These actions (the word covert is used officially, perhaps it sounds more respectable than secret) are fundamentally undemocratic; they take place behind the backs of the American people. The people who carry them out are, therefore, not accountable to any democratic process. The government has bypassed its own channels. For the citizens to stop this, civil disobedience may be needed.
Is Civil Disobedience Always Right?
There is a common argument against civil disobedience that goes like this: If I approve your act of civil disobedience, am I not honor bound to approve anyone's civil disobedience? If I approve Martin Luther King's violations of law, must I not also approve the Ku Klux Klan's illegal activities?
This argument comes from a mistaken idea about civil disobedience. The violation of law for the purpose of committing an injustice (like the Governor of Alabama preventing a black student from entering a publie school or Colonel Oliver North buying arms for terrorists in Central America) is not defensible. Whether it was legal (as it was until 1954) or illegal (after 1954) to prevent black children from entering a school, it would still be wrong. The test of justification for an act is not its legality but its morality.
The principle I am suggesting for civil disobedience is not that we must tolerate all disobedience to law, but that we refuse an absolute obedience to law. The ultimate test is not law, but justice.
This troubles many people, because it gives them a heavy responsibility, to weigh social acts by their moral consequences. This can get complicated and requires a never-ending set of judgments about practices and policies. It is much easier to lie back and let the law make out moral judgments for us, whatever the law happens to say at the moment, whatever politicians have made into law on the basis of their interests, however the Supreme Court interprets the law at the moment. Yes, easier. But recall Jefferson's words: "Eternal vigilance is the price of liberty."
There is fear that this kind of citizens' judgments about when to obey and when to disobey the law will lead to terrible consequences. In the summer of 1968 four people who called for resistance to the draft as a way of halting the war in Vietnam—Dr. Benjamin Spock, Reverend William Sloane Coffin, writer Mitchell Goodman, and Harvard student Michael Ferber—were sentenced to prison by Judge Francis Ford in Boston, who said, "Where law and order stops, obviously anarchy begins."
That is the same basically conservative impulse that once saw minimum wage laws as leading to Bolshevism, or bus desegregation leading to intermarriage, or communism in Vietnam leading to world communism. It assumes that all actions in a given direction rush toward the extreme, as if all social change takes place at the top of a steep, smooth hill, where the first push ensures a plunge to the bottom.
In fact an act of civil disobedience, like any move for reform, is more like the first push up a hill. Society's tendency is to maintain what has been. Rebellion is only an occasional reaction to suffering in human history; we have infinitely more instances of submission to authority than we have examples of revolt. What we should be most concerned about is not some natural tendency toward violent uprising, but rather the inclination of people faced with an overwhelming environment of injustice to submit to it.
Historically, the most terrible things—war, genocide, and slavery—have resulted not from disobedience, but from obedience.
Vietnam and Obedience
There are rare moments in the history of nations when citizens, their indignation overflowing, begin to refuse obedience to the authorities. Such a moment in the history of the United States was the war in Vietnam. When Americans saw their nation, which they had been taught to believe was civilized and humane, killing Vietnamese peasants with napalm, fragmentation bombs, and other horrible instruments of modern war, they refused to stay inside the polite and accepted channels of expression.
Most of the actions taken against the war were not acts of civil disobedience. They were not illegal, but extra-legal—outside the regular procedures of government: rallies, petitions, picketing, and lobbying. A national network of educational activities spontaneously grew: alternative newspapers, campus teach-ins, church gatherings, and community meetings.
When the supposed clash between U.S. naval vessels and North Vietnamese patrol boats took place in the Gulf of Tonkin during the summer of 1964, I was teaching in a Freedom School in Jackson, Mississippi. In August, the bodies of three missing civil rights workers, shot to death, were found near Philadelphia, Mississippi, and many of us working in the movement drove up to attend a memorial meeting held outdoors not far from where they had been killed.
At the meeting, one of the organizers of the Mississippi movement, Bob Moses, stood up to speak. He held aloft the morning newspaper from Jackson. The headline was "LBJ Says Shoot to Kill in Gulf of Tonkin." Moses spoke with a quiet bitterness (this is a rough recollection of his words): "The president wants to send soldiers to kill people on the other side of the world, people we know nothing about, while here in Mississippi he refuses to send anyone to protect black people against murderous violence."
That fall, as the U.S. involvement in Vietnam began to grow, I was starting to teach at Boston University and became immediately involved in the movement against the war. It was at first a puny movement, which seemed to have no hope of prevailing against the enormous power of the government. But as the war in Vietnam became more vicious and as it became clear that noncombatants were being killed in large numbers; that the Saigon government was corrupt, unpopular, and under the control of our own government; and that the American public was being told lies about the war by our highest officials, the movement grew with amazing speed.
In the spring of 1965,I and some others spoke against the war on the Boston Common to perhaps a hundred people. In October 1969 when antiwar meetings took place in hundreds of towns and cities around the country, there was another rally on the Boston Common, and 100,000 people were there. As the American involvement escalated—to 500,000 troops, to millions of tons of bombs dropped—the antiwar movement also escalated.
