Petition for Writ of Certiorari — David Henry Mitchell, III v. United States

hen cece tive Med, :

JAN 28 1967,

as

baby iA et

.

JOHN F. DAVIS, CLERK

IN THE

| Sitpreme Court of the United States

OCT OBER TERM, 1966

eoetete ene

"DAVID HENRY MITCHELL, IIT,

. an | Petitioner, “|

against | | . cat i

UNITED STATES OF AMERICA, |

Respondent.

* uw °

—=<=— = = Ss __f

‘PETITION FOR A WRIT OF CERT!I®RARI TO THE

UNITED STATES COURT OF APPEALS FOR THE :

SECOND CIRCUIT |. |

of

Rozert L. Bosricx, .

Attorney for Petitioner, q

345 Eighth Avenue, £

New York, N. Y. 10001.

212-CH 2-2282 |

January 27th, 1967. a Pei

ACKERMAN PRESS, Phones BO 9-7107-8 _

TABLE OF CONTENTS ,

; ; PAGE

Opinion Below ...... ereope e “atatdpeedeeae ere 1

Jurisdiction FERNS CT SES io oeeee ai canevus eoeeeveecee ‘eeee

Questions Presented .......... oats AGU ILOs.

1

2

: Constitutional Provisions and Treaties Involved. eM 3

8

A. ‘Constitutional Provisions Involved ....:....

_ B. International Treaties, ‘Agreements and As-

_ RENNES «++ «0 Vudhekeesreseuee teeeee wee 4

Statement ik ere seeneeds error | 4

Summary of the Facts Souee ees ; ‘ re ma 4

TH Opinion Below ..\,.....0-000scccsevesss Paar.

Petitioner’ S Statement to the Draft es

The Evidence of the Government RAE ‘ 7

The Limited Evidentiary Presentation Permitted

-to Petitioner by the District Court see teeeeees Te. §

The Court’s Charge to-the Jury. nna ie Ae, Sie

‘The Motion to Dismiss the Indictment ee i

Questions Presented in the Court of Appeals . = 11 .

Reasons for Granting the Writ. ......-++-. cteees ve 12

-Conelusion ...... cle Bewirs Oe Ot pe eres 18

Appendix’ A Put a aa eee ie eeeeeuaneees 19

Pe ererrrererereerrce tere tert i cores 22

Appendix C . ee aniraay overt aus aa eee a ._ 23

Appendix D ,......... : te omaa ekeeaneke «| 24

‘ ; a %

_ Statutes: | aca .

; 50 U.S.C. Section 462 ....... anne nie ody ly 0,90

ae eae TABLE OF CONTENTS |

/TasLe oF AUTHORITIES

"page

Cases:., cd | aygeten Int

Baker yw. Carr, 369 U. S. 186 See uated 18

"Ex Parte Milligan, 4 Wall 2 +.....0....000..000- > 16

Galvan v: Press, 347 U. S..at 530 ....... Wwscicak: *.16_

—— v. Mustache Distilleries Co., "251 U_S. 146, : “

‘McCray v. United Uni ted States, 195 U: ee ag

Monongahela Navigation Co. v. United States, ee

"ee ET Eas keke eee ere TP me

Nixon v. Herndon, 273 U. S. 586 ....:...+00: rer . 18

United States v. Cress, 243 U. 8. 316 .......... ~~

United States v. Joint Traffic Assn.,: 171 U. 8. 505 16

Constitutional Provisions:

. Umited States Constitution:

Preamble eee Cuseners LW, > ee * a enere cae 3

Article I, Section 8 cae cas Sone teeeaeereok ery 4

ee ean ee ny wheres 4

MI ain s ees enh ase 4

Witte Ammmmienant oo. noses cde een ccaciccsscccecvac 4

‘International Treaties, Agreements “a Assurances 24

* 28 U.S.C. Section 1254(1) ......8.....000005. 1

6 Meat. 208... 5. es occ ee aT Lae EoD *

55 Stat. 1600’........: bee eas 25

Wo es ico

"59 Stat. 1544 pas dats a pteertiees. 28

ao

waedsenienhcreenaduesgaetieneniamaaanasietmiesedain

a

| | TABLE OF CONTENTS a iii

elena ene a PAGE

_ Miscellaneous Mention: | se Nie

«Fifth Amendment ......... eae: (xc ae

— “Charter of. the United Nations ........ 2, 11,14, 15, 16.

i 2 VI, United States Constitution .1...... 2,15.

Unifed States v.-Mitchell, 354 F. 2d 767 ....5,20.

Treaty of Paris (Kellogg-Briand Pact) ......

Geneva Agreement of 1954 ....... ER ee |

“Hague a ee 11

_ Chairman of Senate Foreign Relations Committee 13

Rev. Dr. Reinhold Niebuhr .... (yetennteres 13, 14, 17

Supreme Court Justice Jackson Die egy nya 14.

pe “Cae é :

‘Treaties and other International Act Series 1589;

Dept. of State Publication 2613, a decade of

oo American, Foreign Policy, 1941-1949: Senate

. Document 123, 81st Cong., 1st Session, )p. 961 :. 32-33

Y Gian, 95(I)}, adopted 14 December, 1946; The

United States and the United Nations, Re- | °

_ port by the President to the Congress for the

.-* year, 1946, Dept. 6f State Pub. 2735, pp. 129-

130; a Decade of American Foreign Policy,

WDALASMD Dp. HB occ cc scechevceucccecesess 34

Treaty. of London (Charter of the International ~~

Military Tribunal-Nuremberg Law) ...... g; 10, 11

".. jBoks -12, 14, 3

Preamble, -United States Constitution oe evens 17

&

a a Sin

INDEX TO APPENDIX

a

~

Opinion of the Court of Appeals ........ peceus ae

‘No Opinion of United StateygDistrict Court .... a

Order and Jadgment of Affirmance ofConviction of

the United States Court of ‘Appeals, entered on

December a EEC AOD tp hs Saran ine aren

Denial of Petition for Rehearing dated. J anuary 3,

MT Ce deecdeiatar ser tases decide sone eericss

Treaty for. Renunciation of War (46 Stat. 2343) ....

The United Nations’ Declaration and the Atlantic °

Charter (55. din aw se sees bee ke ed

Charter of the United Nations (59 Stat. 1031)

Treaty of London (Charter of the International Mili-

tary Tribunal 59° Stat. Ve) ee eee

¥

Control Council Law No. MP, rovers ek doesn a

Charter of the International Military Tribunal for the

Far East, January 19, 1946 tren eee RG eee e sates

United Nations General Assembly Resolution 95 | (1)

‘ , vi - . hen & d

N '

9

a

ak December 5, 1966,° eteuarel for rehearing denied on J anu-

a 3, 1967. . : 3

diction of this Court 3 is invoked under 28 U.S.C. 1254 (1)-

» Ey rae

Supreme Court i the United States .

OCTOBER 1 TERM, 1966 -

>

.

dD

.. Davm.Heney Mrrcuett, III, ,

Barret ‘ Petitioner,

against |

' UNITED SraTes oF AMERICA,’ -

é

s

os

ol

PETITION FOR.A wat OF CERTIORARI TO THE.

