[Peace-discuss] The fourth branch
Boyle, Francis A
fboyle at illinois.edu
Fri Aug 18 13:15:26 UTC 2017
As you can see, the Assistant US Attorney was so stunned by my argument that he failed to cross-examine me. Whereupon we got a Directed Verdict of Acquittal. Fab.
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
-------------------------------
UNITED STATES OF AMERICA :
:
v. : CRIMINAL NO. 87-284-ALEX
:
MARGARET MARY BRODHEAD and :
THOMAS P. LEWIS :
-------------------------------
U.S. Post Office & Courthouse
Boston, Massachusetts
Friday, March 4, 1988
VOLUME I
BEFORE:
HON. JOYCE LONDON ALEXANDER, U.S. MAGISTRATE
APPEARANCES:
OFFICE OF THE UNITED STATES ATTORNEY, (By Martin F. Murphy, Esq.),
1107 Post Office Building, Boston, Massachusetts 02109,
on behalf of the Government.
GOLDSTEIN & PATCHEN, (By Lee D. Goldstein, Esq.),
678 Massachusetts Avenue, Cambridge, Massachusetts 02139, on behalf of Defendant Thomas Lewis.
MARGARET MARY BRODHEAD, Pro Se.
THE CLERK: The Court is now in session.
THE COURT: Defendants may call their next witness.
MR. GOLDSTEIN: I'd like to call Professor Francis Boyle, please.
WHEREUPON,
FRANCIS BOYLE,
having been first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
Q. Now, Professor Boyle, I'm going to show you a copy of the indictment in this case. And you notice in the indictment that it charges that the defendants are guilty of entering the air base for a purpose prohibited by law, and that the purpose was that they were going to willfully injure or commit depredation against property. Do you see that on the indictment?
A. Yes, I do.
Q. You're aware of the testimony that occurred prior today on the nature of the P-3 Orion?
A. Yes, I have heard the testimony of Dr. Walker.
Q. And you're also aware of the testimony regarding the Seasprite helicopter?
A. Yes. And I have also read about both systems in my own studies, as well.
Q. Now based on the hearing of the testimony and based on what you've read, do you have an opinion as to whether or not the Seasprite and the Orion are property entitled to legal protection?
MR. MURPHY: Your Honor, objection as to a question in that form. I think it ought to be if he has an opinion as to whether they are property of the United States or a department thereof under 18 U.S.C. 1361.
MR. GOLDSTEIN: I'll withdraw. I'll ask the question suggested by the U.S. Attorney.
BY MR. GOLDSTEIN:
Q. Do you have an opinion as to whether or not the Seasprite and the P-3 Orion are property of the United States Government entitled to protection under Title 18, Section 1361?
A. Well, based on my knowledge of the Orion and Seasprite, as part of a first strike scenario, they would not be entitled to any protection at all under United States law, defined to include international law. They would constitute an instrumentality of crime to the extent that they are to be used as part of a first strike system. And for that reason, they would not be entitled to any protection as property as that concept is defined.
Q. Now you talked about your opinion is based on particular parts of United States law; is that correct?
A. Well, that's right. International law is also part of United States law. It is part of the federal common law that's binding on this Court. It is also part of, for example, the law of the Commonwealth of Massachusetts. And so any concept or notion such as property -- "a bundle of rights entitled to be protected by law" is the black letter rule -- has to take into account considerations of international law.
Q. And are you aware if the armed force of the United States has published any particular document which specifies whether or not this property would be protected?
A. Well, the leading case dealing with this arises out of the prosecution of German industrialists after the Second World War called the Zyklon B case. The Zyklon B case was prosecuted by an agreement between the United States and the other victors of the Second World War. It dealt with the question of whether or not two German industrialists were entitled to sell Zyklon B, prussic acid, to the S.S. with good grounds to believe that it would be used for the purpose of exterminating human beings.
It had been the case that this corporation in Germany had sold the prussic acid to the S.S. to be used for delousing or exterminating vermin. At some point in time, pursuant to the Final Solution as it were of the Nazi era, the S.S. decided to use the Zyklon B gas to exterminate millions of people. Particularly, at Auschwitz, the Zyklon B gas was used for the purpose of exterminating approximately two million people.
After the war, the owner of the company and the operating manager of this company were put on trial. And they argued that the Zyklon B gas was just an article, a commodity that, in theory, could be used for a lawful purpose and could be sold in commerce just as any other type of commodity would be sold.
The tribunal ruled that, as a matter of fact, that was not the case. That this commodity was being put to a criminal purpose, and that was exterminating human beings, which, in turn, was a war crime within the meaning of the Hague Regulations. And, therefore, these two German industrialists had no right to be selling this particular commodity to the S.S., and hence could be found guilty of being accomplices to the commission of war crimes by virtue of the fact that they were selling the commodity. They were both sentenced to death, and they were both hanged. So certainly the Zyklon B case stands for the proposition that some instruments, commodities, call it what you want, are not entitled to be treated as property within the meaning of international law.
