Jerica Arents: Drones on Trial: Narrowing the Gap Between Law and Justice

Jerica Arents (center) with other students at a 2009 Senate Judiciary Committee hearing on a "Truth Commission" to investigate the Bush administration's national security policies.

I received an education yesterday.

I wasn’t in a classroom. I wasn’t laboring over a paper, strategizing in a small group, poring over a textbook or hustling across campus. I was sitting as a spectator in the front row of Judge Jansen’s courtroom in Clark County, Nevada.

Fourteen peace activists were on trial for trying to hand-deliver a letter to the base commander at Creech Air Force Base in April of 2009. Their letter laid out concerns about usage of Unmanned Aerial Vehicles, or drones, for surveillance and combat purposes in Afghanistan. The Creech 14 believe that the usage of remote aerial vehicles to hunt down and kill people in other lands amounts to targeted assassination and is prohibited by international and U.S. law. Soldiers carrying M16s stopped them after they had walked past the guardhouse at the base entrance and a few hours later Nevada state troopers handcuffed the Creech 14 and took them into custody.

The next day, they were charged with trespass to a military facility and released. The charges were later dropped, then reinstated. Defendants, upon learning of a September 14, 2010 court date, had ten months to plan for their trial. They decided to represent themselves pro se and to call, as expert witnesses, former U.S. Attorney General Ramsey Clark, Colonel Ann Wright and Professor Bill Quigley, the Legal Director of the Center for Constitutional Rights. What were the chances that a Las Vegas court that normally handles traffic violations and minor offenses would admit three expert witnesses to testify on behalf of defendants charged with a simple trespass? Slim to zero in the view of most observers.

In an opening statement, Kathy Kelly summarized what defendants would prove regarding their obligations under international law and their exercise of rights protected by the U.S. constitution. The judge told her, quite firmly, that any testimony unrelated to the charge of trespass would be disallowed.

Yet, much to our surprise, Judge Jansen decided that all three expert witnesses would be allowed to testify. Rev, Steve Kelly, SJ rose and called on former U.S. Attorney General Ramsey Clark as his first witness.

After Clark was sworn in, he slowly sat down and scanned the room.

About fifty supporters filled the court. The defendants were seated in the jury box. To me, they represented a choir of my finest teachers. Steve Kelly remained standing, and then, with great care, questioned Ramsey Clark, first to establish his credibility as a witness and then to elicit his testimony regarding the issue of trespass. Steve asked Ramsey Clark about his history as a deputy attorney general during the civil rights era. Ramsey Clark spoke of lunch-counter sit-ins with his soft-spoken charm, emphasizing how important it was for people to violate the “No Trespass” rules that forbade blacks and whites to drink coffee together. Later, he relied on the age-old necessity defense to advocate on behalf of people who protested indiscriminate killing in Viet Nam. Bringing us up to date, Ramsey asked a question. ”When indiscriminate killing is occurring, are you just supposed to stand by the gate [of Creech Air Force Base] and hide your face?”

Despite Judge Jansen’s insistence that the defense could only discuss matters related to a misdemeanor trespass charge, each of the expert witnesses were able to knit together the Nuremburg principles, international law, and the justification of necessity to establish not only the right but sometimes the duty of people to engage in acts that violate trespass laws. Ann Wright spoke about how isolated military members were from public opinion and of how likely it was that, if informed they would respond to any great debate taking place in the public forum.

Bill Quigley, the last defense witness to take the stand, testified that when he taught law students about trespass statutes, he always raised with them the possibility of a necessity defense. Helping demonstrate “the space between law and justice,” he held his hands in front of him, about a foot apart. ”I encourage my students to work, every day, to narrow the gap between law and justice,” said Bill Quigley. “I ask them to adopt a ‘Hundred Year Vision,’ and remember that 100 years ago, Jim Crow laws were permitted, domestic violence was allowed, and discrimination against women, and the disabled were all considered legal acts.

The prosecution clearly hoped to discredit all three expert witnesses. “And do you know any of the defendants?” barked the prosecutor when cross-examining Ramsey Clark. “Of course”, answered Ramsey Clark, maintaining eye contact with the prosecutor. “I love them.”

Following the prosecutor’s cross-examination of Bill Quigley, Judge Jansen asked him several questions, the last of which pertained to Quigley’s advice to law students who might contemplate crossing a line for idealistic reasons. “Now if some of your students informed you of their intention to cross onto an Air Force Base clearly marked with a No Trespass sign,” Judge Jansen wondered, “What would you say to them?”

“I would tell them to weigh the consequences carefully”, answered Bill Quigley, noting that their convictions would come at a steep price.

