Saturday, June 14, 2008

Where Angels fear to tread

All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.

- Andrew Jackson Attribution: Andrew Jackson (1767–1845), U.S. president. Letter, July 5, 1822, to Andrew Jackson Donelson, Donelson Papers, Library of Congress.

To secure our rights via law is set the courts, with the Supreme Court set by the Constitution and lesser courts given by Congress.  The ability of citizens to have safety as citizens rests within what their Nation is: the Sovereign State that ensures that those who are members of it, the citizenry, are ensured of safety from those who are not citizens.  In the creation of that Nation to ensure the safety of the State, mankind in that act of creation agrees to set aside some of the liberties that are had under the Law of Nature and give them to the State, lest they be used unwisely by individuals to involve others in things that are not of their business as a whole.  Those who have sought to do otherwise have gained reputation by various names throughout history to describe their actions:  thieves, cut-throats, pirates, brigands, corsairs, warlords, and barbarians.

The line of civil safety from that harsh world is demarcated by the State and ensured by the National institutions that allow Nations to regularize intercourse amongst themselves so as to gain mutual protection even when there is internecine animosity.  By handing over some of those negative liberties of punishment, restriction and warfare to the Nation, we seek to live in greater liberty and to restrict the National power so as to allow each individual the greatest acceptable display within society of what makes the Nation an establishment.  This is true of all Nations, be they tiny islands of some few hundred souls or great and sprawling places covering large portions of the planetary surface: from smallest to largest the formulation of intercourse between them is made acceptable as the alternative is too ghastly and horrific to contemplate.

Consider as far back at the Trojan War, and its estimable causes were that sparked on by trade competition amongst a loose confederation of City States against a more tightly controlled Hittite realm with a number of affiliated City States, of which Troy was one.  When affront was given during a diplomatic mission by a young aristocrat from that Trojan realm made off with or eloped with Queen Helen of a second rank King in the Confederation, that King who was brother to the most influential King in the Confederation and brought pleading for help that went out to all of those who had agreed to protect Helen.  While not the most noble of causes, this excuse to war, the other causes of trade, changing crop conditions, and opportunity for self-aggrandizement could not be passed up.  Even with that diplomatic emissaries went between these City States to seek redress of grievances between them and avoid war.  When that did not work the various treaties and agreements between City States came into play, putting the Confederation of Achaean Greeks to test for a long decade of vicious war against Trojan Allies and supporters was waged.  Even in that time and place, we see that trade, agreements and diplomacy were at the heart of these City States and that waging war without giving the cause and reason, and allowing recompense to be made were vital to survivals of peoples in their States.

What happened afterwards, however, was the total collapse of the civilizations involved as the great Palaces of Greece went down into ruin as well as the Hittite realm and Troy, itself, was brought low and barely survived as a city for a time, and then a town, a village and then a hill of rubble for centuries.  Athens would survive, but barely, with the help of nearby islands and peoples.  From that destruction we can hear the faint echoes of the messages sent then:

"'My father, behold, the enemy's ships came (here); my cities(?) were burned, and they did evil things in my country. Does not my father know that all my troops and chariots(?) are in the Hittite country, and all my ships are in the land of Lukka? . . . Thus, the country is abandoned to itself. May my father know it: the seven ships of the enemy that came here inflicted much damage upon us.'" - Letter of Ammurapi to Suppululiuma II of the Hittites telling of the Sea People.

The countries -- --, the [Northerners] in their isles were disturbed, taken away in the [fray] -- at one time. Not one stood before their hands, from Kheta, Kode, Carchemish, Arvad, Alashia, they were wasted. {The}y {[set up]} a camp in one place in Amor. They desolated his people and his land like that which is not. They came with fire prepared before them, forward to Egypt. Their main support was Peleset, Tjekker, Shekelesh, Denyen, and Weshesh. (These) lands were united, and they laid their hands upon the land as far as the Circle of the Earth. Their hearts were confident, full of their plans. (Medinet Habu, Year 8 inscription.) - Inscription by Ramases III at Medinet Habu.

Thus the watchers are guarding the coasts : command of Maleus at Owitono... 50 men of Owitono to go to Oikhalia, command of Nedwatas.... 20 men of Kyparssia at Aruwote, 10 Kyparissia men at Aithalewes.... command of Tros at Ro'owa: Kadasijo a shareholder, performing feudal service.... 110 men from Oikhalia to Aratuwa. - Clay tablet found at Pylos.

