In Harrisburg, Pennsylvania, last February and March, Father Philip Berrigan, Sister Elizabeth McAlister, and five other antiwar activists stood trial on charges of conspiring to kidnap Henry Kissinger, blow up heating ducts in Washington, DC, and vandalize Selective Service boards. The government’s case against this predominantly Catholic group relied almost exclusively on conversations reported by the FBI informer Boyd Douglas, a convict with an extraordinary record of lying, violence, and evasion; and on the correspondence exchanged at Lewisburg prison between Elizabeth McAlister and Philip. Berrigan which Boyd Douglas had passed on to the FBI.
Douglas was serving three concurrent five-year sentences for forgery and armed assault and had only been released from maximum to medium security in the spring of 1969. Six months later, under mysterious circumstances which lead me to believe that Douglas had been an informer for much longer than the government admitted in court, he was the only member of Lewisburg prison’s 1,400-man population to be allowed into the student release program at nearby Bucknell University.
Many perplexing questions about the government’s infiltration of the Catholic left and of Bucknell remained unanswered at the trial’s end, which were further obscured by the defense’s surprising decision to rest without calling any witnesses. One of the most troubling of these questions is how Philip Berrigan, his friends, and many other persons outside Lewisburg prison came to trust Boyd Douglas so blindly. I see this trust as a phenomenon of the 1960s, rising from that sympathy for the dispossessed that has marked the conscience of American liberals since the nascence of the civil rights movement.
The compassion of liberals for the oppressed, like other emotions that flow out of guilt, can easily degenerate into sentimentalism. With a denial of free will that is ironically Calvinistic, Catholic leftists as well as others have tended to see all criminals as helpless victims whose actions are irreversibly conditioned by the nature of the American environment, and therefore beyond moral judgment. The apotheosis of the dispossessed that characterized the 1960s—and the concurrent fatalism that puts all blame on the society—has taken a particularly irrational turn when prisoners are in question. One hears the slogan “all prisoners are political prisoners,” accompanied by the axiom that Charles Manson, Sirhan B. Sirhan, and Lee Harvey Oswald have the same moral and political status as Philip Berrigan because they are equally “oppressed.”
This peculiarly American state of mind helps to explain why a student-convict like Boyd Douglas, a prisoner given a suspicious degree of freedom, who perpetually wore dark glasses and often drank and talked with the Bucknell crowd until 10 PM before returning to his cell, a man recollected as having no particular intelligence or wit, and frequently compared to “an Appalachian trying to be hip,” could have been taken into confidence by a motley group of students, teachers, activists, and priests. To them Douglas readily impersonated the fervent Movement convert with the same panache with which he had previously conned and defrauded authorities in Reno, Acapulco, and Miami’s Fountainebleau Hotel.
Planting its informer among radical activists and tenderhearted liberals who tended to commiserate with all convicts, the government, in effect, proffered to Boyd Douglas an unlimited bank account of compassion to draw upon. The climate of confidence surrounding the convict-informer was well expressed by Tom Love, a draft card burner whom Douglas chose as his roommate for his off-campus apartment in Lewisburg: “Boyd was another guy shit on by the establishment,” Tom Love says, “and we figured it was our duty to trust him.”
Bucknell University, founded in 1849, is a beautiful campus set upon the banks of the Susquehanna River in Lewisburg, Pennsylvania, two miles from the Lewisburg prison. Its students, who number just under 3,000, can be described as bright kids, from fairly conformist suburban families, who did not quite make it to Swarthmore or Brown. They seem attracted to the rural handsomeness of Lewisburg, a quiet, well-groomed town with much fine Victorian architecture. Bucknell’s only notorious graduate to date is the writer Philip Roth, and its most celebrated ungraduated student, Norman Thomas, whose red brick house still stands in Lewisburg, was never awarded an honorary degree from the college because of his political convictions.
Antiwar sentiment filtered into Bucknell in the late 1960s at the same pace with which it reached other small colleges such as Hobart, where Tommy the Traveler worked so well for the FBI. There is only one characteristic unique to this pleasant, sheltered campus: Bucknell is the only college of any intellectual standing in the United States that is intimately linked, both geographically and by its student release program, to a federal penitentiary. The college’s closeness to prison problems, the need for prison reform which constantly harps on the conscience of Bucknell’s liberal community, and its occasional demonstrations of support for convicts’ hunger strikes, all must have been crucial to the government’s decision to infiltrate this singular prison-university complex. They are equally crucial to the instinctive sympathy which some Bucknellians were capable of offering to the convict and informer Boyd Douglas.
