That was fifty years ago tonight and I’m still here — so I guess I didn’t move. I was in the Alexandria, Minnesota, draft board office, trying to keep my country from committing more war crimes in Southeast Asia, trying to push my government off of the necks of the Vietnamese people. It turned out the young man with the pointed gun was with the F.B.I., so what he said was my patriotic duty trumped what I thought was my patriotic duty.
We had intended to call ourselves “The Minnesota Conspiracy to Save Lives,” but I guess when you get arrested, you lose your naming rights. Along with five others arrested in the Little Falls and Winona draft board offices that same night, the media dubbed us “The Minnesota Eight.”
Actually, there were 14 of us — three other people who, on that night, successfully stole the files from the Wabasha draft board office, and three others who, believing they saw a newly installed alarm system, called off their raid of the Faribault draft board office.
Of course, it wasn’t just the F.B.I. who thought we weren’t patriots. The Minneapolis Tribune printed a letter to the editor calling for us to be hanged during the Aquatennial — we were arrested on the night of July 10-11, so the timing was good — and that very nicely stenciled “Hang the Eight” graffiti under one of the bridges on I-94 seemed to stay up for an uncomfortably long time.
We were charged under the Espionage Act with attempted sabotage of national defense material. The government was getting serious; it hadn’t charged any draft board raiders with that kind of a charge before. Regrettably, when the grand jury indicted us, it was for attempted interference with the operations of the Selective Service System. I say “regrettably” because with the attempted sabotage charge, there is no way the government could have kept the war and the draft out of the courtroom.
The U.S. Attorney decided to try us in three separate groups. The first two groups were tried by U.S. District Court Judge Edward Devitt. He ruled the war and the draft were not relevant. All that mattered was that the files kept in those offices were Selective Service files, and we were trying to do something to them. Maybe he didn’t realize, or the thought didn’t enter his mind, that there wasn’t just one trial at Nuremberg. There were twelve of them, and the third trial was called “The Judges’ Trial.” Being a judge does not make you immune from being responsible for war crimes and crimes against humanity.
I remember asking Judge Devitt at our sentencing — yes, of course we were convicted — whether it would have been relevant if those files were names of fugitive slaves to be returned to their owners? Or what if they were lists of Jews in Nazi Germany? Or what if they were names of U.S. Federal District Court judges to be assassinated? Now I think maybe I should have left off that third one.
Anyhow, Judge Devitt began his sentencing statement with something like, “These five young men come from fine families.” Just as in his ruling that the draft and the war were irrelevant, he was clearly again engaging in misdirection. He gave us the maximum: 27 years — five years each for three of us and up to six years for two who were under the age of 21 and sentenced under the Federal Youth Corrections Act. Judge Devitt said:
Those who act out of an allegiance to a higher law than the law of the land are making jungle law….You entlemen are worse than the common criminal who attacks the taxpayer’s pocketbook. You strike at the foundation of government itself.
The anarchists in our group thought, yes, he had finally understood.
Then came the third trial in January 1971. This one was before Judge Philip Neville, known as being more liberal — and more fatherly — than Judge Devitt. And, lo and behold, unlike Devitt, Neville decided to let the jury hear evidence about the war and the draft, but only on a “provisional” basis. The defense theory was an extension of the legal theory of “necessity,” which says that if you reasonably believe your act is necessary to prevent an evil that is greater than the evil the law was designed to prevent, you can be found not guilty. For example, you can break into a burning building to save someone’s life, and you wouldn’t be guilty of breaking and entering, or trespass, or any other crime.
One of the witnesses in that third trial was a former Marine and former Defense Department employee named Daniel Ellsberg, who, at the RAND Corporation, had helped write a 6700-plus-page study of the history of U.S. involvement in Vietnam from 1945 to 1967. He believed that if he could get this study made public, he could help end the war and maybe save a million lives or more. But he was having little success with media people or members of Congress who would be willing to publish the study. So he figured, this was his opportunity: What better way to release the study than in a federal courtroom, where he’d be sworn to tell “the truth, the whole truth, and nothing but the truth”? So he very conspicuously placed a briefcase by the side of the witness stand as he began to testify. In it were about 1,000 pages of that study. Unfortunately, at a crucial point in the testimony, Judge Neville upheld a standing objection from the Assistant U.S. Attorney prosecuting the case, and said: “I am going to sustain the objection, as I indicated in advance, to any criticism of this administration or past administrations or Congress or anything else.” The concept of checks and balances between branches of government apparently didn’t apply here.
Five months later, on June 13, 1971, the New York Times began publishing excerpts from that very study that Ellsberg had tried to introduce. Leaked to the Times by Ellsberg and his colleague, Tony Russo, it soon became known as “The Pentagon Papers.”
Remember Nixon’s “Plumbers Unit”? That group was formed at that time in 1971. President Nixon was furious about leaks, plumbers plug leaks, so the unit became the “Plumbers.” Their first break-in was not into the Democratic National Committee offices in the Watergate. Rather, it was into the office of Dan Ellsberg’s psychiatrist. On Nixon’s order, they were trying to dig up dirt on Ellsberg so they could “try him in the media,” as Nixon put it. The Watergate break-in came a year later in June 1972, and that debacle eventually led to Nixon’s forced resignation to avoid being impeached by the House and convicted by the Senate.
In his transformation from a Cold Warrior to someone who was willing to risk decades in prison for his attempt to end the war, Ellsberg had been very moved by draft resisters he met, in particular, Randy Kehler, who was imprisoned for refusing induction into the military. I think he was probably exaggerating, but Ellsberg also said meeting groups such as ours helped push him along in his efforts to make the Pentagon Papers public. So we like to think that what started out as five simultaneous draft board raids in rural Minnesota, in an attempt to end an immoral, illegal, undeclared war begun and prosecuted by government lies, may have played some role in helping to lead to the only Presidential resignation in United States history.