Sunday, October 29, 2006

Reinstate the Draft!: America's youth must serve their country, one way or another - Sieg Heil!

Note: This article was first published on September 09, 2006 here at as a response to Edward Bernard Glick's article calling for a draft for domestic 'civilian" service, as well as for military duty. Keep your eye on this totalitarian idea of "national service" - it is not going away anytime soon.

This is where the Far Right truly raps around to meet the Far Left in total agreement that you and your children are merely resources to be exploited by the State. Several prominent Democrats have called for a draft as a tool of "equality" (apparently, equal slavery is fine, so long as it is truly equal, and color-blind) and of course, most right wingers reflexively support a draft as being the epitome of patriotism.
Stewart Rhodes

Reinstate the draft! So says Edward Bernard Glick in his commentary published by the Christian Science Monitor on September 5th:
A draft would do more than just harness the energy and idealism of the nation's youth to meet the military's unmet personnel needs. It would also tap more of the resources of the nation's women, heeding their demands for more gender equality by making their obligations more consonant with their rights....
• All able-bodied and able-minded 18-year-old men and women should have their names placed in a lottery. Depending on how many soldiers are needed - typically just a few thousand each year - a modest percentage would be drafted.
• Then, the names of all those who didn't get drafted should be placed into a lottery for nonmilitary service in city or suburban slums, rural areas, native Americans reservations, or other poverty-stricken places.
Mr. Glick, where are we? Ancient Sparta? The USSR? Nazi Germany or the ant hills of Maoist China? What is happening to this nation? Where has the land of the free gone?

Where in our Constitution was Congress, or any part of the national government, given the power to use our children as literal national resources, for military or domestic "service?" The answer is no where.

The closest thing to a draft power in the Constitution is the power “To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions” but even that is not a power to forcefully induct people into a standing army. The militia were state military forces, made up of the people of each state, under officers of their own choosing, and they would fight as such, and here at home, not abroad, for the limited purpose of enforcing the laws of the union (which were very few) suppressing rebellions and repelling invasions.

The Founders had a well-justified fear of standing armies, and the thought of such involuntary servitude into a national army never crossed their minds. No, not even the US Supreme Court has had the audacity to claim that the militia clause granted such power. The high priests on the Court knew that such would be an incredible claim, easily refuted. Instead, the Court has relied on the nebulous power of Congress to raise and support an army (while sidestepping the Thirteenth Amendment’s overt prohibition of involuntary servitude).

In Arver v. U.S., 245 U.S. 366 (1918), the Court upheld the draft during World War I by relying on the Article 1, Section 8 powers of Congress “to raise and support armies,” and then stated that:

And of course the powers conferred by these provisions like all other powers given carry with them as provided by the Constitution the authority 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.' Article 1, 8."
Ah, Alexander Hamiliton’s favorite catch all statist loophole strikes again!

The Court then dismissed any objection to this “reasoning” thusly:
As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice.
As for the Thirteenth Amendment’s prohibitions on slavery and involuntary servitude, the Court said:
Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.
But the power to raise and support armies was originally only the power to spend money to raise and support an army, to pay people to serve in a standing army if they so chose, just as in the American Revolution, and the people could choose to not serve, walking away, just like in the American Revolution. Why was it that Thomas Paine had to write "These are the times that try men's souls" in "The Crisis"?

Because he had to convince the men in the Continental Army to renew their enlistment contracts. He, and General Washington, who had the first installment of The Crisis read aloud to the troops, had to persuade them, with appeals to their love of liberty, and of country, to stay of their own volition to fight. To their credit, and earning our everlasting gratitude, the vast majority of them were so moved by Paine's words that they stayed and fought, and many of them bled and died for liberty. But what have we done with the liberty they sacrificed so much to win for us?

One of the causes of our rebellion against the Crown had been impressment of Americans into the Royal Navy. And that same practice was later one of the grievances that led to the war of 1812. If Washington had been of such low character, such ignorance of what he was fighting for (he was not) and had even dared to attempt such impressment, such enslavement of the American people into national service during their revolution for liberty, he would have been tarred and feathered and run out on a rail, just like all of the other usurpers of the day.

But now the principles of liberty that sparked and sustained the American Revolution have been turned on their heads in truly Orwellian fashion. Now patriotism is defined not as the willingness to voluntarily fight and die for liberty, but its exact opposite: the support of institutionalized slavery of forced impressment into standing armies to fight abroad whether you agree with the justness of the cause or not, and now, according to this man, also collective forced labor schemes at home.

