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“The little case law that exists on the so-called Nuremberg defense (an order to commit a crime) recognizes that it may be available to an accused charged with a war crime.”

 

SYMPOSIUM ON SECURITY & LIBERTY: ARTICLE: WAR AND THE DOUBTFUL SOLDIER, 19 ND J. L. Ethics & Pub Pol'y 91 (2005)


CRITICAL ESSAY: OBEDIENCE OF ORDERS AND THE LAW OF WAR: JUDICIAL APPLICATION IN AMERICAN FORUMS, 15 Am. U. Int'l L. Rev. 481 (2000)

Milhizer, ''Necessity and the Military Justice System: A Proposed Special Defense,'' 121 Mil. L. Rev. 95 (1988).

 

1-3 Military Crimes and Defenses ? 3.4

Military Crimes and Defenses
 
Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

Chapter 3 MILITARY CRIMINAL SUBSTANTIVE LAW

1-3 Military Crimes and Defenses ? 3.4

? 3.4 Defenses to Military Crimes


[20] Moral Beliefs or Grounds
 
The military courts have generally rejected arguments that moral grounds or beliefs are a defense. In United States v. Huet-Vaughn,348 the accused, a medical doctor, absented herself after her reserve unit was ordered to deploy to Southwest Asia as part of Operation ''Desert Storm.'' At her trial on a charge of desertion, she argued that she was entitled to offer evidence of her moral and religious beliefs as a defense. The court rejected her arguments and concluded that a defense based upon conscience, religion, personal philosophies, ethical or professional factors is not a valid defense.349 Her general challenge to the legality of the deployment itself, said the court, was a non-justiciable political question.350

[21] Necessity
 
The defense of necessity, which is not listed in either the Manual for Courts-Martial351 or the Military Judges' Benchbook,352 is a justification defense that arises from situational factors that compel an individual to commit an illegal action to avoid a greater evil.353 In some respects it mirrors the defense of coercion or defense or duress, and it appears the courts are prone to blend the two together.354 The defense of necessity arises when the accused is pressured from sources, other than human forces, to act in such a way to choose between a greater and lesser evil.355 Duress, on the other hand, is a defense of excuse and arises where the pressure to commit the offense arises from human sources. The defense of necessity does not extend to actions by individual who feels impelled to act out of necessity without any compulsion from external forces.356 While there are cases stating that the defense of necessity does not apply in the military,357 there are other cases suggesting that it might.358
 
The accused is required to reasonably believe his actions were necessary, and that alternative courses of action would have resulted in greater harm if pursued. What constitutes as reasonable is assessed on a case-by-case basis under the reasonable person standard.359 The necessity defense is somewhat elastic, however, in that military courts can allow the defense as applied under common law.360
 
Necessity has arguably been recognized and applied, at least impliedly, to the offenses of AWOL and escape from confinement, but always under the name of duress.361 Conversely, necessity cannot be employed as a justification for disobeying an order because the individual issued the order believes it will jeopardize their health.362 The law is not as clear with regard to the necessity defense and controlled substances. The Controlled Substances Act is statutorily-based, which means that the law is presumed to reflect the sum of the legislature's intent. Thus, it is not likely that an accused could use the common law defense of necessity when the statute violated does not provide for such a defense.363

[22] Nuremberg Defense
 
The little case law that exists on the so-called Nuremberg defense (an order to commit a crime) recognizes that it may be available to an accused charged with a war crime. In United States v. Huet-Vaughn,364 the accused was a medical doctor who went AWOL after her reserve unit was ordered to deploy to Southwest Asia as part of Operation ''Desert Storm.'' At trial on a charge of desertion, she argued that she was entitled to offer evidence of her moral and religious beliefs as a defense and also urged the so-called ''Nuremberg defense'' on grounds that the actions by the United States constituted crimes against humanity and international law. The court concluded that the defense is only applicable to individual acts during wartime and not to the government's decision to wage war.365 The court said that the accused had not shown that she was ordered, as an individual, to commit a positive act which would have amounted to a war crime.366 Her general challenge to the legality of the deployment itself, said the court, was a non-justiciable political question.367

ootnote 348. 43 M.J. 105 (C.A.A.F. 1995).

 349. 43 M.J. at 115. United States v. Johnson, 45 M.J. 88 (C.A.A.F. 1996) (pending application for conscientious objector status, or alleged procedural problems with considering the application, is not a defense to charges for missing movement or disobeying otherwise valid orders).

 350. 43 M.J. at 115. United States v. Berrigan, 283 F. Supp. 336 (D. Md. 1968), aff'd, sub nom, United States v. Eberhardt, 417 F.2d 1009 (4th Cir. 1969) (discussion of ''Nurnberg [sic.] defense'').

 351. R.C.M. 916 (listing defenses, but not defense of necessity).

352. Military Judges' Benchbook, DA Pam 27-9, para. 5-1 (list of defenses does not include defense of necessity).

 353. See W. LaFave, Criminal Law 523-26 (4th ed. 2003) (discussion of defense); Milhizer, Necessity and the Military Justice System: A Proposed Special Defense, 121 Mil. L. Rev. 95 (1988).

