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United States, it cannot absolve the U.S. of its previously before the jury.
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incurred international obligations and responsibilities. 10
The same is true of any state in the international com- This court finds that under the circumstances of this case the conduct
munity. which is charged in the indictment is not afforded the protections of the
Fist Amendment and a conviction under these criminal statutes would
j As noted, the Constitution specifically mentions not deny to these defendants any of the guarantees of that Amendment.
treaties as a primary source of "the supreme law of the Finally, counsel contends that these defendants should be allowed to
land." This document is silent, however, as to the role present to the jury what is popularly known as the "Nurnberg
that customary international law is to play in the American Defense." The trial of the Nazi war criminals at Nurnberg was premised
legal system. The U.S. Supreme Court was not long in fill- on the generally accepted view that there are, as a part of international
law, certain crimes against peace and humaiiity which are punishable.
ing this apparent void. In the case of The Paquete The Numberg Trial, 6 F.R.D. 69 (1946). It is urged here that the belief
Habana, 11 previously discussed in chapter 1, 12 the court of these defendants that the United States was waging a war of aggres-
referred to customary international law in this manner: sion, and thus committing a crime against peace, justified the acts
charged.
International law is part of our law, and must be ascertained and ad- It is not clear what standing these defendants have to raise the legality
ministered by the courts ofjustice of appropriate jurisdiction, as often as of this country's involvement in Vietnam when they have not been
questions of right depending upon it are duly presented for their deter- called to serve in the armed forces, are not directly affected by our
mination. For this purpose, where there is no treaty and no controlling government's actions in that country, and are not even directly affected
executive or legislative act orjudicial decision, resort must be had to the by the Selective Service apparatus. As pointed out by Judge Charles E.
customs and usages of civilized nations. . . . [emphasis supplied] 13 Wyzanski in an article in the February 1968 issue of the Atlantic
g. It is evident, therefore, that customary international Monthly:
As the Nuremberg verdicts show, merely to fight in an aggressive
law, like treaties, is a vital part of U.S. law. Notwithstand- war is no crime. What is a crime is personally to fight by foul means.
ing this fact, however, as in the case of international [Emphasis supplied.]
agreements, courts often prefer to yield to other branches The important element in this defense, assuming its applicability in an
of the government in certain matters of international legal American court, is the individual responsibility which is necessary
before it can be raised. These defendants do not have standing to raise
concern.
the validity of governmental actions, either under international law or
UNITED STATES v. BERRIGAN
constitutional law, on the grounds that the rights of parties not before
United States District Court, D.Md., 1968.
this court are violated. Courts "must deal with the case in hand, and not
283 F.Supp. 336.
with imaginary ones." Yazoo & M.V.R. Co. v. Jackson Vinegar Co.,
226 U.S. 217, 218, 33 S.Ct. 40, 41, 57 L.E.. 193 (1912).
NORTHROP, DISTRICT JUDGE. The defendants before this court
I refer again to the opinions expressed by Judge Wyzanski because
are charged in three counts that they did willfully they are timely articulations of ancient principles found in scores of
1. injure property of the United States; cases. In our disturbed times, modem expressions seem to have more
2. mutilate records filed in a public office of the United States; and persuasion than the authority of antiquity.
3. hinder the administration of the Military Selective Service Act.
Defendants wish to proffer an opening statement to the jury as to For men of conscience there remains a less risky but not a less wor-
what they would present for their defense. Specifically, they contend thy moral choice. Each of us may bide his time until he personally is
that, by virtue of what they have read, heard, and seen, the war in Viet- faced with an order requiring him as an individual to do a wrongful
nam is immoral and illegal; and that the United States, in carrying on act. Such patience, fortitude, and resolution find illustration in the
the war in Vietnam, is violating certain precepts of international law, career of Sir Thomas More. He did not rush in to protest the Act of
constitutional law, and judgments which were handed down at Henry VIII's Parliament requiring Enghshmen to take an oath of
Nurnberg. supremacy attesting to the King's instead of the Pope's headship of
To serve as a foundation and a basis for their beliefs, defendants wish the English Church. Only when attempt was made to force hi to
to produce in court, among other evidence, "the outstanding experts" subscribe to the oath did he resist. * * *
on international law who would testify that the acts of the United States This waiting until an issue is squarely presented to an individual
government in Vietnam are illegal. Their conduct, they say, was and cannot further be avoided will not be a course appealing to those
prompted by their belief that the United States is acting illegally and was who have a buming desire to intervene affmatively to save his na-
intended to prevent criminal acts from being committed. Because this tion's honor and the lives of its citizens and citizens of other lands. It
belief prompted their acts, they argue that the necessary mens rea is seems at fist blush a not very heroic attitude. But heroism sometimes
lacking. lies in withholding action until it is compelled, and using the interval
Initially, it must be pointed out that in law once the commission of a to discern competing interests, to ascertain their values, and to seek
crime is established-the doing of a prohibited act with the necessary in- to strike a balance that marshals the claims not only of the accountant
tent-proof of a good motive will not save the accused from conviction. and of others in his society, but of men of distant lands and times.
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But irrespective of the lack of standing of these defendants to raise the
Counsel also contends that the defendants' acts are symbolic expres- issue of the legality of the government's actions as they relate to the
sions of speech which are protected by the Fist Amendment of the Vietnam situation, the proffered defense suffers from a more funda-
United States Constitution and thus he is entitled to offer this defense
mental bar. It is clear that there are certain questions of substantive law,
10. The inability of a state to absolve itself of international obliga- that is, "political questions," which are not cognizable in our courts
tions and responsibilities is addressed at chapters 7 & 8, irlfra.Means by because of the nature of our governmental system which is based upon a
which to legitimately terminate or suspend treaties do exist under inter- separation of functions among different branches of the government.
national law. This subject will be examined in detail chapter 8. The doctrine
11. The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290 (1900). "is one of 'political question,' not one of 'political cases.' The
12. Seep. 1-6, supra. courts cannot reject as 'no law suit' a bona fide controversy as to
13. 175 U.S. 677, 700. whether some action denominated 'political' exceeds constitutional