The no-fly zones. In court. In Iowa.

["Hamre, Drew" <drew.hamre@DELETETHISrainier.com>]

Thousands of miles from Incirlik Air Base in Turkey, the no-fly zones
recently went on trial.   Professor Jeffery Weiss wrote this elegant
synopsis, which touches on the legality, effectiveness, and responsibility
of protest.  An article from the Des Moines Register is also attached.

Note that Professor Weiss offers a free report on the no-fly zones (write
him at JWeiss@afsc.org).

Regards,
Drew Hamre
Golden Valley, MN USA
===
http://www.commondreams.org/views/061400-106.htm

Published on Wednesday, June 14, 2000  
No-Fly Zones Go On Trial In Des Moines, Iowa 
by Jeffrey J. Weiss  
  
Are the no-fly zones deployed by the United States and Britain over Northern
and Southern Iraq a violation of international law? If so, is a citizen of
the United States legally authorized to attempt to prevent their
enforcement, even by trespassing on a military base?   For several months,
activists who formed the Iowa Coalition to End War Crimes Against Iraq
talked about the probability of war crimes perpetuated by the United States
against Iraq. 

On March 4, 2000, they found an opportunity to do something about it. 

Twenty-two people formed a human blockade across the entrance at the Iowa
Air National Guard and for a few minutes, disrupted normal operations for
the military. That included drawing attention to the preparation of the Iowa
Air Guard for their fourth trip to Turkey, where they participate in
Operation Northern Watch over the skies of Iraq. All 22 demonstrators were
arrested and several spent the night at the Polk County jail. 

Four of the demonstrators - Michael Sprong, Jean Basinger, Rita Hohenshell,
and Brook Heaton - pled not guilty and demanded jury trials. To their
surprise, a Polk County prosecutor gave them an opportunity to present their
case to a jury in Des Moines. A deal was struck between the prosecution and
defense to drop the charges against all of the defendants except Michael
Sprong, guaranteeing a public trial. 

Thirty supporters, some of whom were arrested with Sprong on March 4, packed
the court-room for testimony that included an appearance by Richard A. Falk
of Princeton University. 

Falk, a friend of Edward Said and the late Eqbal Ahmad, has authored
textbooks on international law. He has appeared on behalf of activists in
courtrooms across the United States, arguing citizens have a responsibility
to demand that the government obey international law. His testimony helped
win acquittals for defendants at the state level, including defendants who
blocked the transportation of Trident Missiles in Washington. 

On June 5, 2000 "The State of Iowa v. Michael Sprong" began with testimony
from defense attorney Sally Frank of Des Moines. Frank argued that her
client, Sprong, had attempted legal remedies to confront authorities about
the illegality of the activities of the Iowa Guard in Iraq. He exchanged a
series of letters with Gov. Tom Vilsack, passed out leaflets, and
participated in demonstrations at the state capitol. 

When this failed, Sprong tried to speak to members of the Air Guard at the
base to convince them that the no-fly zones violated the United Nations
Charter. He trespassed on to the base to tell them a war crime was being
committed. "I was there to enforce the law," Sprong argued. 

For Michael Sprong, this was new territory. As a member of the Catholic
Worker for several years, he has followed his conscience to participate in
peaceful demonstrations against war-making. In 1988, he participated in a
gathering outside of the Iraqi Embassy in Washington D.C. protesting the use
of chemical weapons by Saddam Hussein. "We could not get the State
Department at that time to sanction Iraq, despite our efforts," he
testified. 

It was a conversation with some law professors that provided him another
angle to challenge his government. "One professor told me that in the case
of the no-fly zones my conscience just happened to be in coincidence with
international law." 

So what are the no-fly zones? 

The United States, Britain, and France set up no-fly zones after the Gulf
War that cover half the territory of Iraq. France left the coalition after
the U.S. and Britain bombed Iraq in December, 1998. According to trial
testimony, the rules of engagement are when U.S. and British jet fighters
assess Iraqi radar is locked on their planes, they fire at them. 

