Y-12 protesters can’t use necessity, Nuremberg defenses at Tuesday trial

The three protesters accused of sneaking into the Y-12 National Security Complex and vandalizing a uranium storage building in July will not be able to argue during their trial next week that they violated federal laws in order to achieve a greater good, a judge said.

It’s what is known as a necessity defense, and it only applies in rare situations, U.S. District Judge Amul R. Thapar said in an opinion and order filed Tuesday. It allows a defendant to avoid a conviction even when the government has proven all the elements of an offense.

Thapar said the three anti-nuclear weapons activists—Greg Boertje-Obed, Megan Rice, and Michael Walli—did not have any evidence to establish three of the four required elements of the necessity defense, including a “reasonable fear of death or serious bodily injury due to a present, imminent, and unlawful threat.”

He said Boertje-Obed, Rice, and Walli have argued that they acted to prevent death and injury from the use of nuclear weapons or accidental detonation of nuclear weapons, among other things. But those threats, while potentially serious, are not imminent, Thapar said.

In addition, the defendants had other alternatives to protest nuclear weapons, including by lobbying their fellow citizens through newspaper letters, mailings, and in-person interactions, Thapar said.

Thapar said the three defendants will not be able to use the Nuremberg principles as a defense either. That defense could have allowed them to argue that they violated domestic law in order to protect themselves from violating international law.

The Nuremberg trials were a series of war crime trials held after World War II for political and military leaders of Nazi Germany, as well as for other German defendants.

Boertje-Obed, Rice, and Walli have argued that the nuclear weapons work at Y-12 violates international law, as well as U.S. law, and constitutes a war crime. Therefore, their actions to expose and protest that work was “reasonable and justified,” the defendants said in a January motion to dismiss the sabotage charges.

U.S. Magistrate Judge C. Clifford Shirley Jr. had earlier also said the Nuremberg defense could not be used, Thapar said.

“The defendants cannot access the Nuremberg defense because they did not need to violate domestic law to avoid committing a war crime,” Thapar said. “It is not as if the government forced the defendants to build nuclear weapons or participate in the nuclear weapons program in any way. Indeed, the defendants’ entire theory is that the government is committing war crimes and that they felt obligated to try and stop the government. The defendants have not done anything that places them at risk of being charged with war crimes.”

Boertje-Obed, Rice, and Walli are accused of sneaking into Y-12 before dawn on July 28, cutting through three fences in a high-security Protected Area, and splashing human blood and spray-painting slogans on the Highly Enriched Uranium Materials Facility, where most of the nation’s bomb-grade uranium is stored. The three have acknowledged their actions and view them as a “legitimate, even obligatory, response to the threat posed by nuclear weapons,” Thapar said.

They have been charged with property destruction, property depredation, and interfering with the national defense. The last charge is sometimes referred to as a sabotage charge, and it is the most serious, carrying a potential prison sentence of up to 20 years.

The government on Thursday asked the U.S. District Court in Knoxville to dismiss the first charge, the property destruction charge, saying it has been unable to establish jurisdiction.

The trial for Boertje-Obed, Rice, and Walli starts Tuesday.

Note: This story was updated at 2:56 p.m. May 1.