goes as far back as Thomas Jefferson and it comes right up to today…people distinguished in the field of law and philosophy recognize that there’s a vast difference between a person who commits an ordinary crime and a person who commits an act which technically is a crime, but which in essence is a social act designed to make a statement….
[Wild clapping from the audience, a few shouts.]
Court: I must stop you. There was an objection to that…did someone cry out back there?
Father Mullaney: The whole American people are crying out, Your Honor.
A little later:
Doug Marvy: Do you as a historian see any connection between the Declaration of Independence and the act which has brought us twelve defendants here today?
Zinn: Yes, I….
Mr. Samson: I object to that…Mr. Marvy knows that these questions are immaterial, and that he is just asking them to inflame the jury.
Court: Objection sustained.
Marvy: I find that kind of a disgusting comment that [the prosecution] is able to read my mind. I’m not asking these questions because I think they’re immaterial…they are the most material things I can think of. Burglary, arson and theft are immaterial. The Court has ruled that screwdrivers are relevant and dead bodies aren’t. What the hell!
Doug Marvy’s voice was loud and threatening, but the Court preferred to threaten Zinn, rather than Marvy. (“I’m going to have you arrested and have you put in the place where persons are placed for contempt of court.”) Zinn was dismissed from the stand and took the next plane back to New York. “This is like being stoned to death with marshmallows,” cracked Father Cunnane, who spent idle moments in court reading “The Gospel According to Peanuts.” “It’s very soft, and it takes very long.”
The second star witness, John Fried, an imposing, silver-haired Vienneseborn scholar, had been chief consultant to the American judges at the Nuremberg trials, United Nations Adviser on International Law to the government of Nepal, and adviser on international law at the Pentagon. The defendants stated that they had called Fried to testify on “a hierarchy of law in the international world order.” The prosecution and the Court objected that testimony drawn from such documents as the UN Charter and the Nuremberg Principles concerning the United States’ violation of international law would be irrelevant to charges of burglary, arson, and theft. Fred Ojile replied that the defense’s purposes in calling expert witnesses was to show it had “reasonable belief” in the war’s illegality.
“That has been said over and over again, Mr. Ojile,” Judge Larson said in a tired voice.
“Well it will continue to be said until it’s understood by the Court,” Ojile answered grandly, stalking, panther-like and barefoot, from the defendants’ table to the water fountain. “I consider my state of mind, at the time of the action, very much related to Nuremberg principles, and I would like the witness to have the opportunity to explain that, and it’s not being allowed. At this rate, you know, it’s a travesty of justice.”
“That’s your opinion,” said Judge Larson.
“I rule that that’s so,” Fred Ojile answered loftily.
For once the defendants’ gambit worked. Whatever the reason—their unpredictable and agile tactics of self-defense, perhaps some growing anguish that seemed to gnaw at the prosecutors and a certain grandeur or glamor that the witness injected into this provincial courtroom—Fried’s testimony plunged more deeply into a discussion of the morality of the war than any yet tolerated at a resistance trial.
Fried: I say with a very, very grave heart and after very, very careful study that the U.S. military intervention in Vietnam does violate essential and basic provisions of the United Nations character, and this is not an isolated opinion of myself.
Brother O’Leary: What recourse does a citizen have…when his country pursues war in violation of international treaties which the citizen holds have been violated?
(“No objection,” said District Attorney Harold Jackson; “if he can answer that, God bless him.”)
Fried: The International Tribunal at Nuremberg, at which the United States was represented, stated that it is the moral choice of the individual if he feels that for him obedience to the higher order—to the world order—is more important,…then he has to take the moral choice and do the things which he considers morally proper. That is the great ethical and moral method of Nuremberg.
Brother O’Leary: One who breaks a law in the State of Wisconsin might well be called an arsonist or just a common criminal. One who conspires with his government to commit a crime in violation of the United Nations, I suppose, would be called a war criminal. In the perspective on international law, which would be the worse kind of criminal?
Fried: United Nations Charter does not give the rules for conduct during war time. There are other treaties, like the Hague Treaties of 1907 long preceding the Charters of the Geneva Conventions of 1929 and 1949. In the hierarchy of law, international world order as stipulated in treaties…is the highest. If, then, a dichotomy develops between international law and domestic law, the dilemma for the government and for the individual is great …”
Brother O’Leary: No more questions.
