In Court: “The Heart of the Matter”

I have sat, by now, in dozens of courtrooms, occasionally as a defendant, but mostly as a witness in someone else’s trial. I have learned a great deal. The courtroom is one instance of the fact that while our society may be liberal and democratic in some large and vague sense, its moving parts, its smaller chambers—its classrooms, its workplaces, its corporate boardrooms, its jails, its military barracks—are flagrantly undemocratic, dominated by one commanding person or a tiny elite of power.

In courtrooms judges have absolute power over the proceedings. They decide what evidence will be allowed, what witnesses will be permitted to testify, what questions can be asked. Further, the judge is most likely a political appointee or someone elected through a political party, and almost always a fairly prosperous white male, whose background is one of privilege, whose ideas are moderately conservative or moderately liberal.

But the American courtroom is also a place where people, against great odds, may challenge the authority that threatens to imprison them, where some lawyers, judges, and juries occasionally stand apart from their colleagues and act according to their conscience. Because of these possibilities, the movement against the Vietnam War was carried out not only in the streets, in auditoriums, in church meetings, and on the battlefield itself, but in courtrooms around the country.

In 1968, shortly after I had returned from Vietnam with Daniel Berrigan, I was called to Milwaukee to testify in the case of the Milwaukee Fourteen. The Fourteen were priests, nuns, and laypeople who had gone into a draft board, taken thousands of its documents, and burned them in a symbolic protest against the war.

They were arrested, charged with theft and arson. I was summoned by the defense as an “expert witness”—to put the act in context, to tell the judge and jury that what these people had done was part of a long tradition of civil disobedience in American history, that it was not an ordinary “crime” but a form of protest engaged in by conscientious citizens when traditional modes of expression are ineffective in righting some wrong.

An expert witness must first have his credentials approved by the court, and so the lawyer for the Milwaukee Fourteen began by asking me questions about my education and my writings, to “qualify” me.

He then began his direct examination by asking me to explain the principles of civil disobedience. I spoke of the Declaration of Independence and its insistence that when a government becomes destructive of basic human rights (the Declaration says “all men” are created equal, not just Americans, and therefore the basic human rights of Vietnamese peasants are also our concern) it is the right of the people to “alter or abolish it.” And if they can alter or abolish it, they can certainly commit civil disobedience against it, as these defendants had done. I told of Henry David Thoreau’s decision to break the law in protest against our invasion of Mexico in 1846, and began to give a brief history of civil disobedience in the United States.

Judge Larsen had had enough. He pounded his gavel and said, “You can’t discuss that. This is getting to the heart of the matter!”

He was right. Courtrooms are not places where one is allowed to get to the heart of the matter.

The lawyer for the Milwaukee Fourteen went on to other questions. “Can you explain to the jury, Dr. Zinn, what is the difference between law and justice?” (A dangerous question; what could be getting more “to the heart of the matter”?) The prosecuting attorney objected to the question. The judge said, “Sustained.” More questions about civil disobedience. More objections, all sustained.

I was feeling frustrated. Trial testimony was so often trivial and boring; it seemed that the more fundamental the issue, the less likely that it could be aired in court. I turned to the judge (I knew this was improper, but my reason for being there was to attest to the value of impropriety in a democracy) and asked, in a voice loud enough for everybody in the court to hear, “Why can’t I say something important? Why can’t the jury hear something important?”

The judge was angry. He said, “You are not permitted to speak out like that. If you do that once more I will have you put in jail for contempt of court.” I responded, “An IBM machine could make this decision if the question is only did they do this.” The judge rapped his gavel again, more forcefully. I could have gone on, I suppose, dramatically adding my civil disobedience to that of the defendants, but my courage stopped at that point. I must confess that my revolutionary ardor has often been limited by my desire to get home to my wife and kids.

The judge told the jury, “This is a case about arson and theft.” He did not want the jury to hear about why these people had burned draft records. He did not want to hear about the war in Vietnam. He wanted the jury to treat the defendants as ordinary criminals who for some mysterious purpose had decided to destroy government documents. And so the jury, their judgments limited in this way by the court, found the defendants guilty. They were sentenced to several years in prison.

The judge had permitted the defendants, as is accepted in the field of criminal law, to tell of their “state of mind” when they acted as they did. In this way, some of them managed to give the jury some sense of the moral anguish that led them to break the law. A young priest, Father Bob Cunnane, whom I knew slightly from the Boston area, told how he had been affected by reading Gordon Zahn’s book German Catholics and Hitler’s Wars. “I’d never be here if not for that book. SS troops would go to mass and then go out and collect Jews.”

The prosecutor objected. The judge sustained. “Hitler’s treatment of Jews is not relevant here.”

“But that’s why I’m here,” Cunnane said.

