“There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights.”- Marine General Smedley Butler.
Oath Keepers has launched a national effort to recall (or remove by any other lawful means) all of the oath breaking members of Congress, in both the House and Senate, who voted for the National Defense Appropriations Act of 2012 (NDAA), which contains provisions that authorize indefinite military detention and trial by military commission of “any person” – including U.S. citizens and lawful residents – upon the mere say-so of the President or one of his subordinates in the Executive Branch, such as within the Department of Defense or CIA.Number three on the Oath Keepers list of Orders We Will Not Obey states:
3. We will NOT obey orders to detain American citizens as “unlawful enemy combatants” or to subject them to military tribunal.That is near the top of our list for very good reason – this claimed power will kill our Bill of Rights unless it is stopped. To be blunt, we consider the NDAA of 2012 to be a declaration of war on the American people, and an act of treason. But even if you disagree with that view, and merely consider those who voted for it to be oath breakers, please work hard to remove them all from office. Oath Keepers members across the nation will lead or assist efforts in their states to remove any member of Congress, regardless of party, who voted for this monstrosity.
We encourage all Americans of whatever political party to set aside their differences and come together in defense of our Bill of Rights by rooting out this den of vipers in Washington D.C. who are either knowingly killing our Bill of Rights, were too concerned with their careers to take a principled stand by voting against the NDAA, or are useful idiots who don’t understand what they swore an oath to defend. Whatever their excuse, they have violated their oaths to defend the Constitution and must be sent packing. This is not about politics. This is about defending the Constitution. As Oath Keepers Founder Stewart Rhodes put it:
These politicians from both parties betrayed our trust, and violated the oath they took to defend the Constitution. It’s not about the left or right, it’s about our Bill of Rights. Without the Bill of Rights, there is no America. It is the Crown Jewel of our Constitution, and the high-water mark of Western Civilization.This is a bi-partisan assault on the Bill of Rights that will require a bi-partisan defense. We the People must adopt a scorched-earth policy against all who voted for the NDAA of 2012, regardless of party, using any and all lawful means available to remove them from office. If you can remove them by means of recall, then do so. If that option is not available in your state, consider working to make it an option in your state. If attempts to recall are stopped by the courts, then root the oath breakers out in the next primary of whatever party they are in, making this issue the litmus test and supporting a challenger who will pledge to repeal this dangerous law. Make this desecration of our Bill of Rights campaign issue number one.
As two time Medal of Honor winner Marine General Smedley Butler once said “There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights.” Time to fight.
And if you don’t manage to root them out in the primary, then defeat them in the general election, again supporting a challenger who pledges to repeal the detention provisions of the NDAA. Use whatever lawful means or combination of strategies available to get the job done. And even when any particular method “fails,” it still succeeds in keeping the focus on this act of betrayal, and it serves to educate the American people, waking them up to the ongoing bipartisan assault on our Bill of Rights. Even if we lose a battle we can still win the war.
We must keep this issue in the public eye, and keep the pressure on. Just as Jefferson and Madison were successful in rallying opposition to the Alien and Sedition Acts of 1798, which clearly violated the Constitution, and used that opposition to sweep the Federalists from Congress in what was known as “the revolution of 1800,” we must rally opposition to this clearly unconstitutional act and use it to sweep all of the Bill of Rights killing career politicians, of both major parties, out of Congress. Clean them all out!
