Antiwar.com



UNITED STATES ARMY

IN THE SECOND JUDICIAL CIRCUIT

FORT STEWART, GEORGIA 31314

UNITED STATES ) BRIEF IN SUPPORT OF SGT. ) KEVIN BENDERMAN ON BEHALF V. ) OF AMICI CURIAE HISTORIANS

) AGAINST THE WAR, MAHONING SERGEANT KEVIN BENDERMAN, ) VALLEY COALITION FOR 2/7TH INFANTRY (REAR), ) PEACE AND JUSTICE, NEW FORT STEWART, GEORGIA 31314 ) YORK CITY LABOR AGAINST ) THE WAR, VETERANS FOR ) PEACE, VOICES IN THE ) WILDERNESS

Submitted by: Attorney Staughton Lynd

Ohio Bar Reg. No. #0013512

1694 Timbers Court

Niles OH 44446

Tel: (330) 652-9635

E-mail: salynd@

Fax: (330) 652-0171

TABLE OF CONTENTS

STATEMENT OF INTEREST OF AMICI

I. INTRODUCTION

II. THERE IS REASON TO BELIEVE THAT THE ARMY'S REAL PURPOSE IN THESE PROCEEDINGS IS TO PUNISH SERGEANT BENDERMAN FOR ANTI- WAR UTTERANCES PROTECTED BY THE FIRST AMENDMENT OR MADE BY

SOMEONE ELSE

III. BY ITS OWN REPRESENTATION OF FACTUAL ALLEGATIONS MADE BY SERGEANT BENDERMAN, THE ARMY HAS "OPENED THE DOOR" TO EVIDENCE CONCERNING POSITIVE ACTS HE WAS ORDERED TO COMMIT

IV. THE NUREMBERG PRINCIPLES REQUIRE THE COURT TO ADMIT EVIDENCE OF ALLEGED WAR CRIMES

A. The Defense Of Superior Orders Rejected

B. Aggressive War Is A Crime Under International Law No

Matter Which Nation May In Future Commit That Crime

C. International Law Takes Precedence Over National Law

V. THE NUREMBURG PRECEDENT IN UNITED STATES COURTS AND

MILITARY TRIBUNALS

A. David Mitchell And The Fort Hood Three

B. Captain Howard Levy

C. After Vietnam

VI. THE NEW UNITED STATES MILITARY DOCTRINE OF PREEMPTIVE WAR

IS A WAR CRIME UNDER THE NUREMBERG PRINCIPLES, AND REQUIRES THE COURT TO CONSIDER WHETHER OBJECTION TO "CRIME AGAINST PEACE" OR AGGRESSIVE WAR IS A DEFENSE IN THIS CASE

VII. CONCLUSION

STATEMENT OF INTEREST OF AMICI

Historians Against the War (HAW) was formed early in 2003 at a meeting of the American Historical Association. Its elected Steering Committee consists of history professors, graduate students majoring in history, and other historians. To date, HAW's activities have included: protection of free speech about the war on college campuses; development of a bibliography on the Gulf wars; and a pamphlet series on such topics as war resistance in American history and torture.

The Mahoning Valley Coalition for Peace and Justice contains members from a wide variety of civic groups in Youngstown, Ohio. The Coalition invited Kevin and Monica Benderman to speak to an antiwar rally at the Youngstown federal court house on March 19, 2005. New York City Labor Against the War is a local affiliate of Labor Against the War, organized at a meeting in Chicago in January 2003. The national officers of Veterans For Peace are Dave Cline, President, and Michael McPhearson, Executive Director. Voices in the Wilderness was formed to transport medical supplies to the people of Iraq during the period between the two Gulf Wars when international sanctions caused the deaths of hundreds of thousands of Iraqi children.

Staughton Lynd, the author of this pleading, is both an historian and a lawyer. He taught American history at Spelman College, Atlanta and Yale University, and was a candidate for president of the American Historical Association in 1969. His publications include Nonviolence in America: A Documentary History, ed. together with Alice Lynd (revised edition; Maryknoll, NY: Orbis Books, sixth printing 2005). Mr. Lynd's wife, Alice Lynd, was a draft counselor and trainer of draft counselors during the Vietnam war, and edited We Won't Go: Personal Accounts of War Objectors (Boston: Beacon Press, 1968).

Mr. Lynd was himself a conscientious objector during the period of the Korean war, and was awarded 1-A-O status as a noncombatant medic in the Army. Mr. Lynd would like to thank Professor Berenice Carroll of the University of Illinois, and Mr. Nicholas Turse, a graduate student at Columbia University, for their invaluable assistance in preparation of this brief.

I. INTRODUCTION

As amici understand the posture of this case, Sergeant Kevin Benderman has been charged with refusal to redeploy to Iraq, and further court martial proceedings are imminent. Pretrial pleadings are due on July 7, 2005.

The Army's Motion in Limine in these proceedings asks the Court to preclude the defense from raising the following issues or offering evidence concerning these issues: the legality of the President's authority to deploy soldiers to Iraq; Sergeant Benderman's status as a conscientious objector, or the dictates of his conscience, religion, personal philosophy, pattern of beliefs concerning war, or world views; and Sergeant Benderman's experiences during his prior deployment in Iraq, "including allegations the accused has made stating he was ordered to fire on Iraqi children; that he was not allowed to render medical attention or food to Iraqi civilians; that he was ordered to perform hazardous duty he was untrained to do; and any other allegation of misconduct by his fellow soldiers." Motion in Limine at 1.

Amici submit that the Army misconceives a central issue. That issue is: Under the Nuremburg Principles, as incorporated by the United States Army in US Army Field Manual, The Law of Land Warfare (FM 27-10, 1956), did Sergeant Benderman have a good faith and reasonable belief that during his first deployment he was ordered to commit war crimes and that, if he returned to Iraq, such orders were likely to continue?

