Thread: Can the government detain a United States citizen under the laws of war

A FOLLOW UP ARTICLE REGARDING MY INTERVIEW WITH LARS LARSON

By Timothy N. Baldwin, JD.
December 23, 2011
NewsWithViews.com


I was pleasantly and respectfully interviewed by Lars on the Lars Larson show on December 13, 2011 at 6:20pm Mountain Time. (Listen to the interview) The subject of the discussion was Senate Bill 1867, entitled the National Defense Authorization Act for Fiscal Year 2012. This bill was drafted and sponsored by Senators John McCain (R-AZ) and Carl Levin (D-MA). SB 1867 passed the Senate and has caused much concern by many in the United States, just like other bills these two men draft and sponsor regarding Military Authorizations (e.g., SB 3081, 2010).

‘Belligerent Act’ Gives Broad Power to Military
A “belligerent act” is not defined in this statute. However, the term is defined in similar bills and laws, such as the Military Commission Act, which defines a “belligerent” as a person who:
“1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.”

This term, “belligerent,” essentially replaced the otherwise known term, “enemy combatant,” used in the Military Commission Act. “Covered persons” is a broad concept, not one of limitation or strict use. It is no wonder that constitutional scholars have commented on this type of definition and use of Military Power in our backyard as follows: "[this bill is] probably the single most extremist, tyrannical and dangerous bill introduced in the Senate in the last several decades." (See, source.)

A “belligerent act” is not defined in this statute. However, the term is defined in similar bills and laws, such as the Military Commission Act, which defines a “belligerent” as a person who:

“1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.”

This term, “belligerent,” essentially replaced the otherwise known term, “enemy combatant,” used in the Military Commission Act. “Covered persons” is a broad concept, not one of limitation or strict use. It is no wonder that constitutional scholars have commented on this type of definition and use of Military Power in our backyard as follows: "[this bill is] probably the single most extremist, tyrannical and dangerous bill introduced in the Senate in the last several decades." (See, source.)

Moreover, the evolution of these types of military authorization bills is getting broader and broader. A history of this bill’s origin and evolution has been reported before and is worth researching.The Interview and Larson’s DescriptionDuring the interview, Larson portrays a tone of support for SB 1867 and describes the United States Constitution as not being a “suicide pact.” Larson proposes scenarios where it would be absurd to let individuals carry out a plan of attack on the United States by affording them constitutional due process. (observe: Larson may have been playing the “devil’s advocate”.)Larson describes, for example, a situation where a person is caught with a bomb in the commencement of an act of war upon the United States. Larson suggests a conclusion, though he did not state it directly: “the United States government should have the authority to hold that person indefinitely without affording him constitutional protections of due process. Otherwise, the constitution would be providing the means for mass destruction upon the citizens.” Larson is correct that such a person should not be allowed to continue his plan of terrorism, but he has a hard time believing that the United States Constitution provides for both the protection of the accused and the citizens of the United States and seems to think that we need SB 1867 to protect us.A More Detailed Response to Larson’s ConcernsThis following is a more detailed response to those who believe that the United States needs to have SB 1867-like power to deny due process to protect the United States from a terroristic crime or act of war.

1. Evidence is Required in All Criminal or War Acts

The constitution’s due process requirements are simply stated: (1) evidence is required to detain an accused, and (2) the evidence must be reviewed by the judicial branch.Can the government detain a United States citizen under the “laws of war” and outside of the constitution’s protections without evidence? Is evidence required in cases where the government is imprisoning and accusing people of the most egregious acts and intents upon mankind?-Where evidence of an act of war exists, then due process requirements will not prevent the government from protecting the United States. -Where evidence does not exist, why is the government imprisoning United States citizens through Military “laws of war”?Does due process really get in the way of the United States protecting itself? What hypothetical scenario can be imagined that would justify indefinite military detention of a United States citizen for a “belligerent act” where there is no evidence? If evidence of this act of war exists, then even with due process protections in place, the government could obtain court orders to prevent the release of the accused, as well as preventing the accused from communicating with others to execute the conspiracy.

2. Due Process Protects the Accused and the United States

Due process requirements of the constitution are such that a court can order the unconditional detention of an accused where circumstances require. The court’s power is correlative to the facts/evidence. Where there is evidence of the kind Larson proposes, a court would unconditionally detain the accused given the potential mass threat to society.