Just how is it that domestic national service can even be argued to be under the claimed power to draft an army under the Article 1 power to raise an army? This is what happens with all such unfounded claims of power – they expand to encompass more and more until the government is totally free to act in any and all ways upon us it wishes to and we are totally subject to that unlimited power. No doubt the well connected will be able to ensure that the better looking eighteen year old domestic “servants” have to “serve” directly under them, just as Chairman Mao had a steady stream of young girls “serving” China directly under him whenever he needed a break from running the forced labor farms that killed millions.

In the face of such claims that our government may do with us as it pleases in the national intest, as if we were cattle, we would do well to recall just what it was that Thomas Paine said in "The Crisis":
THESE are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated. Britain, with an army to enforce her tyranny, has declared that she has a right (not only to TAX) but "to BIND us in ALL CASES WHATSOEVER" and if being bound in that manner, is not slavery, then is there not such a thing as slavery upon earth. Even the expression is impious; for so unlimited a power can belong only to God (emphasis in original).
We now have over us a government, with its little minions and cheerleaders of both major parties, that, much like Britain at the time of the Revolution, thinks it can BIND us in ALL CASES WHATSOEVER (and for ALL PURPOSES WHATSOEVER). I agree with Paine that if being bound in this manner is not slavery, then there is not such a thing as slavery upon earth, and such unlimited power can belong only to God. And our government is not God.

Nor is it our master. We are not, yet, slaves. And if we are to remain free, we need to resolve ourselves to be as resolute as our forefathers in resisting this new creeping tyranny, which like hell, is not easily conquered. We have an advantage over the peasants of Russia, China, and Cambodia. While they had no example of liberty to follow, we do. Let us do as the Founding generation did when their own government claimed unlimited power over their lives, liberty, and property.

Stewart Rhodes
deas. They pose a grave threat to our constitutional republic. Stewart Rhodes.

Rendori Brutalitas a Vaci utcaban

Police brutality in Budapest. Found this video on James Bovard's blog.

