Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Tuesday, May 24, 2005

American military commanders: I have a few questions

I've been hearing rumblings the Congress is going to pass legislation that will permit search warrants to be issued without judicial oversight. The Constitution calls for something else.

Military commanders: It is time for you to start making some tough decisions. This concerns the "Patriot Act" version 2.0

We continue to hear rumblings from DC that some group wants to pass legislation. Apparently, they want to permit searches without warrants.

Small problem. The constitution clearly states in Amendment IV, that no warrants shall be issued but for probable cause; and Article III Section 2 says that all crimes shall be tried by a jury.

How will these people justify brining evidence before a jury that was not collected in a manner consistent with the constitution?

Military commanders, your oath is to that document.

Someone needs to start giving me some straight answers:

  • Why are people talking about passing legislation that will violate the constitution?

  • Give me a good reason why I should believe their conduct is lawful

  • Make a very strong case for me to believe that they are immune to prosecution

  • Show me where it says in their oath of office that they can support governmental actions that will destroy the constitution?

    I see nothing.

    So the burden lies with the Staffers in the Senate Intelligence Committee to make a good case why they should not be arrested for engaging in treason: Taking action that would undermine the constitution.

    I grow quiet weary thinking that with each sunrise, it is but another day to do battle over clearly promulgated statutes.

    Today, is a new dawn. I would like to believe that there has been some semblance of rationality.

    Yet, today as with all other days of late, it is growing into fashion that our brethen continue to whittle away at our constitution.

    But now they have stepped on the wrong toe.

    Military commanders, your oath is not to a man nor a nation; nor are you beholden to a political party. Rather, your job is to simply uphold the constitution.

    And here is the catch phrase: Against all domestic enemies as well.

    Indeed, the posse comitatus act has already been violated. Your peers in DoJ-JTTF has conveniently slide personnel from law enforcement-military to the law enforcement side of the world.

    So the crimes have already been committed. All that is required is to specifically identify the individuals who, on tape, have actually been transferred unlawfully from DoD to the Operation Falcon program.

    At this juncture, I'm little persuaded that there is much to justify defending any action that would undermine the constitution.

    But let's pause for a moment. Recall that as the patriot Act was publicly debated [well after the Congress rubber stamped it=[ that it was DoJ Attorney Generals from Philadelphia that specifically touted that the Patriot Act had "not been found unconstitutional."

    Small problem. It doesn't matter if a court finds it unconstitutional; the issue is whether or not the statute is illegal.

    What military commanders need to do is begin a serious dialog with their base legal affairs office and start coming up with some very clear understanding in their own mind what it means to have an manifestly illegal statutes.

    In other words, if there are people in Congress that are going to, in secret, organize legislative activities that are arguably unconstitutional, then at what juncture are military commanders required, because of their oath of office, to step in, call a halt to the proceedings?

    I grow rather wearing with the DoJ and White House in their absurd arguments that these statutes are vague; or that somehow there are some cases in which unlawful acts are lawful.

    Normally, OPM would get a nice call and someone would get a fitness for duty examination to find out what they've been smoking.

    But in the recent weeks it has come to my attention that despite the clear constitution, there are some who would like to pretend that things are just find.

    I ask again: How bad does it have to get before you, as a military commander, actually step up to the plate and actually put into action your constitutionally required role of defending that document.

    I'm not asking you to specifically outline specific plans. I'm simply asking you: How many rights in the constitution have to be taken away; how many legislative acts have to be passed; how many secret meetings; how many memos have to be written then shredded?

    A nation doesn't "suddenly" find itself where we are today. Attorney General Gonzalez when he was your President's General Counsel did sign off on memos that said there were cases where torture was permitted.

    Fine. We now know that torture is not OK, and that people can be held liable for that.

    But that took alot of work. Bluntly, I'm appalled that, despite many who take an oath and get paid, that so many sat around.

    Where was the military command in the Joint Staff? Were there not discussions about this absurdity?

    Again, I ask military commanders to simply review your oath of office and specifically outline in your own mind "How bad does it have to get."

    Each commander has their own threshold. And there are times when, despite the uncertainty of those decisions, it is manifestly clear that someone is clearly not upholding the constitution.