The defendants and the spectators were still. James Forest, whose conversion to Catholicism had been aided by seeing a shaft of sunlight filtering into the east window of a church at evening, looked as if he were repeating that experience. Fried’s testimony on the illegality of the war was something quite new in the brief history of war protesters’ trials, much stronger, for example, than any allowed in the Spock-Coffin trial. For a moment the courtroom had become the forum which the communities of witness desired it to be! And the incompetence of the courts to deal with any mature form of political conscience had been briefly exposed.
This delicate legal surgery had been performed by Brother Basil O’Leary, the most traditional of the defendants, a conservative economist, a strong believer in market economy. There was an amiable pedantry about this wry, slight, elegant man who wrote on natural law for arcane theological journals. Earlier the prosecution had asked, “Did you just say to yourself, ‘Okay, Basil, you can go in there today?’ ” “Well Basil doesn’t operate that way,” Brother O’Leary had answered. “Basil operates more in a reflective way in which he likes to know all the relevant factors to a situation. Basil weighs all the consequences of an act and then decides.”
By the end of John Fried’s unprecedented testimony, at mid-trial, both the Court and the State were visibly troubled by the unorthodox course of the twelve’s self-defense. The major advantages of lay advocacy for the accused in a Resistance case, and its drawbacks for the prosecution, can be summarized as follows:
1) Latitude of testimony: Self-defense exempts the accused from the traditional rules of evidence, procedure, and decorum which are enforced upon professionals. To moralize on Vietnam and expose political issues as impetuously as the Milwaukee twelve did, a professional lawyer would risk not only contempt of court, but disbarment.
2) Harass the D.A.’s: Defense counsels provide an emotional buffer zone between the accused and the system. An increasing number of State and Federal jurists are turning against the war. The absence of counsel confronts them directly with their own political allegiances and can lead to greater leniency.
3) Length of testimony: Each defendant has the right to confront the jury’s emotions with an opening and a closing statement—twenty-four in all in the Milwaukee trial—instead of the two statements allowed to a lawyer. The implications of lay advocacy for mass arrests are startling. If fifty or one hundred people arrested together for civil disobedience decided to defend themselves, a court would have the choice between trying each of them separately, or opening itself to the marathon of one or two hundred opening and closing statements.
4) The D.A.’s are made to look like villains: Self-styled lawyers like the Milwaukee twelve, with more ignorance than malice, will pursue lines of argument which have previously been ruled out by the Court. When the D.A. shuts off testimony, it looks like a blatant abuse of power.
“I’m constantly having to argue admissibility of evidence in front of the jury,” District Attorney Allen Samson complained at the twelve’s trial, “which makes me look as if I’m holding back all kinds of information which the jury is entitled to hear…. Back at the Safety Building where I have my office I’m called a radical and a commie. Here in the courtroom the kids call me a Nazi liberal, a capitalist pig, the way my kid brother does. I’m caught in the worst kind of liberal bag, being fired at from both sides.”
The arguments over admissibility of evidence also bothered Judge Larson the most. Because of the Milwaukee Twelve’s ignorance about how much the jury is allowed to hear, the jurors had been ordered in and out of court throughout the trial. They were a dour, impassive, perplexed bunch—eight men, four women, one of them black, eight of them Catholics. Only one detail in their composition, the fashionably long sideburns of a computer analyst, had given the defense any hope for a hung jury, and their colorlessness made one wonder why the defense objected so frantically to their recurring absences. The dispute over the jury’s absence came to a head the day after Fried’s testimony, when Marvin Gettleman, an expert on the history of the Vietnam war, was called by Doug Marvy to the witness stand. Upon Marvy’s first question to Gettleman—whether, on the basis of his expert knowledge, he was aware of the United States ever being attacked by North Vietnam—Judge Larson again dismissed the jury and asked Marvy what he intended to prove through this witness.
Marvy: I have no reason whatsoever to speak outside the presence of the jury on any matter whatsoever…. I am not interested in speaking to the Court.
