United States v. Sisson, Crim. No. 68-237.

• Decision Date: 03 December 1968
• Docket Number: Crim. No. 68-237.
• Citation: 294 F. Supp. 515
• Parties: UNITED STATES of America v. John Heffron SISSON, Jr.
• Court: U.S. District Court — District of Massachusetts

294 F. Supp. 515

UNITED STATES of America v. John Heffron SISSON, Jr.

Crim. No. 68-237.

United States District Court D. Massachusetts.

November 26, 1968.

Order December 3, 1968.

COPYRIGHT MATERIAL OMITTED

Paul F. Markham, U. S. Atty., and John Wall, Asst. U. S. Atty., Boston, Mass., for the United States.

John G. S. Flym, Boston, Mass., for defendant.

OPINION

WYZANSKI, Chief Judge.

Defendant construes his motion to dismiss the indictment as including a contention that he is entitled to have the indictment dismissed on the ground that he is being ordered to fight in a genocidal war.

The issue of defendant's standing to raise the genocidal question and the issue whether the question is a question not within this Court's jurisdiction resemble the issues already considered by this Court in denying defendant's motion to dismiss the indictment on the ground that defendant has been ordered to fight in a conflict as to which Congress has not declared war. However, there are differences between the problems which the earlier motion presented and the ones now raised.

For argument's sake one may assume that a conscript has a standing to object to induction in a war declared contrary to a binding international obligation in the form of a treaty, in the form of membership in an international organization, or otherwise. One may even assume that a conscript may similarly object to being inducted to fight in a war the openly declared purpose of which is to wipe out a nation and drive its people into the sea. Conceivably, in the two situations just described, the conscript would have a standing to raise the issue and the court would be faced with a problem which was not purely a political question, but indeed fell within judicial competence.

The issue now tendered by this defendant is unlike either of the two cases just mentioned. At its strongest, the defendant's case is that a survey of the military operations in Vietnam would lead a disinterested tribunal to conclude that the laws of war have been violated and that, contrary to international obligations, express and implied, in treaty and in custom, the United States has resorted to barbaric methods of war, including genocide.

If the situation were as defendant contends, the facts would surely be difficult to ascertain so long as the conflict continues, so long as the United States government has reasons not to disclose all its military operations, and so long as a court was primarily dependent upon compliance by American military and civilian officials with its judicial orders. It should be remembered that the tribunal at Nuremberg, probably because it had a Russian judge, was unable to face up to the problems tendered by the Katyn massacres. Moreover, neither at Nuremberg nor at Tokyo, tribunals upon which an American judge sat, was there any attempt to resolve the problems raised by the nuclear bombing of Hiroshima and Nagasaki. It is inherent in a tribunal composed partly of judges drawn from the alleged offending nation that a wholly disinterested judgment is most unlikely to be achieved. With effort, self-discipline, and judicial training, men may transcend their personal bias, but few there are who in international disputes of magnitude are capable of entirely disregarding their political allegiance and acting solely with respect to legal considerations and ethical imperatives. If during hostilities a trustworthy, credible international judgment is to be rendered with respect to alleged national misconduct in war, representatives of the supposed offender must not sit in judgment upon the nation. An analogous path of reasoning must lead one to conclude that a domestic tribunal is entirely unfit to adjudicate the question whether there has been a violation of international law during a war by the very nation which created, manned, and compensated the tribunal seized of the case.

Because a domestic tribunal is incapable of eliciting the facts during a war, and because it is probably incapable of exercising a disinterested judgment which would command the confidence of sound judicial opinion, this Court holds that the defendant has tendered an issue which involves a so-called political question not within the jurisdiction of this Court. Cf. United States v. Mitchell, 369 F.2d 323 (2d Cir.).

The motion to dismiss the indictment is again denied.

ORDER

This formal and binding order is a response to defendant's counsel's informal letter, dated November 27, 1968.

1. The Court declines to modify its opinion of November 26. As is plain from the opinion as a whole, the word "genocide" as used therein has not primarily a narrow technical significance but relates to the method of eliminating a population by "barbaric methods." Defendant's earlier brief invited a broad opinion covering the many supposed methods asserted to have been used by the United States in conducting the Vietnam war.

2. Defendant indicates that he "proposes to offer evidence bearing on whether Congress indeed has authorized the Vietnam war." Such a proffer is by this Order formally rejected, subject, as is every provision of this Order, to defendant's automatically saved exceptions. First, the offer is precluded by this Court's opinion of November 25. Second, the matter of Congressional action or inaction is not a fit subject of "evidence"; it is, like a statute or rule or the absence of such, a subject to which the attention of a judge is properly drawn by brief or argument, rather than by testimony to be submitted to the trier of fact.

3. Defendant states he intends to "introduce evidence showing...