Petition — Purvis v. Commissioner

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No tice: Supreme Court, U.S.

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| JAN 21 1981

In The

ALEXA). : Si k\ 3,

SUPREME COURT OF THE UNITED S#AtES a

October Term, 1980

CHARLES F. PURVIS,

Petitioner,

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM R. DURLAND

Attorney for Petitioner

The Center on Law & Pacifism

817 W. Pikes Peak Ave.

Colorado Springs, CO 80905

Tel: (303) 635-0041

January 19, 1981

QUESTION PRESENTED

Whether to compel the Petitioner, a

Quaker, conscientious objector and war

tax refuser, to pay federal income tax

deficiencies and additions as war taxes

causes him to become a party or acces-

sory to a criminal act in violation of

International Law, the United States Con-

stitution, the criminal statutes of the

United States and his conscience ?

TABLE OF AUTHORITIES

Cases:

Charge to Grand Jury, 30 Fed.

Cas. No. 18, 264 (C.C.N.Y.

1866) . . e . . © . - . .

Charge to Grand Jury, Neutrality

ee Fed. Cas. No. 18, 267

(C.C. Ohio 189%) ye

Charge to Grand Jury, Neutralit

Laws, Fed. Cas. No. 18, 266

(C.C. Ind. 1851)

Crowe v. Commissioner, 396 F. 2d

7 th Cir. 1968)

Ex Parte Quirin, 317 U. S. 1

(1942) * * © 0° 8 eee eee

Egnal V. Commissioner, 65 T.C.

255 (1979) * 6 2 ee .

Hilton v. HULOL, L59 @..3,- ies

i 9 . © . . 7 . ° °

Jacobson v. United States, 272 F.

399 (C.C.A. T1l. 1921) cert.

den. 256 U.8. 903.) oe

The Paguette Habana and 1_Lola, 175

U.S. 677 (1900). ‘ *: + eee

United a v. Burr, 25 Fed. Cas.

No. , SPA Cake Va. 1807) 47,

United States v. Chakroberty, 244 F.

287 (C.C. Nov. 200)

United States v. Douglass, 476 F.

od 260 (5th Cir. hv 5} mea :

United States v. Hu nes» 7a Fe a

Cats teus T5395) . ay eer ‘ » ne 89

United States v. Murphy, 84 F. 609

pe OE AEE gle es a's fae ae

United States v. O'Sullivan, Fed.

Cas. No. 15, 979 oe te BS

1851) * ee ee ee oe a a oa 50- 52

United States v. O'Sullivan, Fed.

Cas. No. 15, O74 ena 8

ck a hae RCE ee eee

United States v. Ran Chandra, 254 F.

ms, Be NE Fee | 2 Pere, ©

United States v. Sander, 241 F. 417

Gi A By UB Lk A ce er

United States v. Smith, 27 Fed. Cas.

No. 16, 302A (C.c. N.Y. 1896), . . 51

United States v. eae ei F. ie

C.Ga Seme L09e ‘ : a

Wiborg v. United States, 163 U.S.

Bae CIWee Pa ee se ew + BS,

The Nuremberg Judgment, 6 F.R.D.

GF ULPO) sw we eet ew Me

Treaties and International Agreements:

Charter of the International Military

Tribunal (Nuremberg Charter) Aug.

Bi LO Oct. 6, 1945, 59 Stat.

SMR Sg kb ou eee MO eh

Charter of the United Nations, June

26, 1945, 59 Stat. 1033

12-14, 24, 41

iii

Page

Convention for the Pacific Settlement

of International Disputes, July

29, 1899, Se Geass 779 6 we ¢ Ity 19

Convention for the Pacific Settlement

of International Disputes, Oct. 18,

1907, 36 Stat. 2199 . .:. « «12, 14-16

Declaration of St. Petersburg,

1 6 ) ~ . . : . . * . - . * 19

Geneva Convention for the Protection of

Civilians in Time of sans Article

18 (1) (1949) . , i ete OS

Pan American Anti-War Treaty of Non-

STaRUG Eee and ETE EE Oct.

» 1933, 49 Stat. 3363 s « « t2

Treaty on Non-Proliferation of Nuclear

Weapons, 21 U.S. Treaties and Other

International Agreements 483

io Oe Re |: es

U.N. Gen. a Res. 95 (1) U.N. Doc.

A/64/Add. > dat oe a ; re

U.N. Gen. Ass. Res. 3314, Session

Rees ere ks et ears 6 OD

U.N. Sec. Council Res. 188, Session

715, 471 Pa ee he ey yee OO

Constitution, Statutes and Rules:

Article 1, U.S. Constitution ..... 2

Article 2, U.S. Constitution ..... 9

Article 6, U.S.

Cometitution . ..«. . 2, 5, 7, 8, 59

18 U.S.C. Section 960. 2, 4, 5, 41, 44-54

ae Us8.C.. Beekion 12% (4). 4:n-e00 uh 3

‘.

Oo Use Beet. INGO. . 6. kt ct tw 2

Internal Revenue Code of 1954

Sections 1 (a), SS )

Rule 120, U.S. Tax Court Rules

of Practice and Procedure, , ,.. 2

Other Authorities:

Aldridge, The Counterforce Syndrome,

i. a. eb + « ARE, 26-30

Borchard, "The Relation Between In-

ternational Law and Municipal

Law", 27 Va. L. Rev. 137 (1940) , 39

Falk, A Global Approach to National

Policy, C197} at abi. «© = 3

Falk, Kolko & Liften (eds.) The

Crimes of War, (1971)...... 34

Fried, "The Law Absolutely Prohi-

bits Any First Nuclear Strike"

XIth Congress, International

Assoc. of Democratic Jurists,

Malta, Nov. 1980 ........ 33

Friedman (ed.) "The Tokyo War Crimes

Trial Decision", The Law of War:

e A Documentary History, Vol. 2,

Di og kk sw 95, 30

Graber, "The International Law De-

fense" Pacificus Papers (1980). . 36

Introduction to U.S. Treaties and

Other International Agreements,

Cum. Index X (1975) a

McGovern, "End of the World",

Playboy, (Feb. 1978) 2s

"Ministries Case", XII-XIV, Trials

of War Criminals (1952)... . . 35

Mueller, International Criminal

Law, Vol. 2 (1969 2

Oppenheim, International Law,

Vol. 2 (19

Report of the International Law

Commission (1950) st

"The Salt Trap" The Progressive

(Dec. 1978)

"Transcript of Pres. Carter's

Address to the U.N. Assembly"

New York Times (Oct. 5,

1977) . ,

U.S. Atomic Energy Commission "The

Effects of Nuclear Weapons"

(1957).