Accordingly this case presents the dilemma faced by a soldier who, in the midst of a military campaign, confronts what reasonably appear to him to be orders to commit war crimes.

What is he to do?

There appear to be no good solutions.

If he refuses to take part in the combat activity of his unit, he may endanger the lives of his fellow soldiers as well as his own life.

If he "obeys now and grieves later," the war crimes will likely be consummated long before the protest can be resolved.

Perhaps the soldier perceives not a single war crime, but a pattern of serious misconduct. Indeed, he may conclude that his country is engaged in what the United States at Nuremberg insisted should be viewed as the principal war crime: a war of aggression, or "crime against peace."

What then?

Should the soldier be required to continue to take part in what he believes in good faith to be a pattern of criminality until, months later, his protest or application for Conscientious Objector status is decided?

Amici believe that all these questions are posed by Sergeant Benderman's experiences.

The decision in Sergeant Benderman's case will be consequential, not just for him, but for thousands of other United States service persons who find themselves faced with the same dilemma.

II. THERE IS REASON TO BELIEVE THAT THE ARMY'S REAL PURPOSE IN THESE PROCEEDINGS IS TO PUNISH SERGEANT BENDERMAN FOR ANTI-WAR UTTERANCES PROTECTED BY THE FIRST AMENDMENT OR MADE BY SOMEONE ELSE

On or about December 30, 2004, Sergeant Benderman submitted an application for Conscientious Objector status to Commanding Officer Gary D. Rowley. Gary D. Rowley, Statement for Record, Jan. 9, 2005, at paragraph 2.[1] Captain Rowley and other superiors were well aware that Sergeant Benderman's unit was scheduled for deployment on January 7, 2005. Nevertheless, on January 6, 2005, Captain Rowley convened an elaborate "counseling" proceeding that was altogether concerned, not with Sergeant Benderman's request for Conscientious Objector status, nor with the impending deployment of his unit, but with internet articles in which Sergeant Benderman was purported to have made "several negative allegations about his chain of command's competence" and to have "proclaimed several military and government policies as unjust, misguided and illegal." Id., paragraph 3. At this January 6 "counseling" occasion Captain Rowley informed Sergeant Benderman "that his actions were in violation of the Uniform Code of Military Justice" and that "he was to cease making public statements against the U.S. government." Id., paragraph 4.

A DA Form 3881, prepared by Captain Rowley and dated January 6, 2005, contains the following list of internet articles by Sergeant Benderman on the basis of which Rowley proposed to prosecute him:

1) "An Open Letter to Our Leaders From a Concerned Iraq War Soldier," Dec. 22, 2004;

2) A letter addressed to George W. Bush, Nov. 20, 2004;

3) "A Soldier Speaks: We Have Lost Our Way in Iraq,"

Jan. 3, 2005;

4) "U.S. Army Sergeant May Refuse Re-Deployment To Iraq," Jan. 5, 2005;

5) "Back-Door Draft," Nov. 13, 2004.

In a "Counseling Statement" attached to the Form 3881, Captain

Rowley asserts among other things that

dissident "so-called leaders," such as yourself, and private citizens and news agencies destroy [soldiers'] morale by filling their heads with negative and false information. You would paint the War on Terror and liberation of the Iraqi and Afghan people as a complete failure and waste of resources and lives. However, if you look at all of the real data available you will clearly see that the number of terrorist attacks on private citizens has decreased and that the overall well-being of the Iraqi and Afghan people has improved dramatically in the last four years.

Elsewhere in the "Counseling Statement," Captain Rowley concedes that the "Open Letter to Our Leaders" is "written as though it is authored by your wife," but that Sergeant Benderman is "still responsible for its content."

The transcript of the February Article 32(b) proceeding provides further details about Captain Rowley's extraordinary behavior. According to First Lieutenant Christopher Staab, the January 6 "counseling" session involved "E6 and above" specifically including "platoon sergeants and Sgt. Benderman's immediate chain of command." Lt. Staab "found it odd for there to be a lot of people at the counseling," as did Second Lieutenant Jesse Wright and Second Lieutenant Newton Gassant. Wright also testified that Rowley "never discussed deployment" with Benderman.

Captain Rowley himself conceded at the May 32(b) proceeding that "it was an unorthodox manner to conduct a counseling session" and that "[w]e did not discuss his Conscientious Objection packet." He stated that he "had 15 soldiers at the counseling session."

On reflection, the Army apparently recognized that Captain Rowley's pronouncements on January 6 were very much in excess of any available legal authority. A Developmental Counseling Form, DA Form 4856, executed on January 18, 2005 by Captain Diego Tavares, offers the following from the UCMJ as the basis for the Army's concern:

Article 134, Disloyal Statements

While as Americans we have freedom of speech, you are reminded that as a soldier and non-commissioned officer you have given up some of these rights to that freedom. Although you may speak to the press, you are reminded that what you say is published and could place other soldiers at risk. If in doubt remember that Public Affairs is available to answer these doubts.

(Emphasis added.) A Summary of the Counseling added that when

participating in "public or political engagements" the soldier should be mindful of the following provisions of AR 600-20: the Privacy Act prohibits statements concerning the personal life of other soldiers; release of information concerning deployment dates, troop strength, and equipment status is prohibited; "distributing literature" on behalf of "extremist causes" or presenting a "clear danger" to the military mission is also prohibited, as is the writing of "editorial letters expressing your personal views on public issues." Additional comments cautioned soldiers not to wear a uniform or use Government property while engaging in speech activities. There is no allegation that Sergeant Benderman violated any of the foregoing prohibitions.