Young black civil rights workers connected with Student Nonviolent Coordinating Committee (SNCC) were among the first to resist the war. In mid-1965 in McComb, Mississippi, young blacks who had just learned that a classmate of theirs was killed in Vietnam distributed a leaflet:
No Mississippi Negroes should be fighting in Viet Nam for the White man's freedom, until all the Negro people are free in Mississippi.
Negro boys should not honor the draft here in Mississippi. Mothers should encourage their sons not to go.
In the summer of 1966, six young black men, members of SNCC, invaded an induction center to protest the war. They were arrested and sentenced to prison. Julian Bond, another SNCC member, who had just been elected to the Georgia House of Representatives, spoke out against the war and the draft, and the House voted that he not be seated. (The Supreme Court later restored his seat, saying his First Amendment right to free speech had been violated.)
Martin Luther King, Jr., spoke out publicly against the war, ignoring the advice of some other civil rights leaders, who feared that criticism might weaken Johnson's program of domestic reform. King refused to be silenced:
Somehow this madness must cease. We must stop now. I speak as a child of God and brother to the suffering poor of Vietnam. I speak for those whose land is being laid waste, whose homes are being destroyed, whose culture is being subverted. I speak for the poor of America who are paying the double price of smashed hopes at home and death and corruption in Vietnam. I speak as a citizen of the world as it stands aghast at the path we have taken. I speak as an American to the leaders of my own nation. The great initiative in this war is ours. The initiative to stop it must be ours.
Young men began to refuse to register for the draft or to refuse induction if called. Students signed petitions headed We Won't Go. Over a half million men, resisted the draft. About 200,000 were prosecuted, 3,000 became fugitives. There were too many cases to pursue and most were dropped. Finally, 8,750
men were convicted of draft evasion.
A student of mine, Philip Supina, wrote to his draft board in Tucson, Arizona, on May 1, 1968: "I am enclosing the order for me to report for my pre-induction physical exam for the armed forces. I have absolutely no intention to report for that exam, or for induction, or to aid in any way the American war effort against the people of Vietnam." He was sentenced to four years in prison.
In previous wars, there had been opposition within the armed forces, but the Vietnam War produced open protests and silent desertions on a scale never seen before. As early as June 1965, West Point graduate Richard Steinke refused to board an aircraft taking him to a remote Vietnamese village. He said, "The Vietnamese war is not worth a single American life."
There were many individual acts of disobedience. A black private in Oakland refused to board a troop plane to Vietnam. A navy nurse was court-martialed for marching in a peace demonstration while in uniform and for dropping antiwar leaflets from a plane onto navy installations. In Norfolk, Virginia, a sailor refused to train fighter pilots because he thought the war was immoral. An army lieutenant was arrested in Washington, D.C., in early 1968 for picketing the White House with a sign that said "120,000 American casualties—Why?" Two black marines were given prison sentences of six and ten years, respectively, for talking to other black marines against the war.
Desertions from the armed forces multiplied. We can't be sure of the exact number, but there may have been 100,000. Thousands went to Western Europe—France, Sweden, and Holland. Most deserters crossed the border into Canada; 34,000 were court-martialed and imprisoned. There were over a half million less-than-honorable discharges.
The GI movement against the war became organized. Antiwar coffeehouses were set up near military bases around the country, where GIs could come to meet others who were opposed to what was going on in Vietnam. Underground newspapers sprang up at military bases across the country—fifty of them by 1970. These newspapers printed antiwar articles, gave news about the harassment of GIs, and gave practical advice on the legal rights of people in the military.
The dissidence spread to the war front itself. When antiwar demonstrations were taking place in October 1969 all over the United States, some GIs in Vietnam wore arm bands to show their support. One soldier stationed at Cu Chi wrote to a friend on October 26, 1970, that separate companies had been set up for men refusing to go into the field to fight. He said, "It's no big thing here anymore to refuse to go." A news dispatch in April 1972 reported that 50 infantrymen of a company of 142 refused for an hour and a half to go out on patrol round Phu Bai. They shouted, "We're not going! This isn't our war." Others commented, "Why the hell are we fighting for something we don't believe in?" One army sergeant, captured by the Vietnamese, told later about his march to the prisoner-or-war camp, "Until we got to the first camp, we didn't see a village intact; they were all destroyed. I sat down and put myself in the middle and asked myself: Is this right or wrong? Is it right to destroy villages? Is it right to kill people en masse? After a while it just got to me."
The French newspaper Le Monde reported that in four months, 109 soldiers of the first air cavalry division were charged with refusal to fight. "A common sight," the correspondent for Le Monde wrote, "is the black soldier, with his left fist clenched in defiance of a war he has never considered his own."