These are the ravagers - not just pirates as many would come to try and settle once a foothold was garnered in the lands they had attacked.  That is how the Philistines came to Palestine, and those from Sherden went to Sicily and perhaps points west.  The more familiar litany of Huns, Goths, Vandals, Franks, and Mongols follows this same pattern of stepping in when civilization decays and crumbles.  From the Lukka, Shekesh, Dananu to Huns, Goths, Vandals to those we know of by names such as Josephus, Grace O'Malley, Bartholomew Roberts, Joaquin Murrieta, and the Soviets fighting a 'bandit army' using paratroops for the first time ever, the list of worldwide banditti is long and bloody.  We romanticize them because we are safe and insulated from their harsh and brutal times, and place their deeds higher because our civilization is so comfortable.  And yet each were confronted by States and Nations, be they Egypt under Ramses II or the Byzantine Empire or the British Navy or even simple settlers forming up towns and establishing laws to finally put an end to those outside the law living by the Law of Nature.

We came to recognize that those living by the Law of Nature and waging war on their own are accountable to the brutality of war when confronted by the forces of States and Nations, and that their crimes of being out-law are punishable in the severest way when captured by civil forces.  These ones who rule by force, by terror, by coercion and abide by no civilized norms to impose their will upon others have gotten the harshest treatment when caught as they have chosen to step outside of society on their own, without being forced to by any other person.  By doing so they may still talk, think and reason, but they are man in the state of Nature not in the state of Civilization.

This view has been passed down to the United States by the Common Law of England as seen in Blackstone's Commentaries:

LASTLY, the crime of piracy, or robbery and depredation upon the high seas, is an offense against the universal law of society; a pirate being, according to Sir Edward Coke,10 hostis humani generis [enemy to mankind]. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community has a right, by the rule of self-defense, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, any invasion of his person or personal property.

BY the ancient common law, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance; and by an alien to be felony only: but now, since the statute of treasons, 25 Edw. III. c. 2. it is held to be only felony in a subject.11 Formerly it was only cognizable by the admiralty courts, which proceed by the rule of the civil law.12 But, it being inconsistent with the liberties of the nation, that any man's life should be taken away, unless by the judgment of his peers, or the common law of the land, the statute 28 Hen. VIII. c. 15. established a new jurisdiction for this purpose; which proceeds according to the course of the common law, and of which we shall say more hereafter.

It is, indeed, ancient law as hostis humani generis comes from the Roman Law on how to deal with such individuals, which would include bandit armies.  As Blackstone would note, the Law of Nations is deducible by natural reason and established by universal consent of those who are civilized.  If you have a Nation to protect your State and the people therein, you get the Law of Nations as a result.  Time does not matter as even the Brozne Age civilizations found that when they had City States they had created a system of interaction that is definable, even if they never clearly defined it for themselves, it had come into being.  Thus the written Law of Nations by Emmerich de Vattel should come as no surprise to anyone who thinks about what Nations are and why they interact the way they do.  Which is why the following should not be a surprise from Book III:

§ 1. Definition of war.(136)

WAR is that state in which we prosecute our right by force. We also understand, by this term, the act itself, or the manner of prosecuting our right by force: but it is more conformable to general usage, and more proper in a treatise on the law of war, to understand this term in the sense we have annexed to it.

§ 2. Public war.(136)

Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order. This is the war we are here to consider: — private war, or that which is carried on between private individuals, belongs to the law of nature properly so called.


§ 4. It belongs only to the sovereign power.(137)

As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature, — the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it, — that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).

Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.1 Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.

This is not 'top-down reasoning' but reasoning from something which exists and can be defined by reason, thus it is reasonable.  We create States and Nations for a reason, and that is to live in community without the fear of barbaric war between those of us inside the community.  By having laws that are known between us, as individuals, and abiding by them, that thing called government is created to ensure that such laws are carried out and, by that agreement between us as citizens, we agree to those laws.  Beyond regularizing commerce, trade, and other means of social intercourse, the largest liberty given up is this negative one called 'making war': as individuals we agree that it is so toxic, so highly negative that only the thing we create called the State should have say over it.

And as citizens we also agree that Nations that are the safeguards of our States should also have the means of say over those who do NOT abide by that agreement.  Even more, is that if those individuals who wage private war should fall into the hands of citizens, there is little save pleading for mercy that those individuals can do.  Especially once attacked, and having shown NO MERCY to the civil population, they may get NO MERCY in return as they have returned to the Law of Nature and fully know that this is what they will get in RETURN for their actions when caught as that *is* the Law they live under.  In Book III this is made abundantly clear:

§ 67. It is to be distinguished from informal and unlawful war.

Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

§ 68. Grounds of this distinction.

In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.

Note the city used as an example:  Geneva, Switzerland.  The place that would become home and synonymous with the rules of warfare known as the Geneva Conventions.  It would be very strange for such a place not to know the differences between public and private war having been subject to the latter in their history.  Also of interest is that de Vattel is Swiss, and it is by no means an accident that he utilizes that background to demonstrate the more general point about those who wage war for their own ends outside of Sovereignty and Nations.