    I fail to see how secret trials, evidence obtained in violation of the constitution, or any action that would simply throw the bill of rights out the window is going to be permitted.

    Let's consider the amount of time after the Patriot At was passed, and consider the amount of time and effort required to free those who were unlawfully detained.

    That is alot of work. It is a distraction.

    One of the goals or "nice ideas" of the constitution was that free people would freely come together and agree to in harmony and concert do more together than they could on their own.

    But there's one caveat: The goal of their common purpose must be lawful.


    Well, surprise. Guess what: Abu Ghraib, Guantanamo, and the small problems of detaining people in NYC during the RNC demonstrations and the DoJ prison abuse scandal.

    Long story short: People got killed, tortured, and evidence was fabricated to justify holding people.

    At worst, the video tapes were deliberately witheld, people lied, failed to act, and only did anything when the photos surfaced. You like living in a "free" country like that where you have to carry a camera at all times?

    I don't know about you, but I get a little irrirtated thinking that your former comrades in arms from over 200 years ago already fought this battle.

    Time and time again we hear speeches talking about the virtue of combat. The fight for freedom. Defending liberty.

    But why are we still fighting this battle today, in 2005? Why, despite the clear constitution, and ever present danger that combat forces could actually come to the defense of this document, are there people in DC who actually believe they can pass this legislation that effectively throws the constitution out the window?

    What's in their head?

    What's in their thinking?

    What do they have going for them that would make them think they could actually discuss undermining the Bill of Rights, get away with it, and face absolutely no consequences?

    I'm still waiting for an answer.

    Let's get back to the idea of a "common lawful purpose that is done in concert to make things better and do something lawful". Show me in your oath of office where it says that you can turn a blind eye to inconvenient things.

    Point to your oath of office and tell me where it says, "I promise to do this only when it is convenient, easy, or not going to get me in trouble."

    At this juncture, it seems clear to me, that despite your predecessors sacrifices, you are asking the world to somehow believe "We aren't going to stand up this time."

    That is the only reason I believe that staffers in the intelligence community are actually considering legislation that would destroy the trial by jury and search warrant system.

    So I ask you to get with your General Counsels. Ask them are there lawful protections for you. Are you going to have any legal foundation if you fail to act.

    I'm not sitting here with a warm fuzzy about this. Again, my concern is that despite what was fought for in 1776 and clearly promulgated just a few short years later, that once gain, we have to go before Congress to 'defend' the constitution.


    It's up to the Congress to explain to the military why the Congress should not be taken over by those who are actually going to defend the constitution.

    By Defend I mean just that: To fight for it, to stand up for it, and do more than simply talk about it.

    It was outrageous what happened lat time. In the wake of 9-11. Congress was given a huge document, shoved down its throat, and most never even looked at it.

    Yet, today we have members of the Senate Judiciary committee saying, "We know of no evidence where there have been abuses...."

    OK. I give up. Apparently Senator Hatch hasn't been watching the news. There have been military personnel relying on torture memos saying that it's OK to torture people; some of those people have died; and people have been detained in NYC and the Manhattan DA's office did fabricate evidence.

    The list goes on. You can ask your General Counsel to get a complete list of all the abuses committed "in the name of" the Patriot Act: Ask them about the 42 USC 1983 claims; ask your general counsel to look into the number of US personnel that have been investigated by the FBI and JTTF without any evidence, merely because someone decided to "get even".

    Bluntly, the Senate is living in a fantasy world right now.

    It is absurd that the country, despite the clear victory in 1776, seems bent on requiring the nation to come to the defense of liberty.

    I argue that the burden of proof needs to be put on Congress. Someone in the Congress needs to explain to the Joint Chiefs and the American public why the Congress should not be summarily surrounded and put under some sort of protective shield to keep the idiots out.

    yet, each day, we hear more rumblings from law enforcement. That they've come up with new rules and little games to justify ignoring the constitution. That they enjoy lying.

    I've already made the decision. Law enforcement is in the same camp as AlQueda, not to be trusted, and at war with the Bill of Rights.

    So I ask the military commanders to review your oaths of office. Ask yourself how many more pieces of legislation need to be passed.

