Saturday
Institutional Competence
We read a case (United States v. Schoon) the other day where a group of protesters were tried with vandalism and other offenses for going into an IRS office, throwing fake blood on the walls, and interfering with their ability of the office to function. They attempted to use a necessity defense, arguing that United States military operations in El Salvador, which they were protesting against, was a greater evil and that their actions were therefore justified. The necessity defense works by saying that a lesser evil (the crime which the defendant is tried with) is necessary to avoid a greater one. For instance, prisoners have successfully used the necessity defense for a prison escape when they were threatened with being raped or killed (after having previously been raped at least once) by other prisoners and escaped to prevent it, provided that they report to the authorities once they have reached safety (or claim during trial that they were planning on reporting into the police).
The 9th Circuit goes through some rather complex reasoning to explain why the necessity defense isn't usable in indirect civil disobedience cases, and is rather persuasive. But I thought they could have dealt with it far more easily simply by holding that Courts don't have the institutional competence to think of the United States foreign policy, as an evil, if it is one. It seems to me that particular thought should be non-cognizable by United States courts. Whether or not the court thinks a particular foreign policy is wise or is, in reality, evil, I don't see how it can hold that foreign policy originating from the same government it is a part of is an evil which can be balanced against.
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The 9th Circuit goes through some rather complex reasoning to explain why the necessity defense isn't usable in indirect civil disobedience cases, and is rather persuasive. But I thought they could have dealt with it far more easily simply by holding that Courts don't have the institutional competence to think of the United States foreign policy, as an evil, if it is one. It seems to me that particular thought should be non-cognizable by United States courts. Whether or not the court thinks a particular foreign policy is wise or is, in reality, evil, I don't see how it can hold that foreign policy originating from the same government it is a part of is an evil which can be balanced against.
