Constant's pations

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

Tuesday, October 03, 2006

Crossing the Potomac

The Rubicon is the boundary which Caesar crossed when he led military forces into Rome. The modern application of the word refers to a boundary which someone is not allowed to cross; but when they do, there's no turning back.

This Congress has illegally crossed a similar boundary: Illegally permitting others to use military force against American civilians.

Here are some detailed links and commentary on cases: Go here

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Congress has little to celebrate. Choosing to ignore the laws of war, not enforce them, and failing to investigate the Geneva violations is one thing.

But choosing, without reasonable provocation, to deny American civilians the right to challenge their detention is illegal.

This is a war crime committed against civilians. This government has illegally failed to review the abuse of power with NSLs; we've seen nothing to suggest the DHS and JTTF can credibly take information, much less act upon it. With this bill, Congress has effectively created a police state, where citizen vie for influence with JTTF and law enforcement to avoid adverse, fabricated charges.

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Warning: This is not legal advice. You should not take any action based on this information. Discuss this information with an attorney before taking any action. If you do not understand this, stop reading now.

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The American problem is the proposal to prosecute someone while denying them full protections afforded under Geneva. These Geneva violations are on top of the illegal failures to prevent war crimes.

Once the US chooses to violate Geneva, other combatants may lawfully violate similar laws of war. All US prosecutions against these subsequent violates will be illegal; the laws of war do not recognize an American system which both engages in war crimes, then prosecutes others for engaging in lawful reciprocity.

All prosecutions under the proposed military commission system could be viewed by many as being illegitimate, and the basis for foreign fighters to expand their lawful retaliation against the United States.

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The US may not lawfully prosecute anyone for violating any norms of combat when the US violates similar Geneva requirements. Rather, subsequent prosecutions, because they are linked with an imbalanced application of power, could be viewed as foreign fighters as the legal basis to engage in subsequent abuses.

When the US violates the laws of war, all US citizens who are similarly targeted and prosecuted under this Military Commission bill will have a legitimate defense that the US has engaged in like violations, and cannot lawfully prosecute others. Again, even if the US were to sentence American civilians under these military commissions, or deny them habeas corpus, these actions will be viewed by some as evidence the US system is illegitimate.

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The problem with the American government's approach to Military Commissions has been the incorrect assumption that the potential consequences may be isolated to how US military personnel are or are not treated. The thinking is that if the US violates Geneva and does not recognize legal protections which Geneva requires, that American combat forces may be abused.

This concern is incorrect. The ramifications are broader. Once the US expands its detention program to illegally deny American citizens the privilege to challenge their detentions, but those detentions are linked with fabricated evidence, American citizens will have suffered grave breaches under Geneva. There is no valid basis for the US government to detain others to lawfully retaliate against the US government for these Geneva violations.

Indeed, the US government and prosecutors may successfully convince some district courts and military commissions to prosecute, and possibly execute Americans, but these actions may be seen as illegitimate, fueling American citizen revulsion against the American government.

The problem of what foreign terrorists may or may not do is also narrow. The broader problem is whether American citizens will or will not take up arms to lawfully retaliate against a Congress and Executive which continues to engage in grave breaches of Geneva. The laws of war permit a lawful defense. An illegal first strike permits a lawful response, whether abroad on the streets of Baghdad, or at home against the American government. Peace and non-violence is preferred. This Congress chooses the illegal approach to solving disputes. We may lawfully reciprocate.

Once the writ is denied, the US problem isn't whether the war is or is not overseas. Rather, the question is whether the US system is or is not sufficiently competent to respond to an internal, lawful attack from within. Based on the incompetent handling of Katrina, the setbacks in Afghanistan, and the bungling in Iraq, there is every reason to expect American citizens to view the successes of Hezbollah, Hamas, the Taliban, the Iraqi insurgency, and Al Queda is a signal that there is a real chance of victory.

Vice President Cheney's concern about whether he may or may not be next will not be speculative. He remains a lawful target for prosecution for war crimes. It remains up to him whether he resigns peacefully, or the prosecutors are required to use force to compel him to assent to the rule of law. This is the Vice President's choice. He is free to choose. We are free to lawfully assert the rule of law.

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The Congress has a mess on its hands. Its leadership, regardless party affiliation, has failed as an institution to check power, review evidence, or ensure the Constitution is protected. This Congress has voted to violate Geneva, deny rights protected Geneva, and failed to gather facts about the illegal abuses against prisoners.