U. S. Department of Defense "The

Effects of Nuclear Weapons"

(1977)

Whitman, Digest of International

Law, Vol. 1 (1963) Vol. 2

Page

~ 42, 43

~ 4

« 25

~ 30

9, 43

Printed by Copies LTD, Colorado Springs, Co.

Edited by Eugenia Durland

Typed by Anita Cain

TABLE OF CONTENTS

Page

Questions Presented ...+ ++ +s» i

Table of Authorities ....+-- edi

Opinions Below, .....+++ee + ?

Jurtedietion, 6. 4 66 eb ele nee

Constitutional Provisions,

Statutes and Rules Involved... - 2

Statement of the Case ....-+-+-+-+3

He RF en aha ea tae ee er Te ee

The Decision Below, as it Applies

to the Petitioner, a Quaker, Con-

scientious Objector, and War Tax

Refuser, Causes Him to Become a

Party or an Accessory to a Criminal

Act in Violation of International

Law, the United States Constitution,

the Criminal Statutes of the United

States and his Conscience.

I. To compel the Petitioner to pay

Federal Income Tax deficiencies

and additions as war taxes makes

vii

Page

him a party or an accessory to a

criminal act in violation of Inter-

national Law and Article VI of the

United States Constitution. ...,

International Law is appli-

cable to cases arising in

United States Courts.

International Law prohibits

aggressive policies of "de-

fense".

International Law prohibits

specific planning for and

acts of aggression.

United States policies and

development of nuclear wea-

pons are inconsistent with

International Law.

International Law imposes

a duty upon individual

citizens to disassociate

themselves from violations

of International Law.

viii

F. The applicability of

International Law to

Petitioner is proven.

G. Arguments invoked

against the applicabil-

ity of International Law

are invalid.

II. To compel the Petitioner to pay

Federal Income tax deficiencies

and additions as War Taxes forces

him to furnish money for a mili-

tary enterprise against a for-

eign state with whom the United

States is at peace in viola-

tion of domestic law at Title

16 U.S.C. Section 960.

III. Conclusion

Appendix I - Judgment and Opinion of

the United States Tax Court

Appendix II - Judgment and Opinion of

the United States Court of Appeals

for the Ninth Circuit

ann

- Ya

In The ,

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

Charles F. Purvis,

Petitioner,

Commissioner of Internal Revenue,

Respondent,

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE- NINTH CIRCUIT

The petitioner, Charles F. Purvis, re-

spectfully prays that a Writ of Certiorari

be issued te review the judgment and opin-

ion of the United States Court of Appeals

for the Ninth Circuit entered in this pro-

ceeding on October 24, 1980.

aaa can a iia ei eee

OPINIONS BELOW

The judgment and opinion of the United

States Court of Appeals, not yet reported,

appears in Appendix II hereto. The judg-

ment and opinion of the United States Tax

Court is set forth in T.C. Memo 1978 - 151

. and appears in Appendix I hereto.

JURISDICTION

The judgment of the United States Court

of Appeals for the Ninth Circuit was en-

tered on October 24, 1980. This Petition

is filed within 90 days of that date. The

Court's jurisdiction is invoked under 28

U.S.C. 8 1254 (1).

CONSTITUTIONAL PROVISIONS,

» STATUTES AND RULES INVOLVED

Articles 1 and 6 of the United States

Constitution, 59 U. S. Stat. 1544, 18

U.S.C. Section 960, 28 U.S.C. Section 1254

(1) and Rule 120 of the United States Tax

Court Rules of Practice and Procedure.

STATEMENT OF THE CASE

This Writ arises from the judgment

and opinion of the United States Court of

Appeals for the Ninth Circuit affirming

a decision of the United States Tax Court

in favor of respondent against the peti-

tioner (Docket No. 78-2713).

Petitioner is a member of the Religious

Society of Friends (Quakers) and is con-

scientiously opposed to war and its plan-

ning, preparation and participation. On the

basis of his opposition he refused to pay

any taxable income for the years 1970 through

1974. Although he filed income tax re-

turns rep.rting wages and salaries, he

. claimed a miscellaneous deduction entitled

"war crimes" deduction in an amount equal

to the income he reported. This petition

arises from the granting of respondent's

Motion for Summary Judgment of April 19,

1978. Deficiencies and additions were de-

termined under Sections 6651 (a) and 6653 (a)

-3-

of the Internal Revenue Code. Petition-

er's reliance on laws higher than the In-

ternal Revenue Code which stem from con-

stitutional and international law was re-

jected and so he appealed to the United

States Court of Appeals for the Ninth

Circuit. cf: Egnal v. C.I.R. 396 F. 2d 766.

On October 24, 1980, that court rendered

a judgment and opinion affirming Respon-

dent on the basis that "the Nuremberg

Principles do not impose liability for the

mere payment of taxes." and that 18 U.S.C.

Section 960 which petitioner argued would

be violated by him if he were forced to

pay war taxes "applies only to private

war-making." However, the Appeals Court

did not address petitioner's arguments

in full. It is from that holding that

petitioner wishes to present his arguments

in full to this court so that the Court

of Appeals will be compelled to do the

same.

His statement in summing up his case

is as follows: He refused to pay war

taxes on the basis that the money he is

legally required to pay becomes part of

a general fund the majority of which is

used for the planning and preparation of

military enterprises including conven-

tional and nuclear warfare against foreign

states with which the United States is at

peace.

He contends that if he were to pay

those amounts he would in fact be a party

or an accessory to a criminal act in vio-

lation of Article VI of the United States

Constitution, International Law and 18

U.S.C. Section 960.

Several treaties, which are part of the

supreme law of the land (Article VI (2)

of the United States Constitution) and

other international documents which are

part of the domestic law of this land pro-

hibit the type of planning and preparation

for military enterprises for which peti.

tioner's money has been spent and is con-

tinuing to be spent in ever increasing

amounts.