UNITED STATES COURT OF APPEALS FOR THE

_ SECOND CIRCUIT :

, Petitioner prays that a writ of certiorari i issue , to review

the judgment of the United States-Court of Appeals for,

the Second Circuit entered in the above entitled case on

‘

‘Opinion Below

2

The opinion, = the Court of Appeals is not reported and

is printed at PA-A, P. 19.. It affirmed a judgment of con-

viction of petitioner for failing to report for induction into

the armed forces in violation of an order issued: allegedly

purstant to 50 U.S.C., Sec. 462. Petitioner was tried in

the district court by a jury and there is no opinion of that

court. | - % . ae

ts ee 7 ¢

jen ae Jurisdiction ay

. R sae scones |

aes ;

‘The judgment of. the: United States Court of Appeals

was entered on December 5, 1966, PA-B, P. 22, petition for

rehearing denied on J: anuary 3, 1967. PA-C, P. 23. Juris- .

ra

we -

o | Questions Presented .

1.. Do the President and Congress have such unlimited

constitutional power that the Executive may use, accord-

ing to his discretion, the armed forces of the United States

in Southeast Asia and so that a draft board may participate

in' the exeeution of this-power, without judicial determina- —

tion of the constitutionality of the acts of the President,

the Congress and the draft board in authorizing and issuing

.a draft board order when a defendant citizen of the United

_ States on trial for his:liberty offers to prove an interlinked

. chain ‘of unconstitutional acts and treaty violations that

_ make the order void? Is not the denial of that opportunity

to prove on the ground of ‘‘immateriality”’ a denial of the

‘‘due process of law” guaranteed by the Fifth Amendment? .

_ 2. Was the Court below correct in ruling, without a

trial and determination on the merits of the issues of fact

and law, that the draft board’s act in issuing the order

violated was not subject to challenge as part of an uncon-

stitutional series of acts by the President and the Con-

gress? Is it correct for a court, endowed with the duty of

upholding the constitutional rights of an indicted citizen,

to refuse to allow a trial of the citizen’s contentions of un-

constitutionality ? .

3. A defendant in an ordinary criminal ease has the right

to prove that the relevant statute, rule, regulation or order

he violated, is being administered ‘pursuant to a conspiracy .

.- to deprive him of his constitutiongl rights. Is not the same

right to offer such evidence possessed by a. draft board

registrant who violates an allegedly legal order to report

S |

for induction?

4. In view of the Charter of the United Nations and

other International treaties to which the United States is

| signatory and Article VI of the Constitution of the United.

Pe

Sa ROA BRAS AEN. itd BB bth NaN cae T A tt EA ii Sad NERY te AS a RS Nathanial hy bith We a iin napa Mare eee ets ies ewe 2

~ .

ae eae ee | arte eee tte net a nt nee

agit Nene Ail bb Se tan a ata oe Sah et eh Rp

3 ‘

“States making such treaties ‘‘the supreme law of the Land’’

‘and -requiring that ‘‘the Judges in every State shall be _

bound -thereby’’,- does the President of the United States

‘have the Constitttional power,:as Commander-in-Chief of

the armed forces and the Executive in-charge of enforce-

ment of the Selective Service system, to send the armed

' forces of the United States into battle outside the con-

tinental limits of the. United States, if such action.is in

violation of such treaties and Constitutional] provisions? ©

5. Were not the Courts below bound, in protecting peti-

tioner’s due process as regards Questions I, 2 and 3, to

submit the above issues to the test of evidence and applic- .

able law in order to determine whether the. draft law is

‘eurrently being applied to petitioner unconstitutionally i in ..

disregard of its legal limitations of authority and purpose:

and in violation of treaties, which in conformity with Con-

stitutional authgrity and procedures have been given the

force of law—binding upon all citizens to ~— and all

Courts to.uphold and enforce?

6. ‘Did the Court of Appeals wile Siieein te ap-

pellate function in, failing to rule on the merits of any of

the Questions presented to it? Was -it proper for it to

reformulate appellant ’s appeal so as to avoid determina- .

tion of these questions on the merits?

‘

Constitutional Provisions and Treaties Involved |

+ A. Constitutional Provisions Seeabund ae

‘*We. the People of the United States, in Order to form

a more perfect Union, establish Justice * * * provide for -

the.common. defence * * * do ordain and establish this

Constitution al the Uae States of America wi As le

~

ES OF A EN Se ALE, TE ET Sea, FS Le Oa

PF TSO

-

a?

’ Article L

oat ‘ .

Section 8. The Congress shall have Power’To * *.* pro-

vide for thé common Defence *-* *

- Po:declare War * * *;

To raise and support armies * * *;

To provide and maintain a Navy

eit Article IL.

Section 2: The President shall at Commander in Chief

of the Army and Navy of the United States * * *.

; - Article VI. |

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all Treaties

made, or which shall be: made, under the Aathority: of the

United States,. shall be the supreme law of the Land; and

the J —! in every State shall be bound thereby * ° ae

Fifth Amendment }

“No person shall * * * be deprived of life, aha, or

property, without due process of law * * *.”’

B. International Treaties, Agreements and Assurances

Since these provisions are lengthy, their pertinent text

is set forth in the. appendix (PA-D, P. 24). .

Statement of the Case

_ Summary of the Facts

As stated in the. opinion of Judge Medina basin:

After initially registering with Selective tarvine

Local Board 17, appellant ‘disaffiliated’ himself from -

the Selective Service and thereafter réfused to co-

5)

operate with his Board in any respect. In August,

1964, appellant was classified 1A and did not appeal.

‘Subsequently he was ordered to report for induction. ,

on January 11, 1965. Appellant acknowledged receipt

of this notice by letter but did not report as ordered.

' Appellant was indicted for violation of 50 U.S.C.

Appx., Section 462, tried and found guilty. This Court

reversed the first conviction because the trial judge

had failed to allow sufficient time’ for appellant to

obtain counsel. United States v. Mitchell, 354 F. 2d

767 (2 Cir. 1966). He was retried before Judge Clarie « | -

and a jury. The wilfulness of his failure to report for

induction was all too apparent; and he was again con-

victed and sentenced. to five years imprisonment. At

trial appellant made no claim to be a conscientious ©

objector but sought to produce evidence to show that |

the war in Vietnam was being conducted in violation

of various treaties to which the .United ‘States is a

signatory and that the Selective Service ‘system was

being operated as an adjunct of this military effort.

Judge Clarie ruled. out all such evidence as immaterial

and this — is assigned as error. cd

The Opinion Below

In sustaining the judgment belew and refusing to. reverse

. for the error assigned, Judge Medina stated for the Court:

Ott Oe appellant asserts that the Selective Service

and not merely the conduct of the war in Vietnam, is

illegal, his defenses would seem not to be premature.

Nevertheless, appellant’s allegations are not a de-

“ fense to a prosecution for failure to report for induc- .

tion into the Armed Forces and his evidence was prop-

erly excluded. Regardless of the: proof that appellant

might present to demonstrate the correlation between

* the Selective Service and our nation’s efforts in Viet-

nam, as a matter of law, the congressional power ‘to

. raise and support armies’ and ‘to provide and main-

: . ‘

nib stneiteats Bidar i cele sae wi SLA aa Mid AA VE i DS Shem alin Tat Dah een osdimink tien bahia siete

6 t. eee

tain’a navy’ is a matter quite distinct from ‘the use

which the Executive makes of those who have. been

found qualified and who. have been inducted into the

Armed Forces. Whatever. action the President: may

order, or the Congress sanction, cannot impair this

constitutional power of the Congress.’’ (PA-A, P. 19)

Petitioner’s Sutenene to the Draft Board

_ On February 10,,1964, the defendant wrote to the clerk

of the draft board explaining why he reftised to cooperate

with the board:. ey et

‘‘T oppose the draft, not as something wrong for just

,me or wrong for only certain people, but as. something

wrong for the peace and survival of the world. Selec-

tive Service is the criminal in this case, as can ‘be

judged by American militarism throughout the world—

from Cuba to Panama to South Vietnam, and by our

basing of policies on nuclear war. I refuse to co-

operate in any way which would support the .continu-

> ance of such activities. I certainly wouldn’t have

worked in a Nazi concentration camp just because I

would not have to tend the ovens or thé gas but could

be a guard or a clerk. Rather, as IT am\doing with the

- draft and the militarism it. cohtributes to, I would have

disassociated from sueh wrong and worked against it.’’ .