The Associated Press quoted Iraqi sources that reported 285 Iraqi civilian
casualties since 1998 (4-21-2000, Des Moines Register, p. A2 "Reports of
Casualties in No-Fly Zones.") John Pilger's documentary "Paying the
Price-Killing the Children of Iraq" tells the story of a family in Bashiqua
that lost a shepherd, his father, his four children and his sheep by British
or American aircraft, which made two passes at them on May 1, 1999. Pilger
said he stood in the cemetery where the children are buried and their mother
shouted, "I want to speak to the pilot who did this." 

Outside of Washington and London, it is difficult to find support that the
no-fly zones have a basis in international law. In a search on the web of
coverage on the no-fly zones, I found that 11 media agencies -- including
the NY Times, CNN, Reuters, the Associated Press, Washington Post, British
Broadcasting Company, Inter-Press Services - rightly reported that the
no-fly zones are not authorized by the United Nations and are set up by the
U.S. and Britain. Despite this finding, I could not find one news agency
that took an editorial stand against them.* 

During the trial, Lt. Col. Steve Young, an attorney for the Air Guard, and
Gregory Sisk, who worked for the U.S. Justice Department (1986-1989), made
arguments for the no-fly zones. Young said they were "pursuant to a
de'marche issued by the Western governments to Iraq advising it that the
no-fly zone would be enforced by denying Iraq the use of combat against its
citizens" (it should be noted when the Kurds in the North and Shiites in the
South rose up against the government of Iraq in 1991 they were denied
military help from the West and their rebellion was crushed, exposed by
Pilger and Chomsky). 

Though a `government to government communiqué' is not independent legal
authority, in this case "the underlying legal basis was supplied by UNSCR
678," according to the Air Force attorney. This was the resolution set up
under Chapter 7 of the UN Charter and authorized the original use of force
to expel Iraq from Kuwait. 

According to Sisk, a Drake University law professor, as a result of the
wording in the preamble of 678 "to restore international peace and security
in the area" the use of force against Iraq can continue. In a response to a
question, Young testified 100 years from now if UNSCR 678 is not rescinded
the U.S. could use force against Iraq. In other words, Iraq lost its
sovereignty, probably forever. 

Falk took the stand as an expert witness to argue that the use of force
requires a United Nations Security Council Resolution that has to be
explicit. The UN, after all, was established to prevent war. 

Falk testified, "There is no authorization that provides the authority to
enforce the no-fly zones." Though UNSCR 678 gave the U.N. the authority to
use force to remove Iraq from Kuwait, UNSCR 687 established a cease-fire,
terminating the earlier authorization to use force. 

If the United States and Britain wanted to use force, they need a new
resolution explicitly authorizing it. . In light of the recent attitude of
the Security Council against the no-fly zones, it is doubtful they could be
successful. If the General Assembly could vote, Falk testified, the no-fly
zones would be abolished. 

After the state suggested it was "only his opinion" the no-fly zones were
illegal and that other law professors argued they were legal, Falk
responded, "It is difficult to find any experts on international law outside
of the United States that take the position that the no-fly zones are
legal." He explained, "Many international law experts see their role as
rationalizing U.S. policy, no matter what it is." 

Prosecutor Fred Gay disputed Falk, asking him if he was saying these
individuals were not independent scholars. Falk responded, "You can usually
find out how independent one is to the degree they have questioned U.S.
policy ... some of the individuals who argue a legal basis for no-fly zones
have never done that." 

Falk said citizens are responsible to force government to comply with
international law, "because it underlies all connections that people have
with one another." Article VI of the U.S. Constitution states treaties are
the supreme law of the land, and the Supreme Court has ruled customary
international law is part of the U.S. judicial process (customary
international law is, for example, when courts hold that protection of U.S.
property abroad is in accordance with the law). 

Falk also raised the question if the United Nations Security Council can
violate the U.N. Charter. In the case of the Security Council economic
sanctions against Iraq, for example, the Geneva Convention prohibits
"starvation of civilians as a method of warfare." (Protocol I, Additional to
the Geneva Conventions-1977, Part IV, Section 1, Chapter III, Article 54).
The World Court has not decided it has the authority to review contested
actions by the Security Council (another reason to support the International
Criminal Court of Justice treaty). 

Falk testified Sprong's attempt to dialogue with members of the Air Guard
was reasonable. "If members of the Iowa Guard knew that it was an illegal
policy, they could be accessories to an international criminal act." The
statement read by protestor Bill Basinger to members of the Air Guard, shown
on a video tape of the demonstration to the courtroom, began: "We are bound
by conscience and international law to sound the alarm that a criminal act
is unfolding." 