On the plane ride home to Boston, a middle-aged man next to me, short, strong-looking, started a conversation. He told me he worked as a longshoreman on the Boston docks and that he had seen me in the courtroom. What was he doing there? I asked. “My son was on trial.” His son was Jim Harney, a priest, one of the Milwaukee Fourteen. He said, “I’m proud that he stood up for what he believes in.” (Twenty years later, Jim Harney, long since out of prison, was making regular trips to El Salvador to work with peasants who were resisting the death squads.)

As the Vietnam War went on, and public opinion against the war mounted, juries became more independent, and judges gave them more leeway in considering the broader issues of the war. The Camden Twenty-Eight destroyed draft records, too, but their trial, in 1973 in New Jersey, went quite differently.

Many of them were young Catholics from working-class neighborhoods in Philadelphia. They decided to use movement lawyers from the city as consultants, but to act as their own counsel—a “pro se” defense.

They called to the witness stand an army major formerly in charge of the New Jersey induction center. He described in detail how the draft system discriminated systematically against the poor, the black, the uneducated, and how it regularly gave medical exemptions to the sons of the wealthy. Asked by the prosecutor if he thought private citizens had the right to break into buildings to destroy draft files, he replied, “Probably today, if they plan another raid, I might join them.”

One of the defendants, Kathleen (Cookie) Ridolfi, perhaps twenty-one years old, phoned me to ask if I would come to Camden to testify for them. She had read my book Disobedience and Democracy and wanted the judge and jury to hear my views.

The judge allowed me, in response to her questions, to speak to the jury about the war. I was able to quote at length from the once secret Pentagon Papers to show how the government had deceived the American people about the nature of the war. I contrasted the public statements by government officials about how U.S. forces had been sent to Vietnam to protect “liberty” and “democracy” and “self-determination” with the secret memos of the National Security Council, in which, discussing the importance of Southeast Asia, they came back again and again to three words: tin, rubber, oil.

Seventeen years later (sometime in 1990), when I was speaking in a Midwestern city, a man came up to me and said we had met before. He was Bob Good, one of the Camden Twenty-Eight. He told me that while I had been testifying, his mother had broken down and had to be led from the courtroom. The day after my testimony, she had taken the stand on behalf of the Camden Twenty-Eight. Bob Good handed me a transcript of what she told the court that day.

Elizabeth Good told how she and her husband, a carpenter, lived on a farm and raised ten children, and how they lost a son in an auto accident. When another son, Paul, was drafted, she, a devout Catholic, was sure God would not take a second child from her. But one day she saw an army officer coming up her driveway, and she knew her son was dead.

It was after that, she said, that her son Bob “seemed to get more concerned—all of us did—about this war in Vietnam.… And I still, even until last Friday—I still tried to hang on to that theory that my boy died for his country. But after Mr. Zinn was on the stand, and he spelled it out, ‘tin, rubber, and oil,’ that’s when I broke down.…

“The only members of my family—my sisters and brothers that have died—have died of cancer. And there is a hundred thousand dollars going to be spent for the research of cancer, and seventy billion for defense. Where are our priorities?

“I don’t think there was any mother within five hundred miles of our home that was more anti-Communist than I was.… Every time the boys tried to talk, I brought in Communism. And this is the way all of us are.… I can’t understand what we’re doing over there. We should get out of this. But not one of us, not a one of us raised our hands to do anything about it. We left it up to these people”—she pointed to the defendants—“for them to do it. And now we are prosecuting them for it. God!”

There was no question but that the defendants had done exactly what the prosecution charged; they had entered a federal building illegally in the night and destroyed draft records. But the jury came back with a verdict of not guilty, and one of the jurors threw a party for the defendants.

That same year, 1973, I was called to Los Angeles to testify in another trial connected with the war—the Pentagon Papers trial of Daniel Ellsberg and Anthony Russo.

I had met Dan Ellsberg four years earlier, when we spoke from the same platform at an antiwar meeting. Noam Chomsky had told me about him: “an interesting man,” Ellsberg had a doctorate from Harvard in economics, had been in the Marines, in the State Department and the Defense Department. He had gone to Vietnam, and what he’d seen there had turned him against the war. He was now a research fellow at M.I.T.

Over the next months, he and I and his wife, Pat, and Roz became friends. One evening when the four of us were having coffee in their Cambridge apartment near Harvard Square, Dan said he had to tell us something in strict confidence. When he’d been with the Rand Corporation, a “think tank” for the Defense Department, he had helped put together a secret report, an official history of the Vietnam War.

Going over the internal documents, it was clear to him that the United States had lied again and again to the American people. He decided that the papers constituted a history that the public had a right to know. As one of the top scholars on the project, he was given clearance to take them home. He enlisted the aid of a friend, former Rand researcher Anthony Russo, in a bold plan to photocopy and release to the public all seven thousand pages, each of which was stamped “Top Secret.”

