Thurston County District Court Judge Susan Dubuisson ruled that she'll allow them to use a "necessity" defense in attempting to justify their actions in trying to stop a military shipment from leaving the Port of Olympia.

But they won't be allowed to use the defense as a tool to put the ongoing war before a jury, Dubuisson stressed during the three-hour court hearing on a flurry of pretrial motions filed by defendants.

"This trial is not about whether or not the war in Iraq is illegal," she said.

The decision surprised Deputy Prosecuting Attorney Debra Eurich. Her review of both state and federal case law found that courts haven't allowed use of a necessity defense because it was determined to not be applicable to the case, she said later.

"This is a rarity that this court woul d allow that defense," she said.

The hearing was animated but civil with the courtroom packed with the defendants, attorneys and supporters, many wearing red to show their solidarity. The defendants had both private and court-appointed attorneys. Several plan to represent themselves during the trial.

Under the necessity defense, defendants can argue for acquittal because their conduct was necessary to prevent some greater harm, in this case the killing occurring in Iraq. Among the things defendants must prove to a jury is that their conduct resulted in no greater harm than they were attempting to prevent, and they had no legal alternative.

Numerous defendants told Dubuisson nothing has come of their many efforts to stop the war, which include participating in vigils, writing their elected leaders and urging port commissioners to stop accepting military shipments.

National polls show the majority of the country opposes the war "but the political figures aren't doing anything," Benjamin Groves told the judge.

While the defendants may have been sincere in their efforts to stop the shipments, they can't use necessity as a defense because they haven't exhausted all the available avenues allowed by the law, Eurich told the judge.

"There are lots of legal alternatives," she said.

But another defendant, Phan Nguyen, disagreed.

"We have exhausted all avenues and we haven't given up on any avenues," he said after the court hearing. "But we believe that you have to do everything you can to stop war crimes from going on, that you can't just sit down and you can't give up and it's very important not to give up, and that's why we were doing what we were doing."

By electing to use the defense, they can't also claim they didn't trespass on the property, the judge pointed out.

"You can't put forward contradictory defenses to a jury," she said.

A couple of lawyers told the judge they thought they could bring a case that argues the defendants didn't trespass, but if they did, it was necessary.

The protests occurred over several days in late May after the U.S. Naval Ship Pomeroy arrived at the port to ship military equipment to Iraq for the Fort Lewis-based 3rd Brigade, 2nd Infantry Division.

The emotion peaked the night of May 30, when protesters damaged two port gates and law enforcement officers used pepper spray to disburse the crowd. None of those charged with trespassing is accused of damaging port property.

In all, 22 people, including one juvenile, were arrested at the protest that night. Two were charged with riot without a firearm, and their cases are pending. Two accepted Eurich's plea agreement that allows them to avoid jail time and have the conviction wiped off their record after a year. The juvenile was sent through a diversion program that leads to dismissal of the charge.

The trial was scheduled to begin Monday but was postponed until Nov. 13. It's expected to last two days.

A jury conviction for second-degree trespass, a misdemeanor, would carry a maximum penalty of a $1,000 fine or 90 days in jail, or both.

At issue

Twenty-two people were arrested during several days of protests in late May over the Port of Olympia's involvement in military shipments.

Some protesters tore down gates on the port property, sprayed graffiti and left truckloads of trash, causing about $7,500 in damage. The city of Olympia and other police agencies were required to pay officers for more than 200 hours of overtime.