Sadly, the Army has chosen in its Motion in Limine to reallege the same kind of vague and prejudicial "facts" featured in Captain Rowley's counseling session. Specifically:

The accused has made numerous statements to the press in interviews and articles, including those on his website, stating the reasons for his actions. These include accusations that when he was in Iraq he was ordered to shoot children and forbidden from rendering medical assistance to Iraqi civilians. Furthermore the Accused has been a featured speaker at many anti-war rallies during which he has spoken out against United States foreign policy.

In March 2005, the accused spoke out at an anti-war protest near Youngstown, Ohio. He railed against the war in Iraq and perceived illegalities committed by the federal government.

Motion in Limine at 1-2.

As amici will argue in section III of this pleading, self-

evidently the Army has here "opened the door" to evidence of what Sergeant Benderman was actually ordered to do in Iraq. The "accused" cannot be prohibited from attempting to rebut what the prosecution has gone out of its way to allege.

The undersigned can offer firsthand evidence only as to the Youngstown event. The author of this pleading invited Sergeant Benderman to come to Youngstown, met him at the airport, offered him hospitality at the author's home, and sat within six feet of him when Sergeant Benderman spoke at the rally of March 19, 2005. The rally was not "near" Youngstown. It was in downtown Youngstown and, with the permission of the authorities, on the steps of the federal court house. Sergeant Benderman did not "rail." He spoke quietly and firmly without raising his voice. To the best of my recollection, he spoke not about "perceived illegalities" or even about this particular war but rather about our need as human beings to abandon war as a means of settling disputes. I respectfully request that the Army be required to prove by admissible evidence every word of what it recklessly alleges about the Youngstown event.

III. BY ITS OWN REPRESENTATION OF FACTUAL ALLEGATIONS MADE BY SERGEANT BENDERMAN, THE ARMY HAS "OPENED THE DOOR" TO EVIDENCE CONCERNING POSITIVE ACTS HE WAS ORDERED TO COMMIT

A recent military case has considered in great detail

when, if at all, a soldier charged with desertion may present evidence as to the soldier's motive and/or intent in acting as he or she did. United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995), cited by the Army in its Motion in Limine at 3. The case is the more relevant to the present proceeding because Captain Huet-Vaughn testified that she "consider[ed] the Nuremberg Principles from my course at Fort Sam Houston." Id. at *110. Sergeant Benderman's case is distinguishable from Captain Huet-Vaughn's in that she had not participated in the war that she was protesting, but he has. As a result, Captain Huet-Vaughn "tendered no evidence that she was individually ordered to commit a 'positive act' that would be a war crime." Id. at *115. In contrast, the Army itself has included in its statement of alleged Facts that Sergeant Benderman claims to have been "ordered to shoot children and was forbidden from rendering medical assistance to Iraqi civilians." Motion in Limine at 3. These are self-evidently "positive acts" that, if found to be true, might constitute war crimes as these were defined at Nuremberg.

It is respectfully submitted that the Army, having "opened the door" through its own pleading to positive acts Sergeant Benderman may or may not have been ordered to commit in Iraq, should not be heard to object to evidence Sergeant Benderman's counsel may wish to present about those actions. Furthermore, as amici will show below, the Nuremberg Principles require the admission of such evidence as a defense in this proceeding.

IV. THE NUREMBERG PRINCIPLES REQUIRE THE COURT TO ADMIT EVIDENCE OF ALLEGED WAR CRIMES

For more than the past half century, the verdicts at Nuremberg in trials of German leaders after World War II have provided the fundamental standards by which alleged war crimes are to be assessed.

The Charter of the International Military Tribunal (IMT) identified three kinds of war crimes:

(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds, in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.[2]

Apart from the definition of war crimes, three principles set forth in the Charter are of particular importance here.

The first is that the defense of "superior orders"[3] is expressly rejected.

The second is that aggressive war is a crime no matter what nation might in future commit it.

The third is that international law must take precedence over the law of any particular nation.

A. The Defense Of Superior Orders Rejected

Article 8 of the Charter specified: "The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."[4]

Nevertheless, several of the defendants in the Trial of the Major War Criminals and many defendants in subsequent trials used the argument of superior orders to defend themselves. The Judgments of the International Military Trubunal (IMT) rejected this defense in all cases, generally on the ground that the Charter prohibited it. In some cases, the defense was rejected even for the purpose of mitigating a sentence. For example, in the case of Wilhelm Keitel (Chief of the High Command of the Armed Forces, directly under Hitler) the Tribunal concluded:

There is nothing in mitigation. Superior orders, even to a soldier, cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly, and without military excuse or justification.[5]

Similarly, the defense of superior orders was rejected without mitigation in the case of Alfred Jodl:

There is nothing in mitigation. Participation in such war crimes as these has never been required of any soldier and he cannot now shield himself behind a mythical requirement of soldierly obedience at all costs as his excuse for commission of these crimes.[6]

Article 8 of the Charter was extended essentially unchanged to the prosecution of war crimes throughout occupied Germany by Article II.4(b) of Control Council Law No. 10.[7] Numerous trials conducted under the authority of the four occupying powers, in accord with this law, built up a substantial body of judicial opinion on the inadmissibility of the defense of "superior orders" which was drawn upon in the later trial of Adolf Eichmann. In the opinion of Telford Taylor, who served at Nuremberg as Chief of Counsel for war crimes and chief prosecutor, the major legal significance of the Law No. 10 trials lay in "those portions of the judgments dealing with the area of personal responsibility for international law crimes."[8]

B. Aggressive War Is A Crime Under International Law No Matter

Which Nation May In Future Commit That Crime

The nations which framed the Charter, the judges of the Tribunal, and in particular, the representatives of the United States, considered that henceforth the crimes defined at Nuremberg should apply to all nations, including those that conducted the trials. Among these crimes was the "crime against peace" of aggressive war.