In the summer of 1970, 28 commissioned officers of the military, including some veterans of Vietnam, said they represented about 250 other officers and announced the formation of the Concerned Officers Movement Against the War. In mid-1973, it was reported there were drop-outs among West Point cadets. A reporter wrote that West Point officials attributed this to "an affluent, less disciplined, skeptical and questioning generation and to the anti-military mood that a small radical minority and the Vietnam war had created."
There is probably no more disciplined, obedient, highly trained element of the armed forces than the fliers of the air force. But when the ferocious bombings of civilians in Hanoi and Haiphong was ordered by the Nixon administration around Christmas 1972, several B52 pilots refused to fly.
The massive civil disobedience against the Vietnam War—by men in the military, by draftees, and by civilians—cannot be justified simply because it was civil disobedience, but because it was disobedience on behalf of a human right—the right of millions of people in Vietnam not to be killed because the United States saw in Southeast Asia (as president John F. Kennedy put it), "an important piece of real estate."
Actions outside the law or against the law must be judged by their human consequences. That is why the civil disobedience of Colonel Oliver North, illegally sending military aid to the contras in Central America who committed acts of terrorism against Nicaraguan farmers cannot be justified. But the civil disobedience of those who wanted to stop the killing in Vietnam was necessary and right.
The congressional committee that interrogated Oliver North in 1987 as part of the Iran-Contra hearings did not ask him about the innocent people killed in Nicaragua because of what he had done. They concentrated, as the American court system generally does, on the technical question of whether he had violated the law, not on the more important question: for what purpose did he violate the law.
It is interesting to note that North did not hold to the rule of law over the rule of men. He was willing to break the law to obey the president. He told the hearing committee, "And if the Commander-in-Chief tells this Lieutenant Colonel to go sit in the corner and stand on his head I will do so."
Justice in the Courts
Those who run the legal system in the United States do not want the public to accept the idea of civil disobedience—even though it rests on the Declaration of Independence, even though it has the approval of some of the great minds of human history, even though some of the great achievements for equality and liberty in the United States have been the result of movements outside of and against the law. They are afraid that the idea will take hold, and they are right, because the common sense belief of most people, I think, is that justice is more important than law.
During the Vietnam War, not long after I got back from Hanoi, where I had visited villages devastated by American bombs, I was asked to testify at a trial in Milwaukee. Fourteen people, many of them Catholic priests and nuns, had invaded a draft board and destroyed documents to protest the war.
I was to testify as a so-called expert witness, to tell the judge and jury about the history of civil disobedience in the United States, to show its honorable roots in the American Revolution, and its achievements for economic justice and for racial equality.
I started out talking about the Declaration of Independence, and then about Thoreau's civil disobedience, and then gave a brief history of civil disobedience in the United States. The judge pounded his gavel and said, "Stop! You can't discuss that. This is getting to the heart of the matter."
The defense attorney asked me, "What is the difference between law and justice?" The prosecution objected, and the judge said, "Sustained." More questions about civil disobedience. More objections, all sustained. I turned to the judge (something a witness is not supposed to do) and asked, in a voice loud enough for the courtroom to hear, "Why can't I say something important? Why can't the jury hear something important?"
The judge was angry. He replied, "You are not permitted to speak out like that. If you do that once more I will have you put in jail for contempt of court." Later I felt I should have been more courageous and jointed my act of civil disobedience to that of the defendants.
What the judge wanted to hear about in his courtroom was merely the technical violations of law committed by the defendants—breaking and entering, destroying government documents, and trespassing. "This is a case about arson and theft." He did not want to hear why these usually upright and law-abiding citizens were breaking the law. He did not want to hear about the war in Vietnam. He did not want to hear about the tradition of civil disobedience.
To have the mechanical r
equirements of "due process"—a trial, contending arguments, and decision by a jury of citizens—is insufficient if the arguments are not fully made, if the jury does not know what is at stake, and if it cannot make a decision on the justice of the defendants' action, regardless of legality. Supposedly, it is the judge who sees to it that the law is made clear to the jury, but then it is up to the jury to see that justice is done. However, if the judge prevents the jury from hearing testimony about the issues, the jury is being compelled to stay within the narrow, technical confines of the law, and the democratic purpose of a jury trial is extinguished.
The courtroom, one of the supposed bastions of democracy, is essentially a tyranny. The judge is monarch. He is in control of the evidence, the witnesses, the questions, and the interpretation of law. In the mid-1980s I was called as a witness by some people in Providence, Rhode Island, who had done some small symbolic damage at the launching of a nuclear-armed submarine, in protest against the huge expenditure of money for deadly weapons and the escalation of the arms race. I was to tell the jury about the importance of civil disobedience for American democracy.
The judge would not let me speak. From the very first question— "Can you tell us about the history of civil disobedience in the United States?"—as I began to answer, the judge stopped me. "Objection sustained," he said loudly. I had not heard any objection from the prosecuting attorney.
Indeed, at this point the prosecuting attorney, a young man, spoke up, "Your honor, I did not object."
"Well," said the judge, "why didn't you?"