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Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report Israel kills head of Hezbollah Intelligence. Status: Not Logged In; Sign In Economy See other Economy Articles Title: ACLU objects to killing of al Qaeda leader Source: The Hill URL Source: http://thehill.com/blogs/blog-brief ... -to-killing-of-al-qaeda-leader Published: Sep 30, 2011 Author: Erik Wasson Post Date: 2011-09-30 12:40:46 by Sebastian Keywords: None Views: 125831 Comments: 179 The American Civil Liberties Union has objected to the killing of the U.S.-born Muslim cleric Anwar al-Awlaki in Yemen by U.S. forces. Awlaki was a U.S. citizen, and the ACLU said President Obama does not have the authority to kill an American without due process of law. The White House confirmed the cleric was killed by a U.S. drone attack. “The targeted killing program violates both U.S. and international law,” ACLU Deputy Legal Director Jameel Jaffer said. “As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts.” The ACLU said the government only has the authority to kill Americans when a threat is imminent. “It is a mistake to invest the president — any president — with the unreviewable power to kill any American whom he deems to present a threat to the country,” Jaffer said. Ben Wizner, litigation director of the ACLU’s National Security Project, added: “If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state.” Obama’s actions also garnered criticism from GOP presidential candidate Rep. Ron Paul (Texas). Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 39. #4. To: Sebastian (#0) (Edited) President Obama does not have the authority to kill an American without due process of law. It's called first degree murder. I know that a lot of people are out thumping their chests today, but without any evidence to the contrary, the only thing we know for sure is that al-Awlaki was posting political opinions on a website. Posting political opinions on a web site is not against the law. Remember, that is what we do here on LF. Also remember, that the very first thing Obama's Department of Homeland Security did was issue a report about homegrown, "right-wing extremists". Tie these two together, along with Obama's constant demonetization of his opponents, and it points to a very bad place. jwpegler  posted on  2011-09-30   13:30:44 ET  Reply   Untrace   Trace   Private Reply   #5. To: jwpegler (#4) It's called first degree murder. Nope, it's called war. Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin. See: http://volokh.com/2011/09/30/anwar-al-aulaqi-apparently-killed-by-drone-in-yemen/ and: http://www.lawfareblog.com/2011/09/al-awlaki-as-an-operational-leader-located-in-a-place-where-capture-was-not-possible/ go65  posted on  2011-09-30   15:09:03 ET  Reply   Untrace   Trace   Private Reply   #9. To: go65, jwpegler (#5) (Edited) Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin. Can you please identify the U.S. law to which you refer? nolu chan  posted on  2011-09-30   20:25:51 ET  Reply   Untrace   Trace   Private Reply   #22. To: nolu chan (#9) Can you please identify the U.S. law to which you refer? I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......" That would be an opinion of the court in case law, would it not? Does that mean the political question doctrine means the Executive Branch can get away with killing a US citizen without due process and not be held accountable except by the ballot? Sebastian  posted on  2011-10-01   21:27:22 ET  Reply   Untrace   Trace   Private Reply   #24. To: Sebastian, go65 (#22) [go65 #5] Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin. [Sebastien #22I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......" That would be an opinion of the court in case law, would it not? El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010) I believe el-Shifa would not be an opinion of the court in case law, at least not in the sense of deciding anything about the issue other than that the court could not decide it or render any opinion on it, at least not in the sense you appear to convey. It is the same as the al-Aulaqi case. The court stated it did not have jurisdiction to hear the case. It's only "opinion" was that it was asked to answer a non-justiciable political question. The court lacked subject matter jurisdiction. The case was dismissed. The court did not decide the issue of whether the President has the authority to atttack enemy combatants outside the U.S., regardless of their citizenship/country of origin. It decided that the Plaintiff's question was not proper for the court to decide. Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin. I would have to question this claim of go65 on a few points. I am unaware of current U.S. law that affirmatively grants such authority as that claimed. I do not know what law was being considered. The use of the term enemy combatants appears imprecise. I believe the more appropriate term would be unlawful combatants. In this context, I would question whether whether al-Aulaqi fits the description of any sort of combatant. The CIA action appears to be the targeted assassination of an American citizen. Assassination appears to be prohibited by EO12333 of 1981 (Reagan), Section 2.11. - - - Doc 1 - Al-Aulaqi v Obama, DCDC 10-1469, COMPLAINT Re Targeted Killing - - - Al-Aulaqi v Obama, USDC DCDC 1-10-cv-01469, Doc 31, OPINION (07dec2010) At 4: "Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum." The reference to a non-judicial forum is to a Legislative forum, i.e., Congress. = = = = = el-Shifa OPINION of the Court at 6-7: The district court granted the government’s motion to dismiss the complaint for lack of subject-matter jurisdiction, see FED. R. CIV. P. 12(b)(1), concluding that sovereign immunity barred all of the plaintiffs’ claims. See El-Shifa, 402 F. Supp. 2d at 270–73. The court also noted that the complaint “likely present[ed] a nonjusticiable political question.” Id. at 276. The plaintiffs filed a motion to alter the judgment with respect to their claims for equitable relief, which