Robert Jackson, Associate Justice of the United States Supreme Court and Chief Counsel for the United States during the Nuremberg proceedings, reported that the definition of aggressive war occasioned "the most serious disagreement" at the conference which drafted the Charter. Jackson stated that the United States "declined to recede from its position even if it meant the failure of the Conference." He described the conflict as follows:

The Soviet Delegation proposed and until the last meeting pressed a definition which, in our view, had the effect of declaring certain acts crimes only when committed by the Nazis. The United States contended that the criminal character of such acts could not depend on who committed them and that international crimes could only be defined in broad terms applicable to statesmen of any nation guilty of the proscribed conduct.[9]

Telford Taylor corroborates Jackson's account. According to Taylor, "the definition of the crimes to be charged . . . was an important question of principle which at first appeared to be intractable." The Soviets, Taylor says, wanted to charge the Nazi leaders with "[a]ggression against or domination over other nations carried out by the European Axis . . . ." The Soviets were willing to define "war crimes" and "crimes against humanity" as violations of international law no matter by whom committed. But the Russians -- and the French -- resisted creating a new crime of aggressive war.[10]

At the final meeting of the London conference, the Soviet qualifications were dropped and agreement was reached on a generic definition acceptable to all. In his Opening Statement to the Tribunal, Justice Jackson articulated the consensus reached by the United States, France, Great Britain and the Soviet Union.

[L]et me make clear that while this law is first applied

against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.[11]

Telford Taylor quoted this solemn affirmation by Justice Jackson on the first page of Taylor's subsequent book on Nuremberg and Vietnam.[12]

To the same effect, an important modification of the language of the Charter by Law No. 10 was that the latter dropped phraseology limiting the jurisdiction of the tribunals to persons "acting in the interests of the European Axis countries," making way for expansion of the Nuremburg Principles beyond the immediate prosecution of agents of the defeated European powers. As Taylor wrote, "Nuremburg is a historical and moral fact with which, from now on, every government must reckon in its internal and external policies alike." Recalling the declaration of the Tribunal regarding the impartial application of its principles to all, Taylor wrote:

We may not, in justice, apply to these defendants because they are Germans, standards of duty and responsibility which are not equally applicable to the officials of the Allied Powers and to those of all nations.[13]

And on the last page of his book on Nuremberg, published shortly before his death, Taylor once again affirmed what he obviously considered to be the heart of the Nuremberg proceedings. Reflecting on the growing demand in the 1990s for the establishment of a permanent tribunal for the trial of international crimes, Taylor recalled

that the Nuremberg Tribunal had jurisdiction only over "the

major war criminals of the European Axis countries." Considering the times and circumstances of its creation, it is hardly surprising that the Tribunal was given jurisdiction over the vanquished but not the victors. Many times I have heard Germans (and others) complain that "only the losers get tried."

Taylor continued:

Early in the Korean War, when General Douglas MacArthur's forces landed at Inchon, the American and South Korean armies drove the Koreans all the way north to the border between North Korea and China, at the Yalu River. About a week later the Chinese attacked in force and their opponents were driven deep into South Korea.

During the brief period when our final victory appeared in hand, I received several telephone calls from members of the press asking whether the United States would try suspect North Koreans as war criminals. I was quite unable to predict whether or not such trials would be undertaken, but I replied that if they were to take place, the tribunal should be established on a neutral base, preferably by the United Nations, and given jurisdiction to hear charges not only against North Koreans but South Koreans and Americans (or any other participants) as well.

And Taylor concluded:

I am still of that opinion. The laws of war do not apply only to the suspected criminals of vanquished nations. There is no more or legal basis for immunizing victorious nations from scrutiny. The laws of war are not a one-way street.[14]

After the Nuremberg trials, the United States was committed to having its own conduct judged according to the principles of international law applied in those proceedings.

C. International Law takes Precedence over National Law

Expansion and clarification of the Nuremburg Principles was carried forward by the U.N. International Law Commission in 1950, when it adopted and codified them in broad application to international law, drawing in some cases on the judgments of the Tribunal.

Here the Commission highlighted at the outset the principle "that international law may impose duties on individuals directly without any interposition of internal law," and, as a corollary, that individuals are not relieved of responsibility under international law "by the fact that their acts are not held to be crimes under the law of any particular country." The Commission went on to point out that this implies "what is commonly called the 'supremacy' of international law over national law," and to cite the declaration of the IMT that

the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State.[15]

Article 8 was revised by the International Law Commission to read:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.[16]

In this formulation, the provision of Article 8 allowing mitigation of punishment was dropped on the ground that "the question of mitigating punishment is a matter for the competent court to decide," rather than a matter of general principle.[17] At the same time, the provision concerning moral choice was added, based upon the following declaration of the judgment:

The provisions of this article . . . are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality. . . . The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order but whether moral choice was in fact possible.[18]

The question was, and is, how is an ordinary soldier on the battlefield supposed to act on these understandings?

V. THE NUREMBURG PRECEDENT IN UNITED STATES COURTS AND

MILITARY TRIBUNALS

During and after the Vietnam war, United States courts and military tribunals were asked to apply the Nuremberg Principles to the conduct of individual soldiers. The civilian judicial system washed its hands of the issue and (to use another Biblical metaphor) passed by on the other side. Military tribunals were far more forthright than their civilian counterparts in facing the problem but did not succeed in resolving the dilemma.

A. David Mitchell And The Fort Hood Three

David Mitchell was not a pacifist and could not have qualified for Conscientious Objector status. In the summer of 1961, he writes, "I was involved in swimming out to protest against and symbolically block the launching and deployment of a nuclear-armed Polaris submarine. I was jailed, and after being released from jail in New London, Connecticut, I found classification forms from the draft board awaiting me."[19] He

informed his draft board that he would refuse to cooperate with conscription.