 354. W. LaFave, Criminal Law 523 (4[th] ed. 2003).

 355. See, e.g., United States v. Rockwood, 52 M.J. 98, 100 (C.A.A.F. 1999). The accused disobeyed orders to stay at his post and later at the hospital, because he believed, based on intelligence reports, that human rights abuses were occurring at the National Penitentiary. Inspired by President Clinton's address to the nation justifying the deployment of troops to Haiti as an effort to curb human rights violations, the accused reasoned that he was compelled by this greater purpose to leave his ordered post and proceeded to the National Penitentiary with a loaded M-16 to stop suspected human rights abuses. The court concluded that this was not a proper necessity defense, impliedly recognizing that the defense might be found in military practice.

 356. United States v. Rockwood, 52 M.J. 98, 100 (C.A.A.F. 1999) (this is sometimes also referred to as the ''pressure of circumstances''). Necesssity is a justification defense and duress is a defense of excuse; it excuses a threatened or coerced actor. See generally Eugene Milhizer, Necessity and the Military Justice System: A Proposed Special Defense, 121 Mil. L. Rev. 95 (1988).

 357. United States v. Banks, 37 M.J. 700 (A.C.M.R. 1997).

 358. United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999); United States v. Olinger, 50 M.J. 365 (C.A.A.F. 1999) (common law defense of necessity may be applicable to military).

 359. United States v. Rockwood, 52 M.J. 98, 112 (C.A.A.F. 1999). United States v. Rankins, 34 M.J. 326, 329 (C.M.A. 1992) (court noted that judging the legitimacy of a necessity defense is highly subjective and difficult to apply because it requires the trier-of-fact to weigh competing evils). This is partly why many courts in the United States have been hesitant to implement it in their respective jurisdictions.

 360. United States v. Olinger, 50 M.J. 365, 367 (C.A.A.F. 1999) (court explained that accused's belief that his wife would cause harm to herself due to his upcoming deployment and her depression was an insufficient duress defense and defense of necessity under the common law); United States v. Rankins, 34 M.J. 326, 328-329 (C.M.A. 1992) (common law necessity defense is only recognized in only half of all American jurisdictions; the elements are: ''(1) the harm must be committed under the pressure of physical or natural force, rather than human force; (2) the harm sought to be avoided is greater than (or at least equal to) that harm sought to be prevented by the law defining the offense charged; (3) the actor reasonably believes at the moment that his act is necessary and is designed to avoid the greater harm; (4) the actor must be without fault in bringing about the situation; and (5) the harm threatened must be imminent, leaving no alternative by which to avoid the greater harm'').

 361. See United States v. Blair, 36 C.M.R. 413 (C.M.A. 1966) (court overruled the president of the court-martial who denied the defense making a showing that the accused escaped confinement to avoid being beaten by a brig guard. But see United States v. Guzman, 3 M.J. 740 (N.C.M.R. 1977) (accused with an injury that would have been aggravated by duty assignment had no defense of ''duress'' to the crime of AWOL because performing the duty would not have caused immediate death or serious bodily injury); United States v. Peirce, 42 C.M.R. 390 (A.C.M.R. 1970) (''duress'' to escape from confinement was not raised by a defense offer of proof regarding stockade conditions, but lacking a showing of imminent danger).
 
   In United States v. Wilson, 30 C.M.R. 630 (N.B.R. 1960), the accused said that he had gone AWOL because of death threats by a shipmate. The Navy Board of Review held that the defense of duress was not raised, noting that the accused was never in danger of imminent harm and that the threatening party had never demanded that the accused leave his ship. The board concluded that the accused had no right to leave a duty station in order to find a place of greater safety. The court found that escapees are not entitled to duress or necessity instructions unless they offer evidence of bona fide efforts to surrender or return to custody once the coercive force of the alleged duress/necessity had dissipated. See also United States v. Bailey, 444 U.S. 394 (1979).

 362. United States v. Washington, 54 M.J. 936 (A.F.Ct.Crim.App.. 2001) (court held that the accused's refusal to be inoculated was direct flouting of military authority that could not be justified with a necessity defense, despite the accused's contention that the inoculations detracted from the ability of his unit to perform its mission). See also Robin Isenberg, Medical Necessity as a Defense to Criminal Liability, 46 Geo. Wash. L. Rev. 273 (1978).

 363. See United States v. Oakland Cannabis Buyer's Coop., 532 U.S. 483 (2001).

 364. 43 M.J. 105 (C.A.A.F. 1995).

 365. 43 M.J. at 114.

 366. 43 M.J. at 114.

 367. 43 M.J. at 115. United States v. Berrigan, 283 F. Supp. 336 (D. Md. 1968), aff'd, sub nom, United States v. Eberhardt, 417 F.2d 1009 (4th Cir. 1969) (discussion of ''Nurnberg [sic.] defense.'').