From Petitioner's view, the United

States government did not enforce these

international and domestic laws against

petitioner when he paid his taxes because

there is no "overriding compelling inter-

est" for it to do so, because it is equally

criminally liable, and is therefore con-

cerned more about war money than it is about

just laws prohibiting such activity on the

part of both the government and its in-

dividual citizens.

Petitioner thus is forced to either be

complicitous in U. S. illegal activity or

a civilly disobedient citizen. In the

face of his government's criminal lia-

bility under constitutional and interna-

tional law, he chooses the latter. Only

the highest court in the land can now

vindicate him by protecting his con-

science, his citizenship and his consti-

tution by prohibiting the United States

Tax Court from forcing him to continue to

contribute monies for illegal and criminal

purposes.

ARGUMENT

The decision below as it applies to

petitioner, a Quaker, and war tax refuser,

causes him to become a party or an acces-

sory to a criminal act in violation of in-

ternational law, the United States Consti-

tution, the criminal statutes of the United

States and his conscience.

I. To compel the petitioner to pay

federal income tax deficiencies and addi-

tions as war taxes makes him a party or

an accessory to a criminal act in viola-

tion of international law and Article VI

of the United States Constitution.

A. International Law is Applicable to

Cases Arising in United States Courts

There can be no doubt that internation-

al iaw is relevant and applicable to cases

arising in United States Courts. Article

VI, paragraph 2 of the United States Con-

stitution provides that:

All treaties made, or which shall be

made, under the authority of the

United States, shall be the supreme

law of the land, and the judges of

every state shall be bound thereby,

anything in the Constitution or

law of any state to the contrary

notwithstanding.

When a question arises concerning

whether international law is relevant to a

domestic case, it is the duty of the dom-

estic court to determine (1) whether

principles of international law are impli-

cated in the case; if so (2) which prin-

ciples of international law are applicable

and (3) whether application of these

principles to the case at bar overrides

inferior municipal law thus justifying other-

wise allegedly illegal conduct.

In the Paquette Habana, 175 U. S. 677,

700 (1900), the Supreme Court declared

that:

International law is part of our law,

and must be ascertained and adminis-

tered by the courts of justice of ap-

propriate jurisdiction as often as

questions of right depending upon it

are duly presented for their deter-

mination.

Accord, Hilton v. Guyot, 159 U.S. 113,

163 (1895). See generally I whitman

International Law § II (1963). Interna-

tional law is applicable to domestic courts.

The question is which aspects of interna-

tional law become "the supreme law" of the

land. Treaties made by the President, "and

with the advice and consent of the Senate"

are obviously included by express provi-

sions of Article II, Section 2 of the Unit-

ed States Constitution. The term "treaty",

though not defined in the Constitution, has

generally been determined to include "ir-

respective of their nomenclatures, such

international agreements as conventions,

pacts, protocols and covenants." Intro-

duction to U. S. Treaties and Other Inter-

national Agreements, Cumulative Index, x

(1975) (hereinafter, U.S.T.).

What has been termed "customary inter-

national law" is also binding on domestic

courts.

Such customary International Law

as is universally recognized or has

at any rate received the assent of

the United States, and further all

international conventions rati-

fied by the United States, are bind-

ing upon American courts, even if

in conflict with previous American

statutory law .

II Oppenheim, International Law. 101

(6th ed. 1948). Offenses against the Law

of Nations have been sustained in federal

courts even if there were no statutes de-

fining the offense under Article I, Sec-

tion 8, Clause 10 of the U. S. Constitu-

tion. Therefore a substantial body of

treaties, international agreements, and

offenses against the Law of Nations or cus-

tomary international law are binding on

American courts. See Introduction to U.S.T.

Cumulative Index, supra, at xi.

ote

B. International Law Prohibits Aggres-

sive Policies of "Defense"

There are many bases for determining

that American nuclear weapons are in vio-

lation of international law. (Petitioner

will present his case against nuclear plan-

ning here rather than Viet Nam war crimes

because (1) the brevity of the writ re-

quires it (2) the latter has terminated and

(3) the former continues to be a basis for

the present refusal to pay war taxes for

past years. However, much of this argu-

ment also applies to the former). Perhaps

the most fundamental tenet of all interna-

tional norms is that a sovereign refrain

from use of threat of force in its rela-

tions with other countries. This policy

has been consistently expressed in various

forms as early as 1899 to the present.

In the Convention for the Pacific Settle-

ment_of International Disputes, July 29,

—

1899, 32 Stat. 1779, 1780, T.S. 392 the par-

ties (including the United States) expressed

= see ee ee ee eee Se ee ee ee ee eee re ee

"a strong desire to concert for the main-

tenance of the general peace;" to extend

"the empire of law;" and to strengthen

"the appreciation of international justice

." Accord, Convention for the Pacitic

Settlement of International Disputes, Oct-

ober 18, 1907, 36 Stat. 2199, 2201, T.S.

536.

Similarly, Article I of the Pan American

Anti-war Treaty of Non-aggression and Con-

ciliation, October 10, 1933, 49 Stat. 3363,

3375, T.S. 906, states that the parties

"solemnly declare that they condemn wars of

aggression in their mutual relations or in

those with other states... ."

The Charter of the United Nations, June

26, 1945, 59 Stat. 1033, T.S. 993 (herein-

after U.N. Charter) is replete with refer-

ences to the duty to use peaceful means in

international relations. The Preamble ex-

presses a determination "to save succeeding

generations from the scourge of war... ."$

12s

"to ensure, by the acceptance of princi-

ples and the institution of methods, that

armed force shall not be used, save in the

common interest..." U.N. Charter, 59

Stat. 1033, 1035. Chapter I of the U.N.

