Garcia-Mir v. Meese (11 th Cir. 1986) Many of the Mariel ... 69.pdf · Garcia-Mir v. Meese (11 th Cir. 1986) Many of the Mariel Cuban refugees had been kept for many years in the

Garcia-Mir v. Meese (11 th Cir. 1986) Many of the Mariel Cuban refugees had

been kept for many years in the Atlanta Penitentiary for many years, without formal charges or hearings.

Congress had not acted on one group of these refugees.

The Attorney General stated that they should remain in prison indefinitely pending efforts to deport them.

Is this decision inconsistent with customary international law?

If so, which governs?

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

State v. Marley, 54 Hawai'i 450, 509 P.2d 1095 (1973) The trial court gave the following

instruction to the jury: "Article VI of the Constitution ofthe·United

States provides that the Constitution and Laws of the United States and all Treaties made under the authority of the United States shall be the Supreme Law of the Land.

"The United States has entered into treaties which prohibit as war crimes the use of weapons which cause unnecessary and indiscriminate injuries or death to noncombatant civilians, whether done by persons singly or in cooperation with others.

"Y ou are further instructed that under law, an individual citizen or citizens may use reasonable means to prevent, or seek the prevention, of the commission of a crime only if such crime is being committed, or is about to be committed in such citizen's or citizens' presence. "


State v. Marie)" 54 Hawai'i 450, 509 P.2d 1095 (1973)

Defendants asserted the necessity defense (or choice-of-evils defense) - i.e., that a crime is justifi~d if the hann resulting from complying with the law significantly exceeds the hann resulting from violating the law.

They also argued the Nuremburg defense -i. e, that their failure to stop the allegedly criminal acts of Honeywell would render them liable under u.s. treaty law and customary intemationallaw to prosecution under the Nuremburg principles.


State v. Marley, 54 Hawai'i 450, 509 P.2d 1095 (1973)

Eight citizens went to the Honolulu office of the Honeywell Corporation on May 14, 1971, and remained there for three hours, reading a statement concerning the corporation's participation in the Vietnam war and attempting to establish a "sanctuary" for an AWOL sailor (Robert L. Marley).

After they refused to leave, the police were called, and they were arrested and charged with trespass.

'.

Honeywell was a major defense contractor and manufactured "anti-personnel" bombs (but not in Honolulu, where the office focused on Honeywell's computer operations).


State v. Marle~, 54 Hawai'i 450, 509 P.2d 1095 (1973)

Defendants argued that this instruction was inadequate because

( a) it fails to state that treaty law and customary international law take precedence over Hawai' i state statutes, and

(b) it incorrectly says that crimes (i.e., war crimes) must be committed in the "presence" of the defendants.

The Court rejected that claim, asserting that "'international law' takes precedence over state statutes in only limited situations" - i.e., only pursuant to self-executing treaties.

True or false?



Eight citizens went to the Honolulu office of the Honeywell Corporation on May 14, 1971, and remained there for three hours, reading a statement concerning the corporation's participation in the Vietnam war and atten1pting to establish a "sanctuary" for an AWOL sailor (Robert L. Marley).

After they refused to leave, the police were called, and they were arrested and charged with trespass.

Honeywell was a major defense contractor and n1anufactured "anti-personnel" bon1bs (but not in Honolulu, where the office focused on Honeywell's computer operations).



Defendants asserted the necessity defense (or choice-of-evils defense) - i.e., that a crinle is justified if the harm resulting from complying with the law significantly exceeds the haml resulting fronl violating the law.

They also argued the Nuremburg defense -i. e, that their failure to stop the allegedly criminal acts of Honeywell would render thenl liable under U.S. treaty law and custonlary intenlational law to prosecution under the Nurenlburg principles.


State v. Marley, 54 Hawai'i 450, 509 P.2d 1095 (1973) The trial court gave the following

instruction to the jury: "Article VI of the Constitution of the United

States provides that the Constitution and Laws of the United States and all Treaties nlade under the authority of the United States shall be the Suprenle Law of the Land.

"The United States has entered into treaties which rohibit as war crimes the use of wea ons which cause unnecessary and indiscriminate injuries or death to noncombatant civilians, whether done by persons singly or in cooperation with others.

