Nullification: The Rightful Remedy to Curb Federal Tyranny - Part II | Eastern North Carolina Now

   Publisher's note: This is the second part of a two part series on the Nullification process of a tyrannical government. Part I of this series was published on June 2, 2012.

Part I of the Two Part Series

Virginia Nullifies the "Indefinite Detention of American Citizens" Provision of the National Defense Authorization Act (NDAA)

    "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." -- the Preamble to the Bill of Rights

   It is a good thing the doctrines of nullification and interposition are being revived. Perhaps it's the urgency of the constitutional crisis we face that has made the doctrines so appealing and sensible. One notable example of its recent application is with the "indefinite detention" provision of the National Defense Authorization Act (NDAA), which declares the United States to be a battlefield and allows the President to apply the rules of war to American citizens, which includes the right to indefinitely detain, ship to detention centers overseas, interrogate, torture, subject to military tribunal, or kill. The NDAA was passed to extend the authority to fight terror that was granted under the 2001 AUMF (Authorization for Use of Military Force), except that while the AUMF was intended to apply only to those associated specifically with the events of 9/11, the NDAA creates a second classification of targets that the president can apply military law to - American citizens. [Section 1021(b)(2) defines this new target as: "A person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."] It is this new classification that is at the core of the controversy and the heart of the opposition. It is perhaps significant that the government, ever since the Civil War, has been looking for power to target citizens for anti-government conduct in excess of what the Constitution has already granted.

    Article III of the Constitution - the "Treason Clause" - provides the only constitutional trial remedy for those who make war against their own nation or give aid and comfort to its enemies. Up to the Civil War, in every rebellion, from Shay's rebellion, to the Whiskey Rebellion, to Aaron Burr's attempt to raise an Army against the U.S., to John Brown's attack on Harper's Ferry, each person tried for their actions of taking up arms against their nation or aiding the enemy were tried for treason, before a jury, in a civilian court. None of them were brought before a military tribunal. If the Founders had intended to give the military jurisdiction over such people, what was the point of the Treason Clause?

    Furthermore, Article I, Section 9, clause 2 - the Habeas Suspension Clause - allows for the suspension of habeas corpus, but only by an act of Congress. ["The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."] Habeas suspension, which can be done only by congressional statute, would deny an individual access to the courts altogether. Luckily it is limited to times of actual invasion or rebellion and luckily it is subject to the principle of separation of powers. A person either has full access to courts that must rigorously assess the violation to the person's Bill of Rights or has no access to courts at all (yet still retaining his full complement of rights). Under the NDAA, a person that is targeted by the government loses his civil rights altogether. Finally, such a habeas suspension only allows detention, not trial by tribunal, and it also does not "make it legal" for the government to torture people, or summarily execute them. The protections embraced by the Bill of Rights are not suspended, only the ability to challenge their violations in court.

    Stewart Rhodes, a graduate of Yale Law school, wrote this senior thesis paper on the application of military law (law of war) to American citizens for which he won the "Judge William E. Miller" Prize in 2004 for best paper on the Bill of Rights and has since written other analyses of the history of "enemy combatant status." He explains how Abraham Lincoln was the first president to try to do an end-run around the Bill of Rights. He wrote:

    "Until the war on terrorism, this claimed power of the president to operate outside the Bill of Rights was asserted on only two other occasions in our history: The Civil War and World War II. In the Civil War, the southern states that broke away formed their own nation with a constitution, a legislature, a president, an army, and a navy. They printed their own money, sent and received ambassadors, etc. The North and South exchanged prisoners, followed the laws of war in the treatment of POWs, negotiated cease-fires and conducted a formal surrender at the end. Only in this anomalous situation of a civil war, where a part of the U.S. had broken off, were U.S. citizens from the South treated as foreign enemies for purposes of military jurisdiction. There was no way to avoid that, as all of the southerners were U.S. citizens till they broke away.

    However, Lincoln did not just treat the citizens and soldiers of the rebel states as the enemy. During the Civil War, more than 13, 535 Northern civilians were arrested by the military and at least 4,271 of these were tried before military tribunals that answered only to him, with some of them being executed. Typical charges were vague accusations of violating the laws and customs of war. In one such case, a man was found guilty of violations of the laws of war for letting rebels lurk in his neighborhood without reporting them. Others were accused of harboring rebels or engaging in guerilla warfare."