Charter sets forth the purposes of the

United Nations. Because these provisions

provide a guiding light in the interpre-

tation of international law, it is impor-

tant to develop a firm grasp of these

basic principles. Article I provides that:

The Purposes of the United Nations are:

1. To maintain international peace and

security, and to that end: to take

effective collective measures for the

prevention and removal of threats to

the peace, and for the suppression of

acts of aggression or other breaches

of the peace, and to bring about by

peaceful means, and in conformity

with the principles of justice and

international law, adjustment or set-

tlement of international disputes or

situations which might lead to a

breach of the peace;

2. To develop friendly relations

among nations based on respect for the

principle of equal rights and self-

determination of peoples, and to take

other appropriate measures to strength-

en universal peace;

-13-

3. (E)ncouraging respect for human

rights and for fundamental freedoms

for all

U. N. Charter at 1037 (emphasis added).

In Article 2, the members agree to

"fulfill in good faith the obligations as-

sumed by them" in the Charter; to "settle

their international disputes by peaceful

means in such a manner that international

peace and security, and justice, are not en-

dangered"; to "refrain in their interna-

tional relations from the threat or use of

force .. ." or to act "in any other manner

inconsistent with the purposes of the Unit-

ed Nations." U.N. Charter at 1037.

C. International Law Prohibits Specific

Planning For and Acts of Aggression

The Hague Convention Respecting the Laws

and Customs of War _on Land, October 18, 1907,

36 Stat. 2277, T.C. 403 (hereinafter, Hague

Conventions), was “inspired by the desire

to diminish the evils of war..." 36

Stat. at 2279. The Convention declares

abe

that where no specific international re-

gulation addresses a specific course of

conduct, that the parties follow "the

principles of the law of nations, as they

result from the usages established among

civilized peoples, from the laws of human-

ity, and the dictates of the public con-

science." 36 Stat. at 2280. Article 22

of the Convention provides that "(t)he

right of belligerents to adopt means of

injuring the enemy are not unlimited."

36 Stat. at 2301. Most importantly, Arti-

cle 23 provides:

In addition... it is especially for-

bidden:

(a) To employ poison or poisoned

weapons}

(b) To kill or wound treacherously

material calculated to cause un-

necessary suffering

36 Stat. at 2301-02.

Article 24 prohibits the bombardment of

villages, towns, or cities which are unde-

“3S

fended, 36 Stat. at 2302, while Article 27

declares that in sieges or bombardments all

necessary steps must be taken to spare build-

ings dedicated to religion, the arts,

science, or caring for the sick and wounded.

36 Stat. at 2303.

The Charter of the International Military

Tribunal, August 8, 1945, October 6, 1945,

59 Stat. 1544, E.A.S. 472 ("London Agree-

ment enunciating the Nuremberg Principles")

(hereinafter, Nuremberg Charter) outlined

violations of international law for which

even individual citizens of belligerent

nations could be held responsible. Article

6 provides that:

The following acts, or any of them are

crimes .. . for which there shall be

individual responsibility:

(a) Crimes Against Peace: namely,

planning, preparation... of

a war of aggression or a war

in violation of international

treaties, agreements or assur-

ances, or participation in a

common plan. . . for the

accomplishment of any of the

foregoing;

oki

(b) War Crimes: namely violations of

the laws and customs of war.

Such violations shall include but

not be limited to, murder, ilil-

treatment .. . of civilian popu-

lations .. . plunder of public

or private property, wanton de-

struction of cities, towns or

villages...

murder, extermination .. . and

other inhuman acts committed

against any civilian population

before or during the war or per-

secutions on political, racial

or religious grounds in execution

of or in connection with any

crime .. . whether or not in

violation of the domestic law of

the country where perpetrated.

Article 7 went on to provide that the

"fact that the Defendant acted pursuant to

order of his Government or of a superior

shall not free him from responsibility."

Charter at 1548.

In 1946 the United States delegation to

the United Nations introduced a Resolvtion

before the General Assembly affirming "the

Principles of International Law recognized

by the Charter of the Nuremberg Tribunal."

G.A. Res. 95 (1), U.N. Doc. A/64/Add. 1, at

«}9-

188 (1947). The Resolution was unani-

mously adopted by the General Assembly on

December 11, 1946. In 1950 the Nuremberg

Principles were restated by the International

Law Commission. Finally, the United Nations

Security Council, by Resolution, condemned

acts of "reprisals as incompatible with

the Purposes and Principles of the United

Nations." G.A. Res. 188, Session XIX,

4/1/1964.

D. United States Policies and Development

of Nuclear Weapons are Inconsistent

with International Law

There can be no doubt that the actual

aggressive use of atomic weapons results

in almost total destruction of everything

within several miles of the site of the ex-

plosion. See United States Department of

Defense, The Effects of Nuclear Weapons

(1977). The residual effects caused by

radiation and radio-active fall-out create

long-term illness and death in a manner

sttis

analagous to poisoning. See United States

Atomic Energy Commission, The Effects of

Nuclear Weapons (1957), p. #73.

The indiscriminate and "wanton destruc-

tion of cities" which results from the use

of nuclear weapons is prima facie proof of

war crimes, as defined by Principle VI (b)

of the Nuremberg Charter, and of crimes

against humanity, as defined by Principle

VI (c) of the Charter. Likewise, the

poisonous effects of nuclear radiation and

fall-out are prima facie violations of the

United States' obligations under Article

23 (a) of the Hague Conventions prohibit-

ing the use of "poison or poisonous arms".

Additionally, Article 23 (a) of the Hague

Conventions of 1899 and 1907, which prohi-

bits the use of "arms, projectiles, or

material of a nature to cause superfluous

injury", and the Declaration of St. Peters-

burg of 1868, which declares that "the only

legitimate object .. . (of) war is to

#19-

weaken the military forces of the enemy",

indicate a customary rule of international

law prohibiting weapons of indiscriminate

destruction such as nuclear weapons.

Moreover, the aggressive use of atomic

weapons would directly contradict the ex-

press purposes of using best efforts to

avoid a nuclear war and negotiate an end to

the nuclear arms race. See discussion,

infra. And since the radiation-related

after effects of nuclear explosions cannot

be controlled, the harm to persons and pro-

perty in neutral countries would constitute

an act of aggression against third states.

G.A. Res. 3314, Session XXIX, 12/14/74.

The real question is whether current poli-

cies and weapons are in violation of inter-

national law. To answer this question one

must look to the history and facts of nu-

clear weapons development.