The Court: It makes it difficult to proceed.
Marvy: Yes, it does, you make it difficult to proceed.
The Court: I’m merely following the procedure…I am employed in this and other courts in Wisconsin….
Marvy: I’ll speak when the jury is in the room.
The judge’s amazing patience was eroding. He struck at the defendants’ pride in their capacities as self-styled barristers. “Let the record show,” he said plaintively, “that while these defendants are in court without counsel, time and time again they have cited law which is very pertinent and relevant, law which requires a learned legal mind to ferret out…the Court therefore wants the record to show that although it does not appear so in the courtroom, that they are receiving legal assistance and considerable….” The defendants did not let him finish.
“You’re despicable!” Reverend Higgenbotham shouted.
“I did that research,” Ojile yelled, waving his arms like a windmill. “I had a year of law school, and I did every bit of research.”
“Let him lie,” Robert Graf said jadedly.
The defendants then went into a deafmute pantomime, refusing to speak in the absence of the jury. Some sitting, others standing, pencils poised in midair, books in hand, they stayed utterly motionless like statues. “Father Alfred Lawrence Janicke, will you state what you intend to prove through the testimony of this witness?” No response. “Do you refuse to answer, Father?” No response. “Let the record show,” the judge droned, “that Father is looking straight at the judge of this Court, that he is within easy hearing distance, and has refused to answer both questions….
It was the tensest day of the trial. The storm reached its peak after Father Rosenbaugh elaborated on how the Vietnam war was crippling the nation’s war on poverty. The Court interrupted the testimony as irrelevant. Samson, in an increasingly frequent moment of leniency, asked the Court to take notice of that testimony, even though it was immaterial, because “everyone knows that the war is taking money away from urban planning.” Judge Larson replied that the Court should shut off such testimony because it “would be giving dignity to their position, which I don’t think should be done.”
“How can you be a judge in this courtroom and say a thing like that?” James Forest cried, and walked threateningly toward the well of the courtroom.
“The Court had best explain what it means is that it does not want to give dignity to an irrelevant defense.”
“I don’t think you should explain,” Doug Marvy said, “I think you should resign.”
Gettleman was dismissed. He had traveled from New York to Milwaukee without being allowed to answer a question. The defendants henceforward had to rely on their extraordinary moral passion.
Robert Graf: I entered that building with much of the same intention with which I’d entered the Society of Jesus, in order to be of service in some way to other men….
Father Mullaney: There were three states of mind in particular which I think were important on September 24th. The first of these is a really felt need to be responsible. And there are three things I think that define a monk that are connected to responsibility:
The first of these is being a Benedictine with 1400 years of tradition, the motto of the order having always been peace. The second is that the vows of the monk can be summed up as a single vow to set up the conditions whereby man can be fully human….
The third characteristic of the monastic life that has defined it down through the ages is that the monk is supposed to be a sign of hope, he is supposed to be a sign that history can be moved in the direction laid down in the Gospels, and therefore a sign that we are responsible for history and the direction that history takes.
The Mullaney testimony went on some three hours and was composed in strict Thomist style, I-a, I-b, I-c. It was delivered in a luminous, booming voice into a suddenly still courtroom.
The second frame of mind that was very important that day was the anger that stems from a correct assessment of a present moment in history. My anger comes out of two places, one is the college scene, and the second is the urban scene. My anger on September 24th was very definitely based on first-hand evidence that I had that the draft was doing violence to the consciences of youg men, that it was doing real psychological damage to young men.
The second place that was very important in my life, in terms of my intent on September 24th, was the fact that two years ago I was granted a leave from St. Anselm’s Abbey to go to the city, an act, which, historically, is very common within the history of monasticism in time of social crisis. And I went to that section of Boston that is known as Roxbury, that section of the city where poverty is perhaps at its worst. At the abbey, with my books, I could and did build up an elaborate system of defenses that kept me from responding to the enormous injustices of our society. In Roxbury, your defenses are shattered the day you arrive….
The Court conducted a half-hour dispute about the “irrelevance” of poverty in Roxbury, Massachusetts. The clinical psychologist picked up at point three.