What Blackstone mentions is that the trial of those who are caught as pirates moves to the civil courts in England, but only in the period after which the US SCOTUS has defined the original power of the Nation:  while England changed her laws under Henry VIII, the United States derives its Admiralty power from before that time for jurisdiction.  That said the US still embodies the jurisdiction in the civil courts for those declared as pirates and captured via civil means.  Because of the original jurisdiction and power of the United States for the Admiralty stemming before that period, however, the US embodies that power on the military side in the Commander in Chief operating under the military laws made by Congress that is given sole right to define these laws.

Here are the parts of the US Constitution dealing with these powers, first with Congress in Article I, Section 8:

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

In the ability to define and punish Piracies and Felonies committed on the high seas, Congress is to make laws to cover the maritime or Admiralty areas of the United States: all US flag vessels operating within reach of the high seas.  That is how a Captain of a vessel is allowed to marry individuals under the Sovereign flag of their Nation and also enforces the law of that Nation on-board ship until they have fully passed beyond the reach of the high seas within a Nation.  Traditionally that was marked by the furthest high tide in the Thames, but has been reduced to having obstructions of land between a current position and the high seas, such as passing the headlands of a large river like the Mississippi.  Simple bays are not enough, nor are ports, as the land based portion has the law of that Nation while each ship has the law of its flag Nation still operable upon it.  Ships, in that sense, operate as extensions of the Nation under the flag they fly.

Offences against the Law of Nations, and capitalized to show its importance, means that all other acts that can be considered injurious to the US on a Nation-to-Nation jurisdictional basis, say that of recruiting Americans for a foreign Army without the consent of the President, may have laws levied against them.  It is this view and the permission of regular citizens to travel overseas under treaty agreements that have been regularized, that allows the US to extend its protection to its citizenry while overseas.  While a citizen is liable for all laws of the host Nation, the citizen is, in return, protected by wanton assaults via warlike means against them via the laws of Congress.

Even further, however, is that Congress has, by its powers, the ability to discriminate between civil and military law for activities and address both with regard to the Law of Nations.  By Congressional power to promulgate regulations and inferior tribunals, does it get the power to set the course for those captured by civil means and by martial means, and even to determine if captures in one are liable to the other!  It is a huge power of Congress and, exercised well, will give any foe of the United States great pause in warlike assaults upon its citizens.

Congress has, in the past, with regards to those waging private war, done just that in the past, as seen in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD, Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863 via the Avalon Project:

Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

This is the definition of what we would call 'terrorism', and those committing during times of military conflict are judged, summarily, as either highway robbers or pirates.  The activity, in this case, sets the punishment as not being public enemies, they are given no privileges of being a prisoner of war, but receive the summary wartime treatment of those crimes.  Those orders and that outlook lasted until the drafting of the Hague Conventions, and yet those Conventions did not contravene these orders in any way, as private war was not and could not be addressed by international law as it was a high crime against all Nations.  How those in Geneva treated those that attacked them via private war and how peoples through the ages have done so was still in effect:  mankind makes a distinction between the public waging of war, and the wholly illegitimate private war.

It is for these reasons that the Boumediene decision by the Supreme Court is more than troubling: it is stepping away not only from the Constitutional division of powers, the traditional decisions given during wartime, but also it is stepping away from Common Law and, indeed, all law that the US draws upon as its sources, including the Black Book of the Admiralty which laws it enumerates themselves coming from Roman Law.  The Supreme Court attempts to place civil law where Congress places Combatant Status Review Tribunals done by the military to determine of individuals are engaging in private war.  It should be noted that private war is not limited to al Qaeda or Taliban, but is practiced by many groups and individuals who see fit to divest themselves of civil society and agreement to wage war to their own ends.

The CSRT organizations fit wholly within the Article I, Section 8 power given to Congress as it, and only it, has the power and authority to determine how crimes against the Law of Nations are to be addressed.  By stepping in any other direction, to assert that the summary nature of decisions, as is traditional upon military law practiced by the armed forces of the United States since at least 1863, and truly before the founding of the Nation itself as English military law had similar views, the Supreme Court has attempted to set itself up as the arbiter of what is or is not military or civil law.  At no time up to the modern has any individual waging private war been given such things in a military venue as they are practicing something wholly anathema to civil society by taking up arms to fight their own war outside of any Sovereign commission.  By inserting itself into this procedure set by Congress and accepted by the Executive, and that is wholly in keeping with previous law and rulings in this realm, the Supreme Court is violating its own views of letting precedent set the tone and tenor of cases.

It should also be noted that while other laws have replaced and refined General Orders No. 100 from 1863, that no law has been put in its place to address such individuals who are not public enemies, but waging private war.  While newer orders are considered operable, in areas where no new orders have been set down the older are considered to be operative: in that Congress has been trying to find a way to regularize Article 82 for the modern age, but the Supreme Court has constantly been hampering that process.