(Defendant’s Exhibit A-17, R. 913)

During June 1964 after he was notified to report for in-

duction on-Jurie 10, 1964, he wrote to the draft board again: .

‘Many draft refusers fail to get down to the po-

litical issues in their cases; many refuse to contest

their own ‘legal guilt’ in court. Yet an effective way

of challenging our government’s policies and morality

is by maintaining a not guilty plea in the courts. The

position of individual guilt and individual responsi-

bility, and therefore one’s obligation to. dissociate

fan alti tens el Andina Knead adie

se

7 Pa

himself from war crimes, is established—not only 7

philosophically. by Thoreau, ete.—but historically: and

legally by Nuremberg International Law which is part

of the law of every country. Under International Law,

the United States is guilty of crimes against peace and

is also in violation of the Kellogg-Briand Pact, other ‘

international agreements, and Article 2, Section 4 of

the United Nations Charter which prohibits a@ policy

of force and threats of force.. Only if we served as

_ accomplices in these activities would we be guilty

morally or legally. " (Defendant s Exhibit A27) |

The Evidlento of the Government

The government called - but one witness, Mrs. Edith

Moriarty, the clerk of the local draft-board 1 (R. 834). She --—

testified that she had mailed“the notice to report for in-

duction to the defendant and the government introduced

portions of defendaht’s draft board: file throtgh her.

_ The entire file was introduced through Mrs. Moriarty by — |

the defendant (R. 864). The.file contained the defendant?s 7

responses to the draft board referred to hereinafter.

The Limited Evidentiary Presenteticsi Permitted

to Petitioner by the District Court

Two witnesses who had returned from North Viet Nam_

_ testified (R. 951-970). Neither was permitted to testify .

‘about his visit to North Viet Nam or that which he had

observed. while there, the court ruling that such informa-

tion was not material. '

The: defendant testified that he did not aie for itis

tion on January 11, 1965 although. he had received an order

to so réport (R. 1006).

1

He testified that the pone of the United States in Viet

Nam was violative of international treaties to which the

United States was signatory and that he would not partici-

pate in such unlawful conduct (R. 1006-1008). He testified °

. -

iin a aire eure Sei Seat — _ ae pia Mesias 2 ~ ° 2 ¥ rae et

Petre ee momar’ view clare) ¢ WenreE tw raat Seta

Mile. . * x he

8

. that he had originally refused to report for induction be-

cause he accepted the principles enunciated at the Nurem-

berg Trial and that the United States had indeed spon-—

3 sored the Charter of ‘the International Military Tribunal.

He testified: |

sistecdiadlivale was obliged and had a duty and respon- —

_. sibility, not just morally, but also legally, because of

- the Nuremberg judgment, which laid down principles

‘of individual responsibility and guilt, which transcends

; those of a nation, to refuse to cooperate with the draft,

which was engaged in, as the major instrument for

‘securing manpower for various criminal activities

_* _ around the world; notably, Viet Nam, where we were

7. —s*_~—s stepping up activity there in behalf of Diem at that

| time.’’ (R. 1001-1002) : |

The defendant stated that ns haewk facts persuaded

him that the very presence of American troops in Viet |

Nam was violative of international agreements and that

-, troops were, in addition, participating in ‘torture, and the ~

use of weapons of war, including the spraying of chemicals

and gas, outlawed by international. treaty to which the

United States was signatory (R. 1002-1003, —

The defendant further testified:

‘‘And, by doing this we have violated a avener of

| other treaty obligations, such as Nuremberg, as I men-

"* * -tioned, the Ge&eva Convention, regarding torture -of

_.* prisoners, treatment of civilians, and bombings,’ and

_ violated the Hagué Rules and Regulations of, War, in

terms of using poisonous chemicals, and the bombing

of civilian crops and villages, and the bombing and

_ burning of civilians themselves. .

: 7 And, because of all this I therefore could not sur-.

render myself into any. type of complicity with the

Draft System, since it is a major instrument in the

carrying out of all these policies. And, if I did, I

° .

- = ~ didn si : . 2 - x * < —

Se eee oe ie ne Ca hee er ee) Seen SSN 2 Oe SO as aiden toad Nile ep ee re

o. oe

would be guilty of not only violating my ‘conscience,

but violating specific laws which apply not to just the -

Germans, because the Germans were tried by them,

‘but, to all men and Americans.”’ (R. 1005) _

The defendant then moved the court to produce two wit-

nesses in the custody of the government, each of whom had

sefved\as a sergeant ‘with the Special Forces in Viet Nam, .

each of whom had been captured, released and had made -

widely . ) published statements charging that the United

States Government had no right,to. be in Viet Nam based

upon their own observations (R. 1010). At the time’ of

the trial both men were held in the custody of the United |

States-Government and both wefe reported to have been

held incommunicado and charged with violating Section

104 of the Uniform Code of Military Justice (R. 1011).

The Court denied the application holding that were testi-

mony of that nature offered it would be immaterial to the.

issues of the case. :

The defendant then moved the Court to issue subpoenas

under Criminal Rule 17 (b) to be served upon a reporter,

now in the United States, previously a correspondent for

the New York Times in Viet Nam, a former sergeant with

the Special Forees in Viet Nam, now in the United States,

and a reporter for the New York Post, formerly assigned —

to Viet Nam. Counsel for the defendant assured the Court,

in support of the motion, that he had spoken with all three

. of the persons for whom the subpoenas were sought and

_ that each would testify, if called, as to the illegal conduct

of the American presence in Viet Nam (Ri 1012-1013). The

' Court denied the application holding that such —

was immaterial. on

The defendant moved the Court for the issuance of a

subpoena directed to the Director of the Selective Service

System so as to demonstrate that that system was pres-

ently being a by the government for the purpose

?

ee ia '

10

of carrying out an illegal war in Viet Nam. For reasons of

materiality that application was denied (R. 1013-1014).

It might be noted at this point that the government's

only witness had testified in such a fashion as to indicate

that the war in -Viet Nam evidently was the‘cause of in- -

creased draft. calls. The record would indicate as well that -

the undeclared war in Viet Nam may well have been the

proximate cause for the induction order sent to the defend-

ant (R. 915-918). ie

The defendant then moved for permission to take dep-

ositions abroad of one American and several Vietnamese

then in Viet Nam (R. 1014, 1018, 1019).° The defendant:

stated that each. of those-sought to be deposed would tes-

‘tify to the bombing of civilian personnel by “American .

bombers or to the extensive and regular use of poison

chemicals and toxic gases by the American forces (R.

1019). The Court again denied the application holding -

that the, ‘‘* * * subject matter would be immaterial and .

irrelevant, * * *’’ (R- 1020).

| The. Court’s Charge to the Jury :

The Court instructed the jury that Title 50, U. S. Code,

Section 462° was the one statute with application to this

ease. ‘‘This statute with which we are concerned, ‘reads.

in — as follows—it is Title 50, U. S..Code, Section 462:

> (R. 1932, and Appendix to Appeal Brief p. 24a).

ile the Court specifically referred to other statutes

it did so not for the purpose of assisting the jury to under- .

stand their — but to enjoin them from considering

them. ; a

“J might add at this point one further ieaiaasdbiin,

and that is that as a matter of law, I'charge you that .

none of the treaties referred:to in the evidence in this

ease, namely, the Breaty of London, referred to as the

a

An Pee RR, at St aR tN 0 tee ed Mo er hte

11

Nuremberg Trial; the ihaies of Paris, referred to as

the Kelloge-Briand Pact; the United Nations Charter;

the Geneva Agreement of 1954, or the Hague Con-

_ vention, interfere in any- manner in respect to this

+ defendant fulfilling his duty under this order.’ (R.

