Defense (law)

“ In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment.” The thrust of these holdings is that even in war, limits to the use and extent of force apply.
g. Necessity (U) Another common law affirmative defense is one of necessity. This defense is recognized by a number of states and is applicable when: 1) the harm must be committed under the pressure of physical or natural force, rather than human force ”

“ On the other hand, it may with equal safety be laid down as a general rule that a defense cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that court that the defense ought to have been sustained at law. ”

“ My judgment is that we shall need courts, police, armies, navies—the embodiment of force, just so long as on the part of individuals and groups of individuals and communities and nations there is a disposition to resort to acts of injustice, to violate law, to gratify the disposition in man to make aggression upon his fellow-men. ”

“ Use of force in military law enforcement is authorized for (1) self-defense and defense of others against a hostile person when in imminent danger of death or serious bodily harm by the hostile person; (2) to prevent the actual theft or or sabotage of assets vital to national security; (3) to prevent the actual theft or sabotage of resources that are inherently dangerous to others; (4) to prevent the commission of a serious crime that invovles imminent danger of death or serious bodily harm ”

“ The great Napoleon, who will yet be recognized as a greater statesman than he was warrior, once said, "Your laws are mere nullities without the force necessary to make them respected." Law implies penalty; penalty implies force; force, in the last analysis of it, means armies and navies, and there is no escaping the conclusion. ”

“ If every man has the right of defending, even by force, his person, his liberty, and his property, a number of men have the right to combine together to extend, to organize a common force to provide regularly for this defense. ”

“ No inhabitant of the Nation shall suffer punishment without a previous judgment founded on a law passed previously to the cause of judgment, nor be judged by special commissions, or withdrawn from the Judges designated by law before the opening of the cause. No one shall be obliged to testify against himself; nor be arrested, save by virtue of a written order from a competent authority. The defense at law both of the person and his rights, is inviolable. ”

“ But matters of possible defense, which accrue under provisions of positive law, which are arbitrary and technical, introduced for public convenience or from motives of policy, which do not affect the substance of the accusation or defense, and form no part of the res gestae, are continually subject to the legislative will, unless, in the mean time, by an actual application to the particular case, the legal condition of the accused has been actually changed. ”

“ Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. ”

“ Military law, in this respect, has more latitude, and is more congenial, than civil law covering minor offenders. Rarely arbitrary in its workings, it premises the use of corrective good judgment at all times. It regards force as an instrument only to be used for conserving the general good of the establishment. ”

“ Reported cases, in great numbers and of high authority, support the proposition that a military officer, except when war is flagrant or when the courts are silenced by the exigencies of military rule or martial law, is subject to judicial process for the abuse of his authority or for wrongful acts done outside of his military jurisdiction. ”

“ But where a defense is distinctly made, resting on local statutes, we should not, in order to reach a federal question, resort to critical conjecture as to the action of the court in the disposition of such defense. ”

“ But that language was removed and the present provision inserted: the action upon proper request shall be stayed unless in the opinion of the trial judge, 'the ability of * * * the defendant to conduct his defense' is affected by military service. The difference between ability to pay a judgment, and ability to conduct a defense is so great that the two clauses have substantially nothing in common. ”

“ Every offence which can be tried in a court must be tried there, and an offence which cannot be tried in a court, and is purely military, may be left to the army. An offence which is both an offence against the laws of war and a crime triable in court should go to the court, for the command of the constitution is express in this respect and the right of trial by the laws of war is, at best, only implied. Neither the law of nations nor the laws of war can be allowed to overcome, within our own territory, the express words of the constitution. ”

“ But who is to judge where and when the power of the enemy has been so broken as that, with safety to the whole cause, the people and property once subject to hostile control may be released from the law of war, and restored to their rights under the Government? ”

“ But the difficulties it was desired to surmount are in part rooted in the problem, and no rules laid down by any legislator will ever fully eliminate them. For even if unambiguous criteria existed, who among fallible mankind would have the authority to give a decision in case of dispute? We do not even possess unambiguous criteria for aggression and defense. [19] This holds good both for the so-called political concept, which is in a way natural, and for the legal concept or concepts of aggression and defense. ”

“ Whichsoever of these positions be true, the defence set up on behalf of the respondent is false. What have you seen? A man condemned to death, unheard, by a prejudiced jury and an unrighteous judge, thirsting for his blood; the Executive demanding to hear that defence, to which the Court would not listen, and extending the arm of its protection to snatch the victim from the oppressor’s [276] grasp. And will you now turn this man loose upon society, armed with the terrors of the law and secure in impunity, to perpetrate similar offences? ”

“ Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to 'keep and bear arms,' and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same. ”

“ Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. ”

