2 Priests, 2 Grandmothers and a Nun Go to the Ninth Circuit...

The fact pattern in a recent Ninth Circuit Court of Appeals opinion sounds more like a bad joke than an appellate case.

In an act of symbolic protest against nuclear weapons, two priests, two grandmothers, and an 81-year-old nun cut their way through two fences and into a secure area of United States Naval Base Kitsap-Bangor. The group spread fake blood on base fences and unfurled a protest banner. They were detained, prosecuted, and convicted of conspiracy to trespass, to destroy property within the special territorial jurisdiction of the United States, and to injure property.

The unlikely band of trouble-makers appealed to the Ninth Circuit, challenging the district court's refusal to dismiss the indictment.

The appellants argued that the 1907 Hague Convention Respecting the Laws and Customs of War on Land and its Annex, (that's a mouthful, so we'll call it the Hague Convention), supersedes or abrogates the statutes under which they were charged, and that the district erred should have instructed the jury on their international law defense.

The U.S. ratified the Hague Convention in 1909. The Convention prohibits the "attack or bombardment" of "undefended" towns and "especially forbids" the "employment of arms, projectiles, or material calculated to cause unnecessary suffering." The appellants claim that the Hague Convention conflicts with the United States laws prohibiting the destruction of government property, at least when the government uses that property to protect nuclear weapons.

The Ninth Circuit Court of Appeals held that the protesters didn't understand the hierarchy of law.

If an international treaty conflicts with a federal law, the more recent of the two controls. Here, the U.S. adopted the Hague Convention more than 20 years before it adopted the statutes used to prosecute the appellants, so the statutes supersede the treaty.

Furthermore, there was no evidence that the Hague Convention was self-executing, so the protesters lost on every possible argument.

We love creative defenses, but we prefer winning defenses. If the Ninth Circuit Court of Appeals doesn't recognize the Hague Convention as a defense to a questionable nuclear weapon protest, we doubt that other courts will be more receptive to the idea.

Related Resources:

• U.S. v. Kelly (Ninth Circuit Court of Appeals)
• Convictions of Protesting Priests, Nun, Grandmothers Upheld (The Wall Street Journal)
• Ninth Circuit Saves Distracted Workers from Federal Prosecution (FindLaw's Ninth Circuit Blog)