I should also point out that it might have been perhaps consistent with Nazi law at the time for them to have sold prussic acid to the S.S. to be used for the purpose of exterminating two million people. But that did not sway the tribunal under the rules that they were operating under. They had been charged with the task of not paying attention to any Nazi law, internal law that was inconsistent with international law. And so on the basis of that operating procedure which they did have, they did find these two defendants guilty and they were hanged.
Q. Now is that particular decision, in the Zyklon B case, is that a part of United States law?
A. The Zyklon B prosecution occurred as a result of an agreement entered into between the major allied powers after the Second World War, including the United States, for the trial and prosecution of the leading Nazi war criminals in Europe. And so there was a formal agreement between the U.S., France, Great Britain, and Russia that called for the prosecution of these people. Now this formal prosecution itself was -- pursuant to the terms of this agreement -- carried out by a British tribunal. But their jurisdiction to try was based on an agreement with U.S. permission. And so, they were acting as an agency or instrumentality of the United States Government, the British Government, the Russian Government, and the French Government.
Q. How are any of the rules taken from some of those trials after World War II incorporated in any document that had been adopted by the armed forces of the United States?
A. Yes. Before the Second World War the United States Government had a manual for the conduct of armed hostilities that was issued to all its troops in the field. It was based primarily on the Hague Regulations of 1907, which served as the basis for the convictions of these two industrialists, and, of course, their subsequent hanging.
As a result of the Nazi depredations in the Second World War, the U.S. Government decided that it was going to have to revise its internal rules and also the rules of international law with respect to the conduct of hostility. This then resulted in the four Geneva Conventions of 1949, the Genocide Convention of 1948, and also an attempt to distill the essence of these various trials that were set up after the Second World War, both in Europe and in Japan, for trying the leading war criminals of that time. All of these rules then were set forth in two new manuals that took the place of the older War Department Manual.
Q. And these are United States manuals.
A. These are U.S. manuals, yes. In 1955, the Navy issued a manual on the conduct of naval warfare to all officers in the field, describing precisely what were the rules on international law with respect to the conduct of hostilities. And again, in 1956, the U.S. Army issued a field manual to all its officers in the field, called "The Law of Land Warfare," that attempted to encapsulate all the rules based on the Hague Regulations, the Geneva Conventions, the trials of the major war criminals, and other rules that had been distilled from these various judgments after the Second World War.
Q. And those manuals are in existence today; is that right?
A. Yes. The manual for the Navy, as I said, was published in 1955. It is still binding as law and is still issued to all naval officers when they get sent into the field and naval officers are trained in it. Likewise, for the Army, the U.S. Army Field Manual published in 1956, that is still binding law, as far as the United States Government is concerned.
And, indeed, if you read the introductions to these manuals, it states specifically that as far as the United States Government is concerned, these manuals contain the rules of international law with respect to the conduct of hostilities that it believes binds United States citizens and soldiers and sailors and also will bind the citizens, soldiers, and sailors of foreign states that might be in conflict with the United States Government.
Q. And I take it you're familiar with the contents; is that right?
A. Yes, I am.
Q. Now you said it has a binding effect on current military personnel of the United States?
A. Yes, it does. And I should also point out civilian officials, too. To the extent that civilians, for example, in the Pentagon are directly involved in the conduct of hostilities, they, too, are bound by these rules. And that, again, is made quite clear. It goes back to the World War II precedents where some of the German civilian officials argued that we weren't really responsible for what was going on. For example, in the case of the German industrialists, they said, "Well, we were just businessmen selling gas." And the various tribunals said no, that civilians and officials and even private businessmen can be found responsible for violations of laws and customs of war.
Q. What particularly does it say with respect to the laws of warfare as it would affect this definition of property we've been talking about?
A. The key point that came in as a result of the World War II experience was two new types of crimes that were recognized that had not existed before the Second World War.
The first was known as a crime against peace. That was planning, preparation, conspiracy, waging a war of aggression or a war in violation of international treaties or agreements. That type of crime had not really been considered to exist before the Second World War.
The second type of crime that came into existence and, as I said, is still recognized in both these field manuals, is what is known as a crime against humanity. And there, the archetypal case was Hitler's attempt to exterminate Jews, Russians, Gypsies, Slavs, and others. That is, killing people because of their racial, ethnic, religious characteristics, or things of that nature.
And in this definition of crime against humanity, it specifically states that, for example, the wanton destruction of a city is a crime against humanity.
Q. And would this include particular property which is an instrumentality of these crimes?
A. Within these field manuals, there is a provision dealing with, as you know, what lawyers call inchoate crimes: planning, preparation, conspiracy, aiding and abetting, and complicity. And it is determined in these field manuals that these inchoate crimes are international crimes in their own right.