Saturday, October 28, 2006

Government Supremacists: Neocons, the National Security New Dealers

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Note: this article was originally published on March 6, 2006 here at
However, I think it still explains what is happening to our country right now. The assault on our Constitution and Bill of Rights has been a sustained and relentless attack over many years by fake "conservatives" and their Democratic fake opponents. Recent events, such as the enactment of the Military Commissions Act, are merely more of the same. - Stewart Rhodes
Dana Milbank's recent article "A War of Words: 'Declare' vs. 'Make' and Its Allies" correctly points out how John Yoo and the rest of the neo-conservative cabal, masquerading as originalists, are engaged in a thinly veiled rewriting of our Constitution to turn Congress into a mere debating society and, at most, a rubber stamp.
But like most such commentators and like all of the post 9/11 federal court decisions, Milbank ignores the full scope of the pending destruction of our liberty by acting as if the only constitutional principle that is in danger is the separation of powers. From the Padilla and Hamdi cases (U.S. citizens declared enemy combatants) right down to the NSA spying controversy, the mainstream political and legal talking heads only debate whether Congress needs to give its approval before the president can act in these ways, and then whether Congress has given that approval.
While separation of powers is certainly important, our form of government is foremost one of limited and enumerated powers. That fact is further enforced by an expressed Bill of Rights that both clarifies the limited nature of our federal government (through the Ninth and Tenth Amendments), and serves as a final shield to our lives, liberty, and property through its clear procedural protections. And it is that principle of limited powers and our Bill of Rights that is now on the execution block with the so-called opposition on the left acting as accomplices, since they only insist on their preference for a role for Congress and the courts in an otherwise totally unrestrained "wartime" federal government.
The Government Supremacists
The first step toward wisdom is to call something by its rightful name. Men such as John Yoo, Jay Bybee, Viet Dinh, and the other Bush legal theorists are not just executive supremacists who think that the president, as commander in chief, is unrestrained by Congress or the courts. They are, in fact, government supremacists who believe that our federal government (in whole or in part) when it claims to act in wartime, is entirely free of the restraints of the Bill of Rights, or of any of the other constraints within the main text of the Constitution, since those are "peacetime provisions only" and simply do not apply to the war on terror, because America is a battlefield and our government can treat us, the American people, precisely the same as it treats enemy aliens on a foreign battlefield. This underlying premise that U.S. citizens can be the "enemy" in wartime is the fundamental legal doctrine behind the detention of citizens as enemy combatants and the claimed power of the president to spy on the American people without a warrant.
A Dime's Bit of Difference?
The left and right differ only on what part of the federal government gets to decide when we are stripped of our constitutional protections. Certainly, many liberals disagree about particular policies, such as some of the provisions of the Patriot Act, the invasion of Iraq, rendition for torture, and the manner of confinement and treatment at abu Ghraib and Guantanamo. But we are concerned here with the constitutional law claim that we the people can be treated like the enemy at all. The right insists the president can do it entirely on his own, while the left insists that he must have the blessings of Congress and/or the courts before he spies on us, interns us in military brigs or concentration camps, tortures us for information (or renders us to a foreign nation to do that) or have us tried by a hand-picked military tribunal in a show trial before having us shot (if we get a trial).
In the Hamdi decision, the Supreme Court agreed with the government and the opposition by ruling that, once accused of being an enemy combatant (terrorist), a citizen has none of the expressed protections of the Bill of Rights, such as a right to an indictment, to a jury trial with the presumption of innocence, to confront one's accusers, or the prohibition against compelled self incrimination (torture). But after finding that Congress has authorized such detention of citizens, the court then created a role for judges in this new system where the judges will "balance" our liberty against national security and grant us whatever minimal procedural protections they deem proper and expedient as the war on terror evolves (but never a trial by jury, and no presumption of innocence, of course).
With the federal government now nearly totally unrestrained by the Constitution, so long as it evokes national security, all that separates us from becoming the next addition to history's totalitarian parade of horrors is a matter of degree defined by whatever political checks remain (until a future catastrophic terrorist attack) with no other peaceful method left to us to bind down our own government, since the chains of the Constitution Jefferson urged us to use will have been destroyed. Our nation is perilously close to becoming a democratic dictatorship where, as Alexis de Tocqueville warned, we may delude ourselves into believing we are free because from time to time we chose our otherwise unrestrained rulers. All other constraints on government power, save voting, will have been wiped away.
The Neo-Con National Security New Dealers
The neoconservatives have thus done the New Dealers and their heirs one better. Certainly from the time of the New Deal, the federal government has been freed from most of the chains of the Constitution through expansive readings of the power to regulate commerce, the destruction of the non-delegation doctrine, and the resultant de-facto federal police power used against us by un-elected bureaucrats in administrative agencies. The Supreme Court also gutted the Tenth Amendment by declaring it an empty "truism" and nullified the Ninth Amendment by acting as if our rights came from the court rather than from God as the Founders believed. (What the court has the power to grant, it has the power to take away.)
However, the rest of the Bill of Rights remained as clear, written limits on federal power. The court has since chipped away at many of the remaining provisions, such as with the recent Kelo decision which made meaningless the Fifth Amendment takings clause. But the procedural protections that remain are still powerful constraints on government deprivation of life and liberty. Even with the New Deal and all of the assaults on the Bill of Rights since, government must still act according to a law (or at least a regulation), must still get a warrant in most cases, must still secure indictment with clear charges, and must afford us a jury trial with all of its ancient protections of the accused, such as presumption of innocence.
It is these last procedural protections of the Bill of Rights (along with the First and Second Amendments) that the neo-conservative government supremacists now seek to destroy to attain their dream of unrestrained, unlimited "war" power in a loosely defined war on terror; a war that will likely never end. And the loyal opposition only insists on a role for politicians and willful judges in this murder of the Bill of Rights, trusting only in the god of democracy and the high priests on the federal bench to secure our lives and liberty. Our Constitution and our Bill of Rights have been largely abandoned by both the Republicans and the Democrats.
Stewart Rhodes
© 2006

-conservatives, also known as ave threat to our constitutional republic. Stewart Rhodes.

Understanding Enemy Combatant Status and the Military Commissions Act, Part I. Enemy Combatant Status: No More Pernicious Doctrine

Understanding Enemy Combatant Status and the Military Commissions Act, Part I. Enemy Combatant Status: No More Pernicious Doctrine

Note: This article was first published in the Summer 2005 edition of The Warrior, the Journal of Gerry Spence's Trial Lawyers College. This article serves as a short summary of my research and analysis of “enemy combatant status" as it is being used in the so-called war on terrorism. The recent Military Commissions Act is simply codification of this doctrine - of the ongoing violation of the Bill of Rights that both the executive branch and the judiciary have engaged in for years. As discussed in this article, the sell-out of the Bill of Rights, as a matter of modern constitutional law, happened in 2004, with the Supreme Court's Hamdi decision. For a more detailed analysis of the history and case-law that has created this very dangerous legal doctrine, please see my full length research paper, Solving the Puzzle of Enemy Combatant Status, which won the 2004 Yale Law School William E. Miller Prize for best paper on the Bill of Rights. - Stewart Rhodes, U.S. Army Airborne Class of 83’
Introduction: No Greater Threat
No greater threat to our Constitution and our Bill of Rights has ever existed than the current doctrine of “Enemy Combatant Status” (also known as “unlawful combatant” status). This doctrine is like a toxic, poisonous weed that, if not pulled out by the roots, will grow to choke and kill the tree of liberty. It threatens to wipe out our Bill of Rights and plunge us into a nightmare of military supremacy over the civilian power and unchecked executive rule by decree, where the courts, rather than serving as defenders of liberty, are mere willing administrators of a new Kafkaesque system of indefinite military detention and trial. We must fight this doctrine or see our freedoms perish, and with them, the last restraints on the U.S. war machine. To fight it, we must know the facts of its illegitimate birth and silent nurturing at the hands of politicians, generals, government lawyers and complicit judges. We must be willing to acknowledge that Lincoln, FDR, the New Deal Court, and now even the liberals on the current Court have all been willing midwives to this monstrosity. As Patrick Henry said, “Whatever anguish of spirit it may cost, [we must be] willing to know the whole truth, to know the worst, and to provide for it.”
The Hamdi Decision: A Defeat and Deadly Precedent
The 2004 Supreme Court decision in the case of Yasir Hamdi has been touted by many, including the ACLU, human rights organizations, and the mainstream press, as a victory for civil rights, the Constitution, and the rule of law. It is nothing of the sort. While the Hamdi majority paid lip service to limits on the executive in time of war and to “due process,” it joined Bush as a willing accomplice in his current attempt to murder the Bill of Rights.