Talking with Bucknell people in March of this year, I was struck by the similarity of their reactions to Douglas. They had distrusted him from the outset, but had fought their first instincts. Their eventual decisions to trust him had all been molded by that unselective compassion and that fear of elitism which have marked the liberal-radical mind of the Sixties. “I distrusted Boyd Douglas from the first,” says Mary Chenoweth, wife of the head of Bucknell’s political science department, “but I checked myself and said to myself, ‘Don’t do the elitist bit, you’re being like the white police.’ ” “As soon as I distrusted him,” says Pat Rom, a librarian at Bucknell, “I felt like a Hoover, paranoid.” “It was more sympathy than attraction,” says Betty Sandel, the pretty red-haired coed who was Boyd’s girl for six months, and who received peace symbol earrings from him as a 1970 Christmas present. “I figured that all prisoners are political prisoners.” Elizabeth McAlister also admits that she feared Boyd Douglas from the start: “He was always too much there, his English was so atrocious; but I repressed my instincts because I was afraid I was being bourgeois and elitist.”
One of the most moving accounts of trusting Boyd Douglas is given by Zoia Horn, the plucky Bucknell head librarian who chose to go to jail rather than testify as a government witness in a trial she called “a black charade.” “Whenever I had misgivings about Boyd I’d say to myself, ‘He’s a prisoner, he’s powerless, his dignity is constantly being undermined…he must be given maximum affection, maximum attention,’ and I’d say to myself, ‘Don’t be a lousy stinking doubter.’ ” The last time Zoia saw Douglas was in early January of 1971, a week before the first indictment was issued, the evening before he disappeared from Bucknell to testify against his friends and enter the FBI’s long custody. Douglas came to call on her with no apparent motive. And on the eve of his disappearance, for the first time in the year they had known each other, Boyd Douglas gave Zoia Horn a kiss.
The problem of Philip Berrigan’s trust is more complex. His perceptions seemed distorted by the fantasies of freedom and of unimpaired power common to many political prisoners. His belief in Douglas was further compounded by the evangelical mystique of trust and openness central to his profound Christianity and to the pacifist doctrines that had shaped his thought during the previous decade. Berrigan’s faith in Douglas suggests that absolute Christianity may be irreconcilable with traditional political action and with the precautionary measures essential to effective political behavior. Philip Berrigan refused the offers of highly skilled convicts to carry mail for him, because they were “organized,” or rich. He instinctively gravitated to the orphaned Boyd Douglas because he saw him as a quintessential victim of the American system. And he glorified him as a system beater, rather than recognize him as the compulsive loser he was.
“You asked me for a few words about our friend Douglas,” Philip Berrigan wrote me recently. “We now know him as a vastly complex and resourceful con man, with deep neuroticism, to be sure, but nonetheless one who had made a life style of beating the system, and doing it with his wits. In any case, my life at that point was mainly the inmates—that was where I was—with them. And my main interest in working with them was rehabilitation, i.e., getting them to see their lives in a fresh way, to renounce some of the manure…. He [Boyd] was ready made, he had a good rep with the other cons, who placed great store in integrity, honor, resistance to the penal administration….
“We talked long and exhaustively on penal reform, the brutality of a place like that prison or a hundred others, the war (at very great length), economics, non-violence as against violence, civil disobedience, drugs, American racism, etc. And I didn’t find him bright or particularly well-read, but rather, eager to learn. And apparently, he did what he promised to do, he worked hard, he produced—rather an exception in the movement. In other words, I trusted him, and trusted my friends to him.”
Even after Douglas’s damning trial testimony, Philip would retain the belief that he had never been duped by the informer. He maintained that Boyd Douglas had been undergoing a genuine process of transformation during their early friendship, which was violently interrupted by the FBI and the prison authorities when they forced him to turn informer. He is not the only defendant whose attitude toward Douglas is shaped by a religious belief in the transforming power of trust. Anthony Scoblick says he distrusted and avoided Douglas because he talked of violence, but then adds, with total earnestness, “But perhaps by trusting an informer enough you might convert him.”
Joseph Wenderoth, an utterly dedicated, selfless priest, is the most fervent in his pastoral concern. “Sure I worried about Douglas,” he says, “I worried about his own growth.” Of all the defendants, Joseph Wenderoth had been the one closest to Boyd, closer even than Philip Berrigan, whose mind remained obsessed by the politics outside the Wall. Boyd, who was a Roman Catholic, had shrewdly exploited Joe’s priestliness, often coming to him to confess his private problems and using this counseling relationship as a means of inciting the priest to violence. The most selfless love offered to Boyd had been rewarded with the greatest vindictiveness. Boyd then went to the witness stand to implicate Joseph Wenderoth more vengefully than any other defendant, even constantly mispronouncing his name as “Wendorf” or “Wendrod.”
Talking to Joe about Boyd is a moving and frustrating experience. For even now, after Douglas’s testimony, Joe seems interested only in Boyd’s future. This scrubbed, shining-faced priest who kneels down by his bed every night to pray for William Lynch and Guy Goodwin can only talk about the possibilities of Boyd’s rehabilitation, how it would be too late if Boyd doesn’t meet the right person within the next year. “You mean you’re only concerned with his salvation?” I once asked him.
“What else is there on earth?” the priest said.