To kick off this national campaign, Oath Keepers Founder Stewart Rhodes, along with Montana artist William Crain, will be personally spear-heading a recall effort in Montana, aimed at all three of Montana’s federal delegation - Senators Jon Tester and Max Baucus, and Representative Denny Rehberg – since they all voted for the NDAA. Stewart said:
Here in Montana, while we will go after all three violators of the Bill of Rights, I will place special emphasis and “focus of effort” on Denny Rehberg, since he is so fond of wrapping himself in the flag and claiming to be defending the Constitution while his votes do the exact opposite. In that sense, Rehberg is much like John McCain and Lindsey Graham, two Republicans who, right along with Carl Levin and Joseph Lieberman, are leading a sustained and relentless assault on our Bill of Rights, transforming America in to the Fourth Reich in the name of “national security” while claiming to be defenders of the Constitution. There is surely a special place in Hell reserved for such hypocrites. The blood of America’s war dead cries out for the Bill of Rights to be defended against all enemies, foreign and domestic, and we will answer that call.And as for Senator Jon Tester, Stewart Rhodes had this to say, directly addressed to the Senator:
My only question for Denny Rehberg is if he is a knowing traitor to our Constitution, like John McCain and Lindsey Graham (both of whom served in the military and clearly know exactly what they are doing), or is Rehberg just a useful idiot? Regardless of the answer, he is unfit to be dog-catcher and I will make it my mission in Montana to ensure that this oath breaker never serves in public office again.
Senator Tester, my friend Jim Manley introduced us back in 2006, at Doug Wold’s place in Polson during the Montana Trial Lawyers Convention, when you were running for U.S. Senate against Conrad Burns. Jim assured me that you would fight against the neocons who were assaulting the Bill of Rights, and when I met you, I looked you in the eye and asked if you would fight to stop them, and you answered “yes.” And so I was very happy to see you defeat the oath breaking Conrad Burns. I am a one issue voter –and that issue is the Bill of Rights. Conrad Burns, who voted for the PATRIOT Act, was a Bill of Rights wrecking machine who had to go. Good riddance! But now you have gone down the same path by voting for the NDAA of 2012, betraying the trust that Montanans placed in you to stand up for the Bill of Rights. You blew it when it counted most. You violated your oath. I sincerely hope Montana Democrats select someone better in the upcoming Montana Democratic primary. We cannot afford more of the same.
No More Pernicious Doctrine
The NDAA of 2012 is the single most dangerous and destructive anti-constitutional piece of legislation to ever pass through Congress since it strikes at the very heart of our Constitution and especially at our Bill of Rights, stripping away not just the ancient right of habeas corpus, but also directly violating the right to jury trial guaranteed by both Article III, Section 2 of the Constitution and by the Sixth Amendment, and also directly violating the Treason Clause of Article III, Section 3, which defines the crime of treason, stating:Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.Thus Article III clearly establishes what must be done with any Americans accused of making war against the United States or aiding the enemy – those Americans must be tried in an Article III civilian court, before a jury of their peers, and there must be two witnesses to the overt act or a confession in open court (extra evidentiary hurdles) before their lives or liberty can be taken from them, as Justices Scalia and Stevens aptly pointed out in their dissent in Hamdi.
Despite that clear constitutional trial remedy for the only crime defined by the Constitution itself, with its extra due process protections for accused Americans, the NDAA purports to instead subject Americans to indefinite military detention without trial for the duration of the war on terrorism – which may last forever – or trial before a military commission, rather than before a civilian jury as Article III plainly demands whenever any American is accused of being a traitor.
The NDAA detention provisions also directly violate the Fourth and Fifth Amendments. There is no more unreasonable seizure of a U.S. citizen or lawful resident than having them black-bagged and “disappeared” by the U.S. military on the mere say so of the President or some subordinate within the Executive Branch, without a showing of probable cause in support of arrest before a neutral judge, and without an indictment by a Grand Jury as is required by the Fifth Amendment. And as already noted, the right to jury trial clearly mandated by Article III and by the Sixth Amendment is grossly violated. Such arbitrary indefinite military detention and military trial of civilians are the hallmarks of repressive dictatorships throughout history.
This act by Congress is but the latest in a long train of abuses begun by the Bush Administration and carried forward by the Obama Administration. The Bush Administration began the assault on the Bill of Rights by using arbitrary military detention on two American citizens, Yaser Hamdi and Jose Padilla, with Padilla “captured” at the Chicago O’Hare International Airport and detained at a military brig in the United States for three and a half years. The Bush Administration based those detentions on a flawed World War II decision, Ex Parte Quirin (1942), wherein the same Supreme Court that gave us the horrendous Korematsu decision ruled, for the first time in U.S. history, upheld as “constitutional” the military detention and trial of American citizens as “unlawful combatants” under the laws of war rather than a trial for treason, in a civilian court, before a jury of their peers, as our Constitution demands whenever any American is accused of making war against the United States or aiding the enemy in wartime.