With the possible exception of the prosecution, all assembled seemed in agreement that they had witnessed an extraordinarily rich education about our collective duties to uphold basic human rights. But, so far, the word “drone” had been mentioned only in the opening statement. Brian Terrell rose to deliver a closing statement. Brian referred to a metaphor already employed by two of our witnesses, that of a baby trapped inside a house on fire. “We fourteen are people who saw the smoke,” said Brian, “We’ve seen the babies dying in Afghanistan and Pakistan, and no trespass sign can keep us from trying to reach the children.”

Judge Jansen then addressed all of us. He said that he had just celebrated his 25th anniversary as a judge, but in all those years every trespass case that came before him was settled with a plea. This was the first time that defendants took a trespass case to trial. Given that this was his first time trying such a case and considering the many important issues raised, Judge Jansen stated that he would need time to study the issues and write his decision. He said he’d need at least three months and then invited the defendants to quickly examine their calendars and propose a date for their next court appearance. All agreed to return on January 27th 2011.

It’s one thing for me to announce that I’ve received an exceptional education over the course of an unusual day. It’s quite another for a U.S. judge who has been on the bench for 25 years to voice appreciation for what he has learned from defendants and witnesses, and then promise his continued attentiveness to the issues that were raised.

His delayed decision gained him entry into the choir of teachers. “Go in peace,” he said, as he left the courtroom.

Jerica Arents (jerica@vcnv.org) completed her M.A. in Social Justice at Loyola University at Chicago in 2010. She co-coordinates Voices for Creative Nonviolence and lives with the White Rose Catholic Worker community.

Kathy Kelly: Banning slaughter

In the early 1970’s, I spent two summers slinging pork loins in a Chicago meat-packing factory. Rose Packing Company paid a handful of college students $2.25 an hour to process pork. Donning combat boots, yellow rubber aprons, goggles, hairnets and floor length white smocks that didn’t stay white very long, we’d arrive on the factory floor. Surrounded by deafening machinery, we’d step over small pools of blood and waste, adjusting ourselves to the rancid odors, as we headed to our posts. I’d step onto a milk crate in front of a huge bin full of thawing pork loins. Then, swinging a big, steel T-hook, I’d stab a large pork loin, pull it out of the pile, and plop it on a conveyor belt carrying meat into the pickle juice machine. Sometimes a roar from a foreman would indicate a switch to processing Canadian pork butts, which involved swiftly shoving metal chips behind rectangular cuts of meat. On occasion, I’d be assigned to a machine that squirted meat waste meat into a plastic tubing, part of the process for making hot dogs. I soon became a vegetarian.


But, up until some months ago, if anyone had ever said to me, “Kathy Kelly, you slaughtered animals,” I’m sure I would have denied it, and maybe even felt a bit indignant. Recently, I realized that in fact I did participate in animal slaughter. It’s similar, isn’t it, to widely held perceptions here in the United States about our responsibility for killing people in Afghanistan, in Pakistan, in Iraq and other areas where the U.S. routinely kills civilians.


The actual killing seems distant, almost unnoticeable, and we grow so accustomed to our remote roles that we hardly notice the rising antagonism caused by U.S. aerial attacks, using remotely piloted drones. The drones fire missiles and drop bombs that incinerate people in the targeted area, many of them civilians whose only “crime” is to be living with their family.


Villagers in Afghanistan and Pakistan have little voice in the court of U.S. public opinion and no voice whatsoever in U.S. courts of law. Aiming to raise concern over U.S. usage of drones for targeted killings, 14 of us have been preparing for a trial here in Las Vegas, where we are charged under Nevada state law with having trespassed at Creech Air Force Base, in nearby Indian Springs, Nevada.


The charges stem from an April, 2009 action when several dozen people held vigils at the main gate to Creech AFB for ten days. One of our banners said, “Ground the Drones, Lest Ye Reap the Whirlwind.” Franciscan priest Jerry Zawada’s sign said: “The drones don’t hear the groans of the people on the ground, --and neither do we.” Jerry carried that sign onto the base on April 9, 2009 when 14 of us attempted to deliver several letters to the base commander, Colonel Chambliss. Nevada state authorities charged us with trespass. We believed that international law, which clearly prohibits targeted assassinations, obliged us to prevent drone strikes. “It is incumbent on pilots, whether remote or not, to ensure that a commander’s assessment of the legality of a proposed strike is borne out by visual confirmation,” writes Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, “and that the target is in fact lawful, and that the requirements of necessity, proportionality, and discrimination are met.”


The United States isn’t at war with Pakistan. U.S. leaders repeatedly stress that Pakistan is our ally. Nevertheless, U.S. operated drones are used for targeted killing in North and South Waziristan. “Targeted killing is the most coercive tactic employed in the war on terrorism,” according to the Harvard Journal. “Unlike detention or interrogation, it is not designed to capture the terrorist, monitor his or her actions, or extract information; simply put, it is designed to eliminate the terrorist.”