Awaiting a response from the Selective Service system, Mitchell became aware of Fyke Farmer, a Tennessee attorney who had refused to pay taxes during the Korean war. Farmer, Mitchell states, "had been the first to invoke the principles of Nuremburg Law." In doing so he sought not just exemption from a war he considered immoral, but "a condemnation of that wrong itself."

As Mitchell informed his draft board: "I certainly wouldn't have worked in a Nazi concentration camp just because I would not have to tend the ovens or the gas but could be a guard or clerk."[20]

Mitchell surrendered to the FBI in June 1965. At trial, he raised the issue

whether a draftee, ordered to report for induction in the armed forces of the United States, may lawfully refuse to obey the order on the grounds that the government is engaged in the commission of crimes against peace, war crimes, and crimes against humanity as defined by international law recognized by the Charter and Judgment of the Nuremberg Tribunal . . . .

Fyke Farmer became Mitchell's counsel on appeal. The Court of Appeals reversed his first conviction, stressing that Mitchell's

"refusal to comply with Selective Service requirements was not because he was a pacifist but because, if he submitted to the draft, the 'Nuremberg Law' would render him 'guilty of complicity in crimes defined by the Charter of the International Military Tribunal' . . . ."[21]

Mitchell was again found guilty in district court and sentenced to five years in prison. This time the Court of Appeals affirmed, and the Supreme Court of the United States denied certiorari. Justice William Douglas dissented from the denial of certiorari. He stated in part that petitioner's

defense was that the "war" in Vietnam was being conducted in violation of various treaties to which we were a signatory, especially the Treaty of London of August 8, 1945, 59 Stat. 1544, which in Article 6(a) declares that "waging of a war of aggression" is a "crime against peace," imposing "individual responsibility." Article 8 provides: "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment . . . ."

. . . Mr. Justice Jackson, the United States prosecutor at Nuremberg, stated: "If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or 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." (International Conference on Military Trials, Dept. State Pub. No. 3880, p. 330.)

Article VI, cl. 2, of the Constitution states that "treaties" are a part of "the supreme law of the land; and the Judges in every State shall be bound thereby."

There is a considerable body of opinion that our actions in Vietnam constitute the waging of an aggressive "war."

This case presents the questions:

(1) whether the Treaty of London is a treaty within the meaning of Article VI, cl. 2;

(2) whether the question of the waging of an aggressive "war" is in the context of this criminal prosecution a justiciable question;

(3) whether the Vietnam episode is a "war" in the sense of the Treaty;

(4) whether petitioner has standing to raise the

question;

(5) whether, if he has, it may be tendered as a defense in this criminal case or in amelioration of the punishment.

These are extremely sensitive and delicate questions. But they should, I think, be answered. . . .[22]

In Mora et al. v. McNamara et al., three young men already drafted into military service -- Dennis Mora, James Johnson, and David Samas -- refused to deploy to Vietnam. They offered essentially the same defense as had David Mitchell, adding the provisions of the US Army Field Manual, The Law of Land Warfare (FM 27-10, 1956). This time two justices of the United States Supreme Court, Justices Douglas and Potter Stewart, dissented from denial of certiorari.[23]

B. Howard Levy

Captain Howard B. Levy, M.D., also a draftee, refused to teach medicine to Green Beret soldiers at Fort Jackson, South Carolina. His case reached the Supreme Court of the United States. In Parker v. Levy, 417 U.S. 733 (1974), the high court reversed a decision of the Third Circuit Court of Appeals which had held that Articles 133 and 134 of the Uniform Code of Military Justice were unconstitutionally vague and overbroad. The Supreme Court upheld the validity of the UCMJ and of Levy's court martial conviction. Justice Stewart angrily read his dissenting opinion from the bench.

Whereas the Supreme Court focused on First Amendment doctrine in relation to the UCMJ, the court martial gave much more attention to Vietnam. And in the course of a ruling on other matters, Colonel Earl Brown, the law officer, suddenly injected the possibility of a defense based on Nuremberg.

Now the defense has intimated that special forces aidmen are being used in Vietnam in a way contrary to medical ethics. My research on the subject discloses that perhaps the Nuremberg Trials and the various post war treaties of the United States have evolved a rule that a soldier must disobey an order demanding that he commit war crimes, or genocide, or something to that nature. However, I have heard no evidence that even remotely suggests that the special forces of the United States Army have been trained to commit war crimes, and until I do, I must reject this defense.[24]

In colloquy with the prosecutor that followed, Colonel Brown stated that if the aidmen were being "trained to commit war crimes, then I think a doctor would be morally bound to refuse" to train them.[25]

Counsel for Dr. Levy were given one extra day to assemble witnesses to put on a Nuremberg defense. The defense found three witnesses. Donald Duncan was a former Special Forces Sergeant, who became disaffected while serving in Vietnam and resigned from the Army. Robin Moore was the author of a bestselling book, The Green Berets. Captain Peter Bourne was an Army psychiatrist who had served in Vietnam. The defense also proffered as exhibits 4,000 articles describing war crimes in Vietnam, including war crimes by the Special Forces, and a brief by Professor Richard Falk, an international law expert at Princeton, assisted by Richard Barnet of the Institute for Policy Studies. Finally, the defense submitted a list of thirty-eight witnesses to be called should Col. Brown determine that a prima facie case of Nuremberg violations had been made out.[26]