1-5 Military Crimes and Defenses ? 5.4

Military Crimes and Defenses
 
Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

Chapter 5 MILITARY-SPECIFIC OFFENSES: ARTICLES 83 TO 117

1-5 Military Crimes and Defenses ? 5.4

? 5.4 Article 85 -- Desertion

[4] Defenses to a Desertion Charge

b] Intent to Desert
 
Desertion is a specific intent crime.41 When determining whether or not specific intent exists, the court will not focus on the reason for the desertion,42 but will instead look to a variety of factors.43 Intent is often established through the use of circumstantial evidence and the particular facts and circumstances of the individual case will matter greatly when proving intent. Factors that other courts have relied upon include the length of absence, the actions and statements of the accused, and the method of termination of the absence (i.e. was the desertion terminated by apprehension or by voluntary surrender).44 It is important to note, however, that the totality of the circumstances may be sufficient to negate the specific intent to remain away permanently.45 When determining whether or not the intent to remain away permanently exists, it is not necessary for the government to prove that the intent coincided with the accused's departure. It is merely necessary to show that a person must have had, either at the inception of the absence or at some time during the absence, the intent to remain away permanently.46 When determining how to charge the absence, trial counsel must remember that the main difference between absent without leave and desertion is the type of intent required to commit the offense; otherwise they are similar in most respects.47 AWOL is considered a lesser included offense of desertion.48 The nature of desertion also requires that attempts to desert be charged under Article 85 instead of Article 80.49

 41. United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956) .

 42. United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995) (evidence of an accused's motive to quit her unit as gesture of protest because of moral or ethical reservations that the unit might commit war crimes was irrelevant to charge of desertion with intent to avoid hazardous duty or shirk important service); United States v. Gonzalez, 39 M.J. 742 (N-M.C.M.R. 1994) , aff'd, 42 M.J. 469 (C.A.A.F. 1995) (having ''an understandable or laudable motive'' to desert is not a defense if the evidence sufficiently establishes the elements of desertion).

 43. United States v. Balagtas, 48 C.M.R. 339 (N.C.M.R. 1973) (evidence of a two-year absence in vicinity of assigned unit, termination by apprehension, and a previous absence, despite retention of an identification card, was sufficient to show an intent to desert).

 44. MCM, Part IV, para. 9c(1)(c)(iii). United States v. Care, 40 C.M.R. 247 (C.M.A. 1969) (length of the absence alone is insufficient to establish an intent to desert; however, in combination with other circumstantial evidence, it may be sufficient); United States v. Mackey, 46 C.M.R. 754 (N.C.M.R. 1972) (evidence of a 26-month absence while the accused was on orders for a war zone and where he was apprehended a long distance from his unit was sufficient to establish intent to desert).

 45. United States v. Logan, 18 M.J. 606 (A.F.C.M.R. 1984) .

 46. MCM, Part IV, para. 9c(1)(c)(i).

 47. United States v. Horner, 32 M.J. 576 (C.G.C.M.R. 1991) .

 48. MCM, Part IV, para. 9d.

 49. MCM, Part IV, para. 4c(6)(a).

1-2 Military Criminal Justice: Practice and Procedure ? 2-4

Military Criminal Justice: Practice and Procedure
 
Copyright 2008, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

CHAPTER 2 AN INTRODUCTION TO MILITARY OFFENSES

1-2 Military Criminal Justice: Practice and Procedure ? 2-4

? 2-4 Disobedience Offenses.

 63. See United States v. Rockwood, 52 M.J. 98 (1999) (court noted that there is no MCM provision specifically addressing the defense of ''necessity;'' nonetheless, military judge gave instruction to members on the defense, recognizing that traditional duress instruction did not apply).; United States v. Huet-Vaughn, 43 M.J. 105, 114 (1995) (discussion of defense of necessity). See generally, Milhizer, ''Necessity and the Military Justice System: A Proposed Special Defense,'' 121 Mil. L. Rev. 95 (1988).

 

1-IV Military Rules of Evidence Manual ? 401.04

Military Rules of Evidence Manual
 
Copyright 2008, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

CHAPTER IV SECTION IV. RELEVANCY AND ITS LIMITS

1-IV Military Rules of Evidence Manual ? 401.04

? 401.04 Annotated Cases


[3] Relevance -- Defense Evidence.
 
United States Court of Appeals for the Armed Forces
 
United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995) : The accused refused deployment to Desert Shield and was convicted of desertion with intent to avoid hazardous duty, and shirking. The Court of Criminal Appeals set aside the findings and sentence because the military judge had improperly restricted the accused from presenting evidence concerning her motives for leaving. The U.S. Army Judge Advocate General then certified the case to the U.S. Court of Appeals for the Armed Forces, which set aside the lower court's holding, finding that the accused's motives and political motivations for desertion were irrelevant and properly excluded by the trial judge.


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