Remembering that the "planning" or "pre-

paration" for war of aggression violates

-20-

Article 6 (a) of the Nuremberg Charter; that

"use of threat of force" is in violation of

several treaties including the U.N. Charter;

that the U.N. Charter condemns "situations

which might lead to a breach of the peace,"

U.N. Charter, Art. I, 59 Stat. at 1037, and

imposes a duty upon members "to practice

tolerance and live together in peace," U.N.

Charter, Preamble, at 1035; that the United

States has declared an intention "(t)o pre-

vent the use of atomic energy for destruc-

tive purposes" and to eliminate nuclear

weapons from national arsenals, e.g., Declar-

ation on Atomic Energy, 60 Stat. at 1480.

Nuclear Non-proliferation Treaty, 21 U.S.T.

at 484-85; and that the United States has

promised to work for international peace and

security "with the least diversion for

armaments of the world's human and economic

resources" 21 U.S.T. at 486; U.N. Charter

Art. 26, 59 Stat. at 1041; the possession

of nuclear weapons for future "first strike"

oD2 a

use is violative of international law.

The "official" nuclear policy of this

country is one of deterrence or second-

strike capability. This concept is aptly

explained by Robert Aldridge who for six-

teen years worked in Lockheed Corporation's

engineering department, designing every

submarine-launched ballistic missile bought

by the Navy. Aldridge explains:

Deterrence is the strategic policy

under which most of us believe the

Pentagon is still operating. It is

presented as a defensive measure, of

sorts, because it is based on a

second-strike response--massive and

unacceptable retaliation--which

theoretically deters the Soviet Union

from attacking us.

Aldridge, The Counterforce Syndrome

(1978) (hereinafter Counterforce).

Aldridge goes on to note that to be an

effective deterrent, United States re-

taliatory forces would have to survive the

worst conceivable attack and still wreck

havoc in the Soviet Union. To this end,

land-based ballistic missiles are stored

in underground silos. The fact is that

“2%

since the late 1960's, both the Soviet

Union and the United States have possessed

this deterrent capability. Counterforce,

at 2. To maintain this "balance" super-

powers agreed in S.A.L.T. I (Strategic

Arms Limitation Treaty) to refrain from

developing elaborate anti-ballistic mis-

siles (ABMs).

There came a time, however, when actual

U.S. policy shifted from deterrence to what

Aldridge terms "counterforce". In 1973,

Aldridge resigned after helping design three

generations of Polaris missiles, the mul-

tiple individually-targeted reentry vehicles

(MIRVs) for Poseidon, and the beginnings of

the Trident missile. The cause of Aldridge's

resignation was his sense of a shift in

nuclear policies:

At the onset of the Trident program,

I discovered the Pentagon's interest

in acquiring a precise "counterforce"

weapon capable of destroying "har-

dened" military emplacements such

as missile silos. This was a pro-

found shift from a policy of retaliat-

ing only when fired upon, because it

-23-

does not make sense to attack empty

silos (which is all that would be

left following an enemy first-strike

attack on the United States). Coun-

terforce at vii.

The S.A.L.T. I agreement froze the nunm-

ber of strategic arms, but did not freeze

quality improvements--the area of primary

U.S. emphasis. Counterforce at 60. The

sheer explosive power of these weapons is

unimaginable. According to Senator George

McGovern, the U.S. presently possesses

8,500 warheads, a combined explosive power

of over three billion tons of TNT, which

calculates to about 1,500 pounds of explo-

sive for every man, woman and child on

the planet. McGovern, "End of the World",

Playboy 124, 126 (February, 1978) herein-

after, McGovern). But the magnitude of

explosive is not as important as the ac-

curacy of the explosion. Moreover, S.A.L.T.

I did not limit the numbers of strategic

warheads (as opposed to strategic missiles)

and thus since S.A.L.T. I the U.S. has in-

creased its nuclear warhead stockpile from

-2h-

4,600 to 9,000, while the Soviet Union has

increased theirs from 2,000 to 4,000. "The

SALT Trap", The Progressive 9 (December 1978).

Additionally, S.A.L.T. I placed no re-

strictions on production of two weapons

systems which have critically affected the

arms race: MIRVs and the cruise missile.

MIRVing missiles means two to fourteen addi-

tional independently targeted warheads to

a single missile, giving it the kill poten-

tial of many missiles. The cruise missile

is a mobile weapon which flies at alti-

tudes below the detective capabilities of

radar and which can strike within thirty

feet of a target over 2,000 miles distant,

according to the Progressive.

The dangers in such policies are legion.

For one thing, these developments make it

virtually impossible to verify compliance

with an arms limitation agreement. Ai-

though satellites can count missiles, sub-

marines or airplanes, they cannot deter-

mine how many warheads are on a given mis-

=25-

sile. McGovern at 196.

The United States has retrofitted accur-

acy improvement systems and MIRVs to both

land and submarine launched missiles. In

October 1977 the U.S. retrofitted 550 Min-

uteman III missiles with the NS-20 guid-

ance system which doubled the accuracy of

the 1650 MIRV warheads. This .gave each

warhead an even chance of landing within

600 feet of any Soviet silo with a blast

nine times greater than the Hiroshima bomb.

McGovern at 196. Each of the 1,650 Minute-

man warheads now has over an 80% chance

of destroying any Soviet silo at which it

is aimed.

Other weapons systems currently in de-

velopment pose an even greater threat of

the risk of outbreak of nuclear war. Lock-

heed began work in 1968 on a maneuvering

re-entry vehicle (MARV) which permits in-

flight alterations in navigation increas-

ing ever-more the accuracy of the hit. In

1970, concept studies were initiated for

the Mark 500 MARV for possible use on

Trident missiles.

In 1974 the ABM Treaty was modified to

allow only 100 defensive interceptors for

each country, thus making nonsense of the

Pentagon rationale that in-flight maneuver-

ability is essential to evade enemy de-

fense systems.

In 1972 the Missile X program was ini-

tiated. The actual implementation of the

program began in October, 1977. Under

this system five to twenty-five mile

trenches will be dug in the Western U.S.