1035, 1036 and apes to Appeal Brief p. 26a)

The Court. tended thie jurors that to gonvict the de-

fendant they must find that the Board issued a valid order,

that the defendant received notice of the’ order, that the -

{defendant failed to report for induction and that. he did so’

knowingly and willingly (R. 1037 and Appendix to Appeal

Brief p. 27d). The task confronting the jury was indeed

rendered simple by the-Court’s exclusion of the evidence

offered by the defendant and by the Court’s charge that

international treaties signed by an American president

and ratified by the United States Senate have no place

in. an American Court and may not be utilized to demon- |

strate the invalidity of the we issued to the defendant.

The Motion to Dismiss the Indictment

_At the conclusion. of the government’s case the eid. |

ant moved to dismiss the indictment. on the grounds that

the selective service systemt was being utilized as an instru-

‘ment to carry out the war in Viet Nam and that the United .

States was‘ violating international treaties, which after

being ratified by the United States Senate became the law

of the United States as well (R. 945-946). The defendant

stated that were he to cooperate with the United States

Armed Forces he too might be guilty of: unlawful conduct.

(R. 948, 949). The motion to dismiss was denied by the

Court (R. 950)...

| re

Questions Presented i in the Court of Appeals

1. Is the: United States bound by international treaties

_ which it has ratified?

\

\

\

a

2. If it is, may not a citize refuse to obey a national lave ;

rendered invalid’ by a treaty in order to avoid possible.

punishment under existing treaty obligations? .

3.° In these circumstances i is it not mandatory for the trial

Court to permit the jury to hear.evidence that the defend-

ant. believes will prove that the national ati as applied is

rendered invalid? j

4. Should not the eae ace thé obligation as well to

harge the jury regarding the meaning of the treaties and

e obligations that they i impose and is it not-error for the

urt to ws Gaat & the jury to disregard the,treaties and the :

obligations ¢that flow from them? |

5. In the absence of an affirmative answer to each of the

- above four questions is not the Court stating that if the

Government of the United States emulated the Nazis: in

every respect, including the commission of the specific war

crimes for which many Germans were tried and punished

by the International Military Tribunal, that citizens of thé

United States. would have .a solemn obligation to partici-

pate in such criminal activity and cooperate with those :

who organize them?

‘eee for Granting the Writ

In terms of the depths of present tragedy. and

potential catastrophe facing’ the United States of

America this is the most important appeal to be filed

in this Court since the Dred Scott decision. —

Behind the bland ‘thead-in-the-sand’” opinion of Judge

Medina in the Court below lurks a denial of the presence of

issues that are profound and pregnant with ‘the. gravest

Constitutional crisis in the history of the Nation since the

_ Civil War. In denying a judicial resolution of these i issues,

a .

"the Court _— has not merely denied a 24-year-old repre-

sentative of the more thoughtful and committed youth of

America. but the entire Nation a responsible judicial

“resolution of quéstions that have troubled varying grades

of responsible statesmen and thinkers ranging from the |

Chairman of the.Senate Foreign Relations Committee, the

¢ Majority. Leader of the Senate’ and others to thé most re-

” speeted members of the academic, incites scientific and

. cultural communities. ma

- In view of the statement of the Pee of the Senate

Foreign Relations Committee that he is ‘very appre-.

. hensivé” that the United States may have assumed a

‘ commitment in Vietnam that is ‘‘not in the interests of

this country’’ (The New York Times, January 17, 1967,

_ p.8), may the youth of this country who agree with him

be imprisoned for up to five years for agreeing with him

’ and doing all in their power to resist cooperating in :

acts, which subject to proof as offered and excluded ~

below, may show them not to be “in the interests of

this country’’? ;

The Rev. Dr. Reinhold Niebuhr, the vnthesinniata

oe theologian, on January 19, 1967:

. Characterized the Vietnam conflict as a ‘fan-

tastic adventure of United States imperialism in an —

' Asian civil war while. we at home are trying to clean

our air, clean our water, clean our ghettos and fight for

racial justice.’

Throughout his talk he. repeatedly referred to the

Vietnam war 4s ‘fantastic’ and ‘tragic:’*

Dr. Niebuhr reviewed the history of ‘American in-

volvement in Vietnam, from the days. of ‘advisory’

participation to the present, when ‘billions have been

. Spent and 6, 000 men have died.’

*It is’ s petitioner’ s contention that this Court has the constitu-

tional power and —— duty to terminate or limit this tragedy.

o

14° —..

‘Iti is no linger a case of ‘simple oibnieah he told

the seminarians. ‘We are in too deep and what is at

stake is imperial prestige.’

‘Couldn’t somebody just say we ante: a mistake?’ he

asked. ‘We have been drawn into this situation by one

. fantastic chapter after another, obviously stumbling cs

into. the quagmire. But political leaders never make ~

mistakes, or else they would be challenged by the dp-

position.’ ’’ she New York Times. January 19, 1967, p.

‘4,

Further, the United States is eaten to a substantial

* body of International law which is meant to preserve world

order and prevent repetitions of act® of aggression and in-

humanity, especially today when such acts can lead the :

‘world down the ‘road to the final holocaust. These laws and

the attempts they represent become meaningl¢gss unless °

courts apply them as bound, and litigants are allowed “*due

process” to seek a determination of their applicability to

specific situations and the evidence’ thereon. Only twenty

years ago the United States was an initiator and participant

in a:series of trials at Nuremberg designed not merely to _

try the Nazis but to establish a legal precedent. The laws

promulgated at Nuremberg have gained the endorsement of

“the international community of nations and have been re-

‘affirmed by resolution’ in the General Assembly of the

United Nations.

Supreme Court Justice Jackson, the United States prose- ©

cutor at Nuremberg, ‘stated that ‘‘certainly no future

lawyer or nation undertaking to prosecute crimes against

- the peace of the world will have to face the’argument that

the effort. is unprecedented, and therefore, by inference,

improper’’. (Glueck, S., Nuremberg Trial and Aggressive.

War, Forward P. xi, Knopf. 1946). Yet, petitioner in at- —

tempting to remain-free of complicity.in what he conténds

_is a criminal eonspiracy and in attempting to challenge the

unconstitutional application of the draft to him in exercise

of his right to ‘‘due process’’ has faced the opinion of the

f 3

d

m4

ge

15

| |

Courts below that these issues, the United Nations Charter

and other treaties are ‘improper’. ;

Justice Jackson stated at Nuremberg that ‘‘if certain

‘acts in violation of treaties are crimes, tliey are crimes.

whether the United States does them or whether Germany

-» does them, and we are not prepared to lay down a rule of

criminal conduct against others which we would not be .

willing to have invoked against us.’’ 4[nternational Con-

ference on Military Trials, Dept. of State Pub. No. 3880, .

p. 330) Petitioner has-been unable in the, Courts. below to

have such a criminal code as well as a substantial body of

additional International Law and Constitutional provisions |

invoked in his defense. The continuation of such a posi- |

tion by. the Courts and. the continued refusal to test the

defense of petitioner on the merits will amount, in effect,

' to a repudiation—not just of due process for petitioner—

but of the whole body of International law that is part of

of the ‘‘supreme law of the land’’. This would be para-

mount to declaring the right of international lawlessness -

for the United States and the obligation of United States

citizens to submit to the policy of the government—even

if that policy may prove to be unlawful.

