Friday, December 30, 2011
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On the NDAA.
ReplyDeleteThis legislation is straight out of the John Yoo legal briefs. The authority to imprison US citizens and subject them to military control without trial, or trial by military commission, in a phrase "martial law," comes from the case Ex parte Quirin, 317 U.S. 1 (1942), which Yoo relies on to give the "unitary executive" ultimate power during "time of war." The Quirin case, a case arising in the heat of WWII, allowed a military commission to condemn an American arrested in the US to death for participating in a nazi sabotage scheme.
The Quirin case nonchalantly disregarded the earlier Supreme Court precedent Ex parte Milligan,71 U.S. (4 Wall.) 2 (1866). Milligan was also sentenced to death by a military tribunal for scheming against the Union and communicating with the enemy Confederacy during the civil war. Milligan was a US citizen living in southern Indiana outside the war zone. In this landmark case defining the scope of due process rights for US citizens in wartime, martial law for US citizens was rejected where the course of governance and the operations of the civil courts were not affected by the course of war and remained in session. The Quirin court unlike the previous supreme court ruling disregarded this aspect of the guarantees of liberty and due process in the 4th, 5th, and 6th Amendments. So did Lincoln during the civil war when he approved Milligan's military execution. The Milligan court rejected military jurisdiction over US citizens and established for all time the supremcy of the civil courts over the military where US civilians were concerned. I suggest that the Quirin decision by the Supreme Court is about as disgraceful and non-authoritative a decision as the Supreme Court's decision that it was okay to intern American citizens of Japanese extraction during WWII.
The Defense Authorization Act attempts to codify Quirin and "the law of war" as being the law for US citizens suspected of substantial support for terrorist forces. A key method for doing this is by the Congressional finding that the US is a "battlefield." Such a finding results in the imposition of martial law (which is no law in the legal sense or the complete absence of law and order). Such a constructive finding of fact is patently false and is designed to undermine the law previously established in Ex parte Milligan. Where no battlefield exigencies are present there is no justification for allowing military disposition of US citizens where the lawfully constituted civilian courts of the land may preside.
The premise and fictitious Congressional finding that the US is a "battlefield" lends credence to affirmations of government critics that "continuity of government" contingencies and martial law provisions are currently in effect in the United States, more than ten years after 911. Peter Dale Scott has written extensively about this.
Bruce Wick appears to be referring to Toth v. Quarles, 350 U.S. 11 (1955) as authority for the premise that civilians are not susceptible to military jurisdiction within the United States. "We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property."