The Pentagon claims that the drone attacks are an ideal strategy for eliminating Al Qaeda members. Yet in the name of bolstering security for U.S. people, the U.S. is institutionalizing assassination as a valid policy. Does this make us safer?


General Petraeus may perceive short-term gains, but in the long run it’s likely that the drone attacks, as well as the night raids and death squad tactics, will cause blowback. What’s more, drone proliferation among many countries will lessen security for people in the U.S. and throughout the world.


With the usage of drones, the U.S. populace can experience even greater distance and less accountability because U.S. armed forces and CIA agents, invisible to the U.S. populace, can assassinate targets without ever leaving a U.S. base. Corporations that manufacture the drones and technicians who design them celebrate cutting edge technology and rising profits.

Recalling my own involvement in slaughter, I’m ashamed that I took the job for no other reason than to earn a few dimes more, per hour, than I might have gotten at a job which didn’t involve killing. It took me four decades to realistically assess what I’d done. Will it take 40 years for us humans to acknowledge our role in slaughtering other human beings who have meant us no harm?

In a Las Vegas courtroom, on September 14, 2010, the judge who hears our case has an unusual opportunity to help accelerate that process by allowing expert witnesses to speak about citizen obligations under international law and our protected rights under the constitution of the U.S., all in relation to our duty to abolish drone warfare.

Kathy Kelly (kathy@vcnv.org) co-coordinates Voices for Creative Nonviolence (www.vcnv.org) Her book, Other Lands Have Dreams, is available through Counterpunch.

Kathy Kelly: The Indefensible Drones: A Ground Zero Reflection

Libby and Jerica are in the front seat of the Prius, and Mary and I are in back. We just left Oklahoma, we're heading into Shamrock, Texas, and tomorrow we'll be Indian Springs, Nevada, home of Creech Air Force Base. We've been discussing our legal defense.

The state of Nevada has charged Libby and me, along with twelve others, with criminal trespass onto the base. On April 9, 2009, after a ten-day vigil outside the air force base, we entered it with a letter we wanted to circulate among the base personnel, describing our opposition to a massive targeted assassination program. Our trial date is set for September 14.

Creech is one of several homes of the U.S. military's aerial drone program. U.S. Air Force personnel there pilot surveillance and combat drones, unmanned aerial vehicles with which they are instructed to carry out extrajudicial killings in Afghanistan and Iraq. The different kinds of drone include the "Predator" and the "Reaper." The Obama administration favors a combination of drone attacks and Joint Special Operations raids to pursue its stated goal of eliminating whatever Al Qaeda presence exists in these countries. As the U.S. accelerates this campaign, we hear from UN special rapporteur for extrajudicial executions, Philip Alston, who suggests that U.S. citizens may be asleep at the wheel, oblivious to clear violations of international law which we have real obligations to prevent (or at the very least discuss). Many citizens are now focused on the anniversary of September 11^th and the controversy over whether an Islamic Center should be built near Ground Zero. Corporate media does little to help ordinary U.S. people understand that the drones which hover over potential targets in Afghanistan, Pakistan and Yemen create small “ground zeroes" in multiple locales on an everyday basis.

Libby, at the wheel, is telling Jerica about her visit to Kabul, in 1970. "I worked for Pan Am," said Libby, "and that meant being able to stay for free at the Intercontinental Hotel in Kabul. After landing in Pakistan, we hired a driver to take us across the Khyber Pass into Afghanistan. All along the highway we saw herds of camel traveling along a parallel old road. I wonder if the camel market in Kabul is still there?"

Jerica says she'll look for it. She and I have been hard at work to obtain visas and arrange flights for an October trip to Pakistan and Afghanistan. [Libby is exceptional in that she hasn't tried to talk Jerica out of the dangerous travel.]

Conversation switches to whatever CD has just come on, and I tune out, wondering if I've done my share of issuing warnings to Jerica about traveling in a war zone.

Tinny music and rural Texan countryside blend together.

My thoughts drift to the Emergency Surgical Center for Victims of War, in Kabul. A little over two months ago, Josh and I met Nur Said, age 11, in the hospital's ward for young boys injured by various explosions. Most of the boys welcomed a diversion from the ward's tedium, and they were especially eager to sit outside, in the hospital garden, where they'd form a circle and talk together for hours. Nur Said stayed indoors. Too miserable to talk, he'd merely nod at us, his hazel eyes welling up with tears. Weeks earlier, he had been part of a hardy band of youngsters that helped bolster their family incomes by searching for scrap metal and unearthing land mines on a mountainside in Afghanistan. Finding an unexploded land mine was a eureka for the children because, once opened, the valuable brass parts could be extracted and sold. Nur had a land mine in hand when it suddenly exploded, ripping four fingers off his right hand and blinding him in his left eye.

