Senate Report
STUDY #1 & #2 OF 4: War and Emergency Powers Acts
Fri Jun 30, 2006 19:34

Senate Report - War and Emergency Powers Acts

STUDY # 1 of 4 .... War and Emergency Powers

STUDY #2 of 4.... War end Emergency Powers


Constitutional Dictatorship: the War Powers Act
Whenever any President proclaims that the national emergency has ended, all War Powers shall cease to be in effect. Congress can do nothing without the ...

FindLaw's Writ - Dean: Presidential Powers In Times Of Emergency
PRESIDENTIAL POWERS IN TIMES OF EMERGENCY: Could Terrorism Result In A ... Because we don't know what shape this undeclared war on terrorism will take, ...

mergency War Powers

In writing the Constitution for the United States of America, James Madison said that states in order to enhance their power, often resorted to “the old trick of turning every contingency into a resource for accumulating force in the government.” The idea is to foster an emergency, and then step in to “save the people” by drastically increasing state power. This is precisely the scenario since 9-11-2001 in the United States , but includes as well the response to droughts, floods, depressions, illicit drugs, acts of war, and so forth. There is virtually no natural or man-made disaster which cannot be used to garner greater power into the hands of an increasingly greedy-for-power government.

The United States Bankruptcy of 1861 placed the country under Emergency War Powers (12 Stat 319), a situation which has never been repealed and continues to exist in Title 50 USC Sections 212, 213, 215, Appendix 16, 26 CFR Chapter 1 paragraph 303.1-6(a), and 31 CFR Chapter 5, paragraph 500.701 Penalties.

To add insult to injury, the United States on October 6, 1917 , passed the Trading with the Enemy Act (H.R. 4960, Public Law 91) -- ostensibly in connection with World War I. This extraordinary act gave the President immense, unconstitutional authority (particularly over any private ownership of gold and silver), but included within the term, “enemy”, individuals “other than citizens of the United States .” The Emergency War Powers had been greatly extended, but thus far had not been directed against the people of the United States . This was not to be the end of the matter, however.

Just when the citizens thought it was safe to go into the water again, The Amendatory Act of March 9, 1933 was passed, and which included the people of the United States under the definition of “enemy”. Essentially, “any person within the United States of any place subject to the jurisdiction thereof...”

This reprehensible act was passed just after Franklin Roosevelt’s inauguration as President of the United States , and significantly at a time when the United States was not in a shooting war with any foreign foe. Emergency war powers in time of peace may seem to be a contradiction in terms, but not in government (where such paradoxes are legion).

The Amendatory Act also made the President a monarch and/or king in everything but name (which might have been okay with Roosevelt ). It gave the Secretary of the Treasury commensurate powers (with that office -- no longer being a “United States Treasury” -- but reporting directly to the creditors of the bankruptcy). Finally, the Amendatory Act placed the American people under commercial law (which has been formalized as the Uniform Commercial Code). The latter action effectively made all citizens “merchants”, entities whose records and affairs were totally subject to inspection and harsh penalties imposed for any violations of Mercantile Law. Thus the citizens were not only designated as the “enemy” (as in Pogo Possum’s statement: “We have met the Enemy, and they is us.”), they were also merchants and subject to invasive inspection of all their activities.

The “Bank Holiday” of March 6, 1933 was part and parcel of the Emergency War Powers Act and the actions which followed, and was primarily intended to prevent the continuing and increasing withdrawal of currency and gold from the banks. This, in effect, was the true national emergency of 1933 (but more an emergency for the bankers than the nation).

Meanwhile, every President of the United States since Franklin Roosevelt has reaffirmed the “national emergency” and issued Executive Orders under 12 USC 95(a), continuing the US Bankruptcy and “reorganization”. [Will there be no end to the reorganization?] Today, things are continuing, with enemies being created everywhere -- from Osama Bin Laden to Saddam Hussein, from Enemy Combatants to you or your neighbor next door. It is not a comforting thought. But it’s also true.

