Regarding Ex parte Milligan
My friend Dr. Lowell Becraft (“Larry” expressed his concern that so many PNJ’s (Patriot Nut Jobs – I call them PMM’s or Patriot Myth Mongers) complain that the US operates under martial law. He wrote:
“In the case of Ex parte Milligan, 71 U.S. 2 (1866), the Supremes were required to determine what constituted “martial law,” and in essence the Court concluded that it was essential that an army be in the field (meaning the locality where martial law prevails) and that the courts be closed because of the chaos. That case may be read here: http://supreme.justia.com/cases/federal/us/71/2/case.html. Where I live, there is no army in the field, and our courts are open. In fact, I know of no place in America where an army is in the field, and anarchy is so prevalent that the courts must be closed. ”
I, Bob, responded:
The courts do seem open, but to many they have become meaningless as tools of obtaining justice/redress because
1. Most don’t know the law or procedure
2. Most cannot afford legal counsel
3. Court and transcript and advocacy/case worker fees have become so exorbitant that most cannot afford them
4. Judges seem to favor lawyered litigants over pro se litigants
In other words, for most, courts have effectively become NOT open. That is one reason so many have showed up in the field.
I am unusual. Because I don’t work, I actually have the discretionary time for studying law and procedure, but even I would have a terrible time facing off against an experienced attorney.
THE COURTS ONLY SEEM OPEN.
Larry: “But not because of martial law.”
Bob: “Then why?”
Larry: “The best description is that it is a power structure that protects the powerful; but it is not martial law. ”
Bob: “Doesn’t that equal “martial law?” The powerful remain protected by militant force against the non-powerful who have, as a consequence, no say in government except to the extent the powerful allow?”
Larry: “Read the case: http://supreme.justia.com/cases/federal/us/71/2/case.html.We have lots of people that now believe we have martial law. When the real thing comes along, there will be no resistance because people thought it had already arrived.”
Bob: “I have always visualized martial law as evidenced by soldiers patrolling the streets. Who needs them with bomb-dropping drones patrolling the skies?”
Larry: “Excellent point, and drones may very well replace soldiers.”
Now, I respond more fully, taking the time to honor the Ex parte Milligan opinion Dr. Becraft cited above.
The opinion in Ex parte Milligan – 71 U.S. 2 (1866) makes the most excellent point that in martial law, military tribunals, not the judicial courts, try people accused of a crime in the jurisdiction of the military. It also points out the process for using writ of error to appeal denial a petition for writ of habeas corpus, and the fact that the US must timely indict/present or discharge the prisoner. It makes apparent the fact that only Congress can authorize the military to arrest and try folks in some territory of the US during insurrection/war/rebellion, and that the right to trial by jury always exists. It shows that grand juries must indict/present except in cases arising among military or militia forces during war or public danger.
And, I rather enjoyed the Chief Justice’s instruction about the meaning of certain legal terms including cause and suit, and the fact that an ex parte habeas proceeding constitutes a cause/suit of the prisoner against the captor, typically some agent or agency of the Government. I also appreciated the Court’s opinion that Congress, not the President, has final say over empowering the President to suspend of the right of petition for writ of habeas corpus in times of publicly dangerous national emergency. The Chief Justice poignantly penned:
“The suspension of the writ does not authorize the arrest of anyone, but simply denies to one arrested the privilege of this writ in order to obtain his liberty… It was the manifest design of Congress to secure a certain remedy by which anyone deprived of liberty could obtain it if there was a judicial failure to find cause of offence against him… authority was given to the judges out of court to grant relief to any party who could show that, under the law, he should be no longer restrained of his liberty… 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. ”
Thus, must the prisoner who evades summary execution wait out the term of the emergency for restoration of the right to petition the court to issue the writ so that the prisoner might prosecute the cause of liberty before the court against the captors. And at that time, the court has the legal duty, not the prerogative, to grant the writ and order the release of the prisoner if the Government cannot show legal merit under the Fourth Amendment for the detention. And that means, under the law, that the Grand Jury sitting after the capture must indict or present against the prisoner, or the court must order the prisoner’s release.
My Favorite Excerpt from Ex Parte Milligan
Every actual and wanna-be Citizen should read and embrace this, my favorite excerpt from Ex Parte Milligan, for it illustrates the central core motive behind the Colonist’s rebellion against the British Crown, and every rebellion against authority before or since.
Page 71 U. S. 118-121
The controlling question in the case is this: upon the facts stated in Milligan’s petition and the exhibits filed, had the military commission mentioned in it jurisdiction legally to try and sentence him? Milligan, not a resident of one of the rebellious states or a prisoner of war, but a citizen of Indiana for twenty years past and never in the military or naval service, is, while at his home, arrested by the military power of the United States, imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a military commission, organized under the direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man?