It is in this context of trust, conversion, and faith that one must see the imprudences that led to the defendants’ indictment. At mid-trial, while the Berrigan-McAlister letters were being declaimed by government prosecutor William Lynch, I asked Elizabeth whether more caution might not have been used in regard to her correspondence. It had been most trying for her to listen to those letters in court. She looked at me candidly with her tired eyes and, even then, gave me the following answer: “In my opinion it is more advisable for us to stay open. Rather than function above or under surveillance we must be open to it. We have a duty to find forms of resistance in the open. If we lose our trust and cannot discuss things openly we are in a police state.”
The curious mystique of openness she expresses is characteristic of much of the Catholic left. For these Catholics’ radical fantasies and radical rhetoric—which are so recklessly and profusely verbalized—are admixed with a profoundly liberal view of the American system. They accuse the government of being facist, while behaving as if it were permissive enough to acquit them of civil disobedience. (“Civil disobedience,” a young priest once told me, “should be like breathing in and breathing out.”) Underlying their attitudes is an ambivalence toward authority which in turn seems based on a love-hate relationship toward that supremely authoritarian institution, the Roman Catholic Church. For in the turmoil of their sudden turning away from the Church’s traditional structures, they seem strikingly like adolescents—deeply dependent on their parents yet constantly critical of them.
Like adolescents, Catholic radicals behave toward authority in a curiously flirtatious manner. They condemn the legal establishment but scream for their lawyers when they need them, and then expect these lawyers to behave like revolutionary heroes. They condemn the “media,” but easily become media martyrs. Caught between the evangelic mystique of openness and the necessity of political precaution, they seem to need flirting with trouble. “I had to get caught, you see,” Daniel Berrigan told Robert Coles, “otherwise it would mean I was hiding too much.” It is in part this ambivalence toward openness and secrecy, this coquettish attitude toward authority, that led to the guileless indiscretions of the Berrigan-McAlister correspondence.
The letters are curious literary documents. Philip’s prose alternates between fine Victorian constraint, the street slang of the ghetto priest, and an adolescent populism that is reminiscent of Holden Caulfield. Traditional expressions of devoutness—“In Him,” “The Lord’s Peace”—are laced with gangland code words given to friends and places: “Little Shane” for Neil McLaughlin, “Big Joe German” for Joseph Wenderoth, “bruv” for Daniel Berrigan, “blood line” for another brother of Philip’s, “Minnesota Fats” for still another activist, “Golden Fleece” for Washington, DC.
An eighteenth-century touch is further added by the letters’ mysterious titles, which had been shrewdly suggested by Boyd Douglas, who carried the letters in and out of jail in his school notebook. These academic titles were intended to convince any prison guard who might glance at the convict’s notebook that they were the themes of Boyd’s college essays: “Some Reflections on the Presence of Political Prisoners,” “The Possibilities of Continued Humanization,” “On the Elimination of Smog from the Industrial Environment,” “Reflections on Technological Advancement upon the Anniversary of Man’s First Landing on the Moon.” (One of them is also titled “One Flew Over the Cuckoo’s Nest,” after Ken Kesey’s book, which the fastidious William Lynch is said to have read meticulously, and with some distaste, in a vain attempt to glean some clue that would lead to new evidence.)
Elizabeth McAlister and Philip Berrigan had met on August 15, 1966, when she was still wearing her habit, and he had come to her convent to celebrate a funeral mass for a mutual friend. Commenting on her correspondence with the priest, and on the lack of caution that led to the Harrisburg indictment, Elizabeth put it better than anyone else. She said: “It was too much, too soon.”
The letters are written in tight, cramped, conventional hands that are strikingly similar: monastic calligraphies, with their fine rightward tilt and flourished capitals. The repressed emotions they convey often remind me of troubadour verse, of literature inspired by the hopeless unavailability of the person loved. The reality of the separating wall is constantly present. (Having first posed as Philip’s cousin to visit him, Elizabeth had been struck off his visitors’ list four weeks after he had arrived at Lewisburg, when one of their clandestine letters was discovered in his cell.) Notwithstanding their severe lack of political realism, the letters reveal the characters of two complex persons whom I find noble and obsessed, and as heroic as they are impulsively incautious.
Among the most poignant revelations of Philip Berrigan’s letters are his compulsion to recruit convicts into the peace movement; his keen awareness of the movement’s lack of skills; his growing trust of Boyd, referred to as Frank, Pete, or Garry. “Some of the young guys here are more and more sitting in on the raps—car thieves, bank robbers, old and experienced cons, creative, personable, violent, racist. But what an injection they’ll add to our movement…as for our Peter, he is more and more immersed with the idea of being of service.”
A few weeks later: “The local minister with portfolio has emerged as the best thing hereabouts since polio vaccine. His ministrations have been no less than providential—and given the setting here, very nearly heroic. Later on, I consider he’ll be a burr in the saddle for many of our people, for already he’s paid up the price tag, and kept the taxes in proper shape…there are guys here with comparable potential. To feed a regular influx of ingenious and reliable ex-cons into the ranks would make a resounding blow for public integrity…. Some of them would have a bit of bad education to shuck off, but they would help with some of the bad education of our people…. Our chargé [Douglas] emerges in a truly astounding fashion—the values and concerns that occupy us are beginning to consume him. He’s thinking movement. Mark my words, he will be one of our best people.”