    As most students of history know, the Supreme Court addressed Lincoln's suspension of habeas corpus after the end of the war, in the landmark case of Ex parte Milligan (1866). Milligan was accused of plotting to kidnap the governor of Indiana, break into an Army armory and steal weapons, set Southern POWs free, and then spark an insurrection in Indiana so the South could invade. He was detained and tried by a military tribunal, found guilty, and sentenced to death. Luckily, the war ended before his execution and so the Supreme Court heard his challenge to the government's denial of his rights of habeas corpus (which is what the term "ex parte" means). At issue was the treatment of Northern civilians as the "enemy" and therefore subjecting them to "justice" under military tribunals. The Court found this unconstitutional.

    "The Milligan Court rejected the argument that a U.S. citizen could ever be an 'enemy.' The Court affirmed the use of military jurisdiction over two categories of persons: those in the U.S. military (and in the militia when called into service) and the enemy. In the peculiar circumstance of the Civil War, the Court had no problem at all with using military jurisdiction for detention and trial of the soldiers and even civilians of the breakaway South who had effectively renounced their U.S. citizenship. However, the Court pointed out that Mr. Milligan was not in the military (the Union Army) and was not a resident of one of the rebellious states. This is really the same as saying he was not a citizen or resident of a foreign nation with which we were at war. It did not matter to the Milligan Court what Milligan had done, or what laws of war he might have violated. What counted was who he was. If he was a northern civilian, he could not be tried by tribunal for any actions nor held as a POW or "unlawful combatant" because he just was not in one of the two categories of people subject to the military. He was a northern citizen who was making war on his nation and aiding the enemy. The proper remedy for such is a trial for treason, or at least for violation of a statute, before a jury in an Article III court, not a military trial.

    What the Milligan Court upheld is the Constitution's separation of civilian and military jurisdiction. The Founders, and the people who ratified the Constitution, were very concerned about overreaching military power. In fact, prior to the Revolution, the colonists had even been upset about British soldiers being tried by tribunals, rather than civilian juries, for offenses committed off duty. The colonists considered such tribunals a violation of the rights of Englishmen. The Founders knew the sad English history of the abuse of special military and executive courts, such as the infamous Star Chamber, during England's many upheavals and coups and endeavored to prevent their recurrence." [Stewart Rhodes, "Enemy Combatant Status"]

    Star Chamber Courts (simply referred to as the Star Chamber) were arbitrary, corrupt, and maligned courts which were used with great notoriety during the 17th century to prosecute the political enemies of James I and his son Charles I. The judges appointed to the Star Chamber were the King's own hand-picked men. The courts were known for their abuses, corruption, and misuse of authority precisely because of such concentration power in an autonomous group, which was not subject to the checks and balances of common law and which held its proceedings in secret.

    9/11 and the War on Terror turned the Milligan case on its head. In 2001, Yaser Hamdi, an American citizen was captured by the US military in Afghanistan fighting for the Taliban. He was declared an "enemy combatant," and transferred to a military prison in Virginia where he was held indefinitely and not given access to an attorney or charged with a crime and given a trial. Hamdi took his case to the Supreme Court, where he claimed the government violated his 5th Amendment right to Due Process. The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy combatants" and thus restrict their access to the court system. Rather than affirm the principle established by Milligan, which stated that a US citizen, regardless of his conduct, is protected as an accused by the Bill of Rights, the Supreme Court referred to a dangerous decision by the FDR Court in 1942 known as Ex Parte Quirin, which held that the conduct of a citizen can determine whether he retains or loses the protections afforded by the Bill of Right. In a decision written by Justice Sandra Day O'Connor, the Court in Hamdi stated unequivocally that "there is no bar to this Nation's holding one of its own citizens as an enemy combatant." According to the majority on the Court, the mere labeling of a person as an "enemy combatant" removes the shield of the Bill of Rights and replaces it with a new judge-created system of minimal administrative process to "challenge" that designation.