Under the laws of war, once American citizens take up arms, and are out of uniform, they too could be labeled unlawful combatants. Yet, when the judicial system is not willing to respond, and the Congress illegally denies American citizens of Geneva protections, what option -- other than the battlefield -- has this Congress recognized? Apparently none.

These are not issues of rebellion, violence, or insurrection. They are simple issues of justice, and lawful retaliation under the laws of war. This Congress has chosen to wage illegal war against innocent American citizens, and failed to ensure that American citizens shall be afforded all protections they are entitled. Congress has no legal foundation to justify its abuse. We have no legal reason to continue assenting to this unlawful abuse.

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The Vice President has expressed concerns that should Rumsfeld resign, this might embolden others to call for the Vice President's resignation. That is only the start of his problems.

The larger concern for the Vice President is, or should be, whether he too will or will not lawfully be prosecuted for war crimes. Whether the US Congress does or does not investigate is of little concern. The issue is to what extent this Vice President will or will not use the threat of Military Commissions to stifle US prosecutors, attorneys, and other investigators from gathering facts related to the Vice President's illegal activities.

Nuremburg convicted and executed members of the German legal community who failed to enforce the laws. If the American government defies this requirement, and fails to assent to international demands to remain civil, then the US government leaves no alternative to ensure the rule of law prevails. Congress has no power to wage illegal war, nor can it expect the targets of that illegality to silently cooperate. It is lawful to refuse to obey illegal orders, and ensure that the rule of law returns. The American legal community must decide whether it is with the Congressional tyranny or the Constitution.

If the Vice President, through Congress, wants to wage illegal warfare abroad, that is one matter. But when Congress and the Vice President jointly agree to apply that illegal military commission system to American civilians, or indefinitely detain people who have been accused on fabricated evidence without any prospect of judicial review, there is little separating the Vice President from a tyrant.

Once US citizens are illegally targeted using procedures which violate Geneva, these illegal government acts are subsequent war crimes which US citizens may lawfully use as a defense for their crimes. The U-Boat commanders used this defense after WWII. They showed that allied submarines in a different theater had substantially engaged in the same illegal warfare the US accused the U-Boat commanders. This defense worked. The German U-Boat commanders were not convicted.

In the same spirit, should the US expand the Military Commissions against American civilians, but refuse to recognize the defense the U-Boat commanders used, American citizens will come to realize that the US government, not simply this Military Commissions bill, is illegitimate.

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This is not a call for violence. It is merely a call for the public to recognize the US Congress action has far larger implications that simply whether a prisoner at Guantanamo will or will not be protected under Geneva.

The message is simple. The US continues to violate the laws of war. Once American citizens are seen as being the targets of these illegal military commissions, the U-Boat Commander's approach may ring true, prompting some to engage in like retaliation against the US government officials.

It is arrogant for the Members of Congress and the Vice President to believe that American citizens will quietly permit abuses to be inflicted upon them. The rule of law is a guide to action; the rule of law in Geneva also lawfully permits taking up arms and subduing a government which will not assent to the laws of war.

Where the US government defies the laws of war, the American public should defy the American government’s illegal application of power and unlawful authority. The laws of war, and the US Constitution, permit the States to create alliances to protect the Constitution. If this means working more closely with the Taliban, Hamas, and Hezbollah to inflict grater abuses on American military personnel, this is the foreseeable outcome of Congressional defiance of Geneva.

The Supreme Court has recognized the rights of foreign fighters; it remains to be seen what Congress must be lawfully forced to ensure to recognize the same rights in American citizens.

The American government freely chose to violate Geneva, and unlawfully subject American citizens to outages and abuse. The American government’s illegal conduct fails to send any message that the American government combat losses are much to be concerned.

Each time the American government commits a grave breach of Geneva, there is less sympathy when foreign fighters gather greater prestige or inflict grave damage against American infrastructure, interests, contractors, and agents abroad.

The American government will likely abuse more power, and illegally inflicts greater Geneva violations against more American civilians. Americans are not allowed to cooperate with war criminals in Congress; to protect this Constitution, we have few options but to cooperate with combatants abroad. The laws of war and Constitution permit the lawful cooperation between domestic American and foreign fighters.