The key to alleviating this condition is -- again -- a return to Common Law and the Gold (and/or Silver or Precious Metal) Standard (so that Money again has actual value!), an initiation of Restorative Justice, the better side of Anarchy, and a peaceful Revolution, and/or Creating Reality which encompasses all of the above -- even if we don’t tell any of the bankers or their minions what we’re doing! They would not be happy with such a turn of events, and thus why should we darken their day?


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Justices limit wartime powers
Baltimore Sun, United States - 2 hours ago
... aggressive anti-terrorism policies and efforts to expand executive powers. ... No emergency prevents consultation ... history - although not since the World War II-era ...
US high court strikes down war tribunals Arkansas Democrat-Gazette (subscription)
Editorials on Supreme Court's Guantanamo ruling Belleville News-Democrat
A Supreme Court conversation. Slate

all 2,338 related


Justices limit wartime powers
Bush dealt setback in 5-3 ruling against military tribunals
By Gail Gibson and Siobhan Gorman
Sun reporters

Originally published June 30, 2006
The Supreme Court ruled yesterday that wartime tribunals created to try detainees at Guantanamo Bay are not valid under U.S. law or international treaties, a political and legal blow to the Bush administration's broad claims of executive power that could have far-reaching implications for how it conducts the war on terrorism.

Nearly five years after the first terrorist suspects arrived at the prison camp in Cuba, none of the roughly 700 men who have been held there has stood trial. The court's 5-3 decision ensured that the wait would be longer and that the facility would remain open for now, in spite of calls to close it.

President Bush said yesterday that he would work with Congress to redraft the first military tribunals since World War II, and lawmakers in both parties signaled that they would lend support. Legal analysts and government officials said other options were to try detainees in civilian courts inside the United States or in military court-martials - or to return them to their home countries.

But the much-anticipated decision also raised broader questions about Bush's aggressive anti-terrorism policies and efforts to expand executive powers. At turns, it appeared to undercut the administration's justification for aggressive interrogation techniques as well as its defense of the National Security Agency's program of warrantless surveillance inside the United States.

"The Supreme Court didn't specifically tell the president that he had to comply with [Geneva Conventions protections] outside the boundaries of military commissions, but it was clearly a bowshot," said Scott L. Silliman, a retired Air Force attorney who serves as executive director of the Center on Law, Ethics and National Security at Duke University.

The court split, 5-3, in the case of Salim Ahmed Hamdan, a one-time driver for al-Qaida leader Osama bin Laden. The majority opinion was written by the court's most senior and most liberal member, Justice John Paul Stevens, with the deciding vote coming from moderate Justice Anthony M. Kennedy.

Chief Justice John G. Roberts Jr. did not participate in the case. He had ruled in the government's favor last year when the case came before him on a lower court.

In finding that Bush had overstepped his authority in creating military commissions that sharply curtailed basic trial rights, such as allowing the accused to be present throughout his trial, the majority decision suggested repeatedly that the cure to the problem could come from Congress.

"No emergency prevents consultation with Congress; judicial insistence upon that consultation does not weaken our nation's ability to deal with danger," Justice Stephen G. Breyer wrote in a concurring opinion. "The Constitution places its faith in those democratic means. Our court today simply does the same."

In its ruling, the court did not summarily reject the use of wartime tribunals, which have been used across U.S. history - although not since the World War II-era trials of eight German agents sent to the United States with a failed mission to destroy war factories, canals, bridges and train stations.

And Stevens pointedly noted that the court was not challenging the government's authority to hold Hamdan "for the duration of active hostilities," a murky deadline in the current conflict, which could stretch for decades without a clear end.

Bush said yesterday that "we take the findings seriously" and suggested that he would turn to Congress for help in crafting new military commissions that would conform with the ruling.

"To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so," the president said.

Lawmakers appeared willing to help. Leaders on the Senate Armed Services Committee said it would hold hearings on the issue soon. Senate Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican, promptly introduced the "Unprivileged Combatant Act" to establish new tribunals. And Specter's Democratic counterpart on the panel, Sen. Patrick J. Leahy of Vermont, agreed that Congress should