"You are further instructed that under law, an individual citizen or citizens may use reasonable means to prevent, or seek the prevention, of the comnlission of a crime only if such crime is being conlnlitted, or is about to be conlmitted in suc citizen's or citizens' presence."



Defendants argued that this instruction was inadequate because

(a) it fails to state that treaty law and customary international law take precedence over Hawai' i state statutes, and

(b) it incorrectly says that crimes (i.e., war crimes) must be committed in the "presence" of the defendants.

The Court rej ected that clain1, asserting that " ' international law' takes precedence over state statutes in only lin1ited situations" - i.e. , only pursuant to self-executing treaties.

True or false?


United States v. Arjona (1887)

Does Congress have the constitutional power to declare counterfeiting foreign money "an offence against the law of nations."

Is counterfeiting inherently an internationallaw concern?


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rc@li~f pJi9~v,~aiii., tDht~ £,m~ of HilW,f3i' i :i\<Ylftill

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n,~{~~'g)plit~ &l~ a W{Qiti~QB ift Li.~~j l.~ ~KQllU!'e Pii~~iiffs' iftu~fflr~iQlilr~l ... liW ~~-Jl,~ri~, a("jM!~J.q~ bh~t iOOht _1iiB~BY l,s ifiR@ol~vMt 8~Ciill~S~ :

"~Ift~flOlr~~jxQ;N!tllll~w ~k~s J!lR~.Q.~j~m§.~ @)¥,~r

~mi~ l~w 1a Q.[Olwly liu.i~d ~~m~ii\Q&s ~~~h i~ W.~f~ a sl~lf~~~~.~~~iit~ ~li~~~Y is ~ft~~rf\~d i~tlo \>.y t«~ UBui~~d Sl~~~." (Citmg Starte v. M€/J~l~:y (1~J/'3))


United States v. Smith (1820) Is Congress required to define its terms

when it makes something criminal, or can it refer to the "law of nations" or "international law"?

Does it matter that international law is always evolving?

Does the Congressional statute put people on notice of what conduct is prohibited?

How does Justice Story determine what the law of nations is?

"What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law." (Emphasis added.)

And he also examines the common law (Blackstone ).

His conclusion is that "piracy" is "robbery upon the sea. "

Persuasive?


United States v. Smith (1820)

Thonlas Smith nlutinied against his officer, seized another private armed vessel called The Irresistible, and then proceeded to plunder and rob a Spanish vessel in April 1819.

[Spain was at war with its South American colonies during this time.]

He was prosecuted for piracy in the Circuit Court of Virginia. The jury returned a special verdict saying he committed the plunder and robbery, and if "plunder and robbery" constitutes "piracy" then he is guilty of piracy; but if it does not, he is not.


Garcia-Mir v. Meese (11 th Cir. 1986)

* "The public law of nations was long ago incorporated into the common law of the United States."

* "To the extent possible, courts must construe American Law so as to avoid violating principles of public international law."

* "But public international law is controlling only 'where there is no treaty and no controlling executive or legislative act or judicial decision. '"

True or false?


Garcia-Mir v. Meese (11 th Cir. 1986) ,., Many of the Mariel Cuban refugees had

been kept for n1any years in the Atlanta Penitentiary for many years, without formal charges or hearings.

Congress had not acted on one group of these refugees.

The Attorney General stated that they should remain in prison indefinitely pending efforts to deport then1.

Is this decision inconsistent with customary international law?

If so, which governs?


Garcia-Mir v. Meese (11 th Cir. 1986)

Should the Executive Branch be able to decree that the United States should act in violation of international law ?

What is a "controlling executive or legislative act"?

Are federal courts bound by such a decree?

If federal courts are not bound by legislative enactments altering the substantive content of constitutional provisions (Boerne), why should they be bound by legislative or executive enactments altering the substantive content of international law ?

Does it matter what "level" within the Executive Branch issues the decree?


Documents

Garcia-Mir v. Meese (11 th Cir. 1986) Many of the Mariel ... 69.pdf · Garcia-Mir v. Meese (11 th Cir. 1986) Many of the Mariel Cuban refugees had been kept for many years in the