    The Quirin case, decided by a court packed and heavily influenced by FDR, a very powerful wartime president, should have never been decided as it was and should have never been "brought back to life" as a bright-line rule to bolster government conduct. It should have remained a "one-time, expedient decision to justify the predetermined actions of President Franklin D. Roosevelt," as Rhodes puts it. On the night of June 13, 1942, eight German agents landed near Long Island, NY after traveling to the US by submarine to sabotage various US targets. They were wearing German uniforms and carried explosives when they landed. Thereafter, however, they buried their uniforms and supplies, and proceeded, in civilian dress, to various places in the United States. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government. They were subsequently arrested, charged with enemy conduct under the President's Proclamation of July 2, 1942, detained, and, on the orders of President Roosevelt, tried by military commission. One of the men, Richard Quirin asserted that he was a US citizen. Like the others, Quirin was charged with "being an enemy of the United States and acting for . . . the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States . . . and went behind such lines, contrary to the law of war, in civilian dress . . . for the purpose of committing . . . hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States." The commission nonetheless found all eight men guilty and sentenced them to death. [The President's Proclamation declared that all persons who are citizens or subjects of, or who act under the direction of, any nation at war with the United States, and who during time of war enter the United States through coastal or boundary defenses, and are charged with committing or attempting to commit sabotage, espionage, hostile acts, or violations of the law of war, "shall be subject to the law of war and to the jurisdiction of military tribunals." It did not bar accused persons from access to the civil courts for the purpose of determining the applicability of the Proclamation to the particular case].

    In a unanimous opinion authored by Chief Justice Harlan Fisk Stone, the Court concluded that the conspirators, (including Quirin as an American citizen), as spies without uniforms (violating the law of war) whose purpose was sabotage, violated the law of war and were therefore unlawful "enemy combatants." The Court noted that it has long been an accepted practice by our military authorities to treat those who, during time of war, pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, as "unlawful combatants" punishable as such by military commission. According to Chief Justice Stone: "This practice, accepted and followed by other governments, must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War. Citizens of the United States who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war." Noting that Congress had, under the Articles of War, authorized trial by military commission for unlawful enemy combatants under the Proclamation, and the German saboteurs were indeed "unlawful enemy combatants," the Court therefore determined that the President had not exceeded his power. Since 1942 this decision hung around, waiting for the next wartime president to resurrect its powers. While the Milligan decision was concerned with the status of the detainee (ie, whether he fit into any of the two categories for which military law applies: US soldier or enemy) and declined to make the leap that an American citizen can be classified as an 'enemy' for justice sake, the Quirin decision arrived at the opposite position. After Quirin, we are only concerned with the actions of the accused (whether or not his actions reduce him to "enemy combatant status. The Milligan court got it right. In order to prevent the possible abuses of an Executive who might want to charge citizens with enemy status as a means to stifle political opposition, the Supreme Court urged future courts to diligently safeguard and uphold the Bill of Rights. Justice Davis, who wrote the opinion in the Milligan decision advised:

    "...... These provisions [Bill of Rights], after a lapse of more than seventy years, are (now) sought to be avoided. Those great and good men who wrote the Constitution 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."

    The NDAA, which codifies the decisions in Quirin and Hamdi, allows the President to suspend fundamental civil rights for those he suspects of waging war or aiding/comforting the enemy (... being a "belligerent"), to detain them indefinitely, torture them, and even kill them, without any of the procedural protections of our Bill of Rights: No Grand Jury indictment; no trial by jury with its requirement of a unanimous verdict of twelve of one's peers; no possibility of an unreviewable acquittal and immunity from further prosecution; and no protection against compelled self incrimination. The presumption of innocence is gone, as is the requirement of a showing of guilt beyond a reasonable doubt. Instead, the government will enjoy a presumption that its allegations are accurate. The accused will have the burden of proving his innocence, but will have no right to compulsory process of witnesses and no right to confront the secret evidence and witnesses against him. The bill was supported by US legislators who claim that it cannot be used to target US citizens. Obviously, they fail to be properly informed. The bill is minimized by American citizens who believe that our government could and would never target American citizens and detain them indefinitely, denying them the protections under the Constitution. Obviously, they fail to understand history.