The third state of mind that I think was very important in my own case was what can only be described as fear…of a very deep and very pervasive polarization that is going on in the United States; by polarization I mean that we are a nation that’s very, very seriously divided…black-white, rich-poor, young-old, a pervasive and very, very deep polarization.
Now there are four reasons which give rise to this particular fear that grew out of polarization: Number one, the ineffectiveness of speech in American life. Secondly, the growing gap between the powerful and the powerless. Also, the growing priority of things over people. And finally, the distorted priorities—the Vietnam war versus the City…
And so, on September 24th, I participated in the burning of draft records as my attempt to say something about the polarization, which, if it is not checked, is going to lead to great disaster in this nation. I participated in what I considered a very beautiful liturgy, and this is the work of the monk….
The tall, grave priest continued, I-a-1, I-a-2….
Now through my participation, I intended the following:
Firstly, I intended to show in a society where speech is in such danger of being stifled, that man as public speaker is still alive.
Secondly, I intended to show in a society where the inadequacies of legal channels for redressing injustices is apparent, that civil disobedience is part of due process in that society, I acted to affirm that law in a free society compels obedience only when it furthers the justice that enables men to lead a more fully human life.
Third, I intended to show in a society whose structures are becoming so rigid, whose leaders are so intransigent, that social crises are not being confronted in a way proportionate to their magnitude, that organized controlled non-violent civil disobedience is still capable of effecting change in policy.
Fourthly, in a society where so many leaders act as though law and order are independent of justice, I acted to affirm my respect for law.
Fifthly, I intended to show, in a society where participation in critical decisions which affect one’s life and death are becoming less and less, that there must be an increase in one’s power to make what ought to be become a reality.
Sixthly, I intended to affirm that I was equally concerned as those who are in prison today, for reasons of conscience….
“Father,” Judge Larson interrupted very gently. Mullaney was the defendant whose grave and impeccable manner had most endeared him to the Court and the prosecution. “Father, are you still giving reasons why you participated on the 24th of September?”
Indeed Father Mullaney had a seventh reason to add to his Summa. It was a 1500-word press release which the Milwaukee Fourteen had handed to reporters at the time of their action. Notwithstanding some objections from the Court that Father was giving “an oration on social matters” he was allowed to read through this entire document.
“That’s the end of my statement,” Father Mullaney said modestly after three hours on the stand.
“Tony, Reverend Doctor,” Fred Ojile began his cross-examination, “when does the question of who determines destruction of property become pertinent in the decision-making process?”
“The decision to destroy property has to be confronted whenever the person has reasonably concluded that there is no longer any relationship between that property and the enhancement of those values to which he is committed, through his membership in various comunities such as the American community, the Family of Nations, and so forth. In other words, when property no longer enhances the dignity of the person. Property is an instrument, it does not have substantial value, it has instrumental value.”
(A definition of property straight out of St. Thomas Aquinas.)
At the beginning of the trial, Harold Jackson, Jr., the assistant District Attorney, had described his emotions toward the defendants as “one of intense anger and hatred, because I’m Catholic and violently against the war, and black, and their actions seem to polarize all the sentiments against us liberals.” But the defendants’ testimonies, however often he interrupted them, seemed to affect him even more deeply than they seemed to affect Samson. “I’m more torn by this case than at the beginning,” he admitted at mid-trial; “I see nothing but honesty and intelligence here, depth of perception and integrity, an atmosphere that I can only describe as very loving.”
Later, toward the end of the trial, after Mullaney had been speaking with particular moral passion, Jackson obviously upset, asked that the jury be dismissed from the room.
“The state is very much opposed to the position it finds itself in,” he said, “because both counsels for the State do not think that the war in Vietnam is irrelevant in and of itself. We find it to be irrelevant in terms of the act for which we are prosecuting. And we request that this Court instruct the jury as to the legal reasons why certain evidence is not admissible. We request that it not be done in terms of the customary lawyer’s nomenclature…it is impossible for the State represented by human beings to sit here any longer having it said that they believe in and of themselves that poverty and the war are irrelevant.”
His voice broke. “I just can’t take it,” he said.