Since the no-fly zones have no legal legitimacy, any Air Guard members that
kill civilians could be potential war criminals. According to the Law of
Land Warfare, Department of the Army Field Manual FM 27-10, "It must be
borne in mind that members of the armed forces are bound to obey only lawful
orders" (par. 509b, pp. 182-183). 

The trial raised questions about our system of checks and balances.
Witnesses for the prosecution argued that the Supreme Court will not take a
position on decisions made by members of the Executive Branch and Congress
in regards to making war. The "political question" doctrine means federal
courts refuse to hear cases where citizens argue the government is violating
international law in regards to actions such as the invasion of Panama. 

The judicial branch, if the testimony of these professors is accurate, has
no authority to check the executive branch in matters of war. Perhaps one
reason the U.S. objects to the International Court of Justice is that it
might compel the judicial branch to take jurisdiction over activities of our
soldiers abroad, now virgin territory. 

In the end, Sprong was found guilty and received a sentence of 40 hours of
community service and one year of probation. The Des Moines Register
produced three articles on the trial, including a piece by Reka Basu
(6-8-2000, p. 8) that concluded, "Something else was on trial besides
trespassing and the legality of our Iraq policy: what it means to be a
responsible citizen." Prosecutor Fred Gay stated in his closing remarks that
"we need more citizens like Michael Sprong." 

Condemnation of the no-fly zones has increased, with France, Russia, and
China speaking at the UN in opposition, the irony that those who argue the
no-fly zones are legal cite resolutions that three members of the Security
Council do not regard as valid. 

Meanwhile, the bombings continue and according to the UN, 4,000 Iraqi
children die every month as a result of sanctions. In a private
conversation, Falk observed, "When Americans don't die, there is no
discourse." 
---
*A copy of the Jeffrey Weiss report, "Are the No-Fly Zones Illegal: A look
at Media Coverage" is available free of charge on request. Jweiss@afsc.org
515-274-4851 
Jeffrey J. Weiss is an adjunct professor of Political Science at Des Moines
Area Community College and works for the American Friends Service Committee


===
http://www.dmregister.com/news/stories/c4788993/11535723.html

Prosecutor: Society needs more people like the defendant
By LINDSEY A. HENRY
Register Staff Writer
06/09/2000
----------------------------------------------------------------------------
----
 Michael Sprong's supporters filled a Polk County courtroom for four days.
Even prosecutors said the world needed more people like him.

Nevertheless, a jury found the Des Moines man guilty of trespassing
Thursday. Sprong must complete 40 hours of community service and a year of
probation for illegally entering the Iowa Air National Guard's base.

Sprong was among the 22 protesters arrested outside the base March 4. The
protesters opposed Iowa troops' involvement in enforcing the no-fly zone
over northern Iraq and the United States" nine-year economic embargo against
Iraq.

"I still believe every point I argued to the jury," said Sprong, who gave
his own closing statements in the four-day trial. "I consider it a dubious
victory for the state, if it's a victory at all."

Sprong and his lawyer, Sally Frank, wielded international law as his defense
- something of a rarity in a county courthouse. 

Princeton University professor Richard Falk paid for a flight to Des Moines
to back up Sprong's case. He testified for several hours that America's
military mission was illegal and that Sprong was justified to prevent it. 

Sprong, an employee of Des Moines' Catholic Worker shelter, also was
protesting the U.S. economic embargo against Iraq.

Sprong and Frank both expressed gratitude to Assistant Polk County Attorney
Fred Gay and District Associate Judge Matthew McEniry for allowing the
unusual defense. 

Gay told jurors he disliked prosecuting Sprong.

"This is not the type of guy prosecutors like to point the finger at," he
said. "Mr. Sprong is a good man, no criminal mentality. Society needs more
individuals with passions for their convictions."

Yet, Sprong crossed the line when he walked on the base, Gay said. 

"What does matter is good old Iowa law," he said. "It's a simple case. A
simple case of trespassing."

Before Sprong's trial started Monday, Gay dismissed similar charges against
three fellow protesters. He said Sprong was the most culpable of the four by
organizing the protest and writing Gov. Tom Vilsack with his concerns. 
-- 
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