    In the Virginia Ratifying Convention on June 6, 1866, Governor Randolph addressed the weaknesses of the proposed Constitution which at the time lacked a Bill of Rights:

    "There is one example of this violation in Virginia, of a most striking and shocking nature -- an example so horrid, that, if I conceived my country would passively permit a repetition of it, dear as it is to me, I would seek means of expatriating myself from it. A man, who was then a citizen, was deprived of his life thus: from a mere reliance on general reports, a gentleman in the House of Delegates informed the house, that a certain man (Josiah Philips) had committed several crimes, and was running at large, perpetrating other crimes. He therefore moved for leave to attain him; he obtained that leave instantly; no sooner did he obtain it, than he drew from his pocket a bill ready written for that effect; it was read three times in one day, and carried to the Senate. I will not say that it passed the same day through the Senate; but he was attainted very speedily and precipitately, without any proof better than vague reports. Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and was afterwards actually executed. Was this arbitrary deprivation of life, the dearest gift of God to man, consistent with the genius of a republican government? Is this compatible with the spirit of freedom? This, sir, has made the deepest impression on my heart, and I cannot contemplate it without horror. There are still a multiplicity of complaints of the debility of the laws. Justice, in many instances, is so unattainable that commerce may, in fact, be said to be stopped entirely. There is no peace, sir, in this land. Let us judge from the fate of more ancient nations: licentiousness (immorality) has produced tyranny among many of them: it has contributed as much (if not more) as any other cause whatsoever to the loss of their liberties. I have respect for the integrity of our legislatures; I believe them to be virtuous; but as long as the defects of the Constitution exist, so long will laws be imperfect."

    Rep. Ron Paul described the NDAA as "a bold and dangerous attempt to establish martial law in America." He said: "The Bill of Rights has no exemptions for 'really bad people' or terrorists or even non-citizens. It is a key check

U.S. Representative Ron Paul

on government power against any person. That is not a weakness in our legal system; it is the very strength of our legal system. The NDAA attempts to justify abridging the bill of rights on the theory that rights are suspended in a time of war, and the entire Unites States is a battlefield in the War on Terror. This is a very dangerous development indeed. Beware." Stewart Rhodes, founder and president of Oath Keepers and a Yale Law graduate, described the bill as waging war on the American people. And Rep. Justin Amash commented that the NDAA was "carefully crafted to mislead the public."

    Rhodes also is of the opinion that "no greater threat to our Constitution and our Bill of Rights has ever existed than the current doctrine of "Enemy Combatant Status" which has (been recognized by the Supreme Court in Hamdi v. Rumsfeld and has) essentially been codified in the NDAA. This doctrine is like a toxic, poisonous weed that, if not pulled out by the roots, will grow to choke and kill the tree of liberty. It threatens to wipe out our Bill of Rights and plunge us into a nightmare of military supremacy over civilian power."

    Should the American people wait for Congress to make things right? Should they wait for Congress to remove the offensive language of the NDAA which turns the authority to wage war on terror on American citizens themselves? Congress had the chance when the NDAA of 2012 recently came up for re-authorization. Rather than root out the evil, they voted to renew the bill, including the "indefinite detention US citizens without charge" provision. Can the American people truly expect President Obama to relinquish the power to define and identify "belligerents" as he sees fit and to wage war as he would like? He has already targeted and killed three American citizens, using unmanned drones, on classified information that his "team" collected and only he was authorized to review.

    The ACLU has sued the Obama administration under the Freedom of Information Act (FOIA), seeking for force disclosure of the guidelines used by Obama and his officials to select which individuals (both U.S. citizens and foreign nationals) will have their lives ended by the CIA's drone attacks ("In particular," the group explains, the FOIA request "seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killing"). The Obama administration has not only refused to provide any of that information, but worse, the CIA is insisting to federal courts that it cannot even confirm or deny the existence of a drone program at all without seriously damaging national security.

    Nullification and Interposition are the answer. What better scenario than the attack on fundamental American liberties by the NDAA to apply what Jefferson and Madison believed to be the "Rightful Remedy" to curb the excesses and abuses of the federal government?

    On April 18, the Virginia legislature approved House Bill 1160 (H.B. 1160), commonly referred to as the NDAA Nullification Act. Support was overwhelming. The House vote was 89-7 and the Senate concurred a few hours later, by a vote of 36-1.

    The truth is that the bill is not quite a nullification bill. The bill merely announces that the state wants nothing to do with it and will not allow any of its agencies or personnel to assist the federal government in applying and enforcing section 1021 of the National Defense Authorization Act (NDAA), which addresses the targeting and indefinite detention of American citizens.