The letters are full of diatribes against liberals, and occasionally indicate an interesting rift between Philip and his brother Daniel, whose security measures while underground Philip found too restrictive and liberal in character. “Can’t fully understand the reference to bruv [Daniel] and the irrational security surrounding him…but it strikes me that the overcaution might stem from inexperienced people…it’s a phobia common to liberals, who have never done anything for principle before…. So bruv has drones around him—I guess you’ve had some sorry experience with them. Getting back to the bruv thing—that’s an essentially different scene, you know. He is trying to radicalize a wide range of liberals. Whereas you’re working with hard core radicals. Most of the time, they don’t mix. I remember how we operated with him—always happy to have him in a rap, but undisturbed when he couldn’t make it. His talents grab on a different level than ours, and are most effective there.”
In another letter Philip ticks off the names of all the senators he has written to, none of whom—save Charles Goodell and Joseph Tydings—had the decency to write a note of sympathy to the prisoner: Charles Mathias, Jacob Javits, Edward Kennedy, Philip Hart, George McGovern, Frank Church, Edward Muskie, Fred Harris, Mark Hatfield, Eugene McCarthy, Albert Gore, John Sherman Cooper. “The peace liberals are sumpin’,” he quips, “enough to make a mainliner out of a person.”
Elizabeth McAlister, throughout the summer of 1970, was occupied with the planning of the Delaware draft board action, one of the most effective sorties to date. In an attempt to create a “nationwide conspiracy,” a small group performed the action, bleaching out draft files with detergent. They then sent out a statement which was eventually signed by some 300 antiwar citizens who pledged their “legal and moral responsibility” for the foray. Elizabeth McAlister was one of the principal choreographers of the Delaware raid, and some of the most touching passages in Philip’s letters express his admiration for her work.
“The news—glorious! First of all, that you were so clear in your own mind and so confident. And I knew implicitly you were a vast help to the others—sense of history, human philosophy and tactics, courage, discipline…. And then the sense of humor that refused to remain quiet, indicative of a balance of spirit and a resolution during this dark night period.”
Ten days later, he showers her with compliments about the Delaware action, which destroyed every draft board in the state except the Wilmington board, which was heavily watched. “I hear you practically killed yourself during the circus, and that you were about 50 percent of every act. I said upon hearing it—nacherly! But why not get away for a couple of days sleep and some fresh air and decent chow…. Sweet Jesus Lord! Magnificent show—more hectic and demanding than anything yet accomplished…kudos to every one. I’m speechless! And especially to you, because I honestly think it would have broken up without you! No substitute for class, friend—brains, guts, discipline, all the badges of quality…. The Lord thanks you, so does mankind, so does America, so do I.”
He ends his letters with curious admixtures of traditional priestly greetings and Irish compliments:
“Your latest,” he answers one of her July letters, “is like a Pikesville Irish sour—have I told you recently that you’re the best around? Build a little arrogance of your own—arrogance is ok when it’s real. And I know, and others know, that you’re the best around.” “You’re the best,” he signs off in another, “and pride in you is even larger than ego. Absolutely the best, and the Lord’s peace.” Later: “We’ll make it—or if we don’t we’ll take a few shreds of honor with us. And the Kingdom will live.”
Philip Berrigan was recently asked what he found to be the worst temptation of prison life. He tersely answered: “Self-pity.” His letters to Elizabeth express the same fortitude. If anything, they express his gnawing guilt that he is in a privileged and sheltered position, while those on the outside are taking all the risk: “All of you, yourself esp., should grow in caution, even as your urgency grows. Imagine what it would mean if you were hurt, killed or unnecessarily arrested. What a contrast to this where I’m protected against those who would like to see us all buried. So the first protection is a resolute reliance on the Lord, and the second, a fine intelligent caution. So take care, huh Irish? Love and peace.”
He takes great pride, as he always has, in being a prisoner. “I wouldn’t have it different for all our overseas investments—in fact, the thought horrifies me, for if it were so, this present vegetable would be much less a man. The great adventure would be missing, and an incomparably precious possession lost. So I’ll take my little cup of gall every day, and thank God for it. What I’ve already had is sufficient to enrich a dozen better lives, and it ain’t ended yet. So does the Lord pay up for tiny acts of service.”
Elizabeth McAlister is a complex woman, as deeply secretive by nature as she is indiscreet on occasion. It was incredible to learn that none of the defendants knew of her correspondence with Philip Berrigan—the major material evidence of the Harrisburg trial—until several weeks after the indictment, eight months after the correspondence had occurred. The letters, and the use of Douglas as courier, were the plot within the plot of the Harrisburg case. The nun’s and priest’s need to be secretive about their communications may be a mark of their profound conventionalism, part of their attempt to reconcile their affection to the very rigorous attitude they have always held toward their religious vows. This tension of secrecy—and Elizabeth’s desire to boost Philip Berrigan’s morale—may also be responsible for the vast distortions and overstatements contained in Elizabeth’s letters. Their exaggerations seem motivated by her need to buttress Philip’s sense of retaining power in the Movement, and to reassure him about the Movement’s vigor at a time when it was actually in failing health.
