The Ultra-Resistance: on the trial of the Milwaukee 14 (part 2)

(part 1 is posted at:

The attitudes of this new vintage of raiders are more cynical than those of the witness movement’s pioneers. As the Ultra-Resistance grows younger and more secular, it expresses increasing frustrations with the narrowness of its audience. However brilliant the trials of the Catonsville Nine and the Milwaukee Twelve, they failed to produce the forum which the protesters had hoped to obtain. The trials seem like chamber music played to the intimate audience of the peace community. The acts themselves are felt to be symbolic and not political enough. There is a growing anguish among the young about the obscurity of the witness they will offer.

The leaders of their movement, the older, more established and more eloquent men like the Berrigans, O’Leary, Forest, will continue to expound their mystique of protest in the religious and Left press. But the jail terms of the Chicago Fifteen, the Pasadena Three, the Silver Spring Three will have little educational impact. Who ever hears about the Boston Two, Suzi Williams and Frank Femia? They were denied bail at their first arraignment, and have already been in jail for over a year. It is with people like them in mind that the Ultra-Resistance is starting to question its basic premise of witnessing in jail. It is debating whether the “stand-around” actions for which they will surely be arrested are really preferable to the more destructive possibilities of anonymous hit-and-run sabotage. “Is it going to be a stand-around or a hit-and-run?” is the new stock question.

In July a group of five women calling themselves Women Against Daddy Warbucks carried out what seemed to be a combination of the two styles of action — a hit-and-run at the central draft board in Manhattan followed a day later by a playful stand-around in Rockefeller Center Plaza. In August the tactics became more elaborate. Draft boards were ransacked during the night, first in the Bronx (where 75,000 files were upset) and then in Queens, where a note was left saying that those responsible would soon identify themselves. A week later, on August 21st, eight protesters, two of them Jesuits, called a press conference at the Overseas Press Club and introduced themselves as the New York Eight who had made the raids to “underscore the horror of the military system that drafts Americans that kill and die.”

Members of the New York Eight also delivered manila envelopes filled with mutilated draft records to the chairmen of the boards of W. R. Grace and Company, Anaconda, I.T.T., and Standard Oil of New Jersey to “regale them with complicity,” as a friend of the group put it. The corporations sent the draft files back to federal authorities with extraordinary speed. The New York Eight stressed the fact that six of them are Irish-Americans. In fact, the Ultra-Resistance, since the Berrigans’ early work, has been predominantly Irish and had a streak of the I.R.A. in the viscerality of its emotions and its tactics. “We liken the situation in this country to that of Northern Ireland,” the New York Eight said in their press statement, “where civil rights are not respected and where violence is considered an alternative to respect for human rights.” The group had a three-hour meeting with Bernadette Devlin on the second day after her arrival in New York. So far none of the Eight has been prosecuted; whether they are or not, it seems likely that their way of doing things will recur often during the coming months.

However, many young purists still hold out for the original pristine stand-around. “There is no point to running,” John Phillips writes in his PISS newsletter. “Repression is certain; if depersonalized, repression will be general…. We are demythologizers, in running we maintain the myths…. Do your thing but run means not doing your thing, unless your thing is running….”

If, as others predict, the hard core of the Movement moves away from the moral violence of witness actions to the physical violence of sabotage, it will retard the violence of the government but it will not expose it so well. Its concern for destroying property without harming persons — so far highly solicitous — will be harder to control. It will lose its moral force and its dimension of hope. The witness movement has been in the highest tradition of civil disobedience, which is based on the hope that the system can be changed through non-violent means, and which considers jail as a necessary measure to prove a moral point.

Actions such as those of the Milwaukee Fourteen’s have been a witness to hope. The hit-and-run actions will be a witness to despair. And whatever token moves are taken by the Nixon Administration to deescalate the Vietnam fighting, the most terrible toll taken on this country by this insane war is precisely the loss of hope, the sense that not only legal means but also the process of non-violent civil disobedience have been tried and left wanting in reforming various areas of injustice.

Resisters feel that the legal system is much at fault. The courts’ predictable unwillingness to let themselves be used as forums for the airing of anti-war views, the judges’ natural reluctance to inject issues of political morality into their charges to juries, the selected conservatism of the jurying classes, have helped to inject a mood of hopelessness into the most utopian faction of the Movement. “If you decide that the only issue in this courtroom is whether we intended to take and burn draft records,” James Forest had told the jury in his closing statement, “you will make non-violence less likely and more difficult than ever.”

The Federal trial of the Milwaukee twelve which began on June 9th, three days after the State sentencing, was brief, abortive, and totally unexpected in its results. The charges were destroying government property and interfering with the working of the Selective Service System. After a tedious voirdire of two and a half days in which he cross-examined 141 prospective jurors — mostly hostile to the defendants — Federal District Judge Myron Gordon dismissed the government charges against the twelve on grounds that “prejudicial pre-trial publicity” caused by modern press media had made a fair trial impossible. The decision was said to have no precedent. Other court rulings involving news coverage of criminal cases, such as the Sam Sheppard case, had never resulted in dismissal of charges, but in reversal of conviction followed by retrial. The Federal Court’s decision — favorable though it seemed on the surface — had ominous implications for the twelve men. The government immediately filed an appeal. If the twelve are tried and convicted in a Federal Court in six or eight months, as they are apt to be, there will be virtually no chance of their Federal sentences being served concurrently with their State sentences, as has been usual in civil disobedience cases. Judge Gordon’s ruling is predicted to add six or eight months to their stay in jail.

