chevron-down Created with Sketch Beta.
June 15, 2015 Practice Points

Pro Bono Lawyers Obtain Reversal of Sabotage Act Conviction of Catholic Nun

The Sixth Circuit held that the defendants had no intent “to impair the nation’s capacity to wage war or defend against attack.”

By Michael T. Dawkins – June 15, 2015

One summer night in 2012, an 82-year-old nun and two army veterans cut through four fences at the Y-12 National Security Complex in Oak Ridge, Tennessee. The trio avoided detection by security and made their way to a building containing about 900,000 pounds of weapons-grade uranium stored by the Department of Energy. The three Christian pacifists proceeded to paint antiwar slogans and splash blood on the walls and hang banners containing Bible verses.

When the group refused to enter guilty pleas to charges of trespassing and injuring government property, the indictment was amended to add a charge for violating the Sabotage Act. The primary purpose of the Sabotage Act was to punish enemies of the United States who damaged the components of the country’s infrastructure devoted to the war effort.

A jury convicted the defendants of violating the Sabotage Act and injuring government property. Sister Megan Rice was sentenced to three years. Veterans Michael Walli and Greg Boertje-Obed were sentenced to five years.

The defendants appealed their convictions under the Sabotage Act on ground that they lacked the requisite intent to interfere with the national defense. According to an article in the New Yorker, the appellants were represented by William Quigley, a law professor from Loyola University in New Orleans, and two young patent, copyright, and securities lawyers (Judy Kwan and Marc Shapiro) of Orrick, Herrington & Sutcliffe. The three lawyers handled the case pro bono.

Scholosser’s article points out that prosecutors have used the Sabotage Act to prosecute acts of civil disobedience because the act broadly reaches anyone who “with intent to injure, interfere with, or obstruct the national defense of the United States.” The pro bono effort of Quigley, Kwan, and Shapiro was rewarded when, on May 8, 2015, the Sixth Circuit Court of Appeals reversed the Sabotage Act convictions of Rice, Walli, and Boertje-Obed. Interestingly, the circuit judges who voted to reverse the convictions, Judge Kethledge, the author of the opinion, and Judge Helmick, who joined, are appointees of Presidents George W. Bush and Barack Obama, respectively.

Judge Kethledge wrote that the government was required to show that “the defendant’s actions were either consciously meant or practically certain to impair the nation’s capacity to wage war or defend against attack.” The government’s main argument on appeal was that the defendants knew that their intrusion at Y-12 would shut the facility down for some period of time. In fact, the July 2012 break-in caused a two-week shutdown of Y-12, delaying a shipment of uranium. This was not enough according to Judge Kethledge: “[T]he government would need to show that the defendants knew that a weeklong shutdown of Y-12 would impair the nation’s ability to wage war or defend against attack.” The government had not, the Sixth Circuit observed, even attempted to prove this.

At oral argument before the Sixth Circuit, assistant U.S. Attorney Jeffrey Theodore, who had tried the case in Knoxville, Tennessee, argued, “These are people who have a desire, intent, to disarm, and they are taking action in furtherance of that goal.” The Sixth Circuit commented that the government was confusing motive and intent. AUSA Theodore, according to Judge Kethledge, was describing motive. With regard to intent, Judge Kethledge concluded in his opinion, “The question, then, is whether the defendants consciously meant to interfere with the nation’s ability to attack or defend when they engaged in these actions. No rational jury could find that the defendants had that intent when they cut the fences; they did not cut them to allow al Qaeda to slip in behind.”

Michael T. Dawkins, Baker Donelson, Jackson, MS

Copyright © 2015, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).