Elizabeth’s most flagrant and incriminating exaggeration, of course, was her description of a colloquy concerning the possibility of making a citizen’s arrest of Henry Kissinger. This bizarre conversation seems to have been hatched in the Third World fantasies of the radical Pakistani scholar Eqbal Ahmad. But, according to Ahmad, it was “one of a dozen alternatives discussed and rejected during the course of a long evening, a preposterous idea which would have been totally counterproductive because it had no political context in American history.”
The discussion was held during a long session of wining and dining in Westport, Connecticut, in mid-August, a few days after Daniel Berrigan’s arrest by the FBI, and must be seen against the background of renewed passion and anguish caused by the capture of the priest, who had been Ahmad’s closest friend at Cornell. Writing to Philip the next day in this aura of urgency and grief, and needing somehow to assure him that novel tactics of escalation were being aired, Elizabeth put a magnifying glass on a twenty-minute discussion of a citizen’s arrest. She devoted an entire letter to this grotesque colloquy, which was to lead to the most sensational charge of the Harrisburg indictment.
In her mention of the idea of kidnaping Kissinger, as in the rest of her letters, Elizabeth’s style is musing, as if she were talking out loud. In this case already gorged with fantasies, her letters feed on still another fantasy: She is pretending not to write, she believes she is talking to him, she does not face the reality of the letter as a physical document.
However, conversation, as frequently happens, swiftly becomes gossip. As she tries to cheer Philip with news of his troops’ good health, she tends to become the Louella Parsons of the Movement. Within the span of two letters she drops the names of William Kunstler, Noam Chomsky, Eugene McCarthy, Rosemary Reuther, Howard Zinn, Douglas Dowd, Stewart Meacham, Richard Falk (“with us all the way”), Jacques Ellul of France, Congressman William Anderson, a dozen noncooperative Jesuits (“they drive you to drink”), and William Stringfellow, among others. (“Stringfellow…is part of Bruv’s next move” is the sentence that led the FBI to apprehend Daniel Berrigan at Stringfellow’s home on Block Island.)
She gives news from all over: “Tarrytown kids developed into nothing.” Boston: “Moving ahead on some long range work on Honeywell and continuing as selective service boot camp for new people.” Rochester: “Don’t think Rochester is a dead issue” (the participants of that city’s “Flower City Conspiracy,” with Boyd Douglas’s help, would be apprehended at the scene of the raid). She announces a recent success in the same businesslike style in which she wrote convent reports, the previous year, when she was secretary to the provincial of her order. “Ann Walsh came in last night and announced New Haven had been done the night before. It took a maximum of two weeks, $200, and no one else knew it was happening until it was done. Good, clean, efficient job. All were delighted.”
The description of the Delaware action, which was initially complicated by a participant who insisted on bringing along his mother, his girlfriend, his boyfriend, and a dog to the event, is formidable in its cool, cops-and-robbers style. In it she also describes her frustration at not being able to “do” the Wilmington board, which was closely watched. “…someone returns with a report that the marshall (armed) as well as the guard is in the bldg…. That board had to be done…. The Philly kids—a beautiful group—were anxious to see it done and would help but our people had first option…. Judy [another RSHM nun] and I went into the Board. Were there hiding for two hours. Finally a blast from Davidson over the walkie talkie: ‘What the f— are you doing there…?’ …I said to Judy—let’s leave. So we marched out like we owned the place and exchanged time of day with guards….”
She signs some of her letters, as he does, “In His love.” Another time, she commemorates the day of their first meeting: “Hey, buddy, the 15th is coming fast. First met a real great guy on August 15th.”
William Lynch read some forty-five pages of the letters in such a flat, dreary monotone that some jurors slept through many passages, waking up to hear Boyd Douglas’s cool interspersed testimony. But when Lynch came to the following letter his voice became in turn modulated, dramatic, booming. Everyone sat up and listened. It was like a parish priest reading the Epistle after having finished his financial report:
From Elizabeth: “…Which leads me to No. 3 and this is in utter confidence and should not be committed to paper and I would want you not even to say a word of it to Dan until we have a fuller grasp of it…. Eq called us up to Conn. last night…. Eq outlined a plan for action which would say—escalated seriousness—and we discussed the pros and cons for several hours. It needs much more thought and careful selection of personnel. To kidnap—in our terminology make a citizen’s arrest—someone like Henry Kissinger….”
In the same hortatory voice, Lynch read Philip’s reply:
“About the plan—the first time opens the door to murder—the Tupamaros are finding that out in Uruguay…. When I refer to murder it is not to prohibit it absolutely (violence versus non-violence bag) it is merely to observe that one has set the precedent, and that later on, when gov’t resistance to this sort of thing stiffens, men will be killed. More to the point, the project as you outlined it is brilliant, but grandiose….”
