The Military Line

The U.S. Supreme Court hears oral arguments on U.S. v. John Dennis Apel on December 4, 2013. John Dennis Apel was arrested at Vandenberg Air Force Base while protesting against nuclear and space-based weapons. He was cited three times for trespass while standing quietly on the shoulder of the Pacific Coast Highway (Highway 1) holding a peace sign outside the base’s main gate. He was charged under a federal statute (18 USC Section 1382) for reentering a military base after being banned from Vandenberg by the base commander.

Apel defended himself in U.S. District Court. I was with him when he was arrested and assisted him with his legal defense. A U.S. magistrate judge and a regular federal District Court judge found him guilty in his trials and initial appeal. We then petitioned for an appeal before the U.S. Court of Appeals for the Ninth Circuit.

The Circuit Court accepted the case and appointed a legal clinic at UC Irvine Law School and Erwin Chemerinsky, the school’s dean, as pro bono counsel for Apel. He won his appeal in the Ninth Circuit Court, which overturned his conviction. The U.S. Solicitor General and lead counsel for the Pentagon then successfully petitioned the U.S. Supreme Court for a review. This was no surprise because Apel’s victory in the Ninth Circuit has ramifications for every military base that is traversed by a public street — which is most military bases in the country. Dean Chemerinsky and a group of attorneys associated with his law clinic continue to represent Apel in his Supreme Court case.

The case is complex because Apel was arrested on a highway that was open to the public by the granting of an easement. Highway 1 is on federal property where it traverses Vandenberg Air Force Base, but it is also a place of concurrent jurisdiction: The State of California, County of Santa Barbara, and the military share legal authority on the road. The arguments in Apel’s case concern free speech protections under the First Amendment of the U.S. Constitution, the original intent of Congress in promulgating the federal statute under which he was charged, and common law principles that apply to property ownership.

While its matters are technical and esoteric, Apel’s case ultimately raises a single but fundamental question that is relevant for every U.S. citizen: Where do we Americans draw the line between military and civil authority? This question is especially pressing given our hyper concern for security in the aftermath of the 9/11 terrorist attacks.

Indeed, the “military line” is an apt metaphor for what lies at the heart of U.S. vs. John Dennis Apel, and what’s at stake in its outcome. Vandenberg has painted a green line across the road that leads off Highway 1 and goes through its main gate. The property under the easement of Highway 1 lies on one side of the green line and is under concurrent jurisdiction of the state, county, and military. Apel was on this side of the line when he was arrested. The property on other side of the green line is under exclusive jurisdiction of the military.

John Dennis Apel believes his arrest was unconstitutional because he was protesting on the highway side of the military’s green line. Public streets have long been considered public forums in American society: places where citizens have a right to assemble and express themselves freely. Apel also believes the military cannot charge him for trespass on public property that, because of the easement, it does not fully posses and control.

The military argues that the base commander’s authority to charge Apel for trespass under 18 USC Section 1382, the purpose of which is to protect national security interests, extends across the green line onto Highway 1. It also contends that concern for national security legally overrides Apel’s First Amendment right to free speech on base property, even when he stands in the easement of Highway 1. This concern for security constitutes a second sort of military line: an explanation the military conveniently pulls out of its pocket when extending its authority into what would otherwise be considered a public domain.

Apel was banned from Vandenberg for conducting two symbolic acts of civil disobedience. On the eve of the U.S. invasion of Iraq in 2003, Apel poured a vial of his own blood on the stone wall and sign at the base’s main gate to protest the lack of justification for the military action: an act of vandalism that was remedied in minutes with soap and water. At a later date Apel took his peaceful protest off the Highway 1 easement several yards across the green line onto the entry road that leads toward the Vandenberg’s main gate. It is for these acts that the base commander at Vandenberg deems Apel a threat to national security.

There are many very serious security concerns at Vandenberg Air Force Base, but whether a peaceful protestor like Apel is one of them is highly questionable. First, Vandenberg generally allows members of the public to drive or walk off Highway 1 and cross the green line for the several hundred yards that lead up to a security gate and guard shack without confronting them. In fact, a public visitor center and public transit bus stop are located on the military side of the green line.

How the military treats Highway 1 is even more telling for the authenticity of its security concern, or lack thereof. The military maintains the easement for the convenience of the public. If necessary for security, the military can withdraw the easement and require members of the public to use alternative routes to travel to places like Lompoc in one direction and Santa Maria in the other. But the military finds this unnecessary and does not even monitor who or what goes up and down the highway.

Who and what the military allows to go up and down, unimpeded and unmonitored on Highway 1 on federal property, are remarkable. People who have been convicted of, and served prison time for, violent crimes such as murder, rape, and aggravated assault and other felonies such as grand theft, arson, and espionage are allowed to traverse Highway 1 freely at Vandenberg. In fact, unless they have been specifically banned from the base, such people are allowed to take part in protests at Vandenberg as long as they stay on the highway side of the green line. Apel has no such criminal background.

Then there are deadly, hazardous materials that are trucked in large quantities up and down Highway 1, unimpeded and unmonitored by the military at Vandenberg. These dangerous cargoes are destructive weapons in the wrong hands.

