The Occupation Project
Rob Mulford, member of Northstar Veterans For Peace in Fairbanks, Alaska, organized the Alaska Occupation Project in February and March.
Last Friday, July 27, 8:30 a.m. at the Fourth Judicial State Courthouse in Fairbanks I entered into oral argument with the District Attorney for my motion for the defense of necessity concerning my arrest, along with Don Muller of Sitka, on Feb. 20, 2007. We were charge with “criminal trespass II” for taking part in a direct action event, the Occupation Project, at the Fairbanks Alaska office of Senator Ted Stevens. We had remained in the office after the official closing time reading Iraqi and American war dead names after being ordered to leave.
BACKGROUND
Alaska Statute 11.81.320 provides:
JUSTIFICATION: NECESSITY
(a) Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when
(1) neither this title nor any other statute defining the offense provides exemptions or defenses dealing with the justification of necessity in the specific situation involved; and
(2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear.
(b) The justification specified in (a) of this section is an affirmative defense.
Case law such as Bird v. Anchorage, 787 P.2d 119, 120 (Alaska App.1990), Seibold v. State 959 P.2d 780 (Alaska App.,1998) and Allen v. State 123 P.3d 1106 (Alaska Ct. App. 2005) set a standard articulated in Allen v. State as:
To establish the defense of necessity, a defendant must show (1) that they committed the charged offense to prevent a significant evil, (2) that there was no adequate, reasonably available alternative to committing the offense, and (3) that the harm caused by the charged offense was not disproportionate to the harm the defendant avoided by breaking the law. Moreover, if the offense is a continuing one (such as a driving offense), the defendant must show (4) that they stopped violating the law as soon as the necessity ended.
Of the elements listed in the preceding paragraph, elements (1), (2), and (4) are judged from the perspective of a reasonable person in the defendant’s position. Thus, the question is what the defendant reasonably believed at the time, even if it later turns out that the defendants belief was partially or wholly mistaken.
THE HEARING
Although the hearing before Judge Raymond Funk – a Judge with a reputation for being a progressive and fair - was only 30 minutes in length and not totally successful it was a very dramatic.
The DA claimed and the Judge concurred that regardless of the legitimacy of my claim that the war is an illegal act of aggression; the criminality of the war was not to be on trial. This is in direct contradiction to Alaska case law (i.e. Cleveland vs. State of Alaska 123P.3d 1106) that states:
“The present position, which represents a merging of the privilege of crime prevention with the privilege of defending others, is that one may go to the defense of a stranger if that person is the innocent victim of an unlawful attack.”
And
“The new criminal code requires, for both self-defense and defense of others, that the defendant be responding to “what he reasonably believes to be the use of unlawful force.”
I replied that the criminality of the war is in fact an important element of the case because the war is an act of aggression as spelled out in international customary law (Nuremberg Principles) and Treaty Law ( U.N. Charter) and that the Judge was bound by the Constitution of the United States of America per Article 6 Sec. 2, the law of the State of Alaska not withstanding. I told the Judge that Treaty Law trumps the States trespass statute.
The DA also stated and Judge Funk concurred that alternatives to breaking the law were clearly reasonably available. At this time I challenged the Judge to state which alternatives were clearly available that would empower a citizen to stop a crime that was being committed in his name by those holding the highest positions of office in the most powerful country in the world.
Judge Funk replied that the law is very clear in that it allows for “lawful protest”. He said that we have the ballot box and that we could write letters but that we don’t get to interrupt the functioning of government offices. He stated that these are the legitimate avenues of redress and that they do not mean that we “get to win”.
At this point I vociferously interjected saying “Your Honor, I speak to you the person and the jurist. I respectfully request that you be a jurist and not an administrator”. I said that my actions were not in protest but attempts to use “direct action” as a means for stopping a crime being committed in my name by my government. I said that the decision to go to war was not made after considered debate in our legislative halls over its merits and problems but was made in the conference rooms of an oligarchy made up of energy and military industrialists, finance capitalists, and officers of the highest positions in the U.S. government so they could line their pockets with the profits made from the blood of American and Iraqi citizens. I said that Judge Funk’s assertion that the ballot and letters were reasonable lawful alternatives and that utilizing them did not mean that we “get to win” was ludicrous because I was attempting to stop a crime and not opposing some legitimate legislation that I disagreed with.