the district court denied. See El-Shifa Pharm. Indus. Co. v. United States, No. 01-731, 2007 WL 950082 (D.D.C. Mar. 28, 2007). The plaintiffs appealed, challenging only the dismissal of their claims alleging a violation of the law of nations and defamation. The plaintiffs have abandoned any request for monetary relief, but still seek a declaration that the government’s failure to compensate them for the destruction of the plant violated customary international law, a declaration that statements government officials made about them were defamatory, and an injunction requiring the government to retract those statements. A divided panel of this court affirmed the district court, holding that these claims are barred by the political question doctrine. See El-Shifa Pharm. Indus. Co. v. United States, 559 F.3d 578 (D.C. Cir. 2009). We vacated the panel’s judgment and ordered rehearing en banc. See El-Shifa Pharm. Indus. Co. v. United States, 330 F. App’x 200 (D.C. Cir. 2009). el-Shifa OPINION of the Court at 27: Our concurring colleagues charge the court with “sub silentio expand[ing] executive power.” Concurring Op. of Judge Ginsburg at 3 (quoting Concurring Op. of Judge Kavanaugh at 11). To the contrary, it is they who would work a sub silentio expansion. By asserting the authority to decide questions the Constitution reserves to Congress and the Executive, some would expand judicial power at the expense of the democratically elected branches. And by stretching beyond all precedent the limited category of claims so frivolous as not to involve a federal question, all would permit courts to decide the merits of disputes under the guise of a jurisdictional holding while sidestepping obstacles that are truly jurisdictional. Straightforward application of our precedent makes clear that the plaintiffs face such an obstacle here. Under the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of retaliatory military action taken by the United States. Despite their efforts to characterize the case differently, that is just what the plaintiffs have asked us to do. The district court’s dismissal of their claims is Affirmed. Docket Report - el-Shifa v USA, USCA DC Cir 07-1514, Docketed 31may2007 Termed 08jun2010 - - - el-Shifa v USA, USCA DC Cir 07-5174, OPINION (8jun2010) (political question) - - - Here are some documents that touch on the topic. Geneva Convention Relative to the Treatment of Prisoners of War Military Commissions Act of 2006 Authorization for Use of Military Force (AUMF) of 2001 Military Order - Detention, Treatment, And Trial of Certain Non-Citizens in the War Against Terrorism, (13nov2001) President GW Bush The WAR POWERS Resolution of 1973 EO 12333 (4dec1981) US Intelligence Activities as Amended by EO 13284 (2003), 13355 (2004) and 13470 (2008) - - - Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva Convention III) - - - Military Commissions Act of 2006, S3930 - - - Authorization for Use of Military Force (AUMF), 115 Stat 224; PL 107-40; SJ Res 18sep2001 - - - Military Order - Detention, Treatment, And Trial of Certain Non-Citizens in the War Against Terrorism, (13n... - - - The WAR POWERS Resolution of 1973 - Text and Records From Congress - - - EO 12333 (4dec1981) US Intelligence Activities as Amended by EO 13284 (2003), 13355 (2004) and 13470 (2008) Page 14, paragraph 2.11: 2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination. - - - nolu chan  posted on  2011-10-04   21:05:48 ET  Reply   Untrace   Trace   Private Reply   #29. To: nolu chan (#24) SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES. (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. ~~~~~~~~~~~~~~~~~~~~~~~~~ It's pretty clear that such a "determination" about this asshole was so made. war  posted on  2011-10-05   7:44:08 ET  Reply   Untrace   Trace   Private Reply   #32. To: war (#29) (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. Please show the slightest evidence that al-Aulaqi had anything to do with "the terrorist attacks that occurred on September 11, 2011." Please show that "appropriate force" permits targeted assassination. While the AUMF related to September 11, 2001 is often cited, that AUMF is directly related to the events of 9/11. Also, the AUMF authorizes the use of military force under specified conditions. The CIA is not military. The non-uniformed CIA operatives would fall under the category of unlawful combatants. U.S. Const., Amdt 5: "No person shall be … deprived of life, liberty, or property, without due process of law…." If the AUMF is interpreted to bypass any provision of the Constitution, then it must be unconstitutional. This argument will not be ultimately resolved until Congress directly addresses it, and the judicial branch rules on it. There are problems with the attempt to contort the law to hold as lawful, targeted assassination, absent any due process, based solely on bureaucratic placement on a list. Would it be proper and lawful for Yemen or some other country to declare the Wall Street banksters a terrorist organization, posing a threat to the national security of the world, and initiate attacks upon Wall Street? nolu chan  posted on  2011-10-05   16:01:11 ET  Reply   Untrace   Trace   Private Reply   #33. To: nolu chan (#32) (Edited) Please show the slightest evidence that al-Aulaqi had anything to do with "the terrorist attacks that occurred on September 11, 2011." He met with and, IIRC, harbored two of the 9/11 hijackers and became an integral member of AQ as a spokesman and a plotter and had himself called for "jihad" against the US and acts of terror against us. Please show that "appropriate force" permits targeted assassination. Please show me where "appropriate force" means "Shoot but not kill". Thanks. And we killed Izzy Yamamoto... While the AUMF related to September 11, 2001 is often cited, that AUMF is directly related to the events of 9/11. And the Delcaratio of War on 12/8/41 was directly related to the events of 12/7/41. That said, the resolution, as I highlighted, extends to those who gave aid and comfort to the plotters or were members