Mitchell v. United States
The Supreme Court declined to hear the appeal of a man convicted for refusing to report for military induction, who had argued that the Vietnam War violated an international treaty against wars of aggression.
Justice Douglas dissented, arguing the case raised serious, unresolved questions about whether treaty obligations could excuse someone from following a military order, and that the Court should have taken it up.
How it got here: A man convicted of refusing military induction had his conviction affirmed by the Second Circuit; he asked the Supreme Court to review the case, which denied review.
The Case in Depth
What happened
A man who refused to report for induction into the military was indicted, convicted, and sentenced to five years in prison; a federal appeals court affirmed. He argued at trial that the Vietnam War was an illegal war of aggression under a 1945 treaty signed after World War II, and that following orders to fight in it should not shield him from responsibility.
The question before the Court
Should the Court have heard a draft resister's argument that the Vietnam War violated a treaty banning wars of aggression?
Why it matters
The decision left standing a five-year prison sentence for draft evasion and meant the Supreme Court would not address, in this case, whether individuals could invoke international treaties against aggressive war as a defense against military service obligations during the Vietnam era.
What changes now
Because certiorari was denied, the lower court's conviction and five-year sentence stand, and the Supreme Court did not resolve the questions Douglas raised. This is a final procedural disposition ending this particular case; the broader legal questions about treaty defenses to Vietnam-era draft prosecutions remained unresolved and could arise again in future cases.
What this does not decide
The denial of certiorari is not a ruling on the merits of whether the Vietnam War violated the Treaty of London, whether such treaties can be raised as a defense in a criminal prosecution, or whether the defendant had standing to raise the issue at all.
Concurrences and dissents
How the Justices voted
Dissent (1). Justice Douglas (author).
Dissent — Justice Douglas
“If certain acts in violation of treaties are crimes, - they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”Douglas quotes Nuremberg prosecutor Robert Jackson on applying the same legal standards to one's own country.
Justice Douglas argued the Court should have granted certiorari to address whether the Treaty of London, which criminalizes wars of aggression, could be invoked as a defense or mitigation by someone refusing induction into the Vietnam War. He listed five specific unresolved legal questions, including whether the treaty qualifies as binding law, whether the war's legality is a question courts can even decide, and whether the man had standing to raise it. He expressed no opinion on how these questions should be answered but said they deserved review. Read the full dissent →
How the Court got there
The legal reasoning, step by step
- The majority order simply denied review without explanation, meaning no reasoning from the Court is available beyond the one-line disposition.
- Justice Douglas, dissenting from the denial, argued the case presented several unresolved legal questions: whether the treaty counted as binding law under the Constitution's clause making treaties part of 'the supreme Law of the Land,' and whether courts could even decide if a conflict qualifies as a 'war of aggression.'
- Douglas noted the treaty's Article 8 states that following a superior's orders does not automatically excuse someone from responsibility for participating in an aggressive war, though it may lessen punishment.
- Douglas argued these were serious enough questions — about whether the war qualified as aggressive, whether the man had the right to raise this argument, and whether the treaty could serve as a defense or reduce his sentence — that the Court should have granted review to resolve them, without stating how they should come out.