Former U.S. attorney: conviction, courage and dishonor among 'Catonsville Nine'
By Stephen H. Sachs
May 05, 2018 | 6:00 AM
Fifty years ago this month, on May 17, 1968, nine Roman Catholic activists, including two priests, raided Draft Board 33 on Frederick Road in Catonsville to protest the war in Vietnam. They gathered armfuls of Selective Service records from filing cabinets and from the hands of frightened clerks. They took the records outside to a parking lot and burned them with home-made napalm.
Six months later, a jury in federal court found them guilty of destroying government property.
For many, the protesters' raid became, and remains, a stirring symbol. An iconic photograph captures the nine activists standing solemnly in prayer around the burning records awaiting arrest. Their action and subsequent trial are legendary. Full length histories, countless magazine and newspaper features, several documentaries, a play and a movie produced by Gregory Peck have fixed their place in our national memory as the "Catonsville Nine."
In each of these chronicles the nine are portrayed as heroes. That is not surprising. Our culture celebrates the rebel. And supporters of the Catonsville Nine, then and now, believe that the activists — who violated society's laws and disrupted good order with the evocative cry of "burn paper, not children" — are foursquare in that tradition.
I write from a different perspective. I was the U.S. Attorney for Maryland who supervised the prosecution of the Catonsville Nine.
I believed then, and believe now, that the nine were brave men and women who acted out of a conviction that the war in Vietnam was profoundly evil. But I believed then, and believe now, that the conduct of the nine — particularly their insistence that their action at Catonsville should have been condoned because they were "right" — offends both the rule of law and a fundamental tenet of the American democracy.
The nine readily acknowledged their intent to violate the law by destroying draft board records in order to hamper the war effort. But they sought to be acquitted by the jury, the law notwithstanding, because their motives — opposition to an unjust war — were justified. Chief Judge Roszel C. Thomsen correctly refused to allow the jury to ignore the law and to conflate intent and motive. And he refused to permit defense counsel to urge the jury to ignore the court's instructions and thus to engage in "jury nullification."
Jury nullification is in effect "non-law" — a courtroom free-for-all without rules, subject to the passions of free range juries. As we know from jury acquittals of bigoted attackers of civil rights workers in the Jim Crow South, jury nullification can rationalize evil. And it does not play favorites. For example, jury nullification would have allowed acquittal of pro-war zealots who ransacked a peace movement headquarters if the jury believed the accused acted because young Americans were dying in Asian jungles to protect our freedoms.
Nor were the nine engaged in "civil disobedience" in the tradition of Thoreau, Gandhi and King. They faced no personal choice between the demands of government and the demands of conscience. No law of doubtful validity was being applied to them. They did not willingly submit to punishment to bear witness to their beliefs. On the contrary, they sought exoneration.
The self-righteous presumption of the nine that they deserved acquittal because they were "right" also fractured a central value of the American democracy. It is a value that is subtle but profound. Its roots are in the Constitution's First Amendment.
A healthy skepticism is inherent in the free speech amendment's guarantee that the voice of every American has a right to be heard. It teaches that no one man or woman, no one sect, no one political party, no true believer, no zealous partisan, no ideologue — no one has a corner on the truth, a pipeline to God.
The distinguished federal judge Learned Hand may have put it best: "The spirit of liberty," he said, "is the spirit which is not too sure that it is right." There is a modesty, a humility, in this maxim. Self-doubt is a civic virtue in the American democracy.
The Catonsville Nine entertained no such doubt. "Some property," they announced in a press release distributed at the Catonsville draft board, "has no right to exist."
One can believe, as I do, that the nine were men and women of conviction and courage. And also believe that they dishonored a cardinal American value.
I have no doubt that some, perhaps many, will celebrate this Golden Anniversary of the Catonsville Nine by remembering their action as a glorious moment of valorous protest. They are certainly entitled to do so.
But the rule of law and the democratic value of humility have stronger claims to our reverence and respect.