All that petitioner is asking is before he may be con-

victed of a crime of violating a draft board order, that its

constitutional validity not be presumed and that there be-

a judicial resolution by the normal legal processes of trial

and evidence of whether or not the order is the end product

of a constitutional process or of an unconstitutional. one.

Petitioner’ here has been denied not only national ‘‘due

process of law’’ under our Constitution but the interna-

tional ‘‘due proeess’’ envisioned when this Nation became

signatory to the United Nations Charter and other inter-

national. treaties, agreements and assurances to which the

United States is a party. °

Under Article VI, Clause 2 of the United States Consti-

tution, these treaties and their obligations are part of

a ee eee

16

_ “the supreme Law of the Land; and the Judges in every’

State’ shall be bound thereby.’? The duty thus rested on

,the courts below 4nd now ultimately on this Court to con-

strue and apply these obligations to the facts at issue and

not to. slough off the undeclared ‘‘war’’'in Viet Nam, as

the Court so casually did below, as an unrelated event in

fact and law to the allegedly valid draft board order that

petitioner violated on the ground that it had been manu-

factured by a Constitutionally invalid process, and as a

_ step in violation of various treaties including the United

Nations Charter. If the process initiated by the Presi-

dent, concurred: in by the Congress and executed by the

draft board is a constitutionally valid one, that conclu- .

sion should easily emerge from the fires of a trial on =

the merits. If it is not, it is the duty of the judiciary so

to declare. :

The Court below’ pretended that the draft board order

is not related to: the war in Viet Nam and therefore that

war does not come within judicial cognizance. It thus re-

treated from the consequences of upholding the doctrine

that ‘‘the concept of substantive due process (is) is limita-

__. ,tion.upon all powers of Congress, even the war power, see

"Hamilton v.'Kentucky Distilleries Co., 251 U. 8. 146, 155.”’

(Galvan v. Press, 347 U. S. at 530).

ee aes The war power of the United States, like its

other powers and like the police power of the states,

‘is subject ‘to applicable constitutional limitations. —

(Ex parte Milligan, 4 Wall. 2, 121-127, Monongahela

Navigation Co. v. United States, 148 U. S. 312, 336;

United States v. Joint Traffic Assn., 171 U.S. 505, 571; -

McCray v. United States, 195 U. S. 27,/61; United

_ States v. Cress, 243 U. S. 316, 326, 251 U. S. at 156.)”’

* Why then: should petitioner not have a chance to prove

and to require. the courts below to determine on the merits

his defense of constitutional invalidity.of the process that

manufactured and led ‘to his draft board: order?

&

—_-

All the powers Sreiihel 1 in the President, the Con-

gress and the Executive and executed by: the draft

board, insofar as they relate to the use of the armed

services, and the. power to conscript, are limited by the

Constitutional Policy that they be exercised solely, as

stated ‘in. the Constitution’s Preamble, “for the Com-

mon Defence.” Whether the military activities i in Viet

Nam and the related draft board order are for the

purpose of a “defence” of the United States or in the

words of Senator Fulbright not “in the interests of this

country” or in the words of Rev. Dr. Niebuhr “a fan-

tastic adventure of United States imperialism in an

Asian civil war” is an issue of fact that petitioner,

since he is threatened with deprivation of his liberty

by 5 years in prison, is entitled to raise and have re-

solved under ‘the “due process” clause of the Fifth

. Amendment. |

- It should be elementary that the Constitution does not

authorize the President as Commander in Chief to obtain

the cooperation of the draft board for an unconstitutional

enterprise, ‘‘not in the best interests-of this country’’ or

for *‘a fantastic adventure.of United States imperialism

‘in an Asian civil war.’’ If the draft board order is part

of such an unconstitutional process, petitioner was not _

only correct in violating it but he was fulfilling his most

solemn obligation as a citizen both of the United States

and of the United Nations. ‘

Sp any i ti 5 st i BIB eg od ta neta

18

| Hil. |

Congress has no constitutional power to raise an

army through the draft for a purpose that is “not in the

interests of the country”, is “a fantastic adventure of

' United’ States: imperialism in an Asiatic civil war”,

_ and if submitted to proof would be shown to be unlaw-

ful. Petitioner under the “due process” guarantee of

the Fifth Amendment had an absolute right to raise

this issue, factually and legally, and the Courts below

were required to allow petitioner to adduce his proof

instead of excluding it erroneously as they did. . . . To

call this a political question and not a legal question

is a “play upon words” where “life, liberty, or prop-

“erty” is at stake (Baker v. Carr, 369 U. S. 186, 209,

211 and Nixon v. Herndon, 273 U. S..536, 540). .

CONCLUSION = ts

Pa u . \ Yaa

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Rosert L. Bosricr,

Attorney for Petitioner.

ra

:

/

. Appendix A

UNITED STATES COURT OF APPEALS 3

For THE Seconp Circuit

=. ys

vv

: N O. 63_September Term, 1966.

(Argued N ovember 7, 1966 ‘' Decided December 5, 1966. )

Docket No. 30521

UNITED SraTEs or AMERICA,

pe ia , Appellee,

Vv.

. Davy Henry Mrrcuexz, III,

: Defendant- Appellant.

.

Before:

; Lumsarp, Chief Judge,

Mepiwa and KavrMay, Circutt Judges.

A

vv

Appeal ‘tui a fren of the United States District

Court. for. the District .of Connecticut, T. Emmet Clarie,

Judge. iG Y

David Henry Mitchel, III, appeals from a Sadie en-

tered. on a jury verdict convicting him of wilful failure to

_Teport for induction into the Armed Forces in violation

of 50 U. S. C., Appx., ee 462. No ane below.

. Afirmad:

Reg Sin Tae ee a ad

y a - a \

i . ‘Sebaeis: Circuit abi:

| David Henry Mitchell, ITI appeals bien: a i aaiatien:

- after a trial to Judge Clarie and a jury, of wilful failure

to report for induction into the Armed Forces in violation

of 50 U.S. C., Appx., Section 462.

. After initially registering with Selective. Service Local 9.

Board 17, appellant ‘‘disaffiliated’’ himself from the Selec-

tive Service and thereafter refused to cooperate with his

Board in any respect. Im August, 1964, appellant was

' elassified 1A and did not appeal. Subsequently, he was

ordered. to report.for induction on January 11, 1965. Ap-

_ pellant acknowledged receipt of this notice by. letter but

did not report as ordered. .-

Appellant was indicted for ‘italien of 50 U. S. C,,

Appx., Section 462, tried and found guilty) This Court re-

- «versed the first conviction ‘because the trial judge had

’ failed to allow sufficient time for appellant to obtain coun-

. sel. United States v. Mitchell, 354 F. 2d 767 (2 Cir. 1966).

He was retried before Judge Clarie and a jury. The wilful-

_ ness of his failure to report for induction was all too ap-

| parent, and he was again convicted and sentenced to five

years imprisonment. At trial appellant made no claim to —

be a conscientious objector but sought to produce.evidence |

to show that the war in Vietnam -was being conducted in

violation of various treaties to which the: United States

. is a signatory. and that the Selective Service system was,

‘. } . being operated as an adjunct of this mi itary effort. Judge

= Clarie ruled out all such evidence as aterial and this

ruling i is assigned as error. . a

“2 | The government, citing a line of cases beginning with

ao Falbo v. United States, 320-U. S. 549 (1944), would pre-

- _ Chude consideration of appellant’s claims because of his,

failure to exhaust his administrative remedies. But, as

appellant does not sock any relief which the- Selective

Rae TT eno TD FES esas

e

ilaisss

feninss

is: o ‘nd

a a ihn net RE SCE Ne is rae

Appendix A.