It would be preferable if the American government chose the civil, peaceful route of the Article III judicial system. It would be desirable if the American government freely chose to assent to the rule of law. This Congress defies these reasonable expectations. A government which refuses to assent to the rule of law is no longer legitimate and may lawfully be replaced with something new. Should this government wage illegal war against American civilians, Americans may lawfully cooperate with others who wish to protect the American Constitution.

Members of Congress have defied their oath. American citizens may lawfully defy their promise to remain loyal to a system which continues to wage illegal war. The only promise the American citizens have to honor is their ultimate commitment to the rule of law and the Constitution. Whether, in the short term, this means lawfully reciprocating against individual Members of Congress for their illegal action is a matter only the Congress can choose.

American courts are illegally ignored or denied power to review. This Congress appears to have removed all peaceful options from the table. This does little to inspire confidence or respect.

Congress prefers illegal warfare; Americans prefer the Constitution. There is little real choice – illegal warfare is not allowed; and there is no option but the Constitution.

The Executive secretly negotiates peace terms with the Taliban and Iraqi insurgency. This government only respects power. It would have been preferable for Congress to show as much respect for the American Constitution and citizenry as it does for the foreign fighters.

This is not a war any American chooses, it is one that has been illegally imposed on us through an illegal abuse of power. Congress chose tyranny over the Constitution. To protect this Constitution it would have been preferable to use the Article III courts; and lawfully, peacefully, and civilly assert the rule of law.

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American military forces are already stretched. The reserves have been depleted. The American local government consistently proves its incompetence.

American military personnel have also proven their incompetence in Iraq. The Joint Staff leadership is unwilling to put their oath of office first. The Chairman of the Joint Chiefs of Staff views himself as doing something nobody else can; indeed, nobody else is willing to blindly obey illegal orders, and continue along this reckless path.

The Capitol Police are equally incompetent. The construction crews around the Capitol are segregated to certain zones. They are not allowed to enter the secure areas. Yet, despite the heightened security in the so-called post-9-11 world, construction crews have been found wandering the halls of Congress, behind the security zone, and the Capitol Police have failed to follow procedures or defend the Members of Congress, the Capitol, or the basement where the Constitution is housed.

It is folly for the American government to outline a plan to wage illegal war, but lack the resources to put that illegal plan into effect. As American combat forces suffer greater losses overseas, soon more domestic vulnerabilities will be exposed.

American citizens are equally capable of working with combat forces around the globe to receive training, come to the defense of the Constitution, and lawfully do what Congress refuses to do – protect the Constitution and assert the rule of law. It is up to Congress whether it chooses to incite domestic fighters to take up arms to protect the Constitution; or whether it freely chooses to withdraw its illegal support for what violates Geneva.

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There is no credible case to be made the US has recently suffered an invasion or e rebellion. The US may not lawfully deny anyone the right of Habeas corpus, especially this many years after Rasul, Hamdii, and Padilla ruled the opposite.

Prospective, speculative invasions are not sufficient legal grounds or arguments to justify ignoring the Constitution. These are requirements which Hamdan reminds us remain in place and enforceable, and cannot be explained away with illegal bills. Rather, by recognizing even non-accused-illegal defendants have the right to challenge their detention, it is too late to undo what Rasul affirmed for these cases: The right to challenge one's detention.

Denying the privilege of habeas is not a trivial matter. Any American prosecutor, agent, or Member of Congress who illegally enforces the unconstitutional Military Commissions bill is engaging in war crimes. All prosecutions related to these illegal detentions are not lawful, and all personnel who put into effect this illegal policy and bill could be tried for war crimes.

American law applies not simply on matters of geography, but specifically attaches to agents. It makes no difference that the facility is or is not under foreign control. The presence of US troops, agents, contractors, or intermediaries creates a legal-linkage to American law. All claims that the CIA detention centers in Eastern Europe, because they are located in Eastern Europe, are immune to US oversight is meaningless.

Congress effectively voted to wage war against the American people. The American government illegally allowed others to wage illegal war, commit grave breaches of Geneva, and possibly apply this illegal Military Commissions bill against civilians.

The US may not lawfully claim their domestic war of choice is a domestic rebellion; it is what it is – a war between those who assert the rule of law in the Constitution, and those in the American government who defy their oath and the rule of law.

This is only the beginning. American citizens, because of this imminent attack on their republican form of government, are permitted to encourage their States to work with other nations and lawfully protect the Constitution. All US government excuses to interfere with this lawful coordination with foreign fighters is illegal.