No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole 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 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 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.
All of this means that Government employees must remember the purpose for their existence as part of Government. They exist because the LAST government didn’t heed its responsibilities to the people, so the people rebelled and established a new government to replace the old one. They should remember this because it could happen again and again and again till people start becoming sublimely ethical and need no government. It seems axiomatic that all governments eventually become corrupt and self-destructive through abuse of the governed who inexorably rebel or subject the government to external attack and dissolution.
War Powers, Trading with the Enemy, and Dilution of Rights
Neither the foregoing excerpt nor any thing else in the Ex parte Milligan opinion or dicta deals with the question of how to hold tyrants/gerps accountable for their torture and abuse of Citizens under color of law. I an only suppose from their silence on the obvious point that Citizens must do it by whatever means they find least dangerous and most expedient. After all, not everybody like Milligan whom a Military Commission orders to die manages to survive the ordeal. If one shall survive, one should do so in the first place by evading detection and capture as a rebel. The American Revolution loudly exclaimed the question of a people’s or an individual’s right to rebel against an evil oligarchy -they, and we, have every right to do so. The undaunted power of the present US Government makes it virtually impossible to do so, even against oligarchies operating inside it or adjacent to it or in control of it surreptitiously or under color of law.
Now, how does the Citizenry convince the FBI of the necessity to hunt down and excise Gerps as its first order of business, senior to all other orders? After all, the FBI has no moral authority to act against citizens who have legitimate unresolved complaints against Gerps, gerpitude, and other loathesome acts or actors of ommission or malfeasance in Government. But that does not stop the FBI from acting against those Citizens, as far as I can see.
Even in the case of the Civil War, on which the Ex parte Milligan issue hung, many question the constitutional authority of Lincoln to prosecute that war against states who merely exercised their God-given right to secede from the union for the Northern States’ and President’s violation of the very contract that united them. In essence the Civil War might have amounted to no more or less than the Battle of Hastings on a grand scale, where the Norman King William the Bastard murdered the King of England, with nephew and son, then simply stole the land of England and made it into a Norman province.
I have read provisions in the Florida Constitution that show the bootprint of the US Government in the wake of the Civil War – abortions like the loyalty oath (see below), the elimination of Grand Jury power to investigate all purported crimes and misdemeanors instead of merely capital crimes, elimination of the provision elucidating the right of the people to alter or abolish their form of government by whatever means they deem expedient, and forcing universal adult male suffrage on the state without regard to elector competence.
And many Citizens today complain that the Trading with the Enemy Act of 1917 and War Powers Act of 1933have imposed perpetual martial law on the people of the rebel states of the Civil War era, and that such law stands in force today.
According to this site, Gene Schroder explained the War Powers Act this way:
“Once the government gains ‘emergency’ power, it is reluctant to relinquish that power. During the Wars of 1812, 1847, 1861, 1917 and 941, the ‘emergency war powers’ were gradually and insidiously defined. However, on March 9, 1933, our government declared a National Emergency and, based on the public’s ignorance and the complacency, took permanent control of the people. Since March 9, 1933, the United States has remained in a continuous state of declared National Emergency. Since that time, the American people have lost their rights to government, and these rights have not been restored. The American government now claims the power of right, and rules the people by Statute – not the Constitution – in all cases. Under emergency powers, government can do whatever it deems ‘necessary’. The courts change from protectors of the people’s unalienable Rights to enforcers of the government’s statutes.
“However, if the ‘national emergency’ were ended, government abuse and injustice would also end. When the American people demand that congress end the ‘national emergency’ they will restore the U.S. Constitution, and regain their rights, freedom and property…”
And Al Adask wrote that the Trading with the Enemy Act of 1917, which allowed Government to tax foreigners to prevent them from buying American war materiel, has remained in force through the actions of each successive American President. The presidents keep creating/declaring national emergencies (e.g., Korean War , VietNam War, Balkans War, Iraq War, Afghanistan War, War on Drugs, to justify it. Adask wrote:
“The ‘President’s’ role in ending the national emergency is crucial because, although congressional approval was required to initially grant the emergency powers to the executive, once these those virtually absolute powers were granted, no one but the almighty President Dictator himself could return them. In other words, if every representative and senator in congress voted unanimously to end the national emergency, the vote would carry as much weight as if they had voted to end aging, gravity and death. Just as the people in the Bible once insisted on having a King (and came to regret it), the 1933 congress also created an American ‘King’. And so long as that ‘King’ rules, we shall regret it because we are all relegated to status somewhat like a POW… End the national emergency and almost every ‘alphabet-agency’ will simply disappear since they have no constitutional foundation. OSHA, FDA, FCC, CIA, FBI, FTC, NASA, TVA and even the IRS will be gone…”
I suppose I don’t need to bring up the Patriot Act which allows arrests, incarcerations, and suspension of Habeas Corpus rights for “domestic terrorism” at the whim of the Executive Branch employees like FBI agents, without a court order.
