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Dead Constitution See other Dead Constitution Articles Title: Has the US Constitution Been Lost to Military Rule? On October 23, 2001, the Office of Legal Counsel issued a legal opinion that would shock most Americans if they realized its full implications. By all appearances, it is still in effect, judging by military surveillance operations taking place in the U.S. by the Department of Defense and the military command within it, the National Security Agency (NSA). The opinion was entitled: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (emphasis in original). What is the Office of Legal Counsel – or "OLC" for short – that made such a bold move? It is a secretive office in the Department of Justice. The purpose of the OLC is straightforward. It sits as a de facto court within the White House that decides the legal questions that set the boundaries for how the federal government runs day-to-day. Be they the highest presidential appointee or lowliest bureaucrat, a government official who complies with the OLC’s opinion is generally immune from later prosecution or liability. They are immune, that is, unless the OLC attorney was not giving "good faith legal advice" when, in fact, the lawyers were just following orders to "legalize" an otherwise criminal act. That "good faith legal advice" would not then serve to protect their clients. Lawyers can’t help with committing crimes, and when they do – even OLC lawyers – they can be prosecuted when they knowingly help plan or commit a crime. In fact, a lawyer was prosecuted at Nuremberg for his role in committing war crimes. The lawyers who wrote the OLC opinion about the use of military force within the United States were Robert Delahunty, now teaching "law" at St. Thomas University Law School, Minneapolis, and John Yoo, who is back teaching the same sort of law at Boalt Law School, University of California, Berkeley. By "the same sort of law" is meant their idiosyncratic belief that the President, acting as "Commander in Chief," has dictatorial-like powers. This is the "unitary executive theory" – a radically un-American, unconstitutional and extralegal ideology that former Vice President and torture enthusiast Dick Cheney has been pushing since the Iran-Contra Affair. In other countries, but particularly Germany from 1933 to 1945, in which citizens lived under a dictatorship, this was called "prerogative" government, as described by German Jewish lawyers. Both Delahunty and Yoo continue working to shoehorn this radical legal theory into respectability with prolific writing of law review articles promoting it. The argument was that because of these prerogative powers, the President was subject to no law – neither constitutional law nor international law. The October 23, 2001 opinion is particularly dangerous, as it essentially granted the President martial law authority, meaning the authority to act outside the Constitution. To reiterate, the conclusion the OLC drew was that the President has constitutional authority to use the armed forces in military operations against those deemed to be terrorists within the United States. Consequently, "these operations generally would not be subject to the constraints of the Fourth Amendment, so long as the armed forces are undertaking a military function." This is a frightening prospect, since the Fourth Amendment is what protects us against unreasonable searches and seizures, which can lead to arbitrary arrests. (Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.) Furthermore, according to Delahunty and Yoo, terrorists operate within the continental United States and "conceal themselves within the domestic society and economy," which makes it difficult to identify them. By this logic, everyone is now "suspect." Furthermore, they wrote, 9/11 created a situation "in which the battlefield has occurred, and may occur, at dispersed locations and intervals within the American homeland itself. As a result, efforts to fight terrorism may require not only the usual wartime regulations of domestic affairs, but also military actions that have normally occurred abroad." This opinion by Delahunty and Yoo formed a legal basis for a state of martial law which the Bush administration took to mean that they could fight a "war" against terrorism outside the U.S. Constitution but inside the U.S. geographic area as a "military state," operating just the way paragons of legality Mubarak’s Egypt and Pinochet’s Chile did. Bush officials argued this was due to necessity, but in fact that was fallacious, as the U.S. military is not, and should not be, considered an antiterrorist force. Militaries exist to defend against foreign armies attacking, not to conduct the police work required for counter-terrorism. But as we’ve seen, when a military takes control of a country, occupying it as in Iraq and Afghanistan, or the Israeli occupation of Palestine, it enforces martial law on the civilians living there – in other words, the military operates as a dictatorship, or as our Supreme Court called it, "martial rule." So in writing an opinion authorizing martial law, Delahunty/Yoo asserted that the Fourth Amendment’s protections do not apply to domestic military operations in the United States, regardless of citizenship. They wrote that Federal Armed Forces must be free to use force when they deemed it necessary without being constrained by the Fourth Amendment, "even though force would be intentionally directed against persons known to be citizens." Additionally, as a final blow against the Constitution, Delahunty and Yoo stated: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. ‘When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’" Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest
#1. To: Ada (#0)
Nothin' new to those that can see clearly. Eisenhower et al warned us about getting to this point. As usual, once it happens it's too late. "Never again," ... LOL ... and anyone ignorantly spouting that off is a classic poster-person for exactly it happens. Ah well, what are you gonna do.
No. America's Military takes an oath to support and defend the Constitution of the United States and to bear true faith and allegiance to the same against all enemies, foreign and domestic such as wannabe overthrowers of it like Yoo and Delahunty. ------- "They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC
So much for the oath which is also taken by US presidents.
Presidents are more laxly mandated to preserve, protect and defend the Constitution of the United States "to the best of their ability" [Ref. Article Two, Section One, Clause Eight of the Constitution] -- the presumption there, which is too often wrong, being that they even have any cognitive ability to do that rightly. They don't even state that they will bear true faith and allegiance to the same for the duration of their time in office and their oath is prioritzed by office duties first, then the Constitution. That oath urgently needs to be upgraded to repair those loopholes and mistakes. The Military, otoh, are unequivocally and perpetually oathbound first and foremost to the Constitution -- above all of their other duties, Officer or not. No wishy-washy "to the best of my ability" about it. They are mandated, not just individually but collectively, to Militarily support and defend the Constitution of the United States against all enemies, foreign and domestic and to bear true faith and allegiance to the same unfailingly at all times. Some haven't respected that oath as they should but rogues in government shouldn't gamble that those who don't are in the majority. Martial Law is the suspension of Habeus Corpus in embattled areas during conditions of war and insurrection where civil governance is endangred or incapacitated. Military administered Martial Law here is only orderable by Congress in such areas and that is not authorizable by "Presidential Directive", regardless of Yoo and Delahunty's delusional blatherings. Edited paragraph 1, next to last sentence + punctuation. ------- "They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC
Evidence that the US Constitution hasn't been lost to Military Rule is that they haven't gone into coup-mode by usurping power for themselves from their civilain chain of command, forged by the words "We the People" of the Constition and which hierarchically returns to us when properly functioning Federal and State leadership is lacking or non-existant.
------- "They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC
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