Apologists for the Court point out that Bush did not get all that he wanted. That is true. Bush wanted absolute and plenary power to designate anyone, citizen or not, an “enemy combatant” and do as he pleased with them – detaining, interrogating, even torturing and executing them if he saw fit - with no judicial interference at all. Instead, the Court insisted that there be some manner of a deferential administrative hearing before Bush got to do as he wished. That is the only difference of any substance.

Rather than insisting that Hamdi, a U.S. citizen, receive all of the protections of the accused which are his due under the Bill of Rights, the Court breathed new life and legitimacy into this destructive doctrine that had lain around unused and nearly forgotten, like a dusty, but still dangerous “loaded weapon,” since the World War II Ex Parte Quirin decision (1942). The Hamdi Court, citing Quirin, stated unequivocally that “[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” According to the majority on the Court, the mere labeling of a person as an “enemy combatant” removes the shield of the Bill of Rights and replaces it with a new judge-created system of minimal administrative process to “challenge” that designation.

Under this system, the accused will have none of the procedural protections of our Bill of Rights: No Grand Jury indictment; no trial by jury with its requirement of a unanimous verdict of twelve of one’s peers; no possibility of an unreviewable acquittal and immunity from further prosecution; and no protection against compelled self incrimination. The presumption of innocence is gone, as is the requirement of a showing of guilt beyond a reasonable doubt. Instead, the government will enjoy a presumption that its allegations are accurate. The accused will have the burden of proving his innocence, but will have no right to compulsory process of witnesses and no right to confront the secret evidence and witnesses against him.

At most, according to the Hamdi majority, “a citizen held in the United States as an enemy combatant [will] be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker” and access to counsel to assist (as best they can) in that hearing. The Court made clear that the definition of “a meaningful opportunity” will have to be fleshed out by subsequent courts, and a military tribunal may qualify as a “neutral decision maker” for that minimal, administrative hearing to determine status. And this is touted as a victory.
How did we get here? As war is the greatest engine of tyranny known to man, it should come as no surprise that like many such usurpations before it, this doctrine of absolute power was born in the fires of war.
The Origin of This Gravest Threat: The Civil War
Until the “war on terrorism” this claimed power of the president to operate outside the Bill of Rights was asserted on only two other occasions in our history: The Civil War and World War II. In the Civil War, the southern states that broke away formed their own nation with a constitution, a legislature, a president, an army, and a navy. They printed their own money, sent and received ambassadors, etc. The North and South exchanged prisoners, followed the laws of war in the treatment of POWs, negotiated cease-fires and conducted a formal surrender at the end. Only in this anomalous situation of a civil war, where a part of the U.S. had broken off, were U.S. citizens from the South treated as foreign enemies for purposes of military jurisdiction. There was no way to avoid that, as all of the southerners were U.S. citizens till they broke away.