    How many more days and weeks will you require the American public and others around the globe to once again fight, on their own, the good fight that was already won long ago.

    Because at this hour, if you are not willing to honor your oath, do nothing. If you are not willing to actually defend that document, then do nothing.

    But if you are serious about your oath, and are going to actually do the good fight that you are paid to do, then I ask that you make it known that there are those who are not following the constitution.

    Specifically, what I would like to see is the Congressional Staffers be brought to trial on charges of treason; that they have organized themselves to engage in an unlawful set of activities; and that they have conspired amongst themselves through either by design or willful ignorance of facts that they should be aware, to actually rubber stamp legislation that is, on its face, unconstitutional.

    Clearly, the problem with this approach is the small thing called "legislative immunity" which essentially is a blank check to commit all sorts of egregious acts, and pass laws that are unconstitutional.

    Small problem. Guess who has to deal with that mess? Us, the people you're "defending."

    This is a waste of time. We are not longer "having a common purpose." What's actually happening is the Congress, through intimidation by some sort of bogey man, [oh, where oh where is that man in the beard this week, Santa] convinces itself that it has to sign away the Bill of Rights.

    For what?

    We already have seen the abuses. We have already seen the torture. We have already seen the civil rights violations.

    How many more abuses are required; how many more people must die; how many more lawyers have to get kicked in the ass by their client to get them out of a problem which Congress put them?

    If you don't want to stand up for the constitution, do nothing. If you want the American people to fight in the courts over this, fine. Let it be a legal battle.

    But think of this as being a case where the Congress has a clear set of guidelines called the constitution; and then they decide to pass rules which effectively undoes all that; and then requires to public to then redraft the constitution by going to court and get ruling that one by one reasserts each of the Bill of Rights.

    Again, that is a waste of time. It is a distraction. And it makes people less inclined to want to do work to support this tax system.

    Bluntly, if the "leadership" are going to ignore the constitution, and pass laws that have to be undone, that level of effort is time consuming and draining. It does little to inspire a desire to actually continue supporting the "common good."

    Because at the same time that we're "having to put up the good fight" to tear down what has been, arguably, unconstitutionally constructed, guess what: America's competitors are zooming along.

    Where do you get the R&D funding to continue paying for the hardware upgrades for your Apaches and tanks? Those contractors are US citizens. But if you fail them now, you're simply sending a mixed signal: "We want you to support us, but we're not going to support you."

    Fine. Don't ask for sympathy when you find yourself down the road facing even tougher questions:

  • Where were you

  • Where are the documents you exchanged with counsel

  • What kinds of legal issues were considered

  • did the scope of the unlawful activities get explored

  • How bad was the situation

  • Did the military commander have a duty to intervene

  • Was the conduct so unconstitutional that even the most inept commander would know they had a constitutional duty to protect that document?

    Those are the questions.

    And at the same time, despite all of the above, the military would ask that the public continue working to raise taxes and fund your wonderful O&M funding budget lines.


    I ask again: How you credibly expect the American people to continue to support you, as a warfighter, when you are not willing to support them.

    The constitution is clear. The purpose of that document was to bring us together. One of the ideas of a nation is so that jobs get segregated. In exchange for us giving up the right to self-defense, we defer that authority to others, like you so that you can act.

    Now, at this juncture, it is time for you to being thinking.

    What are you going to do, this time, if Congress actually passes that legislation which wipes out the jury trials?

    is that a "lawful" action?

    Is that something that supports the constitution?

    Do you as a military commander have a duty to remind Congressional staffers of your view that that matter is not lawful, unconstitutional, and not supportable or defendible?

    What role does a military commander have in making sure that congressional staffers know that their actions, which are arguably unconstitutional, would tend to not invoke the public support needed to execute?

    America has come a long way since 1776. Many battles have been fought. Many have died.

    Unfortunately, over the years many have confused "freedom" and "constitution." They are not the same. Your enlisted personnel who work for you, fight for you, and die for you, do not simply swear an oath to the constitution.

    They also take an oath to obey the lawful orders of the president.