These various acts limiting the rights of people and giving unconscionable power to government operatives, in concert with breaches of the 2nd Amendment right to keep and bear arms, and numerous court orders suppressing the right to publish and sell opinions on taxation powers and rights, all operate as a civil substitute for martial law. And, the FBI, federal Marshals, Internal Revenue Criminal Investigation Division, Department of Homeland Security, Federal Emergency Management Agency, Drug Enforcement Agency, etc provide the muscle and arms (including drones) to back that power. What need does America have for the military to suppress insurrection/rebellion when civil authority has such muscle?
The Florida Constitution on Martial Law and Rights
The process of presenting or indicting does not appear obvious from the opinion, but the Florida Constitution does. It subordinates the military to civilian power. Thus, while the Legislature could empower only military personnel to make arrests, civilian authority also make them. But we know from history that powerful military rulers often ignore civilian authority and do as they please, killing or imprisoning whomever they consider a threat to their power and organization.
That’s just one problem with “spy in the sky” drones. We the people haven’t a clue who owns that drone. Do we-the-people of the nation or a state have the right to shoot down a drone as an enemy aircraft, even if the US has declared no war against anyone including US rebels? Eventually the populace might develop inexpensive drone technology and deploy it just for the purpose of killing spy drones that fly too high for the naked eye to see them. Do Citizens have the right to destroy the means by which government and non-government entities violate their privacy rights? Must the citizens bring that issue to a court of the very government doing the spying?
And what if the Exexutive Branch (military or otherwise) surreptitiously subsumes civilian authority including sheriffs, police, and judicial courts (WITHOUT informing the people generally and publicly)? In such a situation, normal sheriffs and police patrol the countryside and cityscape, apparently normal judges and clerks rule the courts, but they follow dictates of rulers hidden from the people. Does the non-declaration of war or martial law prohibit assertion of martial law according to the Law of Nations?
My point: many citizens argue that for all practical purposes precisely that has happened when they cannot get just rulings, as in income tax crime prosecutions, evidenced by better than 95% DOJ successes. That makes it seem that the judges collude with US Attorneys to let the IRS win those cases. It also indicates broad disagreement with the meaning or constitutionality of the tax code, not mere flouting of the law by the citizenry. Such an enormous margin of victory for the DOJ signifies collusion/corruption in the courts, or a condition of martial law where the courts operate by loyalty to some rules or code other than the plain words of the Constitution.
Let me drive this point home with some excerpts from the Florida Constitution regarding the loyalty oath, treason, privacy, courts, and martial law:
SECTION 7. Military power.—The military power shall be subordinate to the civil.
SECTION 15. Prosecution for crime; offenses committed by children.—
(a) No person shall be tried for capital crime without presentment or indictment by a grand jury, or for other felony without such presentment or indictment or an information under oath filed by the prosecuting officer of the court, except persons on active duty in the militia when tried by courts martial.
(b) When authorized by law, a child as therein defined may be charged with a violation of law as an act of delinquency instead of crime and tried without a jury or other requirements applicable to criminal cases. Any child so charged shall, upon demand made as provided by law before a trial in a juvenile proceeding, be tried in an appropriate court as an adult. A child found delinquent shall be disciplined as provided by law.
SECTION 16. Rights of accused and of victims.—
(a) In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law.
(b) Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.
SECTION 18. Administrative penalties.—No administrative agency, except the Department of Military Affairs in an appropriately convened court-martial action as provided by law, shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.
SECTION 20. Treason.—Treason against the state shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort, and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act or on confession in open court.
SECTION 21. Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
SECTION 23. Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
SECTION 5. Public officers.—
(a) No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers.
(b) Each state and county officer, before entering upon the duties of the office, shall give bond as required by law, and shall swear or affirm:
“I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of (title of office) on which I am now about to enter. So help me God.”,
and thereafter shall devote personal attention to the duties of the office, and continue in office until a successor qualifies.
(c) The powers, duties, compensation and method of payment of state and county officers shall be fixed by law.
SECTION 6. Enemy attack.—In periods of emergency resulting from enemy attack the legislature shall have power to provide for prompt and temporary succession to the powers and duties of all public offices the incumbents of which may become unavailable to execute the functions of their offices, and to adopt such other measures as may be necessary and appropriate to insure the continuity of governmental operations during the emergency. In exercising these powers, the legislature may depart from other requirements of this constitution, but only to the extent necessary to meet the emergency.
