# Petition for Writ of Certiorari — David Henry Mitchell, III v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0297%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 386 U.S. 972 ## Text 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° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0297%3A1. Public record. Not legal advice.