Continued Below

In addition, the court would use its powers of equity to establish the conditions of the accused’s detention to prevent irreparable harm. Since the court’s equity power is commensurate with the evidence, the court would ensure the proper detention of the accused.
Furthermore, another protection for the United States exists. The government could appeal any court order it feels did not sufficiently protect the safety of the United States. In the facts Larson describes, it is unimaginable that the trial court and all appellate courts, including the United States Supreme Court, would order conditions of release or detention that would jeopardize the safety of the United States.
3. The “X” Factor of the Accomplice AttorneyTo Larson, however, there is a loophole in the due process protection. Assuming the court unconditionally detained the accused and the government had sufficient evidence to secure his detention, Larson describes one other possibility of mass destruction: namely, an accomplice attorney.
Since the constitution guarantees the right of the accused to an attorney, Larson suggests that the accused would use his attorney and the attorney could facilitate carrying out the conspiracy. The implication is that the accused would need to be detained without the ability to communicate with anyone, including his attorney.
This leads us to the next point in the discussion.
4. Constitution Provides for Treason Charges, as Well as Suspension of Writ of Habeas Corpus Article 3, Section 3, Clause 2 states, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Article 1, Section 9 states, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Larson’s act-of-war description falls under the definition of “treason”. Likewise, it falls under the category of “public safety may require [the suspension of the writ of habeas corpus].”
Therefore, the Executive branch would be able to charge the citizen with Treason given the evidence of the overt act; and Congress or the Courts (and perhaps the President) would be able to suspend Habeas Corpus as to those accused since “the public Safety [requires] it.”
Where the government charges the accused with an act of war against the United States (i.e. Treason); where there is sufficient evidence for the court’s consideration; and where Habeas Corpus is suspended, the government’s power to prevent the accused from further executing the conspiracy sufficiently exists.
And of course, laws can be passed by Congress to carry out these duties and functions where they are “necessary and proper”.
ConclusionThe Constitution adequately provides for the protection of the accused’s rights as well as the public safety.
We cannot ignore the United States Constitution in the name of “safety”. It provides for our safety. However, if there is a flaw in the United States Constitution relative to these matters of “terror”, then the people should amend it. We tread on dangerous ground where power is assumed. This was one of the strongest warnings the founding fathers gave us.
Yet, too many Americans are willing to permit the federal government to assume these powers of military authority within the United States against our citizens. Congress’ attempt to place the United States under the “law of war” and defining “acts of war” against the United States in ways that do not comport to the United States Constitution are unnecessary; and worse, they are dangerous.

The “war on terror” began in 2001 without a declaration of war or letter of Marque or Reprisal. Congressman Henry Hyde told the President to use his discretion in the war. Now, Congress is providing the President with a law of discretion against United States citizens with no oversight of the judicial branch.
The federal government has been exacerbating our relationships with foreign countries, and now, they are bringing war to our backyard. They continually broaden power, definitions, applications, and time-frames. They propose that the only way they can fight the “war on terror” is for United States citizens to continually give up more liberty and constitutional protections.
Can we really trust these people with this much power? Is our safety protected only by consolidating power into one branch of government? Can we really continue down this road?
Subscribe to Timothy Baldwin’s articles by going to www.LibertyDefenseLeague.com. Order Timothy and Chuck Baldwin’s recently released book, Romans 13: The True Meaning of Submission by going to www.Romans13Truth.com.
© 2011 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin is an attorney licensed to practice law in Montana (and Florida) and focuses on constitutional issues. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and Political Discussions for People of States–all of which are available for purchase through Liberty Defense League. Baldwin has also authored hundreds of political science articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.