However, Lincoln did not just treat the citizens and soldiers of the rebel states as the enemy. During the Civil War, more than 13, 535 Northern civilians were arrested by the military and at least 4,271 of these were tried before military tribunals, with some of them being executed. Typical charges were vague accusations of violating the laws and customs of war. In one such case, a man was found guilty of violations of the laws of war for letting rebels lurk in his neighborhood without reporting them. Others were accused of harboring rebels or engaging in guerilla warfare. This treatment of northern civilians as the enemy is what the Milligan Court ruled unconstitutional after the war.
The Supreme Court Attempts to Kill the Monster in its Infancy
Ex Parte Milligan (1866), is a Supreme Court rarity: a decision on wartime powers issued after the end of a war, with the Court explicitly conscious that it is righting the constitutional ship of state after a storm. The U.S. government had charged Mr. Milligan with “Conspiracy against the Government of the United States;' 'Affording aid and comfort to rebels against the authority of the United States;' 'Inciting Insurrection;' 'Disloyal practices;' and 'Violation of the laws of war.’
The government did not try to argue that Mr. Milligan was in fact a member of the Confederate army or a Southern resident, and acknowledged that the courts in Indiana were at all times open, and yet the government argued that the laws of war still applied to Milligan and that “[a] military commission derives its powers and authority wholly from martial law; and by that law and by military authority only are its proceedings to be judged or reviewed.” Of the Bill of Rights, the government lawyer had this to say:
These, in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law. By the Constitution, as originally adopted, no limitations were put upon the war-making and war-conducting powers of Congress and the President.
As a fallback argument, the government asserted that:
Finally, if the military tribunal has no jurisdiction, the petitioner may be held as a prisoner of war, aiding with arms the enemies of the United States, and held, under the authority of the United States, until the war terminates."
Sound familiar? We are now hearing exactly the same arguments from the Bush administration. This was the precursor to “enemy combatant” status. Here was the Milligan Court’s response, in its decision, to this attempt to circumvent the Bill of Rights:
[E]ven these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men [who wrote the Constitution] foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.
It is vital that we see clearly that the Milligan Court rejected the argument that a U.S. citizen could ever be an “enemy.” The Court affirmed the use of military jurisdiction over two categories of persons: those in the U.S. military (and in the militia when called into service) and the enemy. In the peculiar circumstance of the Civil War, the Court had no problem at all with using military jurisdiction for detention and trial of the soldiers and even civilians of the breakaway South who had effectively renounced their U.S. citizenship. However, the Court pointed out that Mr. Milligan was not in the military (the Union Army) and was not a resident of one of the rebellious states. This is really the same as saying he was not a citizen or resident of a foreign nation with which we were at war. It did not matter to the Milligan Court what Milligan had done, or what laws of war he might have violated. What counted was who he was. If he was a northern civilian, he could not be tried by tribunal for any actions nor held as a POW or “unlawful combatant” because he just was not in one of the two categories of people subject to the military. He was a northern citizen who was making war on his nation and aiding the enemy. The proper remedy for such is a trial for treason, or at least for violation of a statute, before a jury in an Article III court, not a military trial.

What the Milligan Court upheld is the Constitution’s separation of civilian and military jurisdiction. The Founders, and the people who ratified the Constitution, were very concerned about overreaching military power. In fact, prior to the Revolution, the colonists had even been upset about British soldiers being tried by tribunals, rather than civilian juries, for offenses committed off duty. The colonists considered such tribunals a violation of the rights of Englishmen. The Founders knew the sad English history of the abuse of special military and executive courts, such as the infamous Star Chamber, during England’s many upheavals and coups and endeavored to prevent their recurrence.
The Constitutional Trial Mechanism for Traitors
The Article III Treason Clause provides the only constitutional trial remedy for those who make war against their own nation or give aid and comfort to its enemies. Up to the Civil War, in every rebellion, from Shay’s rebellion, to the Whiskey Rebellion, to Aaron Burr’s attempt to raise an Army against the U.S., to John Brown’s attack on Harper’s Ferry, each person tried for their actions of taking up arms against their nation or aiding the enemy were tried for treason, before a jury, in a civilian court. None of them were brought before a military tribunal. If the Founders had intended to give the military jurisdiction over such people, what was the point of the Treason Clause?