But the defendants were merciless. “He’s put out,” Doug Marvy said, “and I think that’s just plain tough. We tried to put into evidence a list of war deaths, and the reason that this list is here is because of individuals who follow rules at the expense of individuals’ lives, and I think it’s tough if it’s really hard on him. He says he doesn’t know what to do, and I see four doors in this room and that’s a perfectly reasonable choice for him. He can quit any time.”
Two weeks later, after the State trial was over, Harold Jackson left his district attorney’s job to work exclusively with black civil rights cases. “Negroes in this country are being sent to jail like Jews to Auschwitz,” he said in his office on his last day there. “There’s not enough legal talent around to help them….
“That trial tore me up,” he said. “I’m still not sure what they accomplished politically. But whatever religion is, they’re where it’s at…. I suppose the essence of religiousness is to break rules at the proper time…. What the hell do you expect when a great priest like Mullaney leaves the monastery after nineteen years and sees what life is like in Roxbury, Massachusetts?”
On May 26th, the eleventh and last day of the trial, Judge Larson charged the jury, using almost the same words with which the judge of a Federal Court in Baltimore, seven months previously, had charged the jurors of the Catonsville Nine. “The law does not recognize political, religious or moral convictions, or some higher law, as justification for the commission of a crime, no matter how good the motive may be…people who believe that the Vietnam war is illegal or unconstitutional or morally wrong have the right to protest in various ways….”
The defendants went out for beer. There was a glimmer of hope for a hung jury in the sideburned computer analyst, and in two women jurors who had wept during Forest’s and Mullaney’s closing statements. But the twelve were soon recalled. The jury had deliberated for only seventy minutes before returning its verdict, charge by charge, defendant by defendant, thirty-six times in a row, as guilty of arson, burglary, and theft.
There was a half-minute of stunned silence in the courtroom. Judge Larson began to sum up the jury’s findings. Then, as if ignited by a slow fuse, pandemonium erupted in the courtroom. It was set off by a young spectator in the back row who yelled out, “If they are guilty I am too, from this day forward I am a draft resister!”
“We thank you, men and women of the jury,” shouted Sister Joanna Malone of the D.C. Nine raiders, a nun who specialized in liturgical dancing, “for finding Jesus Christ guilty again!”
The nun’s voice set off a burst of rhythmical applause by the two hundred people wedged into the courtroom, a chorus of sobbing and weeping, a melee of clenched fists and V signs. Dozens of spectators rose, linked arms throughout the courtroom, and swayed, singing “We Shall Overcome.” The jurors tried to pick their way out of the courtroom through the milling, swaying throng. “Clear the Court, I’ve got to have more sheriffs,” Judge Larson shouted, helplessly standing behind the bench. Eight frantic bailiffs started to drag limp spectators out of the courtroom. “Good God,” the judge cried again, “I’ve got to have more policemen!” As the courtroom began to clear, Judge Larson feebly attempted to restore decorum by repeating the jury’s findings. As he called out their names, the defendants refused to rise, and instead shouted a last protest to the Court. “I pity the nation that fears its young!” Father Mullaney blasted out.
Judge Larson proceeded to cite Fred Ojile, Doug Marvy, and Reverend Higgenbotham for contempt of court during the proceedings of the trial, the latter for having “uttered the name of the Son of God.” “You’ve lost your authority, Judge,” Father Harney snapped as the judge sentenced the three to ten extra days in jail for contempt, whereupon Judge Larson announced the same fines for Harney’s contempt. “Thanks a lot,” Harney said, “and good luck to you, too.”
In the hall outside the courtroom one hundred persons still milled about. Three young men burned their draft cards, and the supporters of the Milwaukee twelve made the sign of the cross on their foreheads with the remaining ashes. The trial ended, as it had proceded, in a bizarre mixture of burlesque and religious fervor.
The Milwaukee twelve were free on bail until June 6th, when they returned to Judge Larson’s court for sentencing. Judge Larson gave the men two years—a benign sentence compared to the six years given Philip Berrigan the previous spring, the three years given to most members of the Catonsville Nine, the four and five years still being given to men refusing induction. As the Judge began to sentence Father Mullaney, he choked on that good Irish name and fumbled among his black robes for a handkerchief. He wept for a few seconds, and then in a timorous voice resumed sentencing the monk, who stood before him triumphantly, dressed in clerical black, his arms folded as if he were the executioner.