American citizens, unwilling targets of this abuse, are not in a position to quickly organize themselves, nor are they required to wear distinctive military uniforms. Rather, the US citizenry may lawfully work with foreign fighters like Hamas, Hezbollah, the Taliban, and AlQueda, to lawfully assert their rights, and prevent the abuse of power under the Geneva conventions. Then the war will be international in scope, subject to international tribunals.

Where the US government refuses to assent to the rule of law, the courts, or the Geneva conventions, the battlefield remains a real check. As long as the foreign fighters continue to inflict losses on Americans, the Congress remains partially checked, unable to absolutely abuse all power. Sustained American combat losses on the foreign battlefield will give American citizens some room to lawfully check the Congress at home.

Much will have to be done to ensure the Geneva conventions prevail. The Supreme Court in Hamdan stated Geneva was a requirement. Congress ignored this requirement; similarly, US citizens should ignore Congress, especially when it defies the Geneva conventions.

The war abroad continues to defy Congressional expectations. The American government is powerless to prevail, especially when it defies the law for short term gain. American citizens may lawfully cooperate with foreign fighters to wage lawful war against the American government, and end the continued violations of Geneva.

The American government has no legal foundation to prosecute those who violate the laws this Congress has similarly violated. Indeed, it is likely the DoJ Staff has prepared a long list of excuses to explain why the U-Boat Commanders defense is or is not applicable to others who similarly engage in lawful reprisals against the American government, and individual Members of Congress. As with Hamdan, the DOJ Staff excuses for illegality are frivolous.

If Congress does not wish to enforce Geneva, then American citizens need not recognize the legitimacy of the American government; nor treat any Member of Congress or member of the American legal community with any more or less respect than what is permitted or required in the Military Commissions Bill. Congress chose to ignore Geneva; American citizens and foreign fighters may lawfully hold these individual members of Congress to that same, lesser standard.

Congress made a grave error when it passed the Military Commissions Bill. It remains to be seen whether the Rubicon is replaced with another term: The Scourge of the Potomac -- Congress.

They wished this.

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Detailed Links

Ref The tyran refuses to assent to the law or courts. He prefers battle. Why not give him what he wants? Where the US government defies the law and ignores the courts, there is nothing stopping the states from lawfully raising an army to defeat the alleged war criminals inside and presenting them to justice.

Ref § 1398 There is no absolute bar on state action to defend the Constitution, rather it is a duty. Anything which prevents the states from protecting the Constitution when Congress defies the Supreme law is not lawful. When State safety compels it, as does the situation where the Congress defies the Supreme law and refuses to assent to an Article III tribunal, the exceptions permit the State to do what Congress refuses to do: Use force to Compel the Congress to do what otherwise destroys the Constitution. The issue isn't what this action may or may not do to threaten the Union or the United States, but what will happen if the States refuse to act, and sit idly while Congress further destroys the Constitution. The States do not have an option to wait while Congress, not an outside invader, becomes the domestic, clear threat to the Constitution. The Supreme Law is the primary objective; no one may credibly claim that any state action to defy Congressional abuse of power is anything less than being what is beneficial to the nation and Union. The danger comes from inaction; the benefit is for the Constitution.

[ 21 U.S. 1 ] Contrary to claims that Congress is silent on a matter, this Congress has expressly communicated its illegal requirement through an unlawful bill. That which is illegal cannot be enforced, nor is it the Constitutional Will of the People, but the will of rebels and tyrants within the Legislature and Executive branches who defy their oath and the Supreme Law. Where Congress is refused to assent to the oath, the Supreme law, and the Courts, but issued illegal bills, it may be presumed that the States are in actual danger, and that Congress has no interest in discussing its complicity with war crimes. Yet, Congressional refusal to assent to the rule of law is not a mandate on the State to do the same; rather, the lawful option is to seek the courts assistance; when the Congress ignores the civil form of the court, the Congress, through this bill, compels the States to use the only other option: The battlefield. Consent cannot be obtained when the Congress is in an illegal agreement to defy the Supreme Law; this illegal Congressional defiance amounts to imminent danger and no State need to wait for Congress to agree to do what it is unwilling to do: Resolve issues civilly within the Article III courts. Judicial officers who compel the States to assent to illegal orders or illegally support war crimes may be prosecuted for failing to prevent war crimes, and for failing to enforce Geneva.