    Your president's General Counsel and your Secretary of Defense have reviewed memos authorizing torture, saying that it was permissible.

    Explain how your military enlistees, who are required to ensure their actions are constituent with lawful orders, are somehow "confused" or "not trained" or "not sure" what lawful orders are.

    Again, if their oath is to support the Constitution and lawful orders, and through Article VI also the treaties, then explain to me why your enlistees are taking oaths to terms that they do not understand.

    Let's review: It says right there in Article VI that the constitution is the supreme law of the land, along with the treaties. One of those treaties is the Geneva Convention. And that prohibits torture.

    So here we are: Your enlistees are standing before you, claiming that they 'didn't know'.... who's problem is that? That's right: It's a training problem: They're taking oaths to support something they don't understand.

    I would argue, that's why you need to talk to your General Counsel. To get trained. To reeducate yourself on the laws of combat, and review what it really means to defend the constitution against domestic enemies.

  • Are you permitted to direct personnel in the Executive Branch be arrested for violating the laws of war?

  • Are you, as a military commander, allowed to arrest SES personnel who have drafted messages and memos permitting unlawful acts?

  • Are you, as military commanders, required under the constitution, to arrest law enforcement under JTTF who have engaged in domestic combat operations in support of Operation Falcon?

  • Are you, as military commanders, required to ensure that Senate Rules requiring that members and staff members engage in lawful, constitutional, and protect activities do so in a manner that protects the constitution?

  • Are you, as military commanders, required to take caution when the civil police and civilian leadership are engaged in efforts to justify torture, which through ARticle VI, is unconstitutional?

  • Are you, as military commanders, required to take action when Congress then requires the nation to right the 1776 arguments, and do something when DoJ puts people in prison in violation of the law?

    I'm not convinced that the military knows the answers to these questions.

    Let me tell you why.

    Do you remember how long it took to get military commanders to "do the right thing" in Guantanano?

    Do you remember how long it took to get Staff Judge Advocates spun up to say, "Hay we really shouldn't be torturing people here"?

    It wasn't "right away." There was a delay. It was almost like, in the wake of somatic, it took a while for people to realize what had been going on.

    I would argue we don't have the luxury of time to sit around and be philosophical about this. The future has arrived. The Congress is about to vote on something that is arguably, unconstitutional; and the citizens you are entrusted to act on behalf to "protect their constitution from domestic enemies" are now sitting here wondering, "Are we going to have to get locked up again, some of us die at the hand s of JTTF and CIFA just because some military commanders haven't had time to think about this?'

    I'm not impressed. It's not as though the constitution has suddenly appeared out of the blue, or that there's some sort of "strange new phenomena" going on.

    Nor am I impressed that, despite what we were told about 9-11, that the DoJ really wasn't suprised: That they were told about the FAA warnings [52 of them] and thought enough to draft the Patriot At before 9-11; and at the same time though enough about the non-sense to intimidate people to keep quiet about the pre-Iraq invasion plans.

    The answers to "what really happened" are in the pre-9-11 planning documents from MI6.

    Ooops. That's right. Your intelligence community , the ones who want to pass these laws that violate the constitution, are talking about of both sides of their mouth.

    While they've been crying about "not having the right tools," at the same time they've been going behind your back and talking about "how to justify something" that has already been decided: Namely, how to justify unlawful acts, unconstitutional acts, and invade a country without there being any specific threat.

    Just allegations. Just wishful thinking. Just spun up.

    So at this point, I have two concerns: How do you know, military commanders, that you can trust your intelligence community?

    Not that they're telling your the wrong things; but that, despite the truth of what they're saying, it doesn't matter?

    if the decision has already been made to "destroy the constitution' piece by piece, what are you waiting for?

    To have it self-evidently gone?

    The time to think through these problem is at hand. For if you delay, you will only alienate the needed domestic support you need to defend the constitution.

    The time to mobilize the public support for you cause -- the cause of the constitution -- is now, not when the civilian population is so outraged over your inaction, that no amount of pleading will get their support.

    For if your oath is truly about "protecting that constitution" then you need to protect it, before it is gone; and you need to stand up and fight for it, not when it is destroyed, but while it still exists to protect it.

