Nuremberg Revisited

Americana

CALLS IN THE MIDDLE OF THE NIGHT are always trouble. Even wrong numbers. If nothing else, they interrupt sleep with their jarring note, and the sleeper never fully recovers. However, calls that reach their intended recipient at two am are even worse. No news that can't wait for the morning is good news. These were the thoughts racing through Jeff Miller's mind as he reached for the cell phone chirping on his night stand.

“'Lo,” he mumbled into the device after he found the “Send” button.

“Jeff,” the voice from the airwaves began.

“Yeah,” Jeff responded. He recognized Jerry, his brother-in-law's voice.

“They're coming,” Jerry announced.

“Who's coming?” 

“The Feds,” Jerry replied.

“The Feds?”

The warm body next to Jeff flailed an arm to dislodge the blanket covering her head. “Who is it?” Mary, Jeff's wife, asked.

“Your brother.”

Mary lifted herself onto one elbow and peered at the clock on Jeff's nightstand. “Jesus, it's two am,” she complained. “What's he want?”

“He says the Feds coming,” Jeff relayed.

“They're here, Homeland Security,” Jerry interrupted. “They have the Army with them.”

“Where's here?” Jeff asked.

“Down the street,” Jerry explained. “They're going house-to-house. What should I do?”

Jeff was wide awake. “Nothing,” he responded.

“Nothing?”

“Nothing,” Jeff repeated. “There's nothing you can do.”

“We have guns,” Jerry said.

“So, what,” Jeff responded, “Unorganized individuals can't stand up to a coordinated attack. I don't care how well armed you are.”

“But,” Jerry protested, “we didn't think...”

“That's right,” Jerry interrupted. “You didn't think.”

“But...”

“Can't talk now,” Jerry interrupted again. “I have to go.”

Jeff dressed in a hurry and was out the door within minutes. His wife remained behind placing calls that spread exponentially, organized by a preplanned phone tree.

A year later, Jeff sat on the witness stand at the courts martial for members of the 101st Airborne Division charged with insubordination for refusing to disarm American citizens.

“So,” the prosecutor intoned with a meaningful glance in Mary's direction, “your wife helped facilitate this unlawful assembly and insurrection.”

“Objection,” the defense attorney cried as he leaped to his feet, “the militia has already been cleared of all charges.”

“In state court only,” the prosecutor amended. “The federal case is still pending.”

The judge rapped his gavel. “The witness is not on trial here, Major Pendergast,” he said. “Also, you may not characterize the actions of the militia as either unlawful or an act of insurrection until they are found guilty.”

“If they are found guilty,” the defense added.

“If they are found guilty,” the judge echoed with a nod to the defense counsel.

The prosecutor smiled as though he had won a victory in the exchange and the jury scribbled notes. After a moment's hesitation to catch his breath and sip some water, Major Pendergast turned on the witness and continued. “So, the gangsters, this self-styled militia...”

“Objection!”

“Sustained.”

Pendergast smiled at the jury and continued. “The militia,” he repeated making the word sound as though it left a foul taste in his mouth, “unlawfully...”

“Objection.”

“Sustained.”

“The militia attacked...”

“Objection. Assumes facts not in evidence.”

“Sustained.”

“The militia mustered with the intention of engaging...”

“Objection.”

“Sustained.”

Pendergast shrugged his shoulders in mock exasperation for the benefit of the jury and continued. “What did the militia do after mustering?”

Jeff looked directly at the jury as he recited the events of the day following his call from his brother-in-law. He recounted how the militia had mustered at their makeshift armory and proceeded to prepared defensive positions along Interstate Highway 15. They were accompanied by elements of the state National Guard who provided armor and artillery support. The state Air National Guard orbited overhead and engaged in aerial maneuvers to discourage U.S. Air Force warplanes from entering their airspace. The militia remained in position for twenty-four hours until they were met by advance elements of the First Brigade of the 101st Airborne Division.