“The first motto you are taught when you join a guerrilla cadre in Algeria,” Eqbal Ahmad laconically comments about the Berrigan-McAlister letters, “is the following: ‘Quand tu es en prison, tu ne demandes que des oranges.’ For every guerrilla knows that no system of unauthorized prison communication is safe. You are at the mercy of blackmail. You are like a Moslem wife caught in bed with another man.”
“It takes much revolutionary discipline,” Eqbal adds with a polite ironical smile, “to resist the temptation of asking for more than oranges.”
William Sebastian Lynch, the government prosecutor, had been looking forward with trepidation to cross-examining the defendants. He once described Philip Berrigan and Elizabeth McAlister as people who were “constitutionally incapable of not taking the stand.” “You just wait until Liz and Phil take the stand!” he muttered, off the cuff, to a reporter he had met in a Harrisburg diner.
When Ramsey Clark rose to rest the defense, starting with the words “These defendants will always seek peace,” Lynch jumped to his feet, arms flailing in James Cagney style, to make an objection to what he thought was going to be a political statement. “Your honor, the defense rests,” Clark concluded simply. Lynch fell back into his seat with a soft thud. Judge R. Dixon Herman emitted an embarrassed “heh, heh,” the first and only time he laughed in two months. He had earlier stressed several times that “this is not a funny trial.”
The defense’s astonishing announcement to rest the case without further testimony was a highly unusual legal maneuver which, according to the lawyers, has no precedent in political cases. The main purpose of resting the defense was to stress the preposterous, phantasmagoric nature of the government’s charges. Ramsey Clark’s soft voice carried, calmly and dramatically, the message of “not guilty.” In its element of surprise and of pacifism the gesture was similar to that moment at Catonsville when the defendants rose one by one to address the Court and then linked hands to say the Lord’s Prayer.
But unlike the Catonsville Nine, the Harrisburg Seven were not concerned with symbols, but with acquittal. There were many concrete legal motives for resting their case—a decision arrived at only in the last four days of the government’s prosecution. The defense sensed that it was at the peak of its strength after the government presented its last witness. This flimsy case forced upon the Justice Department by the vindictive fantasies of the late J. Edgar Hoover was ex-extraordinarily lacking in evidence. It had already been greatly weakened when over twenty antiwar activists—whose information the government relied upon to build its case—had followed the courageous example of Sister Jogues Egan, and refused to testify to the Grand Jury. Moreover, many government witnesses who took the stand at the trial sounded like witnesses for the defense. On the tunnel charge they testified to the existence of meandering discussions which could never be interpreted as concrete agreements.
The only hard-core evidence of the ephemeral kidnaping charge, a tape on which the informer Boyd Douglas identified Eqbal Ahmad’s voice, had been disqualified by the Court. As for Boyd Douglas, the defense lawyers felt that their powerful cross-examination of the informer had destroyed his credibility, and they wished to leave their demolition work freshly imprinted on the jury’s mind.
There was another crucial political reason for resting the defense: to deter the government from trying to elicit the names of numerous antiwar activists whose role in the disruption of the Selective Service system, in the sheltering of Daniel Berrigan, and in other illegal actions had never been disclosed. Paul O’Dwyer estimates that some 200 persons might have been implicated in the government’s cross-examination of the defendants and of defense witnesses. Persons being questioned by Lynch would have had either to incriminate a large network of the antiwar resistance or to take the Fifth Amendment, which in the punitive atmosphere of Judge Herman’s courtroom would undoubtedly have resulted in their going to jail. To produce defense witnesses at Harrisburg would have created a highly charged emotional aura, a rebellious Chicago Seven atmosphere not conducive to acquittal by the cautious, provincial Harrisburg jury. And it could have opened a Pandora’s box of cautiously guarded Movement secrets which would have had grave and widespread consequences.
Finally, the defense decided to rest because the Harrisburg Seven had never come to a conclusion among themselves about the true nature of the Harrisburg conspiracy trial. At one pole of opinion were Philip Berrigan and Elizabeth McAlister, who clearly envisioned it as a political trial in which it was their duty to elaborate on the government’s criminality, and who were the most eager for a defense. To Joseph Wenderoth and Neil McLaughlin, however, Harrisburg was not a political trial because it had not been totally instigated by motives of resistance. They saw it rather as initiated by the crime passionnel of Elizabeth’s and Philip’s letters of affection, by mistakes committed by two persons who had desperately needed to communicate with each other.
One of the gravest dangers of a defense, most of the accused and their lawyers agree, is that it would have had to explain the psychological setting in which the exaggerations of the Berrigan-McAlister correspondence occurred. This highly subjective, emotional theme might have been beyond the jury’s grasp. It would also certainly have triggered a brutal and vindictive cross-examination by the government, which, by stressing the use that Elizabeth and Philip had made of the informer, would have made Boyd Douglas a more dignified and credible figure.