This first attempt at legal self-defense raised the political issues as no previous resistance trial had done. It had tortured the consciences of a few in power. The defendants had been let off lightly. The twelve could be paroled, after all, in a mere fourteen months. Movement lawyers began to write manuals for lay advocacy.
During the second week of the Milwaukee twelve’s trial, three more acts of destruction and instruction took place. On May 20th, in Los Angeles, three young men removed and burned several hundred I-A draft files from a downtown induction center. They were all residents of Peace House in Pasadena, a community of draft resisters that had taken sanctuary at a local Quaker meeting house. The Quakers were definitely getting into the act. One of them, Walter Skinner, a former secretary of the American Friends Service Committee, participated in the raid a few days before he was scheduled to be sentenced for refusing induction. “We destroy draft records,” so read the statement of the “Pasadena Three,” as the group called itself, “because we wish to make a statement clear and precise, to the best of our abilities, that we shall continue to carry on non-violent resistance to this government… We urge others to responsible action.”
At seven the following morning, three young men, Michael Bransome, eighteen, Leslie Bayless, twenty-two, and his seventeen-year-old brother John Bayless, entered the Selective Service Office at Silver Spring, Maryland, and mutilated part of its records with a mixed medium of black paint and blood. “We accuse you, the American government,” the Silver Spring Three’s statement read, “of mass murder in Vietnam, of economic oppression in underdeveloped nations as well as in our own cities, of the creation of a life-style based on the priority of property over lives….” Leslie Bayless, like his Pasadena colleague, was about to be sentenced to five years in prison for refusing induction. The Bayless boys’ father, a Pentagon official, was unavailable for comment.
Five days later, at five a.m. on May 25th, thirteen men and two women entered a draft board in Chicago’s South Side, grabbed an estimated forty thousand draft records out of the filing cabinets, and celebrated Pentecost by burning them in a nearby alley. The group included two priests—a Carmelite monk and a curate from Father Groppi’s Milwaukee parish; a staff member of the American Friends Service Committee’s Chicago office; a twenty-three-year-old girl truckdriver; and two men, Charles Muse and John Phillips, who are the seasonal heroes of the Ultra Resistance for their sheer persistence in choosing to live in jail.
Twenty-year-old Charles Muse left Allenwood prison last December and had been discharged from parole supervision only eighteen hours before he took part in the Chicago Fifteen’s draft board raid in May. “I feel guilty about having it so good,” he told a friend a few days before the action. “It’s not really so different out here from in there.” As for twenty-two-year-old John Phillips, he had refused to leave jail when his term was up. He had been rolled out of Allenwood in a wheelchair, and had gone home to Boston to found an organization named the Prisoners’ Information and Support Service, called PISS for short. Its mottos are “Void where Prohibited,” and “Words are Shit.” In John Phillips’s style, the draft board witnesses have recaptured some of the scatological splendor of their origins.
The insouciance of Phillips and Muse are, at the moment, characteristic of the communities of witness. The Chicago Fifteen’s loot—40,000 draft files—was the biggest to date. Yet the group had had only two briefing sessions before their foray. “We brought them out in pillow cases, in potato sacks,” Margaret Katroscik of the Fifteen describes it, “in shopping bags, in duffle bags, oh, it was gorgeous.”
Another member of the Fifteen, Charles Fullencampf of Milwaukee, who had been reclassified six times in six months by his draft board, says that the process of going through C.O. applications was much more painful than his decision to join in the Chicago action. “We had drunk and celebrated the night before most joyfully,” he reports. “We all slept in a pad a few floors below the draft board. Everyone was so relaxed, I got up to go to the john a few hours before the action was scheduled to go and I heard most of the guys snoring, fast asleep.”
The attitudes of this new vintage of raiders are more cynical than those of the witness movement’s pioneers. As the Ultra-Resistance grows younger and more secular, it expresses increasing frustrations with the narrowness of its audience. However brilliant the trials of the Catonsville Nine and the Milwaukee Twelve, they failed to produce the forum which the protesters had hoped to obtain. The trials seem like chamber music played to the intimate audience of the peace community. The acts themselves are felt to be symbolic and not political enough. There is a growing anguish among the young about the obscurity of the witness they will offer.