The unconstitutionality of such military jurisdiction is made all the clearer when we consider the Fifth Amendment’s exception to the requirement of Grand Jury indictment for those in the military or in the militia during actual service. What was the point of that exception if the President retains a power to deny the protections of the Fifth Amendment to any citizen, in the military or not? If the President has such an implied power over civilians and the Fifth Amendment did not impair it, then surely he retained an implied power to use military jurisdiction over his own troops, thus making the exception clause superfluous. Apparently the Founders considered the clause necessary to preserve military jurisdiction over soldiers because the Fifth Amendment would otherwise have wiped out the power. Why would the writers of the Fifth Amendment not also feel compelled to carve out such a power over citizens who are the enemy if they meant military jurisdiction to apply to them? They had no such intention, having already provided for trial for treason in Article III. It is absurd to assert that the American people, who had only recently thrown off a tyrannical government, understood the Constitution and Bill of Rights to give presidents the power to set aside their hard won liberties with a stroke of a pen. Even the claim that such a power was given to Congress is historic revisionism at its very worst.
The Constitutional Detention Mechanism
Only the Article I Habeas Suspension Clause that allows for executive preventive detention of civilians in time of invasion or insurrection, when the public safety requires it. Habeas suspension, which can be done only by congressional statute, denies access to the courts altogether. It is truly a draconian denial of due process and hence liberty, limited to times of actual invasion or rebellion. In fact, I have some strong reservations about the habeas suspension clause trumping the Bill of Rights, which came later in time. But setting that aside, at least habeas suspension preserves the principle of separation of powers, and the integrity of the federal courts and the Bill of Rights, which are still intact though unavailable. There is no involvement of the courts in a watering down of the Bill of Rights that can be normalized and made permanent. A person either has full access to courts that must enforce the full Bill of Rights or no access to courts at all –not some perpetual twilight zone in the middle. In addition, a court could still rule a suspension unconstitutional by finding that there is no invasion to justify it. Lastly, such a habeas suspension only allows detention, not trial by tribunal, and it also does not “make it legal” for the government to torture people, or summarily execute them. The Bill of Rights commands preventing such mistreatment are not suspended – just the ability to challenge their violations in court. Government officials might still be guilty of violating the rights of detainees, as Justice Thomas noted in his dissent in Hamdi.
In that dissent, Thomas supported the government view in its entirety and argued that the habeas suspension clause was not an effective or practical alternative to enemy combatant status for Citizens because habeas suspension had such an infamous history from its use by Lincoln that it would be nearly impossible to secure a suspension in Congress. Justice Thomas also noted that government officials could be guilty of violating the constitutional rights of detainees, even during a habeas suspension. Therefore, Thomas argued, the government needed a more effective tool to fight the “war on terrorism” – enemy combatant status. Evidently, Thomas was not so much concerned with original intent as he was in finding a way to circumvent that original intent, and the entire Bill of Rights, so that government agents could torture detainees, try them before a hand-picked tribunal answerable only to the President, and then execute them.

Now, with the current Court’s blessing, “enemy combatant” status is a perpetual executive detention and military trial power, always in effect in this perpetual “war” against terrorism, even when we are not being invaded. No lower court in the land can strike these detentions down as violations of the Bill of Rights since the Supreme Court has decreed that the Bill of Rights no longer applies. Rather than a detainee being temporarily denied access to courts which are chomping at the bit to protect his liberty with the still intact shield of the Bill of Rights, he will be processed through courts which have themselves joined his tormenters as part of the machine of detention, military trial, and execution by applying some mere administrative standard which is below and outside the Bill of Rights. Thus, judges have been drafted to serve the executive branch by giving this “process” the gloss of constitutionality.

With the current Court’s assistance, the Milligan decision has been turned upside down, precisely as if the government had prevailed in that case when it asserted that the amendments in the Bill of Rights are “peacetime provisions only …are silent amidst arms, and when the safety of the people becomes the supreme law... [and b]y the Constitution, as originally adopted, no limitations were put upon the war-making and war-conducting powers of Congress and the President.” The Bill of Rights, as any real barrier to government power in time of war, has been effectively written out of the Constitution. We are left with only “political” checks on the scope of this "war" power. How is it that, after the Milligan Court so emphatically stamped out this pernicious weed, it survived to once again assault our liberties?
Quirin, Korematsu, and the Dark Days of World War II
Such a violation of the Constitution was not repeated until World War II, when over 120,000 Japanese-Americans, including citizens and legal residents, were interned in concentration camps. This dark stain upon our nation was upheld by the FDR appointed New Deal Court in the Hirabayashi and Korematsu decisions. While these decisions have never been overruled and are technically still good law, they have been “overturned” by near universal condemnation in the court of public opinion.

Unfortunately, critics of the internment tend to focus on its racial discrimination and inequality without seeing that these Americans were being treated just as if they were the occupied enemy civilian population of Japan, just as Milligan had been treated like the enemy. In fact, supporters of the internment justified the imposition of military rule over these citizens on the grounds that the necessities of modern warfare made obsolete the Milligan decision’s requirement that there first be an actual invasion such that the courts were closed before the military could have temporary jurisdiction over civilians. It should be no surprise that the Bush Administration does not cite to the internment decisions though they are certainly “on point.’ Instead it cites to another World War II case by the same Court -Ex Parte Quirin (1942), which asserts the same principle but has not been repudiated by public scorn.

was a one-time, expedient decision to justify the predetermined actions of FDR, a very powerful wartime president, who made it very clear that he was not going to turn the eight German saboteurs over to civilian courts. Whatever the Court decided, FDR intended to convict these men before his own hand-picked military tribunal and execute them. In fact, by the time the Court wrote its decision, months after oral argument, the saboteurs were already dead.
One of the eight German soldiers claimed U.S. citizenship. To make military jurisdiction over U.S. citizens “constitutional” the Court butchered both the Constitution and the Milligan decision. The Quirin Court said that there are certain acts, which while subject to military tribunals elsewhere, are not tried by tribunals here in the states and it was on such grounds that the Milligan Court had simply ruled that Mr. Milligan had not committed acts considered to be violations of the laws of war and triable by tribunal.