On a sad continuum of misfortune, Nur and his companions fared better than another group of youngsters scavenging for scrap metal in the Kunar Province on August 26^th.

Following an alleged Taliban attack on a nearby police station, NATO forces flew overhead to "engage" the militants. If the engagement includes bombing the area under scrutiny, it would be more apt to say that NATO aimed to puree the militants. But in this case, the bombers mistook the children for militants and killed six of them, aged 6 to 12. Local police said there were no Taliban at the site during the attack, only children.

General Petraeus assures his superiors that the U.S. is effectively using drone surveillance, sensors and other robotic means of gaining intelligence to assure that they are hunting down the right targets for assassination. But survivors of these attacks insist that civilians are at risk. In Afghanistan, thirty high schools have shut down because the parents say that their children are distracted by the drones flying overhead and that it's unsafe for them to gather in the schools.

I think of Nur, trapped in his misery, at the Emergency surgical center. He'll be one among many thousands of amputees whose lives are forever altered by the war and poverty that afflict his country. Many of these survivors are likely to feel intense hatred toward their persecutors. 300 villagers in the Sayed Abad district of Wardak province took to the streets in protest on August 12, following an alleged U.S. night raid. "They murdered three students and detained five others," one of the protesters said. "All of them were civilians." Villagers, shocked by the killing, shouted that they didn't want Americans in Afghanistan. According to village eyewitnesses, American troops stormed into a family home and shot three brothers, all young men, and then took their father into custody. One of the young men was a student who had returned to the family home to celebrate the traditional “iftar” fast at the beginning of Ramadan. Local policemen are investigating the allegations, and NATO recently conceded that they may have killed some civilians. (see www.vcnv.org Afghanistan Atrocities update).

The drones feed hourly intelligence information to U.S. war commanders, but the machinery can't inform people about the spiraling anger as the U.S. conducts assassination operations in countries throughout the 1.3 billion-strong Muslim world. "Sold as defending Americans," writes Fred Branfman, "(it) is actually endangering us all. Those responsible for it, primarily General Petraeus, are recklessly seeking short-term tactical advantage while making an enormous long-term strategic error that could lead to countless American deaths in the years and decades to come."

The Prius is comfortable, but my side of the backseat has become a makeshift office. The most important file contains Bill Quigley's comprehensive argumentation as to why the court should allow us to present a necessity defense based on international law. Bill is the Legal Director for the Center for Constitutional Rights. On September 14, we want to call on him as an expert witness. We and our codefendants have chosen to mount a pro se defense to try to persuade our judge that far from committing a crime we have exercised our rights and our duties, under international and U.S. law, to try to prevent one and to raise public opposition to usage of drones in "targeted" assassinations.

Jerica hands me the questions we can use to elicit Bill's testimony. We try to word our questions so that the evidence will be admissible in court. "Could Bill please inform the court about citizen's responsibilities under international law, could he explain to the court what articles and statutes we will be invoking?" To a layperson, it seems like an elaborate game of "Mother May-I," and we haven't even started developing questions to ask Col. Ann Wright, the former U.S. diplomat, who had helped re-open the U.S. Embassy in Kabul shortly before resigning her job in a refusal to cooperate with buildup toward the May 2003 U.S. Shock and Awe invasion of Iraq.

Rounding out our trio of expert witnesses is former U.S. Attorney General Ramsey Clark. We hope his personal experience within the U.S. government might arouse the court's more careful attention to the seldom-discussed legal issues that are fundamentally at stake here. However, the judge has already indicated that his calendar only allots one day for our trial.

Libby, Jerica, Mary and I have blocked out at least ten days, inclusive of travel, for our small contribution to an ongoing effort of people around the world working to put drones on trial. We're in New Mexico now. I feel cramped and restless, and I wonder if Tucumcari, where we plan to stop for lunch, has internet. We can't possibly bring the testimony of Afghans and Pakistanis to court this Tuesday. Their testimony, borne on bodies scarred and mutilated and harbored in memories of nightmare, will never be given away and cannot be given in court. Extrajudicial killings are killings without rule of law, without trial. Few if any Afghan or Pakistani civilian survivors of U.S. wars will ever travel to a U.S. court of law for consideration of their grievances.

And at this moment I realize that if we were four Afghans or Pakistanis or Iraqis traveling in a war zone, we'd have spent this entire trip watching not the Southwestern landscape, but the skies.

Kathy Kelly (kathy@vcnv.org) co-coordinates Voices for Creative Nonviolence (www.vcnv.org) Her book, Other Lands Have Dreams, is available through Counterpunch.