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The Unconstitutionality of the Military Commissions Act
Source Jim Devine
Date 06/10/27/22:31

Ed Furey writes:

Professor [Juan] Cole [of University of Michigan political science]:

YOU BARELY SCRATCHED THE surface on the unconstitutionality of the
so-called terror legislation. Beyond repealing habeas corpus, another
grotesque violation of the Constitution is implicated in that
legislation. The Constitution specifically forbids the passage of a
"bill of attainder." In the old days, when kings and others were not
certain they get a judge or jury to convict someone of a crime, they
would simply declare them guilty (attainted) and imprison, torture
and/or execute them. When Parliaments did this they passed a "bill of
attainder" declaring the person guilty of a crime. What this recent
piece of legislation has done is to declare a whole class of persons,
"unlawful enemy combatants," to be criminals, subject to punishment --
imprisonment without trial and torture -- at the discretion of the
president. By the way, this does not exclude American citizens.
The Constitution also prohibits "corruption of the blood" which was
another old tyrant's trick in which the families of the attainted were
also declared guilty of the crimes because they were related to the
criminal. This provided a sort of pseudo-legal sanction for wiping out
the families of political enemies, especially those who might succeed
to titles of nobility and seek revenge. By declaring the whole
bloodline criminal, you get to kill women and small children whose
murders would otherwise be distasteful. It is expressly forbidden in
the Constitution. Nevertheless, punishment of relatives of the accused
has also become United States policy.

The ban on corruption of the blood would seem to be violated by the
common U.S. practice in Iraq of taking hostages and imprisoning people
suspected of nothing other than being related to the suspect (the
taking of hostages is also banned under the Geneva Conventions). U.S.
forces held the two sons of the head of the Iraqi air defense hostage
in Abu Ghraib until he agreed to surrender. Being imprisoned is a form
of punishment for the person being held, hence the corruption of the
blood. Once in US custody he was killed, in what the Army
investigation called a homicide.

It is interesting that the current administration and Congress are
descending into barbarities so ancient and so grotesque that most
Americans have never heard of them. They reside banned in obscure
corners of the Constitution because the Founding Fathers knew them
well enough to forbid them. Nevertheless, they are there, and as Casey
Stengel liked to say: You could look it up.

By the way, the administration is also on thin Constitutional ice in
sending mercenaries to wage war in Iraq (more than 600 have been
killed). Private persons waging war has a familiar name to it
piracy. And for all the sentimentality about "Pirates of the
Caribbean" international law was practically invented to check piracy,
and then extended to other matters. Bin Laden and gang are, among
other things, pirates and subject to arrest anywhere they are
identified on the planet, under international conventions.

Governments used to be able to authorize private citizens to wage war
as privateers. These were usually ship owners, who fitted their
vessels out with guns and went hunting for enemy shipping. To make
what would otherwise be piracy legal, governments would issue letters
of marque and reprisal, in effect authorizing or licensing the private
person to wage war on their behalf. Privateering, however, was
outlawed 150 years ago, in the Declaration of Paris, to which the
United States is a party (curiously, no 150th anniversary celebrations
took place back in April, when that milestone was passed well, maybe
not so curious after all). And, as it turns out, the Constitution also
takes up the matter. Only Congress may issue Letters of Marque and
Reprisal. It has not done so in this war. I don't believe it has done
so since the War of 1812.

This actually came up, slightly in WWII. Charles Lindbergh was working
with Lockheed to extend the range of P-38s and train American pilots
into efficiently flying over vast distances of water, as required by
the island campaign. He went out on several combat missions and was
credited with shooting down at least one Japanese plane. This was all
kept pretty quiet at the time, because he was technically a civilian
(FDR was still angry at his America First role and refused to
reinstate him as a colonel in the Army Air Force), although I suppose
if he had been captured, the U.S. might have been able to argue that
he was also technically an officer.

