The Colorado Springs Municipal Court isn't usually a place where judges and juries weigh matters of international law. But if a team of local peace activists and their attorneys have it their way, a local jury could decide whether accords such as the Hague and Geneva conventions should get activists who are facing municipal trespassing charges off the hook.
Longtime local peace activists Bill Sulzman, Peter Sprunger-Froese and Donna Johnson were arrested Aug. 9 -- the 56th anniversary of the U.S. atomic bombing of Nagasaki -- when they entered Peterson Air Force Base to serve a "citizens arrest warrant" on Gen. Ralph Eberhart, the commander of NORAD and the Air Force Space Command.
The warrant alleged that Eberhart is in charge of "criminal acts as defined in the international rules of war," including testing outlawed weapons systems and overseeing 550 nuclear missiles, the use of which would be a "crime against humanity."
"We didn't get very close," Sulzman said of the attempt to reach Eberhart. Air Force personnel quickly detained the trio and called city police, who issued the activists summonses to appear in court on trespassing charges.
Embarking on a defense
At their pretrial hearing on Jan. 2, Sulzman, Sprunger-Froese and Johnson embarked upon a defense that could ultimately lead to the court ruling on whether international law and treaties supercede local ordinances, which in fact compelled the three to take action to prevent a potential nuclear holocaust. While such a defense strategy has never worked in American courts, it has been used successfully in two similar cases in Europe, according to Ved Nanda, a professor of international law at the University of Denver.
Nanda said that due to their immense destructive power, the actual use of nuclear weapons would clearly violate international laws against indiscriminate killing of non-combatants and excessive use of force. A trickier issue is the mere possession of nuclear weapons by the United States, which Nanda said is "arguably" a violation of international nonproliferation treaties, though that argument has yet to be accepted into mainstream judicial thinking.
Anti-nuclear activists around the world hope that, over time, courts will begin to give the argument more consideration. The current attempt is the second in Colorado Springs Municipal Court by Sulzman and Johnson, who were among six activists convicted of trespassing following a similar action in 1996, also at Peterson. Then, the judge granted a motion by the city prosecutor barring the defendants from raising the question of international law.
The city appears likely to file a similar motion this time.
"This case is not going to be about international law," said Victoria Ringler, the city's prosecuting attorney, after a pretrial hearing last week. "This case is going to be about whether or not they were trespassing."
In 1996, however, the defendants had no legal counsel. This time, they are represented by Denver attorneys Sue Tyburski and renowned civil- liberties defense lawyer Walter Gerash.
Who has jurisdiction?
International law aside, the case could ultimately hinge on a more basic issue: whether the city has jurisdiction to enforce ordinances at Peterson. The base is within city limits, and Ringler argued in court that the city has long enforced municipal code on the base under an agreement with the Air Force. But the defense is challenging whether the city has jurisdiction over Peterson, citing the Air Force's own response to an attempt by Tyburski to subpoena Eberhart as a witness in the case.
Air Force attorneys at the Pentagon rejected the subpoena, citing the doctrine of "sovereign immunity" under which states and municipalities are barred from taking judicial action against federal officials. In other words, the Air Force said, the city does not have the jurisdiction to enforce the subpoena.
The defendants were bemused. On the one hand, the Air Force had allegedly granted the city jurisdiction to enforce its ordinances on the base. But on the other hand, it was saying the city lacked jurisdiction to subpoena base personnel. Tyburski filed a motion to dismiss the case, arguing that, by the Air Force's latest reasoning, the city lacks jurisdiction at Peterson.
The missing document
The other potential problem with Ringler's argument is that, despite her claim, city staff has since had trouble finding any documentation of its alleged agreement with Peterson. Municipal Judge Gary Seckman has asked Ringler to provide the court with a copy of the agreement by Friday, and the Independent also requested a copy.
As of press time, city staff said they had been unable to locate any such agreement. Asked whether it might simply not exist, city spokesman Darin Campbell replied, "It is possible."
City staff did uncover a regulation stating that the city can enforce its laws anywhere within city limits. But according to Maj. Timothy Cothrel, an attorney at the Pentagon, the Air Force enjoys exclusive jurisdiction over its installations unless it explicitly cedes jurisdiction to others.
Cothrel said that if the case does proceed, it is still possible that Eberhart could take the stand. While the municipal court can't compel the general to testify, the defense can file a "request" for him to appear, which could be approved if the Air Force deems his testimony relevant, Cothrel said.
Eberhart himself would not comment. "Unfortunately, we cannot honor your request for an interview," said Capt. Adriane Craig, a spokeswoman at Peterson, in an e-mail. "It would be inappropriate for General Eberhart to participate in an interview on this matter because the litigation is ongoing."
If convicted, the defendants face up to 90 days in jail, for which they say they're prepared. "It won't be a picnic," Sulzman said, "but if the government won't enforce international law, someone else has to do it, even if it means doing time."