Each trench will conceal a missile which

can be moved back and forth at random, the

assumption being that the Soviets would

exhaust their ICBMs trying to "find" the

missile. The problem is that the Penta-

gon scenerio omits to consider the fact

"that a 20-megaton burst, such as that

produced by a Soviet SS-9 ICBM, would

leave a 75-foot high layer of dirt on the

lid if it struck as far as half a mile

away. Missile-X would probably be entombed ©

unless it were planned as a first-strike

weapon." Counterforce at 27. Moreover,

the trench system once again creates insur-

mountable verification problems since

"there would be no way the Soviets could

be certain that there was only one missile

in any given trench." Counterforce at 27.

The Trident submarine launched missile

system is a floating vessel of destruction.

The 560 foot long Trident will carry twenty-

four submarine launched ballistic missiles

(SLCMs) each with a range of 4,000 nautical

miles and each equipped with eight 100-

kiloton warheads. The proposed modifica-

tions of the Trident submarine, or Trident-2,

will carry twenty-four Trident-2 missiles,

each with a range of 6,000 nautical miles,

and each capable of "delivering seventeen

super-accurate MARV warheads to within as

-28-

few feet of as many targets." Counter-

force at 25, 26. As Aldridge describes

it:

One Trident submarine will be able

to destroy 408 cities or military

targets with a blast five times

that which was unleashed over Hiro-

shima. A fleet of thirty Trident

submarines would be able to deliver

an unbelievable 12,240 nuclear war-

heads against an enemy's territory--

or 30 times the number originally

thought sufficient for strategic

deterrence. Clearly, if Trident

attains the accuracies the Navy

seeks, it will constitute the ul-

timate first-strike weapon. Counter-

force at 26.

Once each nation possesses weapons

capable of a first-strike, then the risks

of a nuclear war escalate in a geometric

progression. The dilemma is that (1) since

each is capable of a first-strike which

would presumably cripple the other's ability

to retaliate, (2) since only 100 ABMs are

allowed per side, and (3) since cruise

missiles and other systems can penetrate

enemy territory undetected by radar, then

«29

each side vill be vulnerable to a crip-

pling first-strike attack thus tempting

each side to devastate the "enemy" before

the "enemy" devastates them. This scen-

ario of mutual nuclear insecurity is only

year ahead. Although the United States is

ahead of the Soviets in developing a first-

strike capability, Counterforce at 59, it

is only a matter of time before the Soviets

possess an effective first-strike capa-

bility. Perhaps, in anticipation of that

day, President Carter announced a U.S.

first nuclear strike doctrine in his ad-

dress to the General Assembly of the U.N.

from the rostrum of the General Assembly,

on October 4+, 1977.

. . I hereby declare on behalf of

the United States that we will not

use nuclear weapons except in self-

defense; that is, in circumstances

of an actual nuclear or conventional

attack on the United States, our

territories or armed forces, or such

an attack on our allies.

New York Times, "Transcript of Presi-

dent Carter's Address to United Nations

-30-

General Assembly, Oct. 5, 1977, p. Al2..

The doctrine is extremely far-reaching:

(1) It amnounces that the U.S. "will"

use nuclear weapons (he did not say,

for example, "might" or "reserves the

right" or similar words);

(2) Nuclear weapons would be used

also in case of attack by "conven-

tional" weapons;

(3) They would be used also in case

of attack by conventional weapons on

U.S. forces stationed, flying over, or

on the high seas, anywhere in the

world--for example, in situations

similar to the Pueblo incident.

(4) Mr. Carter did not use the lan-

guage of Article 51 of the U.N. Charter,

which allows individual or collective

self-defense only "if an armed attack

occurs"; the formulation "in circum-

stances of an actual attack" is not

used in any pertinent international

instrument. Implicit in the phrase is

that the U.S. might use nuclear wea-

pons also if no armed attack "has

occurred", so that it could conceiv-

ably cover also preventive use of

nuclear weapons.

(5) Since the doctrine announces

first use of nuclear weapons regard-

less of the results (perhaps a U.S.

Air Force plane was shot at, but not

hit?) and, in any case, severity,

duration, and character of the "actual

attack", is not discussed, the doc-

trine violates the general principle

of proportionality.

-31-

(6) The doctrine does not expli-

citely state that the nuclear weapons

would be used exclusively against the

attacking state. Is that omission

deliberate? In other words, is it a

revival of Secretary of State Dulles'

doctrine of "massive retaliation of

our own choosing", that is, against

a nation which did not attack but

which the U.S. would unilaterally

hold responsible for the attack?

(7) The doctrine does not say that

the attack, to which the U.S. would

reply with nuclear weapons, was il-

legal(If a U.S. bomber or a bomber of

any U.S. ally would penetrate the ter-

ritory of another state, the latter

would act legally in shooting it down. )

(8) The doctrine does not refer to the

obligation to seek peaceful settlement

before taking such enormous steps, which

would be in contravention of Article 33

of the U.N. Charter.

(9) This coupled with the authortiy

of the President under the 1973 War

Powers Act, who is therein allowed to

engage in hostilities without declara-

tion of war for a period of 60 to 90

days, violates the Hague Convention

No. 3 of 1907.

The American nuclear firepower outlined

above provides ample basis for concluding

that such systems are violations of inter-

national law. (This analysis was formu-

lated by Prof. John H. E. Fried, Former

-32-

Special Legal Assistant, U.S. War Crimes

Tribunal, Nuremberg.) Dr. Fried, ina

recent paper presented to the XIth Congress,

International Association of Democratic

Jurists in Malta, concluded that a first

nuclear strike is forbidden by existing in-

ternational law because nuclear war (1) has

no rational war aim-its aim is destruction,

(2) would prevent obedience to fundamental

rules concerning the conduct of hostilities,

(3) would prevent the carrying out of post

battle obligations of belligerents, (4)

would make it impossible to respect the

rights of neutral states. The danger of

accidental unintended nuclear war is para-

mount, causing the dictates of public con-

science to prohibit a first nuclear strike

before it takes place. (See also Art. 18,

1, Geneva Convention for the Protection of

Civilians in Time of War (1949).

- 33-

E. International Law Imposes a Duty upon

Individual Citizens to Disassociate

Themselves from Violations of Inter-

national Law

Since the Nuremberg principles have be-

come a part of international law, the no-

tion of individual responsibility for war

crimes has achieved wide acknowledgment.