of the organization. You may also wish to consider that the resolution clearly states that under the USCON a POTUS may take military action to kill terrorists. U.S. Const., Amdt 5: "No person shall be … deprived of life, liberty, or property, without due process of law…." If the AUMF is interpreted to bypass any provision of the Constitution, then it must be unconstitutional. The Congress is charged with making the rules for war and the use of the military. Were the B/R effective in restrainiing all acts and orders of the executive in his role as CIC, any use of the military resulting in death would be so violative of 5A. This argument will not be ultimately resolved until Congress directly addresses it, and the judicial branch rules on it. The Congress did when in its 9/18/01 resolution it authorized force against AQ. On the juducial branch ruling - we agree. I'm not the one who will be disappointed were it to be so adjudicated. war  posted on  2011-10-05   16:15:29 ET  Reply   Untrace   Trace   Private Reply   #35. To: war (#33) [nc #32] U.S. Const., Amdt 5: "No person shall be … deprived of life, liberty, or property, without due process of law…." If the AUMF is interpreted to bypass any provision of the Constitution, then it must be unconstitutional. [war #33] The Congress is charged with making the rules for war and the use of the military. Were the B/R effective in restrainiing all acts and orders of the executive in his role as CIC, any use of the military resulting in death would be so violative of 5A. Of course, nobody asserted that "the B/R [is] effective in restrainiing all acts and orders of the executive in his role as CIC." The 5th Amendment has no applicability to killing in accordance with the laws of war. If I am wearing my DoD warsuit and kill a uniformed enemy on the field of battle during a declared war, it is a lawful act according to the laws of war. Killing of American civilians, not on a battlefield, not engaged in combat, not charged with any crime, by non-military CIA, in the complete absence of due process, is a different matter. The President is the Commander-in-Chief of the Armed Forces. He is not the commander-in-chief of anything else. This argument will not be ultimately resolved until Congress directly addresses it, and the judicial branch rules on it. The Congress did when in its 9/18/01 resolution it authorized force against AQ. On the juducial branch ruling on it we agree. I'm not the one who will be disappointed were it to be so adjudicated. This is an incorrect assumption. The U.S. Courts have repeatedly ruled that it is a political question that has not been decided. If your interpretation were judicially accepted, the Courts would have had subject matter jurisdiction to rule. I believe it will not be adjudicated while it is a real and present issue. When it is no longer the same real and present issue, the court may rule. At such time, a judicial ruling would find the action to be unlawful. Basically, the judiciary has somewhat of a history of tolerating or finding ways not to comdemn some Executive Department action during some claimed time of necessity, and then properly opining later that it was unlawful. This may be in recognition of the established fact that if it rules against the Executive, and the President decides to flip them off as Lincoln did in the Merryman case, there is not much the judiciary can do but take note of it and bide its time. After the Civil War came the case of Ex parte Milligan which spoke directly to the issue of the so-called Law of Necessity which was invoked repeatedly during the war. THE LAW OF NECESSITY The alleged "LAW OF NECESSITY" as addressed by the Supreme Court in 1866: United States Supreme Court, Ex parte Milligan, 71 US 2 (1866), pages 118-127: 71 U. S. 118 No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole 71 U. S. 119 people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says "That the trial of all crimes, except in case of impeachment, shall be by jury," and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure, and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares "that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived 71 U. S. 120 of life, liberty, or property without due process of law." And the sixth guarantees the right of trial by jury, in such manner and with such regulations that, with upright judges, impartial juries, and an able bar, the innocent will be saved and the guilty punished. It is in these words: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence." These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that, when the original Constitution was proposed for adoption, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. Time has proven the discernment of our ancestors, for even 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 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 71 U. S. 121 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. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. Have any of the rights guaranteed by the Constitution been violated in the case of Milligan?, and, if so, what are they? Every trial involves the exercise of judicial power, and from what source did the military commission that tried him derive their authority? Certainly no part of judicial power of the country was conferred on them, because the Constitution expressly vests it "in one supreme court and such inferior courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President, because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws, and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction." But it is said that the jurisdiction is complete under the "laws and usages of war." It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise 71 U. S. 122 connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior. Why was he not delivered to the Circuit Court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it, because Congress had declared penalties against the offences charged, provided for their punishment, and directed that court to hear and determine them. And soon after this military tribunal was ended, the Circuit Court met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments. It was held in a state, eminently distinguished for patriotism, by judges commissioned during the Rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The government had no right to conclude that Milligan, if guilty, would not receive in that court merited punishment, for its records disclose that it was constantly engaged in the trial of similar offences, and was never interrupted in its administration of criminal justice. If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty because he "conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection," the law said arrest him, confine him closely, render him powerless to do further mischief, and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended. Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country 71 U. S. 123 have differed on the correct interpretation to be given to various provisions of the Federal Constitution, and judicial decision has been often invoked to settle their true meaning; but, until recently, no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed, but if ideas can be expressed in words and language has any meaning, this right -- one of the most valuable in a free country -- is preserved to everyone accused of crime who is not attached to the army or navy or militia in actual service. The sixth amendment affirms that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury," language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment or presentment before anyone can be held to answer for high crimes, "excepts cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger," and the framers of the Constitution doubtless meant to limit the right of trial by jury in the sixth amendment to those persons who were subject to indictment or presentment in the fifth. The discipline necessary to the efficiency of the army and navy required other and swifter modes of trial than are furnished by the common law courts, and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Everyone connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, 71 U. S. 124 there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion -- if the passions of men are aroused and the restraints of law weakened, if not disregarded -- these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution. It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure 71 U. S. 125 together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish. This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus. It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible, and yet the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested 71 U. S. 126 in answer to a writ of habeas corpus. The Constitution goes no further. It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy, by the use of direct words, to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so. It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service during the late Rebellion required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them, and it is urged that this, in a military sense, constituted them the theater of military operations, and as, in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and, with 71 U. S. 127 it, all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration. It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal, and as there could be no wish to convict except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law. It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion, it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered. And so, in the case of a foreign invasion, martial rule may become a necessity in one state when, in another, it would be "mere lawless violence." Regarding the Japanese relocation program, the Court held that in order to prevent espionage and sabotage, the authorities could restrict movement by curfew order,1 or by regulation excluding them from defined areas,2 but a citizen of Japanese ancestry whose loyalty was conceded could not be detained in a relocation camp.3 1. Hirabayashi v. United States, 320 U.S. 81 (1943). 2. Korematsu v. United States, 323 U.S. 214 (1944). 3. Ex parte Endo, 323 U.S. 283 (1944). Were a president to determine that such a class of people were to be placed on a kill list and exterminated, it would clearly be a war crime. At what point does a kill list and the resulting kills become a war crime? After the fact, the detention of loyal citizens of Japanese ethnicity is considered shameful. Not to belabor the obvious, but we did not also detain loyal citizens of German or Italian ethnicity. Detention or restriction of resident aliens, still citizens of Germany or Italy, did take place but teir status was quite different than that of an American citizen. They were citizens of a foreign power with whom we were at war. nolu chan  posted on  2011-10-05   19:52:45 ET  Reply   Untrace   Trace   Private Reply   #36. To: nolu chan, war (#35) people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says "That the trial of all crimes, except in case of impeachment, shall be by jury," and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure, and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares "that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived War isn't a constitutionalists. He says he is but it is just to give him cover as he attacks it. Ever notice he always taxes the position of the elites in DC? A K A Stone  posted on  2011-10-05   20:00:32 ET  Reply   Untrace   Trace   Private Reply   #39. To: A K A Stone (#36) Shh...watch and learn for once... war  posted on  2011-10-05   20:21:02 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 39. #40. To: war, nolu chan (#39) Shh...watch and learn for once... I am watching. I'm watching nolu chan kick your ass. A K A Stone  posted on  2011-10-05 20:22:59 ET  Reply   Untrace   Trace   Private Reply   End Trace Mode for Comment # 39. 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