As Mr. Justice Jackson said when he was prosecuting the Nazi war criminals, it simply was not enough to go after individuals who had already committed substantive offenses, because that will not do you much good. What you want to do also is to prevent the substantive offenses in the first place. And so, there was recognized also personal criminal responsibility for committing inchoate offenses.
So, again, to the extent that a weapon system is used for the purpose of planning, preparing, conspiring, aiding and abetting, or complicity in the commission of a crime against peace or a crime against humanity or a traditional war crime, then that would render the individual himself responsible for violation of international law, very similar to what happened in the Zyklon B case with the German industrialists supplying Zyklon B, knowing that it could be used for the purpose of exterminating human beings.
Q. And the answer that you've given is really an important basis upon which you're testifying that the P-3 Orion and the Seasprite are not entitled to protection as property, as defined under the United States Code.
A. Well, to the extent that they are part of a first strike system, they are instrumentalities of criminal activity. A first strike system or scenario is planning, preparation, and conspiracy to commit a crime against peace, a crime against humanity, and a war crime.
Q. I see. And, again, these particular proscriptions: crimes against peace, crimes against humanity, are contained in the Navy field manual; is that correct?
A. That's correct. And a war crime, too.
Q. Now as to these particular crimes, would it be a defense to these crimes that the act was not made illegal under domestic law?
A. No.
Q. And upon what is that based?
MR. MURPHY: Objection, Your Honor, as to his point. That's a decision for you and not for an expert.
MR. GOLDSTEIN: Again, I ask about specific sources upon which he's based the conclusions that this particular property was not entitled to protection. To the extent that there may be any other exceptions or exclusions in terms of how one might characterize as property, I would argue that the question is entirely relevant. Again, it's going directly to any defense that well, this really is property; this is entitled to protection.
MR. MURPHY: All right. I don't quite understand still the point about whether this property is entitled to protection. It seems to me the question is -- if this is a defense and not an attempt to inject a necessity defense into the case, but is a defense to the charge in the indictment that this property is not entitled to protection, the question ought to be, "Is this property, the property of the government within the meaning of the relevant decisions under 18 U.S.C. Section 1361?" And I think we're getting very far afield from that area of inquiry.
BY MR. GOLDSTEIN:
Q. Now, Professor Boyle, I believe you also mentioned that a particular Genocide Convention was incorporated in these particular field manuals; is that right?
A. Well, this concept of crime against humanity, particularly with reference to the Jewish people, was fully approved by the United States Government. And various individuals after the Second World War were sentenced to death and executed for committing a combination of a crime against humanity and a traditional war crime or a crime against peace.
It was thought, however, by the United States Government at that time, that this was such a particularly heinous crime to exterminate people because of their racial, national, religious, or ethnic characteristic that a special treaty should be drafted. And that was the Genocide Convention of 1948, which the United States Senate has given its advice and consent to in 1986.
I think today the leading case in point for the applicability of the Genocide Convention would be what the white minority racist regime in South Africa is doing to its Black population there. So that this treaty is still on point and is still in the process of being used and relied on by the United States Government today.
Q. And how would this particular convention -- again, as incorporated in the army field manual and the navy field manual --
A. Well, I should be precise and say the convention was not incorporated by name into these two field manuals; the concept of crime against humanity was, and that served as the basis for the Genocide Convention.
The reason they did not specifically name the Genocide Convention was that although the U.S. Government signed it in 1948, the Senate did not ratify it until 1986. And the reason why was that conservative southern senators were afraid that if we ratified this treaty, American Blacks would be able to use the Genocide Convention to state a cause of action in a federal court. And so they held up the ratification, the formal technical ratification of the treaty and its advice and consent by the Senate until 1986. So that's why they don't mention per se the Genocide Convention.
Q. I see. But there is particular ratification by the U.S. Senate of that convention.
A. The U.S. Senate just recently in 1986 gave its advice and consent to the ratification of that treaty, yes.
Q. Now is that particular act of the Senate applicable to either the use or planned use of the P-3 Orion and of the Seasprite helicopter?
A. Clearly, the convention states that planning, preparation, or conspiracy to commit genocide is a crime in its own right. So to the extent that any weapon systems that the U.S. Government has that could be used for the purpose of genocide, would be prohibited by that convention.
Q. And do you have any knowledge of how any particular use of these aircraft might be involved in a violation of that convention?
A. Yes.
MR. MURPHY: Objection, Your Honor. Again, I don't think that this is relevant.
THE COURT: Sustained.
MR. GOLDSTEIN: Again, I would offer to prove, Judge, that I think there's a proper foundation that we're not talking about some kind of foreign law. We're talking about law which was ratified by the Senate, just like any other law of the House or Congress. So I'm not talking about foreign law. I'm talking about a particular source of United States law which would be relevant to the issue of whether or not these particular aircraft were property and entitled to protection.