(See below). Under the Nuremberg Charter,

it is no defense to claim one was merely

following orders. Nuremberg Charter, supra,

Art. 7. Individual responsibility attaches

if "a moral choice was possible". Ex Parte

Quirin, 317 U.S. 1 (1942).

Professor Falk has found that case law

developing during the War Crimes Trials

after World War II "established that the

zone of individual responsibility for

crimes against peace extended well beyond

principal policy-making and state leaders."

Falk, "The Nuremberg Defense in the Penta-

gon Papers Case", Crimes of War (Falk,

-34-

Kolko & Liften, eds., 1971) 231. See,

e.g. "The Ministries Case," XII-XIV, Trials

of War Criminals (1952). In the Flick Case,

which involved prosecutions of German in-

dustrialists, the War Crimes Tribunal stated:

(I)t is urged that individuals hold-

ing no public offices and not rep-

resenting the state, do not, and

should not come within the class of

persons criminally responsible for

a breach of international law. It

is asserted that international law

is a matter wholly outside the work,

interest, and knowledge of private

individuals. The distinction is

unsound. International law, as such,

binds every citizen just as does

ordinary municipal law, .. . The

application of international law to

individuals is no novelty.

Quoted in II The Law of War: A Docu-

mentary History 1284 (L. Friedman ed.

1972) (hereinafter, Friedman).

Furthermore, the Tokyo War Crimes Trial

Decision, reprinted in Friedman at 1029,

suggests that anyone with knowledge of il-

legal activity and an opportunity to do

something about it is a potential criminal

under international law unless the person

-35-

takes affirmative measures to prevent the

commission of the crimes. (emphasis added),

Under these considerations an indivi-

dual American citizen is in violation of

international law if he or she consents to

cooperate with any government which pro-

duces, possesses or uses nuclear weapons.

(Part of the material included here is from

Graber, "The International Law Defense",

Pacificus Papers, Vol. 2, No. 5, Colorado

Springs, Center on Law and Pacifism, 1980).

F. The Applicability of International Law

to Petitioner is Proven

The payment of war taxes to the United ¥

States for the years 1970, 1971, 1972 and

1974 would have constituted complicity in

the commission of crimes against peace,

crimes against humanity, war crimes in

Vietnam and in nuclear planning. A moral

choice to refuse to be in complicity with

the commission of such crimes was avail-

able to the petitioner and he exercised

« the

that choice and refused to pay a war tax.

On the point of the nature and extent of

individual responsibility, the Nuremberg

Judgment states: "The very essence of the

charter is that individuals have interna-

tional duties which transcend the national

obligations of obedience imposed by the

individual state." 6 F.R.D. 69, 110 (1946).

Fundamental fairness requires that the

petitioner be permitted to rely on any ar-

gument arising from his accountability

under international law. That such a

policy extends to the Nuremberg Principles

is confirmed by the former Assistant Gen-

eral Counsel for International Affairs of

the Department of Defense, who acknow-

ledged that "from an international crimi-

nallaw point of view. . . the Nuremberg

norms are part of our municipal law and

may be enforced by our courts." Quoted

in Falk, A Global Approach to National

-37-

Policy, 112 (1974). However, petitioner

has not been given an opportunity to™pre-

sent evidence concerning the questions of

fact contained in this writ before any

court.

Individual liability is determined on

the basis of knowledge of war crimes

coupled with inaction. See "The Tokyo War

Crimes Trial Decision," II The Law of War:

A Documentary History, 1029 (Friedmann

ed. 1972). It follows, then, that anyone

with knowledge of war crimes and the oppor-

tunity to do something about it is poten-

tially criminally liable unless that per-

son takes steps to prevent further commis-

sion of the crimes. Even if these prin-

ciples do not impose an affirmative duty

to act, the imposition of criminal lia-

bility on persons having knowledge of war

crimes must create a right in persons to

act in a prudent manner in an effort to

halt what they reasonably believe to be

-38-

international crimes.

In a due process sense, it is enough

that the petitioner reasonably believed

that the domestic law was superseded by

international law. Because domestic law

must be construed in conformity with inter-

national law whenever such a construction

is possible, Borchard, "The Relation Be-

tween International Law and Municipal Law,"

27 Va. L. Rev., 137 (1940), it violates

due process to subject the petitioner to

possible criminal liability for tax de-

fiency in the face of the contradictory

claims on his behavior posed by the domes-

tic and international law. Due process

does not permit the imposition of criminal

liability for tax deficiency (which is

possible under the Internal Revenue Code)

for an act intended to terminate compli-

city in war crimes and its preparation

when the act was justified under relevant

principles of international law.

-39-

In 1946, at Nuremberg, Germany, the

United States participated in the prose-

cutions of persons under principles of

international law imposing criminal lia-

bility for deference to municipal law when

they knew, or should have known, that their

government was committing violations of

international law. It violates the most

basic principles of fundamental fairness

and due process for the United States,

while continuing to participate in the

punishment of persons convicted of vio-

lating the Nuremberg Principles, to refuse

to acknowledge the right of taxpayer to

refuse war taxes in violation of munici-

pal law established by the Nuremberg Mili-

tary Tribunal.

G. Arguments Invoked Against the Appli-

cability of International Law are

Invalid

Usual rebuttals to the international

law argument are stated as follows: (1)

‘italien

"International law does not apply to Am-

erican courts unless it concerns a treaty

not superceded by a statute."

As presented aforesaid, this is not so

and moreover in the instant case insofar

as the Nuremberg Charter is concerned it

has been made part of domestic law by its

incorporation in 59 U.S. Stat. 1544. (2)

"The provisions of the Nuremberg Charter

are strictly limited. Crimes Against

Peace only apply to "major" war criminals,

and War Crimes and Crimes Against Humanity

are limited to wartime." In respect to

Crimes Against Peace, petitioner argues

that 18 U.S.C. 960 infra makes any person

within the United States criminally liable.

In respect to War Crimes and Crimes Against

Humanity, The Report of the International

Law Commission (1950) at Principle VI,

paragraph 122 states that "The Tribunal

did not, however, exclude the possibility

that crimes against humanity might be

oj].

considered before a war." Finally, as

to all three classes of Nuremberg crimes,

the limitation placed upon the jurisdic-

tion of the then court by itself were

self-imposed flowing from its discretion-

ary power due to a desire to strictly con-

strue the charges because of the initial

use of the Charter, the ex post facto

charge against its use, giving the bene-

fit of the doubt to defendants for that

reason. The literal words of the Charter

do not make such discretion mandatory upon

future judges or interpretors as this

Court.