Before that one incident in World War II, the only other time a President had applied the laws of war to the American people was when Lincoln detained approximately 15,000 Northern civilians and tried nearly 5,000 of them by military tribunal. That detention and trial under the laws of war was ruled unconstitutional by the Supreme Court in Ex Parte Milligan (1866). Prior to that unconstitutional practice by Lincoln, all who were accused of making war against their own nation, or aiding the enemy, recieved a trial for treason, before a jury of their peers. And after Lincoln, such an attempt to use the laws of war on the American people was not attempted again until FDR did it during World War II. Nor was it attempted again until after 9/11.
It was then, in 2001, that the Bush Administration used that nearly forgotten World War II Quirin decision to support a claim of power to treat America like a battlefield and to apply the laws of war to the American people, treating U.S. citizens and lawful residents the same as the people of conquered enemy nations, such as Iraq and Afghanistan, where anyone merely accused of being an “enemy” can be detained indefinitely by the military, or tried by tribunal and executed. And the modern federal courts have given their rubber stamp of approval, most significantly in the Hamdi and Padilla cases. And so, the flawed Quirin decision that laid around like a loaded gun for sixty years has been picked up, dusted off, and used to bring the laws of war home to America, shoving aside our Bill of Rights, and transforming America, step-by-step, into the equivalent of occupied Iraq. Again, read Scalia’s dissent in Hamdi an in-depth analysis of the history and cases, see the paper on this topic that Stewart Rhodes wrote in 2004 while a student at Yale Law School, which won Yale’s Judge William E. Miller Prize for best paper on the Bill of Rights. Stewart also wrote a shorter article in 2005 for The Warrior, the journal of Gerry Spence’s Trial Lawyers College, which summarized his findings. And you can listen to a recent radio interview Stewart did on this topic, where he lays out exactly how dangerous this law will be, and provides a summary of the relevant caselaw. As Stewart stated in his November, 2010 interview with The Daily Bell:
The modern resurrection of these dangerous doctrines, which apply the international laws of war to the American people and treat them the same as foreign enemies on foreign battlefields, is one of the principle reasons I founded Oath Keepers.In Stewart’s above noted writings of 2004 and 2005, he warned that the logical conclusion of this application of the laws of war to the American people is not just detention and trial, but also simply killing Americans on sight, since that is what can be done to a military enemy in wartime. And that is exactly what has begun to happen.
Obama, instead of rolling back such absurd claims of Executive Power like he promised during his campaign, has doubled down and has taken this claimed power to use the laws of war on Americans to its absurd logical conclusion by asserting that he has the power to order the killing of any American he determines is an “unlawful combatant” during the war on terrorism – just as he does with foreign enemies on a foreign battlefield. And Obama has done just that. He has had U.S. citizens killed. When the “leader” of a nation can put any citizen’s name on his secret list of people to be snuffed out - a list he concocts based on “secret evidence” he refuses to show anyone – and, without a trial, without a chance for the victims to defend themselves, and without even knowing they are on the list, those kill-on-sight orders are carried out, you are living in a dictatorship. The U.S. routinely condemns such extra-judicial killings in other countries as gross human rights violations, and rightly so. But now our own government claims the power to do that to any of us and has begun to do it.
And now Congress has given its overwhelming vote of approval for this insane application of the laws of war to Americans. By passing the NDAA with these detention and trial provisions, Congress is piling on, and giving its overt support to that claimed power. What was once a power implied, ‘interpreted” and inferred by two administrations, and in various court cases has now been given overt approval by Congress, to “make it legal” while defenders of the act do the long-winded equivalent of “move along citizens, nothing to see here.” As Law Professor Jonathan Turley put it:
At least Senator Lindsey Graham was honest when he said on the Senate floor that “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”See also the analysis at the Law Prof Blog and by Glenn Greenwald, here.