They found a friend who ran an advertising agency and had a copying machine. After the agency closed up shop at five, Dan and Tony went to work, making multiple copies of what became known as the Pentagon Papers. Sometimes Dan’s teenage kids, Robert and Mary, would help, methodically crossing out the words “Top Secret” on every page.

They worked late into the night (this was the fall of 1969) for weeks. Once, after midnight, a policeman, seeing the office lighted, came upstairs. They explained, “We’re doing some photocopying.” He left.

Copies of the Pentagon Papers were then sent to certain senators and members of Congress known to be against the Vietnam War, asking them to publicize the document. None of them would do it. The idea of “classified information,” the words “Top Secret,” had become something sacred in the almost hysterical atmosphere of the Cold War, and now, in a real war.

“Would you be interested in seeing some of the papers?” Dan asked. He went to a closet and gave me a pile of documents. For the next several weeks I kept them in my office, out of sight, reading them whenever I had some privacy. I had thought that by this time I knew a good deal about the history of U.S. policy in Vietnam, but there were revelations here that were startling, facts that we in the peace movement had claimed as true but only now found corroborated, in these documents, by the government itself.

Dan had given a copy to Neil Sheehan, a New York Times reporter he had met in Vietnam. But months had passed and nothing had happened.

One Saturday evening in June 1971, Dan and Pat and Roz and I planned to go to a movie. When they arrived at our place in Newton, Dan was clearly agitated. He had just phoned someone at the Times (not Neil Sheehan) about some matter, and been told that this was not a good time to talk because something odd was happening; the Times had put security guards all around the building and the presses were going full blast for the Sunday edition, printing some top-secret government document.

“You should be happy,” we told Dan. “They’re finally doing it.”

“Yes, but I’m pissed off—they should have told me.”

The next morning’s New York Times carried a large headline running across four columns: “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement.” The story itself covered six pages of commentary and documents. It did not say where the Times had secured the material, and it took several days before the FBI traced it to Daniel Ellsberg. But Dan was out of sight, underground (actually, housed by various friends in Cambridge), and distributing more copies of the Pentagon Papers to the Washington Post and the Boston Globe while the Nixon administration was asking the federal courts to stop publication on grounds of “national security.”

Twelve days later, Dan turned himself in at Post Office Square in Boston, where a large crowd of supporters, journalists, and curious onlookers watched as the FBI, somewhat embarrassed because it had not been able to find him, saw him emerge from a car and took him into custody.

Two weeks after the New York Times story appeared, the Nixon administration lost its last appeal before the Supreme Court. The majority of the court found that the First Amendment prohibited “prior restraint,” that is, stopping any publication in advance. Some members of the Court pointed out, however, that after publication, criminal charges would be possible, and so the administration went to work.

Dan Ellsberg was indicted by a grand jury in Los Angeles on eleven different counts, including theft and violation of the Espionage Act—giving to unauthorized persons documents whose disclosure would endanger the national defense. The possible penalty on all these counts added up to a hundred and thirty years in prison. Tony Russo was also indicted, on three counts adding up to forty years in prison.

Their trial took place in federal court in Los Angeles in early 1973. The government placed in evidence eighteen volumes of the Pentagon Papers, and put on the witness stand various high-ranking military men and government officials to testify that maintaining the secrecy of these papers was vital to national security.

Ellsberg and Russo were represented by an extraordinary team of lawyers: Leonard Boudin, a distinguished civil liberties attorney whose experience in defending political dissidents went back to the McCarthy era; Leonard Weinglass, a movement lawyer who had been one of the counsel in the Chicago conspiracy trial coming out of the 1968 Democratic convention; and Charles Nesson, a young professor from Harvard Law School.

They decided to put on the stand two different kinds of witnesses. First they would seek the testimony of former government officials and academics of impeccable respectability—Arthur Schlesinger, Theodore Sorenson, McGeorge Bundy, John Kenneth Galbraith—who would testify on the technical issues of whether the Pentagon Papers contained information injurious to the national defense.

Secondly, they would call “expert witnesses” who themselves had been active against the war and would try to convey to the jury the moral issues involved, to use the Pentagon Papers to talk to the jury about the nature of the war: Noam Chomsky, Richard Falk (an expert in international law at Princeton), Tom Hayden, Don Luce (who had spent nine years in Vietnam as a civilian working with Vietnamese peasants), and myself.

It was decided that I would be the first such witness, and so I flew to Los Angeles. I spent the next week reading through the first five volumes of the eighteen which were the government exhibit, to prepare my testimony. In the meantime, I stayed in attorney Len Weinglass’s oceanfront house, took long walks on the beach, had Chinese dinners with Dan and Tony, spent an evening in a local club to hear two of my favorite jazz and blues musicians, Sonny Terry and Brownie McGee.