During the summations a curiously sexual struggle emerged between the government and the defense over the person of Boyd Douglas. The defense contended that the informer was, in Terry Lenzner’s excellent phrase, “a street-wise and accomplished con man” who had duped innocent persons long isolated in religious institutions. The government in rebuttal maintained that Douglas was an innocent orphan who had been led astray by men and women blessed with the opportunities of higher education. It was like a rape case. How aggressive was the seducer, how willing was the seduced? It is ironic that the conservative Justice Department lawyers took the same fatalistic view of Douglas as was held by many extreme radicals: that he was a helpless victim of American society.
Elaborating on Douglas’s guilelessness and on the defendants’ cunning, William Lynch, in his summation, shrewdly addressed the jurors as law-abiding parents.
“They refer to Boyd Douglas as Judas…even if the defendants had the effrontery—I hope they wouldn’t—to imply that they have some kinship with the man betrayed by Judas…when you talk of betrayal, let’s talk of the betrayal of leadership—students at raps—what kind of betrayal is that? Students should be led to zap Selective Service boards on campuses? What are they doing, playing handball with these issues and with the ideals of these students? Who gave him [Philip Berrigan] the mandate? Who elected him? Wouldn’t you shudder if you were a parent at that school?”
“To think we educated him,” defense counsel Father William Cunningham, a Jesuit, moaned after the Catholic prosecutor, a graduate of Fordham, had finished his summation. “To think he went to our schools.”
Throughout the months of the trial, I remained obsessed by the diverse kinds of transformation that the 1960s had brought to different Americans sitting in the Harrisburg courtroom; by the way the decade had produced upheaval in some lives and had left others unbrushed. William Lynch, who enjoyed attacking Pope John XXIII as the destroyer of the Roman Catholic Church, was prosecuting nuns and priests catapulted in a few brief years from a nineteenth-century cloistering into the militant core of the protest movement. The Harrisburg jurors, some of whom testified they never read about Vietnam in the newspapers, were being addressed by lawyers so radicalized by the war that they were temporarily dedicating their careers to defending Movement causes for no fee.
Then there was the lanky, contrite figure of former Attorney General Ramsey Clark, whose role had perhaps changed more than that of any other person in the courtroom. Having twice indicted Philip Berrigan for Baltimore and Catonsville when he was Attorney General, Clark came to Harrisburg to be his defense counsel; he also became the rebellious priest’s closest friend among the lawyers. When someone asked Philip Berrigan how he felt about being defended by a man who had twice indicted him, he smiled and replied, “Where would we be without our Saint Pauls?”
Hawk-nosed, sad-eyed, laconic, dressed in extremely ill-fitting, rumpled suits, the former Attorney General remained throughout the trial the most reserved of the defense counsels. One would have expected that this gangling Middle American, with his southwest twang and his winsome Jimmy Stewart manner, with his great aura of authority, had been made to order for the stolid middle western jury. But Clark, by choice, made few objections during the trial and conducted low-keyed and extremely brief cross-examinations. While Leonard Boudin nervously paced the courtroom, charming the jurors with his “I love you and understand you totally” smile, while Paul O’Dwyer destroyed government witnesses with his militant IRA manner, Clark seemed to sleepwalk through the trial.
He shied from all conversations, seldom mingled, as did the other defense counsels, with the crowds in the corridors of the Harrisburg courthouse. His closest relationship seemed to be with Philip Berrigan, with whom he managed to have a private visit every day, frequently sharing a liturgy with the priest in jail. The few comments one could wrench out of Clark were in a terse ranch hand style. (“I don’t know if the skunk is pissing,” he once drawled when asked if his phone was tapped, “but it’s awful wet around my telephone.”)
Yet Clark’s opening statement and his summation were the most dramatic moments of the trial. As if waking from a deep sleep, he delivered jingoistic but curiously moving speeches that were in the finest tradition of Fourth of July rhetoric, full of “truth,” “love,” “justice,” “the individuality we so cherish in America.” There was something of the Bible Belt preacher, of the prairie, when he spoke. He ended his summation with these words: “These defendants say, ‘We are not afraid of peace and freedom.’ And thus the government would try to destroy these people not by guns but by falsehood because the warmongers cannot stand these ideas of peace and freedom or those who seek it.”
Many months before the trial began, when the defendants were beginning to select lawyers, they had to decide whether Ramsey Clark should be asked to be a defense counsel. The final word came from Philip Berrigan. He thought for a minute and then gravely answered, “Yes, let’s have Clark. It would be so good for him.” The former Attorney General’s diffidence about his past prosecutions was as clear as Philip’s desire to bring salvation to all men. When Clark rose to make the motion for a directed verdict of acquittal, he ended with these electrifying words: “If the government’s evidence had been given to me when I was Attorney General I would never have let it go to the Grand Jury…. I ask for acquittal.” Lynch sprang to his feet like a terrier. “But he’s the one who drew up the Spock indictment,” the prosecutor whined. “Yeah,” Clark said, “and look what happened to Spock.”