I am not sure which is worse: the loss of core civil liberties or the almost mocking post hoc rationalization for abandoning principle.The Congress and the President have now completed a law that would have horrified the Framers. Indefinite detention of citizens is something that the Framers were intimately familiar with and expressly sought to bar in the Bill of Rights.
As Rep. Tom McClintock, speaking in opposition, aptly put it:
I rise in opposition to Section 1021 of the underlying Conference Report (H.R. 1540, the National Defense Authorization Act).
This section specifically affirms that the President has the authority to deny due process to any American it charges with “substantially supporting al Qaeda, the Taliban or any ‘associated forces’” – whatever that means.
Would “substantial support” of an “associated force,” mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don’t know. The question is, “do we really want to find out?”
We’re told not to worry – that the bill explicitly states that nothing in it shall alter existing law.
But wait.
There is no existing law that gives the President the power to ignore the Bill of Rights and detain Americans without due process. There is only an assertion by the last two presidents that this power is inherent in an open-ended and ill-defined war on terrorism. But it is a power not granted by any act of Congress. At least, not until now.
What this bill says is, “What Presidents have only asserted, Congress now affirms in statute.”
We’re told that this merely pushes the question to the Supreme Court to decide if indefinite detainment is compatible with any remaining vestige of the Bill of Rights.
That’s a good point, IF the Court were the sole guardian of the Constitution. But it is not. If it were, there would be no reason to require every member of Congress to swear to preserve, protect, and defend that Constitution.
We are also its guardians.
And today, we who have sworn fealty to that Constitution sit to consider a bill that affirms a power contained in no law and that has the full potential to crack the very foundation of American liberty.
And Senator Bernie Sanders declared:
”This bill also contains misguided provisions that in the name of fighting terrorism essentially authorize the indefinite imprisonment of American citizens without charges.”And Senator Rand Paul warned:
If you allow the government the unlimited power to detain citizens without a jury trial, you are exposing yourself to the whim of those in power. That is a dangerous game.Across the political spectrum, Americans are waking up to what has been done, and are indeed standing up to defend our Bill of Rights against all comers. The apolitical nature of this alarm and resistance is well demonstrated by the fact that two retired four-star Marine Corps generals, Charles C. Krulak and Joseph P. Hoar, wrote a scathing condemnation in the N.Y Times, demanding that Obama veto the bill. Sadly, Obama himself is an oath breaker.
While Congress does have both the power and the duty to remove oath breakers and traitors from office, with a House vote of 283 to 136 (with 14 members not voting), and a vote in the Senate of 87-13 in favor of this abomination, impeachment is a sick joke since they will not impeach themselves. Impeachment only works when a majority in Congress take their oaths seriously, have the requisite knowledge of our Constitution to know when it is being violated, an the courage and integrity to defend it. We are now faced with a super-majority in Congress who have amply demonstrated that they have either utter contempt for our Bill of Rights, are so ignorant that they don’t know when they are destroying the heart and soul of our Constitution, or are so cowardly that they will not take a principled stand. In any case, they will not correct themselves, by resigning or impeaching each other, and it thus falls to We the People to step in and correct them, by removing the oath breakers from office before they complete the destruction of our Bill of Rights.
One thing that must be made clear to the oath breakers in Congress who voted for the NDAA is that there would be no Constitution if not for the promise of a Bill of Rights. So, by destroying our Bill of Rights, they are destroying the Constitution that created the three branches of the federal government. By destroying the Constitution, Congress is destroying itself.
We must, and we will, exhaust all peaceful means we have left of defending our Bill of Rights. But make no mistake, we, the American people, and especially we, the American veterans, will defend our Bill of Rights at all hazards, up to and including by giving our lives in its defense. We are duty bound to do no less. We will not leave our children to a world without the Bill of Rights. Our fathers and grandfathers fought, bled, and died to defeat fascism over there. We will not abide it here at home. They honored their oaths, and we shall do the same. And we will set aside all other differences to take this stand. For without the Bill of Rights, America ceases to exist.
For the Republic,
Oath Keepers