I personally beg to differ with the Supreme Court on Held 2b:

(b) A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department’s in these cases, and when held in a territory, like Guantanamo,over which the Government has total military and civil control.

If the 'diligent search' of precedents has NOT uncovered General Order No.100 from 1863, then perhaps the Court has had a predetermined decision in mind.  It is difficult to find, but not impossible via a public search via this thing known as a 'search engine'.

And as Sir William Blackstone had written his commentaries in 1765-1769, a mere 8 years before the Revolutionary war and his writings and scholarship were known to Jefferson, Madison and others, it is difficult to understand how his vies on private war could not be known to the SCOTUS.  Indeed, his works are cited by the early Supreme Court to help garner direction of rulings and to cite when Congress has changed direction from the Common Law.

As Emerich de Vattel wrote Law of Nations in 1758 and it was widely cited and commented upon throughout the founding era and during the 1787-89 commentaries of both Federalists and Anti-Federalists and how the new Nation would embody the views of it, there is little reason to suspect that the founding generation did not know about it as they specifically capitalize the law and work in the Constitution.  The private war addressing powers are given to Congress along with all other Law of Nations crimes to be addressed, plus the division of law between the civil and military side which is a specific feature of our Republic.  While Admiralty courts gave way to civil courts in England, the early Supreme Court cases differed from Common Law and sought the widest possible reach of sovereign power for the new Nation and specifically and categorically struck down any attempt by Congress to limit that scope of power.  As piracy is one of the problems addressed by those laws, and the fact that it has a civil and military side to it, those Courts clearly understood the differences BETWEEN civil and military law.

Anyone caught by the armed forces committing acts of war who does not conform to the rules of warfare as signed upon by treaty and enforced by Congress gets the *punishment* for not doing so.  Congress and President Lincoln were quite and succinctly clear on that: all trials are summary in nature.  The reason that is so is because those best suited to determine who is and is not a soldier are those in the armed forces operating under the military laws of the United States and who have been trained and taught to respect and understand those laws.  That is why we give military law to them to operate upon:  war is hell and they are the only ones who can make sense of it and still conform to international and national standards simultaneously.

There is a reason that the writ of habeas petition does not apply to those captured by the armed forces and judged to be fighting private war:  they have dropped all pretense of holding to any civil law by their conduct and are fighting outside the norms of all laws.  If they wish to get treatment by the civil courts they can give themselves up TO civil authorities.  This is why the judicial power of the Supreme Court ITSELF extends to this part of the law under Article III, Section 2:

--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;

Note that this jurisdiction is the civil jurisdiction to which the judicial Power is extended, to take place in the area of the admiralty and maritime, that is aboard ships at sea.  And when civil controversies involve the Nation, then judicial Power is also enacted.  Beyond that the Supreme Court is the court of last appeal in the United States.  From all of that, however, it does NOT get to set the division between military and civil law.  The former is expressly made for the conduct of the US armed forces wherever they may go and to bring regularity and order to their operations even when operating overseas.  Unless it has been missed, the US has held other military tribunals overseas during previous conflicts and has every power to do due to the nature of overseas military conflicts:  they are overseas against non-citizens of the United States and conducted under the agreed upon treaties making up the laws of war plus any other restrictions Congress wishes to place in their regulatory role.

In a short instance I have come up with multiple areas that distinctly demonstrate that the type of conflict and operations against those waging private war were known to the founding era:  Law of Nations, Blackstone's Commentaries, the Federalist and Anti-Federalist papers.   Further the SCOTUS could check all admiralty decisions of the early Courts from stand-up to the 1870's to see the type of views used by those Courts to examine admiralty cases.  Beyond that Congress and President Lincoln put into place a set of General Orders for the army and navy starting in 1863 and lasting for over 30 years that dealt with this very problem of those fighting private war against the US.  Finally an examination of the idea of the US conducting military tribunals overseas should yield up numerous examples of the armed forces doing so, probably since the first extra-territorial work of the armed forces starting with President Jefferson who acted under the Law of Nations in going against the Barbary Pirates as that is what a Commander of the Navies *does* when also acting as Head of State and Head of Government.

As it stands this is one of the least thought-out, most ill-conceived decisions of many the Supreme Court has handed down, including Plessy v Ferguson.  Here they are attempting to say that those fighting in a barbaric mode under the Law of Nature are due all the pleasantries of civil law when captured by the armed forces.  That has NEVER been the case save where a Sovereign has specifically directed for individuals that otherwise should be done and reasons given on a case-by-case basis.  When Captain Henry Morgan appealed to the civil courts when charged with Piracy it was to clear his good name.  He gave himself up willingly on that agreement for civil hearing and demonstrated there was no way he could know of the Treaty signed between England and Spain.

That is why we *have* civil courts and civilization: to demonstrate the ability to act in a civilized manner.

Which is most specifically NOT practicing private war.

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