This wildly misreads the Milligan decision. Mr. Milligan had been accused of plotting to kidnap the governor of Indiana, break into an Army armory and steal weapons, set Southern POWs free, and then spark an insurrection in Indiana so the South could invade. The government expressly accused him of violating the laws of war. The Milligan decision did not just invalidate some narrow use of military jurisdiction for certain acts, it categorically denied the use of any such jurisdiction for any offense whatsoever for persons who did not fit into the categories of U.S. soldiers or the enemy.

While the Milligan decision is concerned with categories of people, Quirin focuses on the actions of the accused. The Quirin decision strives to minimize and narrowly define what actions are covered by the Bill of Rights, moving from clause to clause as it attempts to show that each did not apply to acts in violation of the laws of war, when the real focus should have been on whether the person in question belonged in the category of the enemy or of a member of the armed forces.

In fact, the Quirin Court did not even have to address the issue of citizenship at all. At the time, the Nationality Act of 1940 stipulated that any citizen serving in a foreign army without permission had automatically lost his citizenship. So, according to that statute, Haupt, the saboteur who claimed citizenship, was not even a citizen. The government was prepared to argue just that point, and the Court could easily have ruled on the narrow grounds that Haupt’s citizenship claim was void, making him just like the other German soldiers, subject to military trial. But the Court went ahead and ruled on the issue of citizenship when it did not need to. Why did it do this?

Recall that this was 1942, the very darkest hours of World War II, and the Court had to know about the mass internment of the Japanese-Americans. The Court also had to know that Hawaii was then under martial law, and U.S. citizens there were being tried by military tribunal for even petty crimes. In addition, FDR had issued a very broad tribunal order (even broader than the one Bush has issued) that called for the use of military tribunals on any persons who acted on behalf of an enemy nation, and this would include citizens and legal resident civilians, not just enemy soldiers and foreign spies. Thus, the Quirin Court wrote a sweeping decision that left the President as much flexibility and freedom to act as he might require in the uncertain years ahead.
Quirin, The Nearly Forgotten Constitutional Ticking Time Bomb
Justice Jackson, in his famous dissent in Korematsu, warned that:
[O]nce a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle … [which] then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.

As it turned out, it was Quirin, not Korematsu, which has lain about like a loaded weapon for sixty years before finally being picked up by another willful wartime President who is now expanding it to new purposes. While the Quirin decision involved eight admitted German soldiers in a declared war, the resurrected doctrine is now being expanded exponentially in a vague, perpetual “war” against terrorism, which is a technique of conflict rather than an identifiable enemy, to apply to anyone on the planet the president cares to simply accuse of being a “terrorist” or supporting terrorists. The Hamdi Court, by its uncritical acceptance of a flawed decision that should have been as discredited as Korematsu, has now multiplied that wartime error by making this modern, wildly expanded version the doctrine of the Constitution and thus the supreme law of the land.

Most of those who oppose Bush’s particular articulation of this doctrine have not been willing to directly attack Quirin or its affirmation in Hamdi. Indeed, even the opposition briefs submitted to the Supreme Court in the Hamdi and Padilla cases merely argued that the President must first get the permission of Congress before stripping citizens of their protections under the Bill of Rights and that, at most, a detainee was entitled to counsel and some measure of a hearing to determine their status as an enemy combatant.

Thus, even the supposed defenders of our rights accepted Quirin as good law and hence agree that the Bill of Rights is at the level of a mere statute since it can be effectively circumvented by a Congressional authorization granting the President the authority to treat U.S. citizens like foreign enemies, while making the courts complicit in its violation.