SECTION 1. Courts.—The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality. The legislature shall, by general law, divide the state into appellate court districts and judicial circuits following county lines. Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices. The legislature may establish by general law a civil traffic hearing officer system for the purpose of hearing civil traffic infractions. The legislature may, by general law, authorize a military court-martial to be conducted by military judges of the Florida National Guard, with direct appeal of a decision to the District Court of Appeal, First District.
*****************end of excerpts *******************
You might note from the above bold language some alarming realities.
- In a time of military emergency/war Congress can suspend the operation of the Constitution and its protections/guarantees. In other words, the constitution contains the seeds of its own meaninglessness and destruction.
- All public officers swear “loyalty” (to support, protect, and defend) the constitutions AND GOVERNMENT. That’s like swearing loyalty to the enemy (government) when small or large oligarchies of Government Perpetrators of crimes (GERPS) have subsumed the normal, constitutional function of government into their private, personal super-government cliques.
- Even the provision defining treason uses terminology that makes it seem that the authors of the Constitution never considered the fact that some one oligarchy or many oligarchies might wrest lawful authority and operate certain government functions according to their whim rather than law or ideals of good government. Doesn’t taking control by stealth or flouting of constitutional obligations constitute a form of war or treason?
- The Constitutions should never let public officers swear loyalty to “the Government” for that amounts to swearing loyalty to the clique or individuals running government…. In other words, the “good old boys network.”
- And note that neither the Constitutions nor the laws of the US or the STATE punish the violation of one’s loyalty oath. What good is an oath of loyalty to support the constitution if no penalty applies to violations of the oath? Did the authors intend the “God” punish the Gerp malefactors in the Hereafter?
A Citizen’s Marching Orders
I say all of the points above mean one thing: citizens must:
- Become educated to understand the ideals of good government and Citizen responsibility – know the Constitution’s guarantees (not grants) of rights and limits on government authority.
- Learn and obey the ideals of Citizen Responsibility to keep an eye out for injustice, learn the law and court procedure, become disposing to use the law to resolve inequities/illegalities, and to abide by constitutional laws.
- Become politically active to ensure the election and appointment of intelligent, educated people who will conform government to those ideals.
- Associate with friends and neighbors to make local communities strong, organized, armed and trained, and politically active, as individuals and as communities.
- Stand firm as Citizens in demanding that Government respect the Rights of the People.
- Remain forever, rigorously vigilant to discover rogues and gerps in government and excise their behavior or them by normal political and legal means if possible, practical, and not dangerous; and otherwise excise them by any expedient means.
In the final analysis, I want to say that if it looks, walks, quacks, and squirts like a duck, it IS a duck. Clever people in Government do what they can to impose order and discipline on a people without appearing to do so – in other words, without calling in the Military or National Guard. Why? Because war costs so dearly in terms of life, time, money, lost productivity, other lost opportunity, and possible loss of power. It generally takes a lot of abuse by government to rile a populace into open, widespread revolt.
Government operatives do their best to label as insane, rabid criminals any and all who rebel against authority, even abusive, unconstitutional authority. That alone functions as a kind of “martial law” in its effect of suppressing general rebellion. And make no mistake – it can have every bit as unconstitutional, egregious, and wrong a nature as does unjust martial law by a corrupt and criminal government enterprise just trying to preserve its power and save the skins of its oligarchs. Even a child would rightly question the possibility of obtaining reliable justice from courts that form part of the very fabric of government that abuses people under color of law. Congress allocates half a billion dollars a year to pay secret cash awards to government employees who “do a good job.” Only a fool would believe that never includes judges, juries, and prosecutors who work to convict and imprison Citizens wrongly.
The nuance of difference between a corrupt system of prosecutors / courts and corrupt/abusive military authority matters not a whit to the targets of the abuse. To the the victims, the power brokers have cut both classes of abusers from the whole cloth of corruption to make a garment of tyranny. And that justifies any form and means of rebellion the victims may choose…
Provided, of course, the victims have not brewed their own witch’s stew of “bubble bubble toil and trouble.” They can do that by embracing and perpetuating patriot myths that make people want to rebel just for the hell of it. Or just so they can get out of engaging in gainful employment, paying taxes, mortgages, and credit card debts, becoming properly licensed under the law, or otherwise obeying practical and constitutional laws.
This point shows why I have articulated the Citizen’s Marching Orders above. They guide the Citizen in playing the proper role in an ordered, honest society. And that requires that Citizens heed their own duties to learn, use, and obey the law BEFORE complaining much about Government.
Have you done that? If not, get busy. That job belongs to you and everyone else who would hold Government accountable for wrongdoing. DO it. Care for the telephone pole in your own eye before breaking your arm to point out the fleck of dust in your Government’s eye.