    The burden of proof goes back to the Congressional Staffers.

    If the military and the country choose to go down this path, the states do have the power under the constitution to have a consitutional convention.

    If, after the constitution is thoroughly trashed, the American public through the state legislators decide that the military commanders need to be given more specific guidance, then I'm sure that will be something which you, as commanders, will collectively act upon to dissuade the state legislators from considering.

    But know, that if you fail in your oath to defend this document, your credibility in Iraq goes down. You've already got a retention problem. Your recruiters are already known fro what they are: Lying, abusive, and manipulative dogs who will encourage unlawful acts and commit physical assaults on your daughters all just so they can meet our quote.

    I'm not convinced the "danger" is so clear an present that the nation will start a draft; yet, isn't in curious that despite the "no evidence to justify a draft" there' plenty of evidence to 'justify' destroying the constitution.

    You, as military commanders, can consult with your General Counsels. You can use the resources of the NSA for good; and that information, if you choose to ignore it, will be fully available to MI6.

    MI6 has already shown that it is not going be cowtowed by NSA or the American military. Let's hope the American commanders review their oaths of office while they have time to think, not after the battle and they are trying to create stories to justify their inaction.

    At this juncture, it will be admissible what you read, what documents you were aware, and what information you have had access to.

    This information will be discoverable through Echelon; and the electronic data and discussions will be entered into evidence.

    Also, your oaths of office when you were commissioned are also admissible: When did you take your oath; was the oath of office signed; were you under any drugs or mind altering influence.

    If you want to pretend that things are going to get easier with inaction, you're wrong. What is clear is that you're going to eventually have to make a very difficult decision: What am I goin to follow, my President on unlawful crusades; or my constitution.

    You don't follow either. Your job is simply to protect one: The Constitution. That is all. Nothing else matters.

    If you are convinced that the Bill of Rights is something that can be whittled away and that there is a "just reason' to do it, then I argue you're simply talking to someone who wants to invite the British Monarchy back, and ignore your oath to protect the small document, that inconvenient piece of paper called: The American Constitution.

    If you don't fight for it and defend it, why are we giving up our right to self-defense?

    If the American military is not willing to defend the constitution against the enemies who want take away the right to have warrants only issue but for probable cause, who are we going to turn to when things get more difficult?

    As I have already said before, I'm not asking you to do anything, but simply think about your oath and discuss these issues with your general counsel.

    This is not a game. This is real. The American constitution is your reason for being there. Your oath is to that document. Not to a man, not to a policy, not to a contractor, and not to some sort of ideology or wishful thought of the future.

    Your goal right now should simply be to ensure that your are doing everything within your power to achieve that goal: Defend the constitution against the domestic enemies who want to undermine it and take away those protections.

    We did not give up our liberty so that you might ignore the contract; nor have we given up our sense of passion about what must be done to defend that document.

    If we do not stand up for it today, then the future is meaningless. Your retirement will not be easier.

    If you do not take action and consider these issues, when you are retired, who are you going to turn to to do your defending?

    Those who you lead. They need to be trained. They need to know why we have given up some of our liberty as a trust for them to come to the Constitution's defense.

    If you fail in your training today, then when you are retired and no longer able to do things, you will find it that much harder to get things done.

    The time to stand up is now, not later; it will only get more difficult. That's why you get paid, and why you took the oath: To get things done, to take care of business, to do what needs to be done. Even when it seems impossible.

    Remember, you're not alone. The American people will respect your actions so long as you take action and quickly send the message that you are concerned about the Constitution and wish that the leadership be put on notice that they are straying from their oath.

    It is the job of the adults to discipline the wayward. This Congress, as it votes to water down the constitution, shows it is need of some careful discipline. Sooner, not later. And to do so would be fitting, so long as you do so in a manner that is lawful, constitutional, and within your oath of office.

    Thus, I encourage you to swiftly move to discuss these issues with your General Counsel. Your job is not simply to protect your career and service, but your highest loyalty -- that document, our Constitution.

    America, know that the military commanders are starting once again to consider their role in preserving a constitution.

    It was George Washington who first stood as the leader. America, once again, is in need of a constitutional leader.