What's Old Is New Again

"My Lord, I can touch a bell on my right hand and order the arrest of a citizen of Ohio; I can touch a bell again, and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much?"

So saith William Seward to Lord Lyons, but it could have just as easily been Hillary Clinton or Eric Holder to some foreign official.

The corps of sappers in the legislative branch have been busy undermining the Constitution while the populace has been focused on important things like Kim Kardashian's divorce or Donald Trump's hair. Two retired Marine Generals, Charles C. Krulak and Joseph P. Hoar wrote an Op-Ed in the December 12, 2011, NY Times opposing the provisions in the National Defense Authorization Act, saying:

"One provision would authorize the military to indefinitely detain without charge people suspected of involvement with terrorism, including United States citizens apprehended on American soil. Due process would be a thing of the past....A second provision would mandate military custody for most terrorism suspects. It would force on the military responsibilities it hasn’t sought. This would violate not only the spirit of the post-Reconstruction act limiting the use of the armed forces for domestic law enforcement but also our trust with service members, who enlist believing that they will never be asked to turn their weapons on fellow Americans."

As retired military men, they know that "service members" aren't going to be asked to do anything; they are going to be ordered upon pain of incarceration or death to do as they're told. Many people express the opinion that Americans would never fire on their countrymen. Where this idea comes from is a mystery. George Washington led any army of about 15,000 men to suppress the Whiskey Rebellion. This is the only time that a sitting American president led troops in battle, even though only two or three people were killed.

Reconstruction is conclusive evidence that the army will perpetrate barbarous acts against Americans over a long period. Whether you think the Bonus Marchers were rabble or deserving veterans, the fact is that the army attacked and dispersed them when told to do so. For a more recent - and deadly- example, the Kent State Shootings illustrate that troops will fire on unarmed civilians. In the Kent State incident, the person killed who was closest to the Guardsmen was 265 feet away. This was Jeffrey Miller, the person lying dead in the famous photograph from the shooting.

Police routinely beat, club, gas, "taze" or shoot people when told to and they are not a different species from military personnel. John Marshall chronicled many of the outrages perpetrated against citizens in his 1869 book American Bastile. If you are in doubt about how the military will act, his book is a good place to start your research.

When there is a legal challenge - as there almost certainly will be - to the provisions in the NDAA allowing indefinite detention of citizens by the military, it will become apparent that present-day citizens owe an eternal debt of gratitude to Colonel Lambdin P. Milligan. Milligan was imprisoned by the Union for several months and had been sentenced to death by hanging. He sued demanding a writ of habeas corpus, his suit reaching the Supreme Court.

Several people tried to get the steel-spined Milligan to withdraw the suit, assuring him of a pardon if he would drop it. He refused.

The Supreme Court heard the case and rendered a verdict in 1866. Some of the relevant parts from a syllabus of the case (here) are:
 
7. Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power. (emphasis added)


8. The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances.

9. The Federal authority having been unopposed in the State of Indiana, and the Federal courts open for the trial of offences and the redress of grievances, the usages of war could not, under the Constitution, afford any sanction for the trial there of a citizen in civil life not connected with the military or naval service, by a military tribunal, for any offence whatever.

Congress of course pays even less attention to the Constitution now than it did then, but it will be interesting to see how this is decided. Congress not only doesn't have any such authority, but is specifically forbidden by the 4th, 5th, 6th and probably the 10th Amendments from delegating this non-existent authority.

When it comes to enforcing this, it cannot be hoped that many soldiers will refuse to follow whatever orders they are given. There are a lot more like Charles Graner than Antonio Taguba or Hugh Thompson.