[ 29 U.S. 514 ] Both the states and the Congress are jointly prohibited from destroying what they have no power to destroy. These prohibitions are not an absolute bar to action, there are an absolute bar to destruction. Conversely, when the Congress hopes to destroy the Constitution, it is not the State that is destroying Congressional power, it is the Congress that is destroying the Constitution. Congress has no power to destroy the source of its power; rather, the States have the power and lawful duty to assert its power to maintain what Congress otherwise illegally destroys. The states are denied the power to destroy the Machinery of Government; but this does not prevent the States from creatively asserting State power to ensure that the Machinery of Government is preserved, protected, and defended. It is incorrect to presume that all state action, out of harmony with the illegal acts of Congress, hope to do what is not permitted; rather, these acts are to do what is required: Assert the rule of law where Congress does the opposite. Supremacy of law does not mean the Congress is supreme in its authority to defy the Constitution, then compel all states to march in lock step to destroy the Constitution. The issue becomes: What is to be done when the legal methods through the court are ignored to otherwise compel the Congress to rejoin the States under the Constitution. The only option Congress leaves the states is the battlefield.

[ 48 U.S. 1 ] When Congress refuses to consult the Constitution, and defies the Supreme Law, it may be presumed that the States have been denied the legal Consultation Congress is required to fulfill. Congress does not have the power to subordinate the States and Constitution to the illegal will of the legislature. Just as the States are denied the power to create State power at the expense of Congress; so too is the Congress denied the power to destroy state power at the expense of the Constitution.

[ 254 U.S. 325 ] The Supreme Duty is to the Constitution and the Rule of Law. Whether the States or Congress are the primary drivers behind that loyalty makes no difference. But the states may compel its citizen to remain loyal to the state, however disloyal the American Congress is to the US Constitution.

[ 440 U.S. 391 ] Nothing in the law or Constitution prohibits states from organizing and cooperating to do what Congress refuses to do: Enforce the law, protect the Constitution, and assert the oath of office to enforce treaty obligations.

[ 496 U.S. 334 ] Federal law may be supreme, but this does not mean that illegal Federal government exercise of authority, which violates the Constitution, is legal or Supreme. Rather, the States may lawfully take action to challenge the illegal US government action. When the US government refuses to hear these challenges in court, the State Militias may lawfully be raised by the Governor to enforce State law, and the Constitutional guarantee for a Republican Form of Government, against the US Government.

[ 185 U.S. 125 ] The Intent of the Constitution was to prevent States from engaging in political alliances which may subordinate the Constitution. Today's problem is not a political dilemma, nor does it ask the States to choose between an alliance and the Constitution; rather, the political issue is meaningless in that the Choice is between the Constitution and the Congress' illegal rebellion against the rule of law. An alliance for nonpolitical objectives for a higher Constitutional objective is outside the intent of the restriction within Article 1 Section 10.

[ 180 U.S. 208 ] Unlike Article 1 Section 10 which compels the states to civilly resolve disputes, this issue does not involve a dispute between the states, but a dispute between the Constitution and the Congress, to which the Congress refuses to assent to the Court. Arguably, when the Congress is in rebellion, it is subject to lawful targeting by the States, especially when that lawful use of force is to compel the Individual Members of Congress to do by force what they refuse to do by oath, 5 USC 3331.

[ 149 U.S. 698 ] A claim of sovereignty, and the power to defend sovereignty is different than failing to exercise sovereignty. The laws of war permit other nations to lawfully invade the US to ensure the rule of law prevails. Congress has no power to use illegal means to assert sovereignty, nor compel citizens or the states to assent to illegal orders or bills which violate the Supreme law.

[ 148 U.S. 503 ] The United States, as a creature of the Constitution, does not have the power to permit its destruction. Rather, the United States favorably looks upon those who seek to assert the rule of law and Constitution. When the States are illegally forced to assent to unlawful assertions of Congressional power, the issue is the reverse: The States are not taking action to expand power, but to maintain power they already have, but Congress has illegally usurped. Congress loses legitimacy when it encroaches on the Constitution, ignores the Court, and puts the Constitution and the United States below the will of illegal Congressional acts. Congress cannot lawfully say that it managing anything, nor can it claim the power to subordinate any state to its illegal control, when the objective of the Congress is to defy the Supreme law. This leaves open the claim that there is a reasonable claim and objection by the states; and that they may lawfully interfere with the wayward Congress.