Given these glaring inconsistencies, it is hard to believe the military when it insists, as it does in the case before the Supreme Court, that its treatment of Apel is not motivated by the critical content of his speech. What takes place on the military side of the green line at Vandenberg — the activity that John Dennis Apel criticizes — adds to the difficulty of taking the military at its word.

Vandenberg is the training site for U.S. military personnel who are responsible for launching nuclear-armed intercontinental ballistic missiles (ICBMs). The military tests its ICBMs by launching them from Vandenberg and aiming them at an atoll in the Marshall Islands. The base is also a key test site for interceptor missiles, which are part of the space-based, anti-missile defense system under development by the United States.

Apel finds nuclear weapons intrinsically immoral. Many Americans share his sentiments. Many Americans also question the efficacy of such weapons and a space-based defense system. The nuclear defense principle of “mutually assured destruction” makes no sense in our post–Cold War world and especially for contemporary geopolitical realities.

Citing data compiled from the Stockholm International Peace Research Institute (SIPRI Military Expenditure Database, 2013), the nonpartisan Peter G. Peterson Foundation reports that in 2012, the United States spent more money on defense ($682 billion) than the next 10 countries with the highest defense budgets combined: China, Russia, the U.K., Japan, France, Saudi Arabia, India, Germany, Italy, and Brazil. The Bulletin of the Atomic Scientists reports that in early 2013, the U.S. has deployed approximately 2,150 nuclear warheads.

The maintenance and modernization of nuclear weaponry, which the U.S. continues to carry out, is absurd from the perspective of an authentic concern for national defense. The U.S. no longer holds any major power as an enemy. Unquestionably, the U.S. deems terrorism as its central national security concern. But how is the extensive American nuclear arsenal a deterrent to terrorism? Even if a “rogue nation” obtains and uses a nuclear weapon, is it conceivable that the U.S. will respond in kind?

On the other hand, take the position of “rogue countries” like Iran and North Korea. They observe that the nation with the greatest military capability in the world finds it necessary to have a nuclear arsenal. Why wouldn’t such militarily inferior “rogue nations” also believe it is necessary to obtain such weapons?

The development of a space-based, anti-missile defense system is also counterproductive for national defense. This system, if it ever becomes functional, threatens to amplify the defense advantage of the United States over other nuclear powers, especially Russia. Consequently, the development of the system constitutes an impediment to nuclear disarmament, one that dates back to the days when Ronald Reagan and Mikhail Gorbachev attempted to negotiate a mutual total elimination of nuclear warheads. And so nuclear disarmament and nonproliferation remain unattainable, while the chances of increasingly sophisticated terrorists obtaining and using nuclear weapons mount.

The Peter G. Peterson Foundation does not focus on peace-making or military disarmament. The foundation’s mission is to raise consciousness about detrimental fiscal policy in the United States. It’s an economic catastrophe that the foundation fears, not a military one. The foundation suggests that such grossly disproportionate military spending by the United States has become an end unto itself. It is in a related manner that John Dennis Apel represents a threat to the U.S. military and the massive commercial interests that are connected to it.

John Dennis Apel is a pacifist committed to nonviolence, who lives in volunteer poverty in solidarity with the farm laborers that he serves as a Catholic worker. He in no way constitutes a threat to the soldiers at Vandenberg Air Force Base, nor its property. However, Apel is indeed a “force to be reckoned with” for the military. He is almost fearless in standing up for principles and is willing to risk imprisonment (he endured a two-month prison term for pouring his blood on the wall at Vandenberg) — and his protest gathers public attention.

A protest for peace threatens the U.S. military and the financially based regime it has formed with a plethora of defense contractors and grantees: the “military-industrial complex” that Dwight Eisenhower famously warned Americans about in his presidential farewell speech. What would happen to these interests if many more Americans followed Apel’s lead and pushed back against the military line?

Those who find this an implausible and unsupported conclusion may have second thoughts when considering the following piece of American history: Several hundred years ago a group of men dared to confront the most powerful military-commercial regime in the world at the time when they formulated and adopted the Declaration of Independence. Most of these men lacked the deep moral integrity of John Dennis Apel, as suggested by their hypocrisy on slavery and sexism, among other faults. But these imperfect men certainly shared Apel’s courage, if not surpassed it. The “Founding Fathers” signed the Declaration of Independence at the risk of being hanged, and they did so when General George Washington and his feeble army showed little promise of winning the Revolutionary War.

From early on as a nation, and for many generations, Americans and their leaders remembered with abhorrence how militarization had so transformed Great Britain into a voracious empire and enemy. They remained wary of an overly strong military and constrained the growth of their standing army. This wariness largely spawned the inclusion of protections for civil liberties in the U.S. Constitution and the creation of the high court to protect them — the court in whose hands Apel’s case now lies.

Those interested in learning more about U.S. vs. John Dennis Apel can read the legal briefs here. The transcript of the oral hearing of the case before the Supreme Court will become available at the end of the day on December 4 here. A recording of the hearing will be available on December 6 here.