Peace Protest Kabuki Now Booked for the High Court's Stage

How far does the writ of the military run? Only to the highway's verge, argue professional peace protesters who will make their case before the Supreme Court.
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How far does the writ of the military run? Only to the highway's verge, argue professional peace protesters who will make their case before the Supreme Court.
A Falcon 1 on Pad 3W at the Vandenburg Air Force Base. (PHOTO: COURTESY OF SPACEX)

A Falcon 1 on Pad 3W at the Vandenburg Air Force Base. (PHOTO: COURTESY OF SPACEX)

Last October I talked about the kabuki of the Vandenberg peace protesters, who routinely demonstrate right outside of the California missile base’s front gate, are just as routinely arrested, and then not quite as often are released without facing trial or have their charges dismissed.

It’s an intriguing constitutional ritual, combining concerns about free speech, domestic tranquility, and providing for common defense with just a tinge of farce. Only a tinge, because the protesters are deadly serious, and so is the work of the base, which when it test fires Minuteman missiles is offering a dress rehearsal for Armageddon, or perhaps Ragnarök.

Despite their earnestness, keep in mind that these aren’t the Gandhi-cum-Lizzie-Borden-style peace protesters who gave—and might still give—nuclear missiles 40 whacks. These are peaceful peace protesters who carefully step over a green painted line to signify to God and the waiting MPs that they are officially trespassing and ready for their apprehension, Mr. DeMille.

Highlighting the seriousness, one protester’s arrest has migrated past the U.S. Bankruptcy Court in Santa Barbara (where these trespass cases are usually heard) all the way to the U.S. Supreme Court in Washington, D.C.

Earlier this week the high court agreed to hear the United States v. John Dennis Apel, an appeal by U.S. Attorney General Eric Holder of a lower court decision. The Ninth Circuit of the U.S. Court of Appeals earlier had ruled that protests on base roads—roads on which the Air Force had granted local governments easements so traffic could zip by—meant the base lacked the “exclusive right of possession” which would have given it standing to cry trespass. So when Apel’s case came down the Ninth Circuit pike ... well, allow our contributor Nick Welsh to describe the goings-on in his excellent account in the latest Santa Barbara Independent:

Apel—​a chronic recidivist when it comes to civil disobedience—has been arrested no less than 17 times for protesting at Vandenberg. On two occasions, he was arrested for actually crossing the green line demarcating the base boundary and trespassing onto the base itself. The other 15 arrests, however, took place in the area across the street from Vandenberg’s entrance, which had been set aside—​at the instigation of the base—specifically to accommodate protesters. In none of these instances has it been alleged that Apel became violent, obstreperous, unruly, threatening, profane, rude, or even unpleasant. He was just there. Of those 15 arrests, Apel was actually tried for three and found guilty. For one, he spent time behind bars. After the Hobart Parker decision came down two years ago, Apel and a non-attorney friend filed legal papers to have the Hobart decision published after the Feds’ deadline for appeal had expired. That was a seriously slick move. Once Hobart was “published,” it carried the legal weight of precedent. As soon as Apel’s case got to the 9th Circuit Court, his convictions were tossed out.

To which Eric Holder, citing concerns about national security ramifications, urged it be tossed back in. In asking the justices to intervene, U.S. Solicitor General Donald "the Stealthy" Verrilli said Uncle Sam couldn’t “fully enforce a significant federal criminal statute on many military bases" were the Ninth’s ruling allowed to stand. The nation’s attorney general (even if only through his minions) is a pretty big name, so the peace protesters countered with their own, constitutional uber-lawyer Erwin Chemerinsky. He’s asked some good questions already, as Nick pointed out:

In legal papers, Chemerinsky wondered if national security were truly the issue, why would base brass have allowed the construction of a middle school, a bus depot, and an Amtrak station nearly spitting distance from the entrance?

But don’t expect the feds to roll just because the Surfliner tracks pass by. “The government commonly grants easements across military bases for public purposes,” Verrilli wrote in the court petition, “... and it does not thereby create a federal-law-free zone in which civilians may violate federal statutes with impunity.” Stay tuned.