[94 U.S. 238 ] States have the power to regulate illegal commerce, especially in cases where Congress illegally appropriates funds for illegal things, and otherwise refuses to ensure commerce is lawful or regulated as the Constitution requires.

Ref: Can Congress make rules related to military commissions when there is no declaration of war? "We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists."

Ref Just because someone is a Member of Congress, government agent/contractor, or officer of the court does not mean that they are loyal to the US Constitution. "In times of rebellion and civil war it may often happen, indeed, that judges and marshals will be in active sympathy with the rebels, and courts their most efficient allies. " Arguably, the American judicial system has at its leadership individuals who are willing to defy their oath, and illegally ignore the laws of war: See more ]

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The problem is the current situation -- where the government, not the people, are actively rebelling against the rule of law -- falls outside the perceived scheme of ex parte Milligan. Consider the following language closely, and you'll see our present situation is not within this framework:

There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated [71 U.S. 2, 142] as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise.Ref

The problem is that this government, by passing an illegal military commission bill, is not engaged in a lawful war, nor is the war foreign; nor is this a rebellion by the citizens, but by the government; nor is this activity an insurrection or invasion, or rebellion within the borders of the Untied States, but within the halls of Congress.

The legal question: What is to be done when the government and its sworn officers are in rebellion against the US Constitution; and the courts are illegally denied the power to review the legal issues? The Constitution is the answer. The question becomes who has a greater moral and legal claim on their power to defend the Constitution.

Ref All powers not delegated to the government are retained by the states and people. This power includes the lawful power to wage lawful war against an illegal enemy of the Constitution.

Ref The Constitution may deny certain rights and powers; but these powers can be asserted when there is imminent danger. The issue is what if the danger is from within Congress, and not external nor an invasion with military force. Ref

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Ref The US Constitution and all treaties are the supreme law of the land.

71 US 2 [1866] ex parte Milligan: The President may not impose martial law, by suspending the writ of habeas corpus, when the Courts are open and there is no invasion.

Neither can Congress shut down the court system, yet this Military Commissions Bill does just that -- it illegally strips Article III power from the Judicial Branch on matters that relate to Geneva. Congress has no power to deny the Court judicial review of cases the Supreme Court has already reviewed:

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ARticle III Section 2

The standard is not where the activity occurs, but whether the activity is or is not connected with a treaty like Geneva. Hamdan recognized Geneva is a requirement; it doesn't matter where the requirement is or is not enforced. The requirement is eternal without regard to time, place, or manner.

There is no valid claim that US Detention centers in Eastern Europe are outside US Court review. Rather, it is irrelevant who runs the facilities or where they are located: The primary responsibility lies with the detaining power -- the United States -- to ensure Geneva is enforced in Eastern Europe at the CIA detention centers.

The CIA officials overseeing the Directorate of Support and the National Security Council knew, or should have known the legal requirements. Abraxas has on its staff SAUNDER who was with SHAW PITTMAN; she well knows the legal requirements. There is memoranda which she and Abraxas, as did Verizon, relied on, reviewed, or otherwise failed to refuse to follow when they had a duty to ensure they followed the law. Arguably SAUNDERS was reckless in failing to prevent Abraxas personnel and the corporation from allegedly supporting illegal war crimes and abuses at the CIA detention centers.

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Subjecting President To Court

There is precedent for subjecting the President to judicial oversight for criminal conduct and attacks on the Judiciary.

A judge demanded habeas corpus for a man arrested for sedition. Rather than comply with the writ, Jackson had the judge arrested. After the civil authority was restored, the judge fined Jackson $1000, which he paid, and for which the Congress later reimbursed Jackson.Ref

There is nothing stopping the Judiciary from asserting the same power against Members of Congress. Rather, the failure of the courts to assert its power can be the basis to prosecute a judicial officer. Ref

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The case law from the civil war reminds us that the issues of treason do not apply to internal disputes. "Waging war" requires working with a foreign power to actively invade America. This standard is not relevant when the individual Members of Congress have taken action that violates the laws of war, and illegally subjects American citizens to outrages.