International law is progressive. See

2 Mueller, International Criminal Law,

(1965) at 263. No such conditions apply

35 years later and individuals such as

business men and women, ordinary soldiers

or members of war organizations would have

been a sufficient status then and now to be

-4o-

considered an accessory. See II Whitman,

Digest of International Law 885-87, 1968.

The last paragraph of Article 6 of the

Nuremberg Charter concerns complicity and

states that ". . . accomplices participat-

ing in the formulation. . . of a common

plan to commit any of the foregoing crimes

are responsible for all acts performed by

any persons in execution of such plan."

See also Mueller at 269. (3) Moreover, the

argument is tirelessly repeated that Inter-

national Law prohibits only the use and

not the possession of nuclear arms. But

the aforesaid chronology of applicable

international law provisions viciates that

myth. "First Strike" planning puts the

lie to that rebuttal forever. If the law

must wait on "use" in this type of case

there will be no law or people left to

adjudicate. (4) Finally, these arguments

are usually rebutted, if all else fails,

on the basis that they are political in

skis

nature and non-justiciable. This re-

buttal is spurious on its face for this

petitioner's plea is a plea much more than

political. It is a plea for humanity and

against the super-powers of the U.S. and

U.S.S.R., lest we find our planet des-

troyed for want of "legal standing".

Thus the involvement of the United

States in Vietnam war crimes and the for-

mulation of current plans which violate

international and constitutional law, will

make petitioner an accessory to both and

criminally liable if he is forced to pay

war taxes for said plans and preparations.

II. ™o compel the petitioner to pay federal

income tax deficiencies and additions ag

war taxes forces him to furnish money for

a military enterprise against a foreign

state with which the United States is at

peace in violation of domestic law at Title

18 J.S.C. Section 960.

44.

Title 18 U.S.C. Section 960, Exnedi-

tion Against Friendly Nations provides,

"Whoever, within the United States, know-

ingly begins or sets on foot or provides

or prepares a means for or furnishes the

money for, or takes part in, any military

or naval expedition or enterprise to be

earried on from thence against a territory

or dominion of any foreign prince or state,

or of any colony, district or people with

whom the United States is at peace, shall

be fined not more than $3,000.00 or im-

prisoned not more than three years or

both." June 25, 1948, C. 645. 62 Stat.

745.

The statute is generally construed in

the disjunctive. Wiborg v. United States,

163 U.S. 632 (Pa. 1896). That is whoever

knowingly begins or sets on foot, or pro-

vides, or prepares a means for, or fur-

nishes the money for, or takes part in,

etc., violates the statute. It is an of-

fense against the statute if any one of

these factors takes place. Not every

proviso must take place for the statute

to be violated. For example, if a person

within the United States knowingly fur-

nishes the money for any military or naval

expedition or enterprise, etc., then he has

violated the statute whether he has vio-

lated any other of the aforementioned

sections.

The essential aspects of the language

which apply to the question at issue are

as follows: 1) whoever, 2) within the

United States, 3) knowingly begins, 4) or

furnishes the money, 5) for any military

enterprise, 6) to be carried on from

thence against a territory or dominion of

any foreign... state... . or people

with whom the United States is at peace

-, 7) shall be imprisoned.

1. Whoever. Petitioner is a single

individual. A single individual may vio-

late the statute. It does not require

more than one person to violate the statute.

United States v. Ran Chandra, 254 F. 635

(D.C. Cal. 1917). See also United States

v. Burr, 25 Fed. Cas. No. 14, 694A (C.C.

Va. 1807). "Any citizen" is sufficient

under Charge to Grand Jury, 30 Fed. Cas.

No. 18, 264 (C.C. N.Y. 1866). A military

enterprise may include various undertak-

ings by single individuals, United States

v. Sander, 241 F. 417 (D.C. N.Y. 1917).

This statute does not require that the in-

dividual be a policy maker or of any "major"

standing in the government.

2. Within the United States. It isa

stipulated fact that petitioner resides

within the United States.

3. Knowingly begins. Petitioner know-

ingly paid an income tax of which a large

percentage is allocated for military pur-

-4.7-

poses. He therefore knowingly furnished

the money for a military enterprise as de-

fined below. He caused this activity and

then became subject to civil charges brought

by the Internal Revenue Service. (Sce

Wiborg v. United States, 163 U.S. 632

(1896) for the Court's discussion of the

state of mind for awareness of criminal-

ity, pp. 1136-37.)

4. Or furnishes the money. Taxpayer

furnished the money by means of the pay-

ment of his income tax for a large per-

centage of which goes for military purposes

in those years when his money was not with-

held. He would violate this section again

if compelled to pay war taxes by this Court.

The furnishing of tax money is the begin-

ning of an enterprise. Charge to Grand

Jury, Neutrality Laws, Fed. Cas. No. 18,

267 (C.C. Ohio 1851). The overt act is

not the invasion of a foreign country but

the furnishing of tax money. Charge to

-4.8-

Grand Jury, Neutrality Laws, Fed. Cas. No.

18, 266 (C.C. Ind. 1851).

5. For any military enterprise. It is

not necessary to warrant a conviction that

there shall be at any time in existence a

military expedition or enterprise but it is

su..icient if a military enterprise is

part of the intent of he who is engaged in

doing of the things prohibited. Jacobson v.

United States, 272 F. 399 (C.C.A. Ill.

1921) cert. den. 256 U.S. 703. Any tax

money which tends to form or give assis-

tance to those engaged in a military enter-

prise is within the statute's power. Unit-

ed States v. Hughes, 70 F. 972 (D.C.S.C.

1895). It is not necessary that a military

enterprise should actually reach the shores

of the country to which it is destined.

United States v. Murphy, 84 F. 609 (D.C.

Del. 1898). To constitute an offense it

is not necessary that the enterprise should

start for its destination. United States

-49-

v. Ybanez, 53 F. 536 (C.C. Tex. 1892).