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Can You Call It Martial Law?

By       Message Bob Hurt     Permalink
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" 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 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 loathsome acts or actors of omission 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 boot-print 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 1933 have 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?

Try getting answers to these questions from your Government's officers: Does a national emergency exist now? Does the Trading with the Enemy Act of 1917 still have force and effect? Does it encumber Americans in any way? Does the War Powers Act of 1933 still have force and effect? Does it encumber Americans in any way? Why do these acts still operate in the absence of a state of actual, declared War?

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