As a matter of fact, there seems to be no legal basis whatsoever for
Coalition Provisional Authority, either in American law or
international law. '
The Unconstitutionality of the Military Commissions Act
Ed Furey writes:
Professor [Juan] Cole [of University of Michigan political science]:

You barely scratched the surface on the unconstitutionality of the
so-called terror legislation. Beyond repealing habeas corpus, another
grotesque violation of the Constitution is implicated in that
legislation. The Constitution specifically forbids the passage of a
"bill of attainder." In the old days, when kings and others were not
certain they get a judge or jury to convict someone of a crime, they
would simply declare them guilty (attainted) and imprison, torture
and/or execute them. When Parliaments did this they passed a "bill of
attainder" declaring the person guilty of a crime. What this recent
piece of legislation has done is to declare a whole class of persons,
"unlawful enemy combatants," to be criminals, subject to punishment --
imprisonment without trial and torture -- at the discretion of the
president. By the way, this does not exclude American citizens.
The Constitution also prohibits "corruption of the blood" which was
another old tyrant's trick in which the families of the attainted were
also declared guilty of the crimes because they were related to the
criminal. This provided a sort of pseudo-legal sanction for wiping out
the families of political enemies, especially those who might succeed
to titles of nobility and seek revenge. By declaring the whole
bloodline criminal, you get to kill women and small children whose
murders would otherwise be distasteful. It is expressly forbidden in
the Constitution. Nevertheless, punishment of relatives of the accused
has also become United States policy.

The ban on corruption of the blood would seem to be violated by the
common U.S. practice in Iraq of taking hostages and imprisoning people
suspected of nothing other than being related to the suspect (the
taking of hostages is also banned under the Geneva Conventions). U.S.
forces held the two sons of the head of the Iraqi air defense hostage
in Abu Ghraib until he agreed to surrender. Being imprisoned is a form
of punishment for the person being held, hence the corruption of the
blood. Once in US custody he was killed, in what the Army
investigation called a homicide.

It is interesting that the current administration and Congress are
descending into barbarities so ancient and so grotesque that most
Americans have never heard of them. They reside banned in obscure
corners of the Constitution because the Founding Fathers knew them
well enough to forbid them. Nevertheless, they are there, and as Casey
Stengel liked to say: You could look it up.

By the way, the administration is also on thin Constitutional ice in
sending mercenaries to wage war in Iraq (more than 600 have been
killed). Private persons waging war has a familiar name to it
piracy. And for all the sentimentality about "Pirates of the
Caribbean" international law was practically invented to check piracy,
and then extended to other matters. Bin Laden and gang are, among
other things, pirates and subject to arrest anywhere they are
identified on the planet, under international conventions.

Governments used to be able to authorize private citizens to wage war
as privateers. These were usually ship owners, who fitted their
vessels out with guns and went hunting for enemy shipping. To make
what would otherwise be piracy legal, governments would issue letters
of marque and reprisal, in effect authorizing or licensing the private
person to wage war on their behalf. Privateering, however, was
outlawed 150 years ago, in the Declaration of Paris, to which the
United States is a party (curiously, no 150th anniversary celebrations
took place back in April, when that milestone was passed well, maybe
not so curious after all). And, as it turns out, the Constitution also
takes up the matter. Only Congress may issue Letters of Marque and
Reprisal. It has not done so in this war. I don't believe it has done
so since the War of 1812.

This actually came up, slightly in WWII. Charles Lindbergh was working
with Lockheed to extend the range of P-38s and train American pilots
into efficiently flying over vast distances of water, as required by
the island campaign. He went out on several combat missions and was
credited with shooting down at least one Japanese plane. This was all
kept pretty quiet at the time, because he was technically a civilian
(FDR was still angry at his America First role and refused to
reinstate him as a colonel in the Army Air Force), although I suppose
if he had been captured, the U.S. might have been able to argue that
he was also technically an officer.

As a matter of fact, there seems to be no legal basis whatsoever for
Coalition Provisional Authority, either in American law or
international law.

Edward Furey


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