“ Be it henceforth known that—all persons armed, or commanding or acting with men in arms, or aiding and assisting any body of armed men in the support or defence of any persons assuming or pretending to authority as chieftains, or attempting to alter the Constitution by force—are hereby subject to military jurisdiction and shall be tried by military law accordingly. ”

“ If the right to defend the national government can be raised as a defense in an individual prosecution as Neagle suggests, then a government defendant, acting in his official capacity, should be able to argue that any conduct that arguably violated a criminal prohibition was undertaken pursuant to more than just individual self-defense or defense of another. ”

“ If anything, the confrontation guarantee may be thought, along with the right to compulsory process, merely to constitutionalize the right to a defense as we know it, a right not always enjoyed by the accused, whose only defense prior to the late 17th century was to argue that the prosecution had not completely proved its case. [9] See H. Stephen, 'The Trial of Sir Walter Raleigh,' Transactions of the Royal Historical Society 172, 184 (4th ser. Vol. 2, 1919) ; F. Heller, The Sixth Amendment 106-107 (1951) . ”

“ Nor can Congress infringe the right of the people to keep and bear arms, or violate their right to be secure in their persons, houses, papers, and effects, or pass any law holding a person to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in the actual service of the United States in time of war, or public danger ”

“ Acts done with intent to assist the enemy. 4. If with intent to assist the enemy any person does any act which is likely to assist the enemy or to prejudice the public safety, the defence of Canada, or the efficient prosecution of the war, then, without prejudice to the law relating to treason or the provisions of section three of this Act, he shall be guilty of an indictable offence and shall on conviction be liable to imprisonment for life.
Prosecution, trial and punishment of offences. ”

“ It appears not, and the reason is, that the right to make the defense is not only a private right to the individual, but it is founded on public policy, which is promoted by his making the defense, and contravened by his refusal to amke it. ”

“ Whatever role an ad hoc judicial approach may have in some areas of the law, the Congress and the military are at least entitled to know with some certainty the allowable scope of court-martial jurisdiction. ”

“ In the event of war, the King can call out the Landsturm in accordance with the law. Article 36. The armed force (of the nation) can only be employed for the suppression of internal troubles, and the execution of the laws, in the cases and manner specified by statute, and on the requisition of the civil authorities. In the latter respect exceptions will have to be determined by law. Article 37. The military judiciary of the army is restricted to penal matters, and will be regulated by law. Provisions with regard to military discipline will remain the subject of special ordinances. ”

“ Interrogator explained how courts will provide leniency if the guilty confesses and makes restitution, and also if the guilty helps to prevent other
crimes. The detainee tried to explain away the circumstantial evidence and the interrogator said that there was more information against him. The detainee appeared deflated but moments later perked up and stated that he was innocent. Interrogator closed with the detainee’s future on earth, punishment under the law, other innocent people being killed, and his status on judgment day. ”

“ Accordingly, the Eighth Amendment has no application here.
II. Federal Criminal Law A. Canons of Construction We discuss below several canons of construction that indicate that ordinary federal criminal statutes do not apply to the properly-authorized interrogation of enemy combatants by the United States Armed Forces during an armed conflict [12] These canons include the avoidance of constitutional difficulties, inapplicability of general criminal statutes to the conduct of the military during war, inapplicability of general statutes to the sovereign, and the specific governs the general. ”

“ Since the Amendments, like § 2 of Article III, do not preclude all trials of offenses against the law of war by military commission without a jury when the offenders are aliens not members of our Armed Forces, it is plain that they present no greater obstacle to the trial in like manner of citizen enemies who have violated the law of war applicable to enemies. ”

“ The duty to defend one's country exists independently of any law, and the latter is made to enforce, not create, the obligation. By the law, or the unwise administration of it, a man may be exempted from enforced service, but he cannot be released from the sacred duty of defending his country against invasion. ”

“ The constitution says that no man may be tried and punished except by a jury and due process of law. If the courts are open, and opportunity given for jury trial and due process of law, the constitution must be obeyed, and it is absurd to say that martial law may exist. ”

“ The principles valid in criminal procedure in all countries allow every defendant before the court certain rights. The most important principles are the principle of direct oral proceedings and the right to defense and to a legal hearing. Since, according to my statements, the real defendants are the members of the organizations, these rights must be accorded to every member of the organization. ”

“ The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war. ”

“ A man may repel force by force in the defense of his person, habitation, or property, against one or many who manifestly intend and endeavor by violence or surprise to commit a known felony on either. ”

“ Judicial force is regulated by law, while the force of arms is usually exempt from such control. Justice is according to law; war is according to the good pleasure of those by whom it is carried on. Inter arma leges silent is a maxim which is substantially, though not wholly, true. The civil law has little to say as to the exercise by the state of its military functions. ”