The Harrisburg jury voted ten to two for acquittal on all charges except those of contraband against Elizabeth McAlister and Philip Berrigan. Their deliberation lasted seven days, and is said to be the longest deliberation in the history of federal trials. The verdict of mistrial on the government’s vindictive three-pronged conspiracy charge was seen as a clear victory for the Movement, and as a stunning blow to the Justice Department. The lawyers think there is a good chance that the verdict on contraband will be reversed on appeal, on the grounds that letters are frequently passed in most prisons and this has seldom—if ever—been prosecuted.
The government’s choice of Harrisburg—a notoriously conservative town sheltered and removed from twentieth-century events—was regarded as one of the most punitive aspects of the Harrisburg indictment. Yet perhaps it was the Harrisburg jurors’ almost total isolation from the protests and turmoil of the 1960s, the fact that they had never witnessed a picket line or a demonstration, that left them free of prejudices against antiwar dissenters, free to pierce through to the truth with the blunt clarity of their consciences.
The two jurors who held out for conviction on conspiracy were Lawrence Evans, an owner of several large supermarkets, one of the most prosperous of the twelve, and Kathryn Schwartz, the mother of four conscientious objectors. Mrs. Schwartz is a member of the Church of the Brethren, a pacifist but highly conservative sect prevalent throughout Pennsylvania, which takes a stand against engaging in any war and an equally firm stand against any form of political activity. Mrs. Schwartz was described as a woman who—in the tradition of many Pennsylvania peace churches—was barely allowed to speak at home, and was used to being dominated by the men in her family.
Mr. Evans was described as a blindly obedient servant of the state who believed that “if the government has spent all this money on the case there must be truth to its charges.” He is also described by one of his fellow jurors as “an unbalanced man who wanted conviction on all counts from the moment deliberation began, before we had even opened the evidence box.” Evans’s behavior had indeed been hysterically vindictive. “When the jury came in,” Evans blurted out the day after the verdict, “I would have liked to face the press and said, ‘I voted guilty on every count and I want the world to know,’ and then turn and face the defendants and say, ‘May God have mercy on your souls.’ ” Other jurors tell me that Evans shrewdly perceived Mrs. Schwartz’s malleability. He sat next to her daily in the jury box and throughout every meal the jurors shared during the two months of the trial. If it were not for Evans the defendants might have had the triumph of total acquittal on the conspiracy charges.
Most of the nine women on the jury seemed to be strongly in favor of acquittal because the government witness Boyd Douglas had lied to his girlfriends and treated them so badly—they could not, on those grounds, believe his testimony. In addition, the wily complexity of Lynch’s three-pronged conspiracy count had itself been self-defeating. The jurors claimed that they had never understood it. And they received no help from Judge Herman, a cautious, erratic, provincial barrister, who made the conspiracy count even more unintelligible by his opaque and often inconsistent final charges. Studying the judge’s charges on the intricate conspiracy count, said Mrs. Vera Thompson, the only black among the twelve, was like “going up shit creek without a paddle.”
The jury’s 10-2 vote for acquittal seemed to reflect the reasoning behind Leonard Boudin’s brilliant three-hour summation on conspiracy law. He argued that to be convicted the defendants must be proved to have made a clear-cut decision to carry out an illegal objective. Thus even if Joseph Wenderoth had crawled through the heating tunnels of the Federal Building, such an action was in the realm of “investigation, not even preparation”; it was not the firm commitment that constitutes a criminal conspiracy. Boudin ended with this plea to the jurors: They must bear in mind the crucial difference between expressions of hope—or what Philip Berrigan had termed “meandering or desultory suggestions”—and concrete criminal plans. Leonard Boudin was the jurors’ favorite lawyer. One of the twelve, Robert Foresman, an instructor at a state school for firefighters, said of him: “He was a ham but he was fascinating…. I could listen to him go on forever.”
So most of the Harrisburg jury, feared as provincial and conservative by many in the Movement, were, in their way, as knowing as anybody in the court. “Never underestimate the people,” Philip Berrigan wrote joyously after the verdict had come in. “Their common sense usually prevails against the excesses of government.”
Robert Foresman, one of the jurors most active in arguing for acquittal, was a round-faced, frequently smiling, benign man who seemed to be the most attentive of the twelve. In the voir dire preceding the trial, upon being asked whether he had read of the alleged plot in the papers, he had slapped his thigh and said, “You mean that story about zipping off with Kissinger? I always thought that was a big joke.” “I wouldn’t mind trying it myself,” he quipped after the end of the trial.
A few days before the verdict came in, I had a drink with Anthony Scoblick in a restaurant across from the courthouse. It was a little past six, the height of the dinner hour in Harrisburg, and the restaurant was packed.
“Hey, Tony, what are you going to do after you’re acquitted?” I asked.
“I’m going to kidnap Henry Kissinger and blow up the heating tunnels!” he yelled out at the top of his voice.
Nobody even turned around. Yet the Harrisburg trial remains a piece of history that could occur first as farce, but could repeat itself as tragedy.
(This is the second of two articles on the Harrisburg trial.)
June 15, 1972