An out-of-court hearing followed. The Law of Land Warfare prohibits assassination of enemy soldiers or civilians. Duncan and Moore described assassination by United States forces and by the Vietnamese personnel that they trained. The Law of Land Warfare prohibits "putting a price on an enemy's head," but Duncan and Moore testified that in Vietnam it was a common practice. Most riveting, it seems, was defense testimony about torture and murder of unarmed prisoners, although The Law of Land Warfare prohibits killing prisoners "even in the case of . . . commando operations."[27]

Assessing the Nuremberg defense presented by Dr. Levy's counsel, Col. Brown ruled that Levy had failed to make a prima facie showing.[28]

C. After Vietnam

The evasion of Nuremberg by the United States Supreme Court in the Mitchell, Mora, and Levy cases continues to cast a long shadow. Military tribunals quote and rely on the high court's pronouncement in Parker v. Levy that "the military is, by necessity, a specialized society," and hence "the fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it."[29]

Under Levy and the military manuals that reflect it, a military order is presumed to be lawful and is disobeyed at the subordinate's peril. To be sure, the order must not conflict with "the statutory or constitutional rights of the person receiving the order."[30] But what if the order conflicts with the principles, not yet fully incorporated in statute or Supreme Court precedent,[31] on which the United States relied to execute German and Japanese war criminals?

A related issue is the responsibility of staff officers for war crimes by their subordinates. William Calley was a platoon leader (Sergeant Benderman held a similar position). After My Lai, Calley was convicted but his Brigade Commander and Company Commander were acquitted, even though, according to Calley's testimony, Capt. Medina's initial briefing for the mission ordered the troops to "kill every living thing -- men, women, children, and animals."[32] An investigative team headed by Lieutenant General William Peers recommended that charges be preferred against the division chief of staff, the brigade operations officer, the task force operations and intelligence officers, and the division chaplain, but nothing was done about it.[33]

Lieutenant Colonel Michael Davidson, writing in the Military Review, has discussed the bombing of Dresden and the My Lai massacre in the light of Nuremberg. Davidson states flatly, citing US Army Field Manual, The Law of Land Warfare (FM 27-10, 1956):

The legal precedents established at Nuremberg constitute international law and, as such, are part of US law. Accordingly, the war crimes trials define standards of wartime conduct for US military personnel and for enemy soldiers charged with war crimes by an international tribunal or by a US military tribunal or courts-martial.[34]

In its Provision 509, part of a chapter on "Remedies for Violation of International Law War Crimes," The Law of Land Warfare attempts to confront one of the Nuremberg Principles. The text reads:

509. Defense of Superior Orders

a. The fact that a law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in a trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. . . .[35]

Likewise the Manual for Courts-Martial provides that "a patently illegal order" does not enjoy the presumption of legality.

What is a patently illegal order?

During the Vietnam war, a platoon leader ordered a soldier under his command to execute a detainee. The soldier testified at his court martial that he heard the company commander order the platoon leader to kill the detainee, and that a previous platoon leader had been relieved of his command when a detainee escaped. The military appeals court found that the platoon leader's order was "palpably illegal" and "patently wrong," and upheld Staff Sergeant Griffen's conviction for murder.[36]

On the other hand, also in Vietnam, Lt. James Duffy, leading a patrol composed mainly of draftees, entered a village, took a prisoner, and asked his men if anyone would like to execute the prisoner. The victim was shot in the head the next morning by an executioner chosen by Duffy from among several volunteers. At trial, four lieutenants testified that their orders were "to take no prisoners" and that their superiors "laid primary stress on the body count." The court, having convicted the lieutenant of murder, revoked its judgment, reduced it to involuntary manslaughter, and sentenced Duffy to six months' confinement.[37]

Sergeant Benderman has been obliged to try to find his way by this uncertain compass.

VI. THE NEW UNITED STATES MILITARY DOCTRINE OF PREEMPTIVE WAR

IS A WAR CRIME UNDER THE NUREMBERG PRINCIPLES, AND REQUIRES THE COURT TO CONSIDER WHETHER OBJECTION TO "CRIME AGAINST PEACE" OR AGGRESSIVE WAR IS A DEFENSE IN THIS CASE

In the Huet-Vaughn case, the court stated: "The so-called 'Nuremberg defense' applies only to individual acts committed in wartime; it does not apply to the Government's decision to wage war." 43 M.J. at *114. But the cases cited in support of this sweeping statement date from 1969 and 1970. There is a new United States military doctrine of preemptive war that appears to qualify as a war crime under the Nuremberg Principles.

In a speech at the 2002 graduation exercises at West Point, President George W. Bush remarked that for much of the last century, America's defenses had relied on the Cold War doctrines of deterrence and containment. But, the President argued, containment means nothing against "terrorist networks with no nation or citizens to defend," "the war with terror will not be won on the defensive," and the United States must be prepared for "preemptive action when necessary."[38] In September 2002, the Bush Administration promulgated a new National Security Doctrine which stated, in part, that

we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country.[39]

Once again in June 2005 the President affirmed that:

After Sept. 11, I made a commitment to the American people: This nation will not wait to be attacked again. We will . . . take the fight to the enemy. . . . There is only one course of action against them: to defeat them abroad before they attack us at home. . . .[40]

The preemptive attack on the sovereign state of Iraq, without approval by the United Nations Security Council, would appear expressly to violate the condemnation of aggressive war on which the United States insisted at Nuremberg. Certainly a growing conviction that his country was an aggressor in violation of international law was a part of Sergeant Benderman's crystallizing sense that what he was being ordered to do was wrong. In his case, then, and in future cases like his, a potential or actual soldier should be entitled to refuse orders not only because they require "war crimes" or "crimes against humanity," but also because they demand obedience to the third kind of war crime defined at Nuremberg: a "crime against peace" or war of aggression.

VII. CONCLUSION

For the foregoing reasons, among others, the charges against

Sergeant Benderman should be dismissed.