Web site: LibertyDefenseLeague
E-Mail:tim@libertydefenseleague.com

http://www.newswithviews.com/Timothy/baldwin177.htm

TIS THE SEASON TO GET REAL

By J.B. Williams
December 23, 2011
NewsWithViews.com

America on the Brink of Anarchy
When government leaders demonstrate a blatant disregard for the rule of law, the citizens soon follow that example. When justice becomes nothing more than a tool for socialist experiments known as social justice, no longer a system of equal protections guided by existing laws, the people will seek their own form of justice and anarchy will reign, until justice is restored.Our federal government has refused to keep its Constitutional promise to the states and the people, to among other things, control and enforce our immigration laws, demonstrating a blatant disregard for the rule of law, the state and legal American citizens, not to mention their constitutional obligation.Border States were left to enforce the law within their own states. But federal courts, which have no jurisdiction over the states, stepped in and blocked the states from enforcing the law and today, dozens of Sheriff Deputies turn in their federal credentials, refusing to abide by federal mandates to break existing immigration laws.Meanwhile, the Democrat Mayor of D.C. announces his executive order to stand down on federal immigration laws in his city, and Democrat Connecticut Mayor of New Haven, already known as a sanctuary city for illegal activity, announces his intentions to allow illegal aliens to vote in the upcoming 2012 election cycle. The Obama Administration supports both illegal acts.Democrat Mayors, Governors, law-makers, judges and the White House are living in blatant violation of the law, their oaths of office, the will of legal American citizens and their constitutional authority. How much longer will the people sit quiet, before taking justice into their own hands, in what has clearly become a lawless society?Clearly, government officials from the White House all the way down to your local town and all points in-between, have a total disregard for the rule of law and the Constitution of these once United States. Every day, we see government officials act beyond their authority, in direct violation of the law and their oaths of office – still, the American people sit silent, waiting… but for what?The people allowed their Constitutional Representative Republic to be quietly replaced with a Marxist form of democracy (aka Democratic Socialism) and we are now witnessing simple democracy at its worst. Washington D.C. is the belly of the beast, in terms of political and judicial corruption and lawlessness. But that corruption and lawlessness has been systematically spread across the country, throughout the federal courts, all the way down to your local traffic court.Judges are no longer restrained by the law. They operate as political tools for change – henchmen for a corrupt administration, federal, state and local. Our nation has been systematically pushed to the brink of anarchy, a lawless society wherein the people will have to exact justice themselves, or live under the boot of government tyranny.The people have already been silent too long. What are they waiting for?Fifty years ago, the people could have resolved this matter peacefully, via constitutional processes put in place to protect the people and the states from government corruption and tyranny. But today, the mechanisms of justice have been stolen from the people, just like the rest of their government.The people have no place to turn, to restore the rule of law and constitutional government. The people now stand alone, undermanned and out-gunned – divided, distracted and impotent.Three-hundred million Americans live in fear of a small handful of evil tyrants operating their government well outside of constitutional authority, ready and willing to use the full power of the federal government, our military, intelligence and law enforcement agencies, to put down any resistance from the people.The Department of Homeland Security has carefully identified every potential patriotic resister as a “potential domestic terrorist.” The White House has cross-trained federal, state and local law enforcement with military units, staging for civil unrest once the anarchy they created grips the entire nation. The Clinton Administration launched UN Agenda 21 across America in 1996, under a federal program titled Global Governance 2025. The timeline for completing this agenda has since been bumped up to 2013, officially. But economic circumstances here and abroad have caused the Obama Administration to accelerate, attempting a 2012 completion, amid political chaos and partisan stalemates.

Everything we see unfolding today is in support of this agenda to end American sovereignty, security and supremacy in the world. They are even running Intel snitch ops on American citizens from the college campuses. The enemy is a hundred-years ahead of American patriots, who seem stuck in a rut, baffled by a constant diet of propaganda that keeps them only able to chase their own tails.Only three potential lines of defense remain now – your state line, your county line and your front door.If the states don’t quickly position themselves to fight back against a corrupt and tyrannical federal dictatorship, this thing is already over. The County Sheriff has an important role to play, but they cannot defend the people alone. They will have to deputize every citizen in their county, as they will face federal, state and local law enforcement, plus the U.S. military and even foreign military units from NATO and the UN. Are you aware of the fact that the U.S. Military enjoys world-wide air superiority?The states must face the reality that “federal supremacy” is based solely upon “federal funding.” The federal government has very limited authority within a state. It is the federal funding that allows the federal government to dictate to the states and the states must cut themselves off from all federal funding.

Continued Below

The states must face the reality that “federal supremacy” is based solely upon “federal funding.” The federal government has very limited authority within a state. It is the federal funding that allows the federal government to dictate to the states and the states must cut themselves off from all federal funding.If the people fail to stand up a real resistance at their state lines, closely working with their governors and state legislators in order to put their state on what can only be called a war footing, then the people will not be able to defend at their county line, much less their front door.This thing has been a long time coming and it is coming fast and hard now. Obama cannot be re-elected without massive voter fraud, including the votes of illegal aliens. The 2012 election cycle will be anything but legitimate, unless the people pile into the election centers and enforce laws that law enforcement agencies will not enforce. Study the Battle of Athens Tennessee 1946. This is what the 2012 election could look like in every district across the nation, especially the inner-city districts. Remember that the Obama Justice Department refused to prosecute Black Panthers who were openly intimidating voters in the 2008 election!Those who truly understand the desperate condition of our country are not too focused on the 2012 election. They are instead, focused upon getting their states positioned to defend freedom and liberty at the state line.I am NOT calling for anarchy, I am predicting it.
When our elected representatives operate with a total disregard for the rule of constitutional authority and law, it is only a matter of time before the people disregard the law as well.The rule of constitutional law applies to everyone, including elected representatives – or it applies to no one at all.
Our federal government has created a lawless government operating against the will of the people, beyond constitutional authority. It is only a matter of time before the people act with total disregard for the law as well.The people must act to position a last defense at their state line, or this thing, Global Governance 2025, is already over. Only a majority of the states have the power to stop it! If they won’t stop it at the state lines, the people will never know freedom, liberty, national sovereignty, security and supremacy in the world, again.The time is here… it is now. Or it is never! Unite to fight!
© 2011 JB Williams - All Rights Reserved

JB Williams is a business man, a husband, a father, and a writer. A no nonsense commentator on American politics, American history, and American philosophy. He is published nationwide and in many countries around the world. He is also a Founder of Freedom Force USA and a staunch conservative actively engaged in returning the power to the right people in America.
Web site 1: www.PatriotsUnion.org
Web site 2: www.VeteranDefenders.org
E-Mail:JB.USPU@gmail.com

http://www.newswithviews.com/JBWilliams/williams169.htm