THE COURT: Why don't you ask the witness that as opposed to drawing out and seemingly going far afield.
MR. GOLDSTEIN: Okay. Again, I was trying to lay a proper foundation.
BY MR. GOLDSTEIN:
Q. But I ask you again, Professor Boyle, the Genocide Convention is part of United States law; is that correct?
A. That's correct.
Q. Do you have an opinion as to how the Genocide Convention affects the definition of property in the U.S. Code, more particularly, these two aircraft which are the basis of the trial today?
A. I do have an opinion, yes.
Q. And could you tell the Court that opinion?
A. Well, the opinion is that to the extent these particular weapon systems would be used for the purpose of planning, preparation, and conspiracy to commit genocide, they would violate the terms of the Genocide Convention and, therefore, constitute an instrumentality of criminal activity.
Q. And how particularly might this be a criminal activity, based on what you've studied?
A. This goes to what Dr. Walker testified on Presidential Directive 59. Within that presidential directive, there is an actual plan for the use of nuclear weapons against people because of their racial, ethnic composition, almost identical to what the Nazi regime had in store for Jews, Slavs, Gypsies, or whatever.
And, indeed, there has been a considerable amount of writing in the professional literature pointing out that this particular component of Presidential Directive 59 constitutes planning, preparation, and conspiracy to commit genocide, and is inconsistent with the terms of the Genocide Convention, and should be removed and eliminated. To the best of my knowledge, that has not been done.
Q. Now is this also a violation in peace time, as well as in wartime?
MR. MURPHY: Objection, Your Honor.
THE COURT: Sustained.
MR. GOLDSTEIN: But, Judge, there's been testimony I believe by Petty Officer McCoy that he believed that the particular use of the weapons and the P-3 Orion and Seasprite were only applicable in times of war. And given that that's been in evidence, I think it's a fair question to ask. I think I have the right to adduce some evidence to rebut that by one who I believe is qualified to know.
THE COURT: If -- and the Court is not convinced that he said just in wartime, but if that is counsel's recollection, the Court will allow you to answer the question: yes or no.
THE WITNESS: The Genocide Convention clearly states that it applies in times of peace and in times of war.
THE COURT: Okay.
BY MR. GOLDSTEIN:
Q. Professor Boyle, just let me ask you, so that it's entirely clear: based on your testimony thus far, based on your training, based on your experience, do you believe that the Seasprite and the Orion were property entitled to protection, as defined under Section 1361 of Title 18 of the U.S. Code?
MR. MURPHY: Objection, Your Honor, as to the "entitled to protection" phrase. That is injecting Professor Boyle's personal opinion about what ought to be protected into this proceeding. Is it property of the United States, under the statutes? That ought to be the question.
THE COURT: Sustained as to form.
MR. GOLDSTEIN: I'll withdraw the question and ask again.
BY MR. GOLDSTEIN:
Q. Based on your professional opinion, based on your training and experience, are the Seasprite helicopter and the P-3 Orion property within the meaning of 1361 of the U.S. Criminal Code?
A. Again, 1361 has to be interpreted by reference to international law, which is a part of United States domestic law. And to the extent that these weapon systems are to be used for the purpose of planning, preparing, or conspiring to commit crimes against peace, crimes against humanity, war crimes, and genocide, they are instrumentalities of crime and of criminal activity. They are not property defined as "a bundle of rights, entitled to be protected by law." They would be outlawed, prohibited, and proscribed by law.
MR. GOLDSTEIN: No further questions.
THE COURT: Mr. Murphy, any cross-examination?
MR. MURPHY: No cross-examination.
e:\wpwin52\usvbrodh.2
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign IL 61820 USA
217-333-7954 (phone)
217-244-1478 (fax)
(personal comments only)
From: Boyle, Francis A
Sent: Friday, August 18, 2017 8:14 AM
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Subject: FW: The fourth branch
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign IL 61820 USA
217-333-7954 (phone)
217-244-1478 (fax)
(personal comments only)
Feed: "Francis Boyle" - BingNews
Posted on: Friday, August 18, 2017 12:28 AM
Author: "Francis Boyle" - BingNews
Subject: The fourth branch
I still subscribe to law professor Francis Boyle’s view; nuclear weapons and related materiel are not property–property rights attach to legitimate things, not to criminal instrumentalia that have no use but criminal annihilation. I’ve argued all ...
View article...<http://www.bing.com/news/apiclick.aspx?ref=FexRss&aid=&tid=17260EDFD67F4AEEA218EC8996F4EB7D&url=https%3a%2f%2fzcomm.org%2fznetarticle%2fthe-fourth-branch-2%2f&c=3603868396584639945&mkt=en-us>
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