Of course, a plurality of the Hamdi Court did them one better by finding that Congress had already given authorization to detain citizens simply by passing its 2001 Authorization for Use of Military Force. As asked, the Hamdi Court ruled that such detainees could have a lawyer and a “meaningful determination” of status, but nothing else in the Bill of Rights. And still, the vast majority of the pundits, the professors, and the human rights organizations claimed victory. Our freedom will not survive another “victory” like this one. The next time the government "captures" a U.S. citizen here and designates that citizen an "enemy combatant" just as Jose Padilla was “captured” at O’Hare International Airport, the Court may find such a detention perfectly constitutional, especially now that Congress has given its stamp of approval with the Military Commissions Act and its extremely broad definition of who may be such an enemy combatant (to include citizens, of course). Such a decision may just be the other boot that will drop, finally smashing down to drive us into George Orwell’s infamous vision of the future as a “boot stamping on a human face --for ever."
Why Have We Abandoned Our Bill of Rights?
Conservatives, sadly, are for the most part silent simply because it is their man in the White House. Most lack the vision to look past their time in power to the day when a future Democratic president, Hillary Clinton for example, may consider gun owners and tax protesters to be “terrorists.” Conservatives are so fixated on prosecuting this “war on terror” that they have forgotten Ruby Ridge, Waco, and the finger pointing and witch-hunts that followed the Oklahoma City bombing. They have forgotten their own distrust of federal power and the reality that political winds change. But why are so many liberals, so clearly opposed to Bush’s policies at nearly every turn, also willing to accept the circumvention of the Bill of Rights through “enemy combatant status” so long as detainees get a lawyer and a meager hearing before some elitist judge? Why have they ignored the stinging dissent in Hamdi by Justices Scalia and Stevens that confirms our constitutional design, refutes Quirin, and levels a devastating criticism of the majority decision as a “Mr. Fixit” approach intended to sustain an illegitimate power? Perhaps liberals are simply unwilling to acknowledge that the New Deal Court left such a vile doctrine laying about to now be used by Bush and his neo-con Chicken Hawks. Perhaps many of them, especially the “limousine liberals” have an unwarranted faith in judges. Perhaps, but I fear the answer is deeper and more dangerous.
Forsaking the Bill of Rights for Equality’s Sake
I fear that the answer lies in liberals’ devotion to equality. They want so much to treat everyone in the world no differently than they are treated that many of them are willing to erode our own protections under the Bill of Rights to attain a rough leveling of due process for “all citizens of the world.” This is a tragic mistake. The way to lead the world to freedom is by first preserving our own freedom here at home while working to confine military jurisdiction to only the populations of enemy nations in declared wars, and finally, by expanding the application of the Bill of Rights to all people, all over the world, against whom our government operates –which will of course require an end to this insane "war against terror." To do these things, we must remain free.

We must not, in the interest of equality for all humankind, rip down our Constitution’s wall of separation between civilian and military rule and apply to ourselves the same military jurisdiction and low level of administrative process our government can give foreign enemies under our constitutional design. If we do so, we will hand over to the war mongers and empire builders our last weapon of liberty, the one shining gift America has given to this world: our Bill of Rights. Without it, we will be powerless to stop our own government as it - finally free to act without even a pretext to our consent- unleashes its raw, unrestrained power on the whole world. Who better to put a stop to it than us, and how will we do so if we give up our tools of peaceful revolution, our Bill of Rights?

The fate of liberty is in our hands. We must either be warriors who stand and fight to bring the world back from the brink of a universal tyranny, or, surrendering our Bill of Rights, bow down as impotent slaves who can only join the other victims at the edge of the ditch. I know not what course others may take, but as for me …
Stewart Rhodes

Remember, Remember the Treason of September

Below is a poem (loosely based on the Guy Fawkes poem) written the day after Congress sent the Military Commissions Act to the President. That bill is but the codification of the treasonous doctrine both the executive branch and the judiciary have been asserting for years – that even U.S. citizens can be declared “enemy combatants” and stripped of their ancient right to jury trial, and of the rest of the protections in our Bill of Rights. Click the hyperlinks for a multi-media experience. Pass it along to others. Then resolve to do your utmost to stop anyone, from any political party, who would destroy our Constitutional Republic. - Stewart Rhodes

Remember, Remember the Treason of September
by Stewart Rhodes
Remember, remember the 29th of September
I see no reason why that day of high treason
Should ever be forgot.
Remember, remember the 11th of September
The American Reichstag Fire burned hot;
I see no reason why the lessons of history
Should ever be forgot.
Remember, remember this is land of the free, home of the brave
Land of the scared, home of the slaves it is not;
I see no reason why Liberty or Death, Spirit of 1776
Should ever be forgot.
Proclamations of black robed priests matter not;
I see no reason, why their creeping treason
Should ever be forgot.
“When the people fear their government” there is not;
I see no reason why this timeless truth of freedom
Should ever be forgot.
Remember, remember the 19th of April
Embattled farmers stood in the Concord meadow
I see no reason why the 19th of April
should ever be forgot.
Remember, remember the 19th of April,
Firing on the Nazi rot;
I see no reason why the 19th of April
Should ever be forgot.
Remember, remember the 19th of April
Embattled Davidian women and children burned in the fire so hot;
I see no reason why the 19th of April
Should ever be forgot.
Remember, remember their spirits live forever
Thus they did fear not;
I see no reason why these examples of defiance
Should ever be forgot.
Remember, remember your body will not live forever
That you will die matters not;
When The Day comes, follow your fathers
Give them ball for ball, and shot for shot.
E. Stewart Rhodes
© 2006