The leaders of their movement, the older, more established and more eloquent men like the Berrigans, O’Leary, Forest, will continue to expound their mystique of protest in the religious and Left press. But the jail terms of the Chicago Fifteen, the Pasadena Three, the Silver Spring Three will have little educational impact. Who ever hears about the Boston Two, Suzi Williams and Frank Femia? They were denied bail at their first arraignment, and have already been in jail for over a year. It is with people like them in mind that the Ultra-Resistance is starting to question its basic premise of witnessing in jail. It is debating whether the “stand-around” actions for which they will surely be arrested are really preferable to the more destructive possibilities of anonymous hit-and-run sabotage. “Is it going to be a stand-around or a hit-and-run?” is the new stock question.
In July a group of five women calling themselves Women Against Daddy Warbucks carried out what seemed to be a combination of the two styles of action—a hit-and-run at the central draft board in Manhattan followed a day later by a playful stand-around in Rockefeller Center Plaza. In August the tactics became more elaborate. Draft boards were ransacked during the night, first in the Bronx (where 75,000 files were upset) and then in Queens, where a note was left saying that those responsible would soon identify themselves. A week later, on August 21st, eight protesters, two of them Jesuits, called a press conference at the Overseas Press Club and introduced themselves as the New York Eight who had made the raids to “underscore the horror of the military system that drafts Americans that kill and die.”
Members of the New York Eight also delivered manila envelopes filled with mutilated draft records to the chairmen of the boards of W. R. Grace and Company, Anaconda, I.T.T., and Standard Oil of New Jersey to “regale them with complicity,” as a friend of the group put it. The corporations sent the draft files back to federal authorities with extraordinary speed. The New York Eight stressed the fact that six of them are Irish-Americans. In fact, the Ultra-Resistance, since the Berrigans’ early work, has been predominantly Irish and had a streak of the I.R.A. in the viscerality of its emotions and its tactics. “We liken the situation in this country to that of Northern Ireland,” the New York Eight said in their press statement, “where civil rights are not respected and where violence is considered an alternative to respect for human rights.” The group had a three-hour meeting with Bernadette Devlin on the second day after her arrival in New York. So far none of the Eight has been prosecuted; whether they are or not, it seems likely that their way of doing things will recur often during the coming months.
However, many young purists still hold out for the original pristine stand-around. “There is no point to running,” John Phillips writes in his PISS newsletter. “Repression is certain; if depersonalized, repression will be general…. We are demythologizers, in running we maintain the myths…. Do your thing but run means not doing your thing, unless your thing is running….”
If, as others predict, the hard core of the Movement moves away from the moral violence of witness actions to the physical violence of sabotage, it will retard the violence of the government but it will not expose it so well. Its concern for destroying property without harming persons—so far highly solicitous—will be harder to control. It will lose its moral force and its dimension of hope. The witness movement has been in the highest tradition of civil disobedience, which is based on the hope that the system can be changed through non-violent means, and which considers jail as a necessary measure to prove a moral point.
Actions such as those of the Milwaukee Fourteen’s have been a witness to hope. The hit-and-run actions will be a witness to despair. And whatever token moves are taken by the Nixon Administration to deescalate the Vietnam fighting, the most terrible toll taken on this country by this insane war is precisely the loss of hope, the sense that not only legal means but also the process of non-violent civil disobedience have been tried and left wanting in reforming various areas of injustice.
Resisters feel that the legal system is much at fault. The courts’ predictable unwillingness to let themselves be used as forums for the airing of anti-war views, the judges’ natural reluctance to inject issues of political morality into their charges to juries, the selected conservatism of the jurying classes, have helped to inject a mood of hopelessness into the most utopian faction of the Movement. “If you decide that the only issue in this courtroom is whether we intended to take and burn draft records,” James Forest had told the jury in his closing statement, “you will make non-violence less likely and more difficult than ever.”