The fate of the Milwaukee twelve seems to have become enmeshed in local Wisconsin politics. Judge Gordon, a dour Harvard Law School graduate who would have run a much tighter trial than Judge Larson, has been fighting a political vendetta with the Milwaukee press for several years. He is known to be a close friend of the city’s mayor, Henry Maier, who had been instrumental in getting him appointed to the Federal bench. When the liberal Milwaukee Journal in 1967 criticized the Mayor’s stand on civil rights as being timid, Judge Gordon backed the mayor. He accused the Journal of running a monopoly press, and was attacked in turn by the paper. By dismissing charges against the war protesters on the grounds that the local press had made a fair trial impossible, Judge Gordon may have turned conservative elements in the city against his acknowledged enemy. By such vendettas are the lengths of men’s jail terms frequently dictated.

On the afternoon after the last day of the government trial, the wives of James Forest, Doug Marvy and Robert Graf drove to Waupun State Penitentiary, an hour north of Milwaukee, to make their first visits to their husbands. “We drove through miles of Wisconsin farmland,” Linda Forest told me, “and arrived at a place which looked very much like Maria Lach, very monastic — a wall some fifteen feet high, four blocks long, broken up by wrought iron arches. When they see you coming there’s a large humming and snapping sound coming from a watch tower, which issues a loud report when the gate swings open. You walk to the guard house across a large stretch of grass — there’s a lot of grass everywhere. We were cordially received by the guards, who took us to the sergeant. Everybody was polite to us, they kept saying ‘M’am, M’am.’

“The sergeant accompanied us through what looked like a series of cloisters, one building enclosed inside the other, past the chapel enclosure, the gymnasium enclosure, past a first set of dorms, you’re always walking on very soft grass. Prisoners were hanging out of windows, some windows had boxes of geraniums on them. We made the V sign at them and they flashed it back. The sergeant ushered us into a very neat building, the architecture was very clean, very modern. The guard on duty there was a Robert Young type with a pipe in his hand, extra friendly. ‘Linda,’ he said, ‘you have two hours of visiting time a month, you can have them both at once if you want.’ Finally he ushered us into the reception room, it was like a seminary, or a university. There were lots of century plants around, smart brown curtains, Danish-type modern chairs scattered around modern coffee tables. On each coffee table there was a plastic-coated slip of paper which said the following:

We have made a conscientious effort to create as much of a living room atmosphere as possible for you and your relatives. We hope that you won’t embarrass us by extreme displays of any sort. Visitors are allowed to embrace and kiss prisoners before and after each visit.

“Jim looked very well. He looked about nineteen years old with his head clean-shaven, and without his mustache. He says the food is very good, cafeteria-style, they are forced to eat everything on their plate. For the first few days he’s not allowed any books except his Bible and his breviary. He’s been saying his breviary every hour, he’s been saying his hours. We sat and talked about our marriage and about how we would grow through this, how it might be the best thing for our marriage. When I hugged Jim he smelled so good, a smell of clean plain soap and of fresh clean linen, he smelled like a nun, or like a child when you put him to bed.”


[*] in which a Massachusetts Federal District Court held that the present Selective Service System unconstitutionally discriminates against conscientious objectors who do not adhere to an institutionalized religion.

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October 9, 1969: John H.E. Fried, MORAL CHOICE

Volume 13, Number 6 / October 9, 1969



By John H.E. Fried

In response to The Ultra-Resistance (September 25, 1969)

To the Editors:

Some of my testimony at the trial of the “Milwaukee Fourteen” was garbled in the court transcript. Hence the quotation in Francine du Plessix Gray’s article [NYR, Spetember 25, p. 17] could convey the erroneous impression that the Nuremberg International Tribunal left it to the individual to obey international law, or to obey rules of his Government that violate international law. This was not my testimony.

The Tribunal’s famous “moral choice” doctrine is that an individual who was ordered to commit an international wrong will be internationally responsible for obeying the order if a “moral choice” not to obey it existed for him — that is, if by the rules of morality he had a realistic choice. The gist of my testimony was: The International Tribunal at Nuremberg, at which the United States was represented, stated that it is the moral choice of the individual that counts. Obedience to the higher, the world order, is more important. He should feel that, and always endeavor not to violate it. If such moral choice is in fact not possible for him, he will not be personally punishable for violating the international rule. But if he feels that he must make the choice even at personal risk, then he has to make the moral choice and do the things he considers morally proper. That is the great ethical and moral message of Nuremberg.

For the benefit of readers, I quote pertinent passages from the Judgment:

“…the very essence of the [Nuremberg] Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance to the authority of the state if the state in authorizing action moves outside its competence under international law…. The true test…is not the existence of the order, but whether moral choice was in fact possible.” (Trial of the Major War Criminals…Nuremberg, 1945/6. Vol. I, pp. 223/4.)

John H. E. Fried
Professor of Political Science,
Lehman College and Graduate Faculty
City University of New York
formerly Special Legal Consultant to the US War Crimes Tribunals, Nuremberg

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For Jim Forest’s reflections about the Milwaukee 14, see:
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