Respectfully submitted,

s/Staughton Lynd Staughton Lynd

1694 Timbers Court

Niles OH 44446-3941

Phone: (330) 652-9635

Fax: (330) 652-0171

E-mail: salynd@

CERTIFICATE OF SERVICE

I certify that on July 5, 2005, I caused the foregoing friend of the court brief to be served by United States Priority Mail, postage prepaid, on:

Judge Wright

Office of the Circuit Judge, Second Judicial Circuit

OSJA, HQ, XVII Airborne Corps and Fort Bragg

Fort Bragg, NC 28310-5000

and on:

Captain Jonathan DeJesus

OSJA,

Fort Stewart, GA 31314

and on:

Attorney William Cassara

PO Box 2688

Evans, GA 30809

s/Staughton Lynd Staughton Lynd

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    [1]Captain Rowley testified at the Article 32(b) hearing on February 7, 2005 that he had no "prior training regarding a conscientious objector packet," but that he was "suspect about [Benderman's] conscientious objector packet" because Sergeant Benderman "stated he would kill in different situations specifically pertaining to family if he had to." In fact, Conscientious Objector status does not require the applicant to object to all killing, only to "participation in war in any form." AR 600-43 1-1 (emphasis added). At the May 12, 2005 hearing, Captain Rowley also made a point of saying that Sergeant Benderman "didn't submit the DA Form 4187 to a Chaplain; he submitted it to me." But AR 600-43 2-1(a) requires the applicant to submit the Conscientious Objector application to his or her "immediate commanding officer."

Similarly, Chaplain Matt Temple testified that it was his responsibility to help Sergeant Benderman with his CO application, but he had actually told Benderman that he was "ashamed of him" because "the timing of [the] packet was unprofessional." In fact, the Army recognizes that a conviction of conscientious objection may become "fixed" only after the soldier has deployed and entered combat. AR 600-43 1-7(a)(1).

    [2]The Charter was part of the Treaty of London, Aug. 8, 1945 (59 Stat. 1544), which established an International Military Tribunal. The Nuernberg Case as Presented by Robert H. Jackson, Chief 0f Counsel for the United States (New York: Cooper Square Publishers, 1971), pp. 22-23. The first session of the general assembly of the United Nations unanimously affirmed the principles of international law in the Charter, and directed the International Law Commission to formulate them into an International Criminal Code. Res. 95 (1), Dec. 11, 1946. The text of the Charter may be found in Michael R. Marrus, The Nuremburg War Crimes Trial, 1945-46: A Documentary History (Boston: Bedford Books, 1997), pp. 51-55.

    [3]This was later often called the "Eichmann defense," in reference to the spectacular trial of Adolf Eichmann in Jerusalem in 1961. Eichmann had been head of the Jewish Affairs Section of the Reich Security Head Office and was viewed as one of those chiefly responsible for the attempted "final solution of the Jewish question." Eichmann's defense rested in part on the claim that he had acted on superior orders and, moreover, under duress that left him no moral choice. The Israeli court rejected this argument, holding that "the accused closed his ears to the voice of conscience." The court quoted the judgment of a District Military Court following the IMT that if an order was "manifestly unlawful, it cannot be used as an excuse." Cited in Robert K. Woetzel, The Nuremberg Trials in International Law, with a Postlude on the Eichmann Case (New York: Praeger, 1962), p. 269. The Court of Appeals in Eichmann's case further concluded in 1962 that "the appellant had received no 'superior orders' at all. He was his own superior, and he gave all orders in matters that concerned Jewish affairs. . . ." Cited in Hannah Arendt, Eichmann in Jerusalem (New York: Viking Press, 1963), p. 227.

    [4]Marrus, The Nuremburg War Crimes Trial, p. 53.

    [5]Trial of the Major War Criminals before the International Military Tribunal, Nuremburg, 14 November 1945 - 1 October 1946 (hereafter "TMWC")(Nuremburg: Secretariat of the Tribunal, 1948), v. XXII, p. 536.

    [6]TMWC, v. XXII, p. 571.

    [7]Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg [sic] War Crimes Trials under Control Council Law No. 10 (Washington, D.C.: U.S. Government Printing Office, 15 August 1949), esp. pp. 6-9, 250-53.

    [8]Id., p. 109 (emphasis by Taylor).

    [9]Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (New York: AMS Press, 1949), pp. vii-viii.

    [10]Telford Taylor, The Anatomy of the Nuremberg Trials (New York: Alfred A. Knopf, 1992), pp. 65-66 (emphasis added). Scholarship during the past half century has confirmed the account by Jackson and Taylor. An authoritative article appearing in 2002 states:

the difficulties centered on whether the substantive definition of aggression would specify Nazi or Axis aggression (the Soviet position), or would define the crime [against peace] in a clean, universal way that might, in another era, even include American acts (the Jackson position). . . . In the end, the Charter for the new tribunal embodied Jackson's view . . . .

Jonathan A. Bush, "'The Supreme . . . Crime' and its Origins: The Lost Legislative History of the Crime of Aggressive War," Columbia Law Review, v. 102, No. 8 (Dec. 2002), p. 2369.

    [11]Opening Statement for the United States, Nov. 21, 1945, The Nuernberg Case as Presented by Robert H. Jackson Chief of Counsel for the United States (New York: Cooper Square Publishers, 1971), p. 93.

    [12]Telford Taylor, Nuremberg and Vietnam: An American Tragedy (New York: Bantam Books, 1971), pp. 11-12. Taylor went on to say:

However history may ultimately assess the wisdom or unwisdom of the war crimes trials, one thing is indisputable: At their conclusion, the United States government stood legally, politically and morally committed to the principles enunciated in the charters and judgments of the tribunals. [Taylor shows that the President of the United States, thirty or more American judges who took part in the tribunals, General Douglas MacArthur, and the United States delegation to the United Nations general assembly, all squarely endorsed the Nuremberg principles in one way or another.]