“What happened then?” the prosecutor prompted.

“Lieutenant White was sent forward to parlay with us.”

“Go on.”

“Lieutenant White informed us that he had orders to search all homes in our city and seize all weapons. Furthermore, he ordered us to lay down ours and disperse.”

“And you did not.”

Jeff smiled. “Obviously.”

“You find this funny, Mr. Henderson?” the prosecutor responded and faced the jury with a look of disgust firmly fixed on his face.

“No, sir,” Jeff answered. “I find your question funny.”

The prosecutor leaned close and lowered his voice to a menacing level. “I caution you to show respect for this proceeding.”

The judge lowered his voice and warned the prosecutor. “I'll decide who is showing proper respect and who isn't.”

“Yes, your honor.”

Jeff took a deep breath and relaxed himself in preparation for the next assault. 

“Then, you disobeyed a lawful order from an officer of the United States,” the prosecutor accused.

“No, sir,” Jeff replied calmly. “We chose to ignore an unlawful order.”

“You hold yourself above the government?”

“Yes.”

Blood surged up the back of the prosecutor's neck and flooded over his face. “How can you possibly justify that answer?”

“Lieutenant White and his men did not have a writ from a judge to search our homes. They were in violation of the Fifth Amendment. They were sent to infringe on our rights to bear arms, a violation of the Second Amendment.”

The prosecutor turned to the jury with a sweep of his arm and dropped his voice an octave as he dismissed Jeff's testimony. “That is not for you to decide,” he announced in a voice that could be heard in the hallways outside the courtroom.

“That's correct,” Jeff agreed calmly. “It has been decided in court.”

“A state court,” the prosecutor mocked.

“And hopefully it will be affirmed in the Supreme Court,” Jeff added.

“Yes,” the prosecutor responded, turning to the jury to deliver a knowing smile. “I'm sure you do.”

The prosecutor took another drink from his glass and refilled it from a pitcher sitting nearby. “What did Lieutenant White do when you declined to obey his order to lay down your arms and disperse?” he asked over his shoulder.

“He attempted to persuade us to comply.”

“He must not have tried very hard.”

Jeff paused a moment before responding. “I think he did.”

“But, you didn't comply.”

“No amount of persuasion could make us comply with an unlawful order.”

“Unlawful in your opinion.”

“Yes and, thus far, the court's opinion as well.”

The prosecutor snorted his derision at the judgment of the lower court, then turned back to Jeff on the witness stand. “You must have been persuasive that day.”

Jeff waited for a question.

“You convinced Lieutenant White to turn back without enforcing his orders.”

Jeff continued to wait.

“What did you say to Lieutenant White?”

“I reminded him of his oath.”

“His oath?”

“To support and defend the Constitution against all enemies, foreign and domestic,” Jeff recited, emphasizing the last word, “domestic”.

“You're familiar with the oath?”

“Of course,” Jeff answered. “I served.”

“Yes, you served,” the prosecutor parroted, nodding. “Then you must understand the need for military discipline.”

“Of course,” Jeff responded, and then continued reciting the oath he had taken as an Army officer, “...and to obey the lawful orders of the officers appointed over me.” Jeff emphasized the word “lawful”.

“We can't have every officer deciding which orders are 'lawful' and which are 'unlawful' and maintain military discipline, can we?” the prosecutor challenged.

“They're legally obligated to make that determination, sir,” Jeff countered.

The prosecutor responded with exaggerated surprise written on his face.

“Don't you remember the trials at Nuremberg?” Jeff asked, then continued, “the Nazi war criminals attempted to defend themselves, that they were only 'following orders'. However, in that case, the military tribunal firmly established the principle that military officers and enlisted men are not obligated to follow orders that clearly violate the law.”

The judge pounded his gavel as a murmur rose to a roar of arguing from the gallery. The jury scribbled furiously. The prosecutor drained another glass of water.

The court recessed for the day.