Members of Congress are not immune to arrest for Treason.
They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.Article II Section 6

Notice the limitations and immunities of Congress do not apply to Geneva, and their failure to prevent violations of the laws of war. Speech and debate is protected; what is not protected is silent assent to war crimes and outrages against Americans.

The problem is -- what happens when the overt act of treason are not investigated, and the Executive thwarts the US Attorney and investigators from enforcing this Constitutional provision.

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Ref Contrast the illegal Military Commissions Bill with what the Congress does: American Congress recognizes Taliban, not American citizens' rights. Arguing that the Taliban should be "part of the Afghan government" amounts to giving the enemy "aid and comfort".

It remains to be understood what form, if any, US military forces provide in actively supporting the Taliban through drugs trade or illegal importation / transshipment of drugs through Afghanistan. Once combat forces engage in treason, but that illegal activity is not punished, arguably other combatants may violate similar provisions, raising the U-Boat commander defense.

Article III, Section 3 Congress has committed the overt act of treason by passing this illegal Military Commissions Bill. Treason requires overt acts, and warfare against America. Individual Members of Congress have allegedly engaged in treason, "legalizing" a war against American citizens.

When individual Members of Congress violate the laws of war, American citizens may lawfully violate the same restrictions. Congress has no power to immunize itself from treason, but then claim others who do the same deserve a different punishment. They may have a double standard, but it does not mean that double standard on treason is lawful or legitimate.

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Ref States may lawfully target firms which support illegal US government war crimes. The States can use the legislation targeting Iran as the legislative model to lawfully target US contractors and entities which allegedly support illegal war crimes and Geneva violations.

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When Congress fails to enforce the laws of war, and directly targets American citizens, these are not issues of possible threats, but imminent: Article 1 Section 9 permits the states to organize to protect the Constitution. Congress refuses to respond to the rule of law, Here is the exception which permits the states to organize to defend the US Constitution against the illegal abuse of power by the US government:

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. Ref

The danger has arrived in the form of the Military Commissions Bill. There's nothing that prevents the States and individual citizens from waging war against a government that refuses to honor the laws of war; nor is there a legitimate restriction against US personnel from working with other foreign fighters to disable illegally-deployed American combat forces abroad, thereby protecting the US Constitution.

Whether the US government is permitted to enforce the illegal restrictions is a separate matter. American citizens who wage war against American combat forces and the government could be summarily executed, never given the chance to face a sham military commission. At worst, they could be abused in violation of Geneva, until they die many years from now without judicial oversight -- the prospect of what already exists, and which this Congress unlawfully approved with the unconstitutional Military Commissions Bill.

The sad irony is that the sham excuse to wage illegal war abroad -- that it might protect American from the violence at home -- has proven false. This Congress with this Bill has said the violence may be brought home as a means to silence and intimidate those who wish to challenge what is not lawful.

The American government no longer inspires universal belief or faith. Rather, it is the likes of Hezbollah, Hamas, the Iraqi insurgency, and AlQueda which prove more instructive models of what is possible when waging war against what is not lawful: Arrogant American abuse of power.

The foreign war to defend America has done the opposite: All but assured that the warfare may break out in America's heartland. This government is powerless to stop it. It has no legitimate power to put into effect the illegal Military Commissions Bill. We need not respect anyone who gives up and says there is no hope. The Taliban and Iraqi insurgency have defied the odds. American citizens too can defy the American government.

The question is whether the American government will cooperate with its lawful check in the courts, or ignore peaceful options to resolve its abuse of power and Geneva violations.

Preferably this would be resolved within the Court. The resolution to this issue depends on whether the Congress is willing to assent to the rule of law and the courts; or whether the Executive chooses to wage illegal war, and continue violating Geneva. Congress has no power to permit his abuse of power. We are not required to cooperate with what has not been delegated, nor what is unlawful and in contravention to our Constitution.

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The issue is not what is ideal, but what resources we have. We have known combat forces in place waging illegal war, they are incapable of defending America. A stupid deployment decision is no reason to cooperate with what is illegal. Rather, the imprudent, illegal plans and activities should be exploited to ensure the US Constitution is protected.

The US government is willing to exploit American trust and confidence to achieve illegal purposes; we need not willingly cooperate with our slaughter nor destruction. If the Constitution is going to be destroyed, we would be better to stand and defend what remains, rather than hide behind what is an illusion. As the Chairman of the Joint Chiefs asked (paraphrasing), "If not us, who will do this?"