Thus the integrity of the nation is staked on those principles, and today the question is how they apply to the conduct of our war in Vietnam, and whether the United States Government is prepared to face the consequences of their application.

... [T]he Son My [My Lai] courts-martial are shaping the question for us, and they can not be fairly determined without full inquiry into the higher responsibilities. Little as the leaders of the Army seem to realize it, this is the only road to the Army's salvation, for its moral health will not be recovered until its leaders are willing to scrutinize their behavior by the same standard that their revered predecessors applied to Tomayuki Yamashita 25 years ago.

Id., pp. 94, 182.

    [13]Taylor, Final Report, pp. 234, 235.

    [14]Taylor, Anatomy of the Nuremberg Trials, p. 641. The principal author of this pleading, although a vigorous opponent of the Vietnam War, took a similar position in declining to take part in the War Crimes Tribunal created by Lord Bertrand Russell. See Bush, "'The Supreme . . . Crime'," p. 2393 n.224, citing Staughton Lynd, "The War Crimes Tribunal: A Dissent," Liberation, v. 12 (Dec. 1967-Jan. 1968), p. 76.

    [15]"Principles of International Law Recognized in the Charter of the Nuremburg Tribunal and in the Judgment of the Tribunal," adopted by the U.N. International Law Commission, 2 August 1950, U.N. Doc. A/1316, 2 Y.B.I.L.C. 374 (1950), Principle I, par. 99; Principle II, par. 100, 102. See also TMWC, v. XXII, pp. 465, 466.

    [16]Id., Principle IV.

    [17]Id., Principle IV, par. 106.

    [18]Id., par. 105. See also TMWC, v. XXII, p. 466.

    [19]We Won't Go: Personal Accounts of War Objectors, collected by Alice Lynd (Boston: Beacon Press, 1968), pp. 93-94.

    [20]Id., pp. 94-97.

    [21]Id., pp. 99-102.

    [22]Douglas, J., dissenting, in Mitchell v. United States, 386 U.S. 972 (1967), quoted in We Won't Go, ed. Alice Lynd, pp. 102-04.

    [23]Id., pp. 182-84.

    [24]Tr. at 875, quoted in Robert N. Strassfeld, "The Vietnam War on Trial: The Court-Martial of Dr. Howard B. Levy," 1994 Wisconsin Law Review 839, 902.

    [25]Tr. at 878, quoted in id., p. 903. According to Professor Strassfeld, Colonel Brown had often discussed the implications of the Nuremberg and Tokyo war crimes trials as a law instructor at West Point in the late 1940s, and had been deeply impressed by the movie Judgment at Nuremberg.

    [26]Id., pp. 905-08.

    [27]Id., pp. 908-15.

    [28]Id., pp. 922-23.

    [29]United States v. Moore, 58 M.J. 466, 2003 CAAF LEXIS 694 (2003), quoting Parker v. Levy, 417 U.S. 733, 743, 758 (1974).

    [30]Id., citing Manual for Courts Martial, United States (2002 ed.), Part IV, para. 14.c(2)(a)(i), and United States v. Womack, 29 M.J. 88, 90 (C.M.A. 1989).

    [31]Recent decisions of the United States Supreme Court exhibit an increased receptivity to precedents established by international law or "the law of nations." In the majority decision about the rights of prisoners at the Guantánamo detention facility, the justices turned historian and cited such precedents as the case in which Lord Mansfield set free an African slave purchased in Virginia, bound for Jamaica, but temporarily detained on a ship docked in England. Somersett v. Stewart, 20 How. St. Tr. 1, 79-82 (K.B. 1772), cited in Rasul et al. v. Bush et al., No. 03-334 (June 28, 2004), Slip Opinion at 13 n.11. In another decision about a Mexican doctor kidnapped by drug enforcement agents, the Court continued to probe the "ambient law" of the Revolutionary era, concluding that courts of that period were open to claims based on "the law of nations" and that a court today should likewise entertain a claim that rests "on a norm of international character accepted by the civilized world." Sosa v. Alvarez-Machain et al., No. 03-339 (June 29, 2004), Slip Opinion at 17, 19, 30.

    [32]U.S. v. Calley, 48 C.M.R. 19, 23-24 (1974).

    [33]Lt. Col. Michael Davidson, "Staff Officer Responsibility for War Crimes," Military Review (Mar.-Apr. 2001), p. 54.

    [34]Id., p. 55, citing Taylor, Nuremberg and Vietnam, p. 143, and US Army Field Manual, The Law of Land Warfare (Washington DC: US Government Printing Office, 1956), pp. 180-81.

    [35]FM 27-10, p. 182. Malham M. Wakin, "Applying Nuremberg Principles to Limited War," United States Air Force Academy Journal of Legal Studies, v. 6 (1996), p. 169, comments that this provision "seems to have caught the spirit of the Nuremberg principles in balanced fashion." While this may be so in the abstract, Provision 509 does not give sufficient guidance to help the Sergeant Bendermans of this world decide how to act.

    [36]Id., p. 59, citing United States v. Griffen, 39 C.M.R. 586 (1968), at 588, 590.

    [37]Taylor, Nuremberg and Vietnam, pp. 150-51, basing his account on reporting between March 28 and April 5, 1970, by New York Times reporter Philip Shabecoff.

    [38] (emphasis added).

    [39]The National Security Strategy of the United States of America (Washington D.C.: Sept. 2002), p. 5 (emphasis added).

    [40]New York Times, June 29, 2005, p. A8.

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