Service is empowered to grant, we will assume these cases

are not in point. Rather, he seeks a declaration, in effect,

that the Service must cease to function. It would be point-

less in this case to require appellant to press his claims

before a Board which he claims is illegal. |

Similarly, as appellant asserts that the Selective Service,

and not merely the conduct of the war in Vietnam, is illegal,

his defenses would seem not to be premature.

Nevertheless, appellant’s allegations are not a defense 3

to a prosecution for failure to report for induction into.

the Armed Forces and his evidence was properly excluded.

Regardless of the proof that appellant might ‘present to

demonstrate the correlation between thé Selective Service

and our nation’s efforts in Vietnam, as a matter of law

the congressional power ‘‘to raise and support armies’’.

_. and ‘‘to provide and maintain a navy”’ is a matter quite

“O)

distinct from the use which the Executive makes of those

who have been found qualified and who have been inducted

* into the Armed Forces. Whatever action the President

may order, or the Congress sanction, cannot impair this

constitutional power of the Congress.

Thus we need not consider whether the substantive issues

raised by appellant can ever be appropriate for judicial .

determination. See United States v. Hogans, decided by

this Court on November 28, 1966.

Affirmed.

Fag

pha anita ade St ceded A tabi ele oy lad. sition rhino tr hate Ds eee ae I Aah kot te gate WR he ai asc ila 8 ne Aor a

cai gasplensbietie WA

ELE MAA RNB at Se Gy pe BER IN IDE edei? DRebbe

Fe a ESE tee EM ae ae

Sf

Ropes B

UNITED STATES COURT OF APPEALS

ad FOR THE :

SEconp Omeurr

7%

bf

_ At w Stated ‘Term of the United States Court of Ap-

-peals, in and for the Second Circuit, held at the United .

States Courthouse in the City of New York, on the fifth ©

day of December one thousand nine hundred and sixty-six. —

Present: Hon. J. Epwarp Lumparp,

Chief Judge,

Hon. Harowp R. Mzpina, |

Hon. Irvine R. Kaurmayn,

Cireuit Judges.

ys

os

UNITED States OF America,

Plaintiff-Appellee,

v.

Davip Henry }itronetz, III,

: Defendant-Appellant.

+

Appeal een the United States District Court for the

District of Connecticit:

“This cause came on to be heard on the transcript of

record from the United States District Court for the

_ + District of Connecticut, and was argued by counsel. :

ON. CONSIDERATION WHEREOF, it is: now hereby: ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby i is affirmed. |

A. DaNIEL Foiano !

¥ Clerk

N28

\

AppendixC =

- UNITED STATES COURT OF ‘APPEALS

For THE Seconp Cmcurr

- cd

7

‘

i : ra mm « x j “

Unrrep \StaTes Or AMERICA,

. \ i

Appellee,

oy, :

e Davip Henry MirTcHELL, ITI, ee

: | Defendant-Appellant. —

PETITION FoR REHEARING

Motion denied.

JEL.

HRM.

oo _ .LRK: |

“47 —* . USOT.

JAN-3 1967 _

a

Appendix D |

: : ; o .

_ International Treaties, Agreements and Assurances.

A. Treaty for the renunciation of war (46 Stat. 2343).

The treaty between the United States of America and

sixty-one other powers (generally known as the Kellogg-

Briand Pact) proclaimed by President Herbert’ Hoover,

July 24, 1929, and published in 46 Stat. 2343 provides that

the President of the United _— and the other signatory

heads of States _

‘Deeply sensible of their solemn duty to’ —

the welfare of mankind;

Persuaded that* the-time has come when a frank re-

tiunciation of war as an instrument of national policy

. Should be made to the end that peaceful and friendly

relations existing naryrems. their peoples may be per- .

petuated;

_. Convinced that all changes in their relations with |

one another should be sought only by «pacific means

and be the result of a peaceful and orderly process,

and that any signatory power which shall hereafter

seek to promote its national interests by resort to war

should be denied the benefits furnished by this Treaty;

Hopeful that, encouraged. by their example, all the

other nations of the world-will join in this humane

. endeavor and by adhering to the present Treaty as-

soon as it comes into force bring their. peoples within

the scope of its beneficent provisions, thus uniting the

civilized nations of the world.in a common renuncia-

tion of war as an instrument of their national policy;

. have agreed upon the following. articles :

““batiele L :

The High Contracting Parties solemnly declare in

the names. of their respective peoples that they con-

’ demn recourse to war. for the solution. of international

25

Appendia D.

controversiés, and renounce it as an instrument of

national policy with one another.

Article I,

The High Contracting Parties agree that the settle-

? ment or solution of all disputes or conflicts of what-

ever. nature or of whatever origin they may be, which

may arise among them, shall never be sought except

by pacific means. .

President Hoover’ s proclamation of said treaty

stated:

. Now Therefore, be it known that I, Herbert Hoover,

President of the. United States of America, have

caused the said treaty to be made public, to the end

that the same and every article and clause thereof

may be observed and fulfilled ‘with good faith ~ the

United States and the citizens thereof.’ m=

B. The United Nations’ daclaration and the Atlantic

Charter (55 Stat. 1600):

On January 1, 1942, the veeiisiiabilinids of twenty-six

nations that were fighting the war against the Axis

Powers, Germany, Italy and Japan, signed in Washington,

D. C., a Declaration of the United Nations. The text of

the Declaration was, in part, as follows:

The Governments signatory hereto, |

‘‘Having subscribed to a common program of pur-

poses and principles embodied in the Joint. Declara-.

tion of the President of the United States of America

- and the Prime Minister of the United Kingdom of

_ Great Britain and Northern Ireland, dated _— 14,’

1941, known as the Atlantic Charter ee

, => _ ‘

as RAGS ASUS Ne i Sc ASA ES SOT il MIE abil a Robie Ton athens

26

ie ee | Appendix D.

The United Nations’ ‘Declaration and the Ritantic Char-

ter were published in 55 Stat. 1600. The. Atlantic: ——"

‘among other things, stated:

\ ‘The President of the United States of poem

Nand the Prime Minister, Mr. Churchill, representing

His Majesty’s Bovernment in the United Kingdom,

being met together, deem it right to.make known cer- |

tain, common rinciples i in the national policies of their

respective countries on which they base their :

* for a better future for the world.

‘First, their ‘countries’ seek no aggrandizement, terri-

torial or other; Ne a :

Second, they desiré'to s see no territorial changes that

. do not accord with the Trealy ee wishes of the:

peoples concerned ;

Third, they respect the right oF ‘all, ea to groan

the form of ‘government under which they will

: live; i“ : ii

Sixth, after the final destruction of the Nazi tyr-

anny, they hope to. see established a peace which will

afford to all nation’ the means of dwelling in safety

within their own boundaries, and which will-afford as-

surance that all men in all lands may live out their

lives in freedom from fear and want;

Kighth, they believe that all nations of the world,

_ for realistic as well as spiritual reasons, must come to

_ the abandonment of the use of force. Since no future

peace can be maintained if land, sea or air armaments

- eontinue to be employed by nations which threaten, or —

may tgreaten, dggression outside their frontiers, they

. believe, ‘pending the establishment of a wider and.