The Federal trial of the Milwaukee twelve which began on June 9th, three days after the State sentencing, was brief, abortive, and totally unexpected in its results. The charges were destroying government property and interfering with the working of the Selective Service System. After a tedious voirdire of two and a half days in which he cross-examined 141 prospective jurors—mostly hostile to the defendants—Federal District Judge Myron Gordon dismissed the government charges against the twelve on grounds that “prejudicial pre-trial publicity” caused by modern press media had made a fair trial impossible. The decision was said to have no precedent. Other court rulings involving news coverage of criminal cases, such as the Sam Sheppard case, had never resulted in dismissal of charges, but in reversal of conviction followed by retrial. The Federal Court’s decision—favorable though it seemed on the surface—had ominous implications for the twelve men. The government immediately filed an appeal. If the twelve are tried and convicted in a Federal Court in six or eight months, as they are apt to be, there will be virtually no chance of their Federal sentences being served concurrently with their State sentences, as has been usual in civil disobedience cases. Judge Gordon’s ruling is predicted to add six or eight months to their stay in jail.
The fate of the Milwaukee twelve seems to have become enmeshed in local Wisconsin politics. Judge Gordon, a dour Harvard Law School graduate who would have run a much tighter trial than Judge Larson, has been fighting a political vendetta with the Milwaukee press for several years. He is known to be a close friend of the city’s mayor, Henry Maier, who had been instrumental in getting him appointed to the Federal bench. When the liberal Milwaukee Journal in 1967 criticized the Mayor’s stand on civil rights as being timid, Judge Gordon backed the mayor. He accused the Journal of running a monopoly press, and was attacked in turn by the paper. By dismissing charges against the war protesters on the grounds that the local press had made a fair trial impossible, Judge Gordon may have turned conservative elements in the city against his acknowledged enemy. By such vendettas are the lengths of men’s jail terms frequently dictated.
On the afternoon after the last day of the government trial, the wives of James Forest, Doug Marvy and Robert Graf drove to Waupun State Penitentiary, an hour north of Milwaukee, to make their first visits to their husbands. “We drove through miles of Wisconsin farmland,” Linda Forest told me, “and arrived at a place which looked very much like Maria Lach, very monastic—a wall some fifteen feet high, four blocks long, broken up by wrought iron arches. When they see you coming there’s a large humming and snapping sound coming from a watch tower, which issues a loud report when the gate swings open. You walk to the guard house across a large stretch of grass—there’s a lot of grass everywhere. We were cordially received by the guards, who took us to the sergeant. Everybody was polite to us, they kept saying ‘M’am, M’am.’
“The sergeant accompanied us through what looked like a series of cloisters, one building enclosed inside the other, past the chapel enclosure, the gymnasium enclosure, past a first set of dorms, you’re always walking on very soft grass. Prisoners were hanging out of windows, some windows had boxes of geraniums on them. We made the V sign at them and they flashed it back. The sergeant ushered us into a very neat building, the architecture was very clean, very modern. The guard on duty there was a Robert Young type with a pipe in his hand, extra friendly. ‘Linda,’ he said, ‘you have two hours of visiting time a month, you can have them both at once if you want.’ Finally he ushered us into the reception room, it was like a seminary, or a university. There were lots of century plants around, smart brown curtains, Danish-type modern chairs scattered around modern coffee tables. On each coffee table there was a plastic-coated slip of paper which said the following:
We have made a conscientious effort to create as much of a living room atmosphere as possible for you and your relatives. We hope that you won’t embarrass us by extreme displays of any sort. Visitors are allowed to embrace and kiss prisoners before and after each visit.
“Jim looked very well. He looked about nineteen years old with his head clean-shaven, and without his mustache. He says the food is very good, cafeteria-style, they are forced to eat everything on their plate. For the first few days he’s not allowed any books except his Bible and his breviary. He’s been saying his breviary every hour, he’s been saying his hours. We sat and talked about our marriage and about how we would grow through this, how it might be the best thing for our marriage. When I hugged Jim he smelled so good, a smell of clean plain soap and of fresh clean linen, he smelled like a nun, or like a child when you put him to bed.”
September 25, 1969
in which a Massachusetts Federal District Court held that the present Selective Service System unconstitutionally discriminates against conscientious objectors who do not adhere to an institutionalized religion. ↩