I said, “Your honor, if you will not allow me this defense convict me right now. It is not about me. I argue for the innocent victims of aggressive war, those dead, displaced, and living in fear”.
Alex Koponen, my legal advisor, addressed the DA and the Court saying that my case was distinguishable from the previous cases where the court had turned down the necessity defense. He cited the Cleveland vs. State case above, where anti-abortion protesters were denied the defense because the legislature and the courts had spoken beforehand on the legality of abortion. Alex stated that there is ample evidence and legal opinion to make the case that the war in actuality is illegal.
The DA, Joe Dallier, stated that according the most recent case law (Allen v. State) that the alternative of protesting outside the offices of the Federal Building was a clearly available adequate alternative. Judge Funk concurred.
Judge Funk then referred to me and I reiterated that it was my intention to stop a crime being committed in my name by my government. I said that the “leaders” of my country should be held accountable for the “Wild West” like situation of international lawlessness they have created but there is not much in the way of lawful remedy available when “leaders” like the Attorney General publicly state that the Geneva Conventions are quaint.
I said, “my country is committing crimes in my name I am complicit if I don’t do all I can, nonviolently, to stop it. My actions were not in protest but direct action attempts to pressure and nonviolently coerce members of congress into stopping funding for an illegal war. There are only a couple ways that we as citizens to end this illegal activity. One is to get congress to stop its financing. The other, as happened during the Vietnam War, is to get soldiers to lay down their arms and say ‘No More’. This second alternative may be the necessary next step.”
Judge Funk, as if totally missing the point above stated “You say that this is not about you but it is about you.” He asked me if I was offered the opportunity leave and to come back the following day to continuing the reading of names. I said that I was. He said that I then had a reasonable and adequate alternative and that I did not have the right to use the defense of necessity. I replied that if I did leave and come back the next day the act would be a mere protest to be added to the list of four years of protests and not at all adequate for stopping the supreme international crime. The Judge reiterated his position that I had clearly reasonable alternatives to breaking the law and that necessity did not apply.
Judge Funk is well known for volunteering his time to a local public radio station where he hosts the show “Funk Roots” and plays music that he gathers from around the world as well as American “roots music”. I took this as an appreciation of the value of all humanity and stated: “Your Honor, and I mean this with all do respect, I ask of you one favor. The next time that you take a vacation to some third world country to sample the fruits of their culture I wish that you would take the effort to look those people in the eye. Imagine their country attacked by a super power. Imagine maybe a million of their population dead from the bombing, from the poison of Depleted Uranium, their children suffering and dying from water borne diseases caused by the destruction of their sanitary infrastructure, imagine the malnutrition, the bombed out and under staffed and undersupplied hospitals. Imagine four million of them refugees and internally displaced, their children knowing only the fear of death from the violence of war. Your Honor, 3645 American servicemen and women have died as a result of this illegal war, 496 of them since Feb. 20. I ask only that you to be a jurist. Please be a jurist.” The Judge’s demeanor changed to one more solemn and thoughtful. It was not my sole intent to influence his decision by stating this but to plant a seed in the heart and mind of a decent man.
My legal advisor, Attorney Alex Koponen, pointed out the case the State cited (Hawaii v. Marley) as precedent was significantly different from my case in that the other case involved an action at a Honeywell facility to stop the manufacture of illegal weapons. This action could not have stopped the war whereas Senator Stevens almost surely could stop it by voting against funding it more and encouraging his colleagues to do the same.
It appeared that these pleas made some impact, and the judge said that there is still the possibility of accepting the necessity defense, but only if it is shown that “the facts of the case” - by which he meant only the events at Senator Steven’s office, rather than the facts proving the extent of the significant evil of Senator Stevens continuing to fund the Iraq war - were substantially different.
About 7 supporters came, but no media that we know. The trial date will be set at calendar call on August 17; we will work harder to get media to come. I will continue to press the case of the illegality and the evil of this war and the necessity to get Congress to stop funding it.
There will also be a hearing for my other outstanding case (March 13 Occupation of Congressman Don Young’s office) on the 16th of August.
Congratulations to all my friends who have been acquitted in court for their actions.
Wage Peace, Rob Mulford