Maicaptedieall

Bie

Appendix D.

permanent system of general security, that the dis-

armament of such nations is essential. They will like-

wise aid and encourage all other practicable measures

which will lighten for peace-loving i aa the crush-"

ing burden of armaments. -

: Franklin D. Roosevelt,

% - Winston Churchill.

_ Dated August 14, 1941.” ;

In addition to the original twenty-six signatories to the

United Nations Declaration, twenty-one other‘nations dur-

ing. World War II adhered to the-Declaration.

C. Charter of the United Nations (59 Stat. 1031).

On June 26, 1945, the Charter of the United ne was

_ signed at San Francisco and after ratification by the United

States Senate was proclaimed by President Truman to be

effective October 24, 1945. In pursuance to law, the Charter

-‘and the President’s Proclamation were published in 59 Stat.

. 1031. That Proclamation states that it was proclaimed:

‘*...« to the end that the same and every article

. and clause thereof may be. observed and fulfilled with

| good faith on and from the twenty-fourth day of

October, one thousand nine hundred forty-five, by the

United States of America and all other | persons subject

to the jurisdiction thereof.’’

By Article 2, Section 4, of the United Nations Charter

it is provided:

. ‘All members shall refrain in their international

‘relations from the threat or use of force against the

territorial integrity or political independence of any

state, or in any manner inconsistent with the Purposes

of the United Nations.’’ - !

28°

| Appondia D.

One of the rn stated in. the Charter of the United

Nations is in Article I as follows:

‘1, To... bring about by peaceful means, ea in

conformity with the prinéiples of justice and inter-

national law, adjustment or settlement of international _

disputes or situation which — lead to a breach of

the peace.’”?. | a

. One of the Ends ee in the Preatie of the Charter -

| of the United Nations is

“‘to ensure, by the suieiaes of principles mee the

institution of methods, that armed force shall not be

used, save in the common interest,’

Article . 103, of eer 3 XVI (the. se ineset Clause

‘Provides:

‘In the event: of a conflict between the obligations

of tha Members of the United Nations under the

present Charter and their obligations under any other

international agreement, their obligations. under the

present Charter shall prevail.’’

4

D. The davewmens signed in London August 8, 1945, pro-

viding for the creation of the International Military Tri-

bunal and the charter of the Tribunal’ (59 Stat. 1544). |

Y

The Charter provided in part as follows:

“TI. Jurisdiction and general principles

- Article 6.. The Tribunal established by the Agree-

_ ment referred. to in Article 1 hereof forthe trial and’

punishment of the major war criminals of the Euro-

pean Axis countries ‘shall have the power to try and.

punish persons who, acting in the interests of the

European Axis countries, whether as individuals or as.

fe Ale ake het hie Rin nn cS ll lial Talc ital Dann Bag Ss tS

— 29

_ Appendix D.

enieitiaiia of organizations, committed any of the fol-

lowing ‘crimes.

. The following acts, or any of them, are crimes com-

ing within the jurisdiction of the Tribunal for —

there shall be individual responsibility :

(a) Crimes Against Peace: namely, planning,

preparation, initiation or waging of a war of aggres-

sion, or a war in violation of international treaties,

agreements or assurances, or participation in a com-

mon plan or conspiracy for the accomplishment of

any of the foregoing;

(b) War Crimes; namely, violations of the laws

and customs of war. Such violations shall include,

but not be limited to, murder, ill-treatment or de-

portation to slave labor or for any other purpose of ~

civilian population of‘or in occupied territory, mur-

der or ill-treatment of prisoners of war or persons

on the seas, killing hostages, plunder of public or

private property, wanton destruction of cities, towns

or villages, or devastation not were by military

necessity ; 5

(e) Crimes Against , ae ree namely, murder,

extermination, enslavement, deportation, and other

inhumane acts committed against any civilian popu-

lation, before or during. the war; or persecutions on

political, racial or religious grounds i im execution of

or in connection with any crithes’ within the jurisdic-

tion of the Tribunal, whether or not in violation of

the domestic law of the country where perpetrated.

' Leaders, organizers, instigators and accomplices °

participating in the formulation or execution of a

-common Plan or conspiracy to commit any of the

foregoing crimes: are responsible for all acts per-

formed by any persons in execution of such plan.

RB te ease eee dm iit ahd wca NSALAl iid teins

ia Ln Ge hata A ate il htc icha aN Nah int east bea di eee)

e

2

30.

Appendix D. |

_ Article 7. The official position of defendants,-

" whether as Heads of State or responsible officials in

Government Departments, shall not be considered as

' freeing them from responsibility. or mitigating pun-

ishment.

Article 8. The fact that the Defendant acted pur-

suant to order of his Government or of a superior

shall not free him from responsibility, but’ may be con-

_ Sidered in mitigation of punishment if the Tribunal

, determines that justice so requires.”’ 7

¢

By Executive Order No, 9626. dated September 24, 1945

President Truman appointed ‘the member and an alternate:

member of the United States of the International Military

Tribunal. a .

_E. Control Council Law No. 10

On December 20, 1945, the four occupying powers of .

Germany, acting through the ‘four Zone Commanders,

promulgated Control Council’ Law No. 10 in order

‘*. . . to give effect to the terms of the Moscow Dec-

laration of 30 October 1943 and the London Agreement |

of 8 August 1945, and the Charter issued pursuant -

thereto and in order to establish a uniform legal basis

in Germany for the prosecution of war criminals and .

other similar offenders, other than those. dealt with

by the International Military Tribunal . . . (Official .

Gazette ofthe Control Council: for Germany, Number

3, 31 January 1946, Berlin: Allied Secretariat; pp. —

50-55).”’ : ig ee

Law No. 10 was adopted from the London’ Charter with

certain differences, one of which was that the definition

of ‘‘crimes against peace,’’ in other respects the same as

i

31

Appendix D.

the Nurenbers Charter,: included ‘‘invasions’’ as’ well as

“‘wars’’ (thus furtiishing a basis for charging. the Austrian

and Czechoslovakin conquests as crimes against . peace).

-Article II, Sec. 2 of Law No: 10, provided for individual

responsibility for the crimes defined in Section 1 as follows:

69 Any person, without regard to nationality or

the capacity in which he acted, is deemed to have

committed’ a crime as defined in paragraph 1 of this _

Article, if he

a) was a principal or

_ b) was an accessory to the commission. of any such

crinie or ordered or abetted the same or

c) took a consénting part therein or

d) was connected with plans or enterprises involv- -

ing its commission or

e) was a member of any organization or group con- |

nected with the commission of any such crime or

f) with reference to paragraph la), if he held a

high political, civil or military (including General

Staff) position in ‘Germany or in one of its Allies, co-

belligerents or, satellites or held high position in the

. financial; industrial or economic life of any such

country. sid .

F. Charter of the International Military Tribunal for the

Far East, January 19, 1946.

_ The Charter was approved ‘by the Supreme Commander

for the Allied Powers January 19, 1946; it was amended

by order of the Supreme Commander, General Head-

quarters, OPA 500, April 26, 1946. (Treaties and Other In-

ternational Act Series 1589; Dept. of State Publication

IN TE la lta Ried Nl StI sb Ot da NR etc DA BNO R et DO nits Te Aaa tego

PPR AOR Tia EN a NG 229 ce fa

eS AE AR Bln te Rly ES Me Pet he Pw

ee

.

.

32 |

Appendix D.

2613; A decade of American’ Foreign Policy, 1941-1949,

- Senate Document 123, 81st Cong., 1st Session, p. 961.)

