The Berrigans

In three trials one or both of the activist Berrigan brothers have directed public attention to issues of war and civil disobedience. In 1967 Fr. Philip Berrigan and three others were tried in Baltimore (the Baltimore Four) after they had poured blood over draft records in the Selective Service office.

In 1972 Fr. Philip Berrigan and six others (the Harrisburg Seven) were indicted and tried on charges of conspiring to kidnap Henry Kissinger and blow up the heating system in Washington federal buildings. This bizarre trial was not of the defendants’ choosing, but it ended with a deadlocked jury.¹²⁸ The Harrisburg trial might be best seen as a harbinger of the Watergate events rather than as a trial of dissenters. Robert Mardian, who directed the Justice Department’s internal security division under Attorney General John Mitchell and was tried along with him in the Watergate cover-up trial, was in charge of several initiatives, including the wiretapping of radicals without court approval and the conspiracy trial in Harrisburg. Shortly after the trial ended unsuccessfully for the government, Mardian resigned from the Justice Department to work in President Nixon’s 1972 reelection campaign.¹²⁹

The 1968 Catonsville Nine trial might in our time serve as the exemplar trial of dissenters.

I want it clearly understood that the government is not about to put itself in the position—has not heretofore and is not now—of conducting its policies at the end of a string tied to the consciences of these nine defendants. This trial does not include the issues of the Vietnam conflict. It does not include the issue of whether the United States ought to be in the conflict or out of it.

But this prosecution is the government’s response, the law’s response, the people’s response, to what the defendants did. And what they did was to take government property and throw flammable material upon it and burn it beyond recognition. And that is what this case is about.¹³⁰

The defense, on the other hand, saw the Vietnam War as the only important issue in the trial. As William Kunstler told the jury:

The trial of Socrates was not merely a question of a man sowing confusion and distrust among the youth in Athens; the trial of Jesus could not be reduced to one of conspiracy against the Empire.

In the first place, we agree with the prosecutor as to the essential facts of the case. The defendants did participate in the burning of records.

It is not a question of records which are independent of life. We are not talking about driving licenses or licenses to operate a brewery. We are talking of one kind of record. No others so directly affect life and death on a mass scale, as do these. They affect every mother’s son who is registered with any Board. These records stand quite literally for life and death to young men.

They wanted, in some small way, to throw a roadblock into a system which they considered murderous, which was grinding young men, many thousands of them, to death in Vietnam.

Also, they wanted, as they said, to reach the American public, to reach you. They were trying to make an outcry, an anguished outcry, to reach the American community before it was too late. It was a cry that could conceivably have been made in Germany in 1931 and 1932, if there were someone to listen and act on it. It was a cry of despair and anguish and hope, all at the same time. And to make this outcry, they were willing to risk years of their lives.¹³¹

When William Kunstler quoted Peter Zenger’s attorney’s exhortation that the jury “make use of their conscience” to the Catonsville jury, Judge Roszel Thomsen admonished Kunstler:

You are urging the jury to make their decision on the basis of conscience. This morning, I said to you that if you attempt to argue that the jury has the power to decide this case on the basis of conscience, the court will interrupt to tell the jury their duty. The jury may not decide this case on the basis of conscience of the defendants. They are to decide this case only on the basis of facts presented by both sides.¹³²

Daniel Berrigan asked the judge to consider whether or not his reverence for the law did not require him:

to interrupt and adjust the law to the needs of people here and now. I believe no tradition can remain a mere dead inheritance. It is a living inheritance which we must continue to offer to the living. So it may be possible, even though the law excludes certain important questions of conscience, to include them none the less; and thereby, to bring the tradition of life again for the sake of the people.¹³³

Judge Thomsen responded during a colloquy outside the hearing of the jury that as a man he was moved by what the defendants said, but as a judge he must say that the “basic principle of our law is that we do things in an orderly fashion. People cannot take the law into their own hands.”¹³⁴

Questions about the relationship between conscience and law can arise in trials of dissenters when the trials are conducted within the framework of the rule of law and, even in rare instances such as More’s trial, in partisan trials. Judge Thomsen commented to the defendants that:

If you had done this thing in many countries of the world, you would not be standing here. You would have been in your coffins long ago. Now, nobody is going to draw and quarter you. You may be convicted by the jury, and if you are, I certainly propose to give you every opportunity to say what you want.¹³⁵

In many political trials, getting to say what you want is the whole point.