A few days before I was to be called, the defense team brought in Professor Arthur Kinoy of the Rutgers University Law School, for a strategy session. Kinoy was a kind of father-figure to movement lawyers of the sixties, a brilliant legal tactician and veteran of many civil liberties struggles, who had once been dragged out of a hearing of the House Committee on Un-American Activities as he defiantly defended a client.

I sat in on that meeting and it was an education. The various lawyers were going over the technicalities of the indictment: how would they prove that the taking of the Pentagon Papers was not really a theft in the legal sense? Kinoy, a short, wiry, restless dynamo of a man, waved his hand. “No! No! Forget the technicalities!” He clenched his fist. “You need to do just one thing: persuade those twelve people on the jury that Dan Ellsberg and Tony Russo were right in what they did.

When I took the stand on a Friday afternoon, I had before me the five volumes of the Pentagon Papers I had been studying. “Will you tell the jury,” Len Weinglass said, “what is in those volumes.”

The jury was seated a few feet from me. Ten of the twelve were women, of whom at least three were black and one an immigrant from Australia. Of the two men, one was a black man, an official of a local auto union. The other was a wounded marine veteran of Vietnam.

I turned to face them, and in response to a single question from Len Weinglass I spoke for the next few hours on the history of the Vietnam War. It was like teaching a class, but with much more at stake.

My job was to trace the story of U.S. involvement from World War II to 1963. In that year, the American government, seeing the South Vietnamese leader Ngo Dinh Diem unable to suppress a popular rebellion, supported a military coup which overthrew him and executed him. The Pentagon Papers showed the involvement of the United States in that coup, but Henry Cabot Lodge, then the American ambassador to Saigon, who was in constant touch with the plotters, later told reporters, “We had nothing whatsoever to do with it.”

“Are you finished?” Len Weinglass asked.

“Yes.”

“Now, will you tell the jury, having read those volumes, whether, if made known to the public, they would or would not have injured the national defense?”

I explained that there was nothing in the papers of military significance that could be used to harm the defense of the United States, that the information in them was simply embarrassing to our government because what was revealed, in the government’s own interoffice memos, was how it had lied to the American public.

I discussed the concept of “national defense,” and suggested that a proper definition of the term was defense of the people, not of special interests. The secrets disclosed in the Pentagon Papers might embarrass politicians, might hurt the profits of corporations wanting tin, rubber, oil, in far-off places. But this was not the same as hurting the nation, the people.

The prosecutor chose not to cross-examine me on the documents. He wanted only to show that I was a friend of Daniel Ellsberg. He held a police photo up to the jury and asked me to identify it. It was a photo taken in Boston, at the 1971 demonstration at the federal building, and showed me and Dan Ellsberg sitting together in the crowd.

“No more questions.”

There was more testimony that week. Then summations and the judge’s charge. The jury was still deliberating, days later, when the judge called it back into the courtroom. The Watergate scandals were coming to light. The Nixon administration had engaged in illegal wiretaps. In an attempt to discredit Dan Ellsberg, it had sent a team to burglarize the files of his psychiatrist. It had even sent men to beat him up when he spoke at an antiwar rally. Based on a number of such illegalities, the judge declared a mistrial. The case of the Pentagon Papers was ended.

The members of the jury were interviewed afterwards, and it was clear that Dan Ellsberg and Tony Russo would not have been convicted.

In the eighties, with the Vietnam War ended, and the press pronouncing the sixties over and the antiwar movement dead, determined groups of activists still engaged in acts of civil disobedience, protesting against military aid to El Salvador and other dictatorships, against the swollen arms budget, against the immense accumulation of nuclear weapons.

As I testified in a number of these trials, I was encouraged. Where judges allowed juries to hear the full reasons for acts of civil disobedience, were willing to let witnesses get to “the heart of the matter,” juries often gave surprising verdicts.

In 1984, I testified in a trial in Burlington, Vermont, where the Winooski Forty-Four had sat in the corridor outside Senator Stafford’s office and refused to move. They were protesting his support for the military dictatorship in El Salvador.

Judge Mahady allowed me to discuss the idea of civil disobedience and to tell about its efficacy in bringing about important change in the history of the United States. He allowed testimony from two Salvadoran women whose families and friends had been murdered by government death squads. He allowed ex-CIA agent John Stockwell to tell how the CIA directed American policy in Central America in such a way as to destroy the possibilities for democracy.

The jury voted to acquit all the defendants. Later, one of the jurors said, “I was honored to be on that jury. I felt a part of history.”

No doubt the odds are against dissenters in any nation’s judicial system. But human beings are not machines, and however powerful the pressure to conform, they sometimes are so moved by what they see as injustice that they dare to declare their independence. In that historical possibility lies hope.

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