The Charter provides in pertinent part: :

“II, Jurisdiction and general provisions

Article 5. Jurisdiction Over Persons and Offenses.

The Tribunal shall have the power to try and punish

Far Eastern war criminals. who as individuals or as

' members of organizations are charged with offenses

which include Crimes against Peace.

The following acts, or-any of them, are crimes com-

ing within the jurisdiction of the Tribunal for which

there shall be individual responsibility :

(a) Crimes Against Peace: Namely, the planning,

preparation, initiating or waging of a declared or unde-

clared war of aggression, or a war in violation of in-

ternational law, treaties, agreements, or assurances, or —

participation in a common plan or conspiracy for the

éecomplishment of any of the foregoing ;

(b) Conventional War Crimes: Naniely, violations

of the laws or customs of war; | |

‘(c) Crimes Against Humanity: Namely, murder, ex- |

termination, enslavement, deportation, and other in-

humane acts committed against any civilian popula-

tion; before or during the war, . . . whether or not.

_in violation of the doniestic law of the country where

perpetrated. Leaders,”organizers, instigators and ac- 7

complices participating in the formulation of execu-

tion of a common plan or conspiracy to commit any of:

the foregoing crimes are responsible for all acts per- .

formed by any person in execution of such plan.

Article 6. Responsibility of Accused. Neither the

_ Official position, at any time, of an accused, nor the fact

-_ that an accused acted pursuant to order of his govern-

— . sac anenromne er ee a

= nak \gheeemenemnsdiimenmiemeinended

33

Appendix D.

ment or of a superior shall, of itself, be sufficient to

. free such accused from responsibility for any crime

with which he is charged, but such circumstances may

» be considered in mitigation of punishment if the Tri-

‘bunal determines that justice so requires.”’

G. Affirmation of the principles of international law rec-

ognized by the Charter and Judgment of the -Nuremberg

On motion of the United States the first session of the

General Assembly of the United N ations unanimously

adopted a resolution affirming the principles of interna-

tional law recognized by. the Charter and Judgment of the

Nuremberg Tribunal. [Res. 95 (I), adopted 11 December,

1946; The United States.and the United Nations: Report

by the President to the Congress for the year 1946, Dept.

of State Pub. 2735, pp. 129-130; a Decade of American For-

eign Policy, 1941-49, p. 965.]

BRIEF IN OPPOSI-

TION TO PETITION

FOR A WRIT OF —

_ CERTIORARI o

Th the io Court of the United States

‘OCTOBER TERM, 1966

No. 1012

~Davip HENRY MITCHELL, Ill, PETITIONER

. Uv. .

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT. OF APPEALS FOR THE

SECOND ansaid

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

- The opinion of the court of appeals (Pet. pom A)

4s reported at 369 F. 2d 323. :

?

sosecnen

The judgment of the court of appeals was aaa

| on December’ 5, 1966. A petition for rehearing was

denied on January 3, 1967. The petition for a writ

of certiorari was filed on January 28, 1967. The

jurisdiction of this Court i is invoked under 28 U.S.C.

seit

(1)

. & 2 ;

' QUESTION PRESENTED

Whether, in a prosecution for failure to report for

- induction: into the armed forces, petitioner’ was en- .

titled, as a defense, to challenge the legality of the -°

hostilities in- ‘Vietnam.

STATEMENT

: After a trial by jury in the United States District

Court for the District of Connecticut, petitioner was

convicted of wilful failure to report for induction into

the armed forces (50 U.S.C. App. 462), and on April -

1, 1966, he was sentenced to five years’ imprisonment.

"The court of appeals affirmed (Pet. App. A). .

At the trial, petitioner admitted having failed to

report for induction after receiving an order to do so.

His defense was that the Selective Service System

_ was being unconstitutionally applied in that the

United States was violating its treaty obligations by

participating ‘in the present hostilities in Vietnam

(Pet. 7-9). The trial judge rejected, on grounds of

materiality, efforts by petitioner to call witnesses and

take depositions of persons who would testify that the

presence of United States forces in Vietnam was il-

legal and that hostilities were being conducted there

unlawfully vie 9-10). |

ARGUMENT

.1. Petitioner’s contention that the United States

is engaged in an illegal war in Vietnam presents a_ .

‘political question which’ is inappropriate for resolu-

_ tion by the courts. The ability of the Chief Executive

fs ‘

ee wer SRNR ae eet en emt Rat AL sana neo Seah ttl ela aalhatidetadtaed

° % e .

3.

; ‘ ;

to conduct the foreign affairs of this country would be

impaired if every such decision were subject to ju-

dicial examination. This Court has often refused to

consider questions which would have such harmful

consequences on: the conduct of foreign affairs and

which are unsuited for judicial determination. _See,?

—eg., Ludecke v. Watkins, 335 U.S. 160, 170; Chicago

&. Southern Airlines, Inc. v. Waterman S.S. Corp.,

333 U.S. 108, 111; compare Luther v. Borden, 7 How.

1, and see generally Baker v. Carr, 369 U.S. 186, 211-

214, The district court was, therefore, correct in re- -

fusing to admit: into evidence petitioner’s proffered

proof regarding the alleged illegality of the. war:

2. In addition, petitioner lacks stariding to raise

the arguments which he advances for failing to report

for induction. Poe v. Ullman, 367 U.S. 497; ‘Public

Service Commission v. Wycoff Co., 344 U.S. 237;

United States v. Bolton, 192 F. 2d 805 (C.A. 2). His

attack on the constitutionality of the Selective Service

System, predicated upon a challenge to this coun-

try’s participation in the current conflict in Wietnam,

_ involves no present case or controversy since his in-

duction into the army would not necessarily result in .

his being sent to Vietnam. United States v. Bolton, - -

supra; Richter v. United States, 181 F. 2d 591, 594 -

(C.A. 9), certiorari denied, 340 U.S. 892. 3

3. Finally, the treaties relied on by petitioner * do

1The Kellogg-Briand Pact, the United Nations’ Deteesties

and the Atlantic Charter, the Charter of the United Nations,

_the Charter of the International Military Tribunal, : ‘Control

Council Law No, 10, and the Charter of the International

Military Tribunal for the Far East (Pet. App. D).

4

not affect the constitutional power of the ‘United -

States to comipel petitioner to serve in the armed

forces in any conflict in which this country is en-

gaged. Nothing in the Charter of the ee

Military Tribunal (the Nuremberg Charter)’: o

which petitioner chiefly relies (Pet. 14-15), or in any

body of international decisional law suggests. that, in-

dividual soldiers are entitled to refuse to serve in.

_ wars with which they disagree. ‘The right of Con-

gress to'raise armies by conscription has long been -

upheld under Article I, Section 8 of the Constitution.

| E.g., Selective Draft Law Cases, 245 U.S, 366;

United States v. Williams, 302 US. 46; ‘United,

States v. Henderson, 180 F. 2d 711 (€.A. 7), cer-

tiorari denied, 339 U.S. 963; Etcheverry v. United

States, 320 F. 2d 873 (nA 9), certiorari denied, 375 |

U.S. 930.

3 ecu

For the reasons stated, it is respectfully submitted

that the petition for a writ of certiorari voiniin ~ 2

. denied. 7

' ‘THURGOOD MARSHALL,”

- Solicitor General.

FRED M. VINSON, JR.,

' Assistant Attorney General.

BEATRICE ROSENBERG,

RocerR A. PAULEY, °

9 Attorneys.

FEBRUARY ‘1967.

eu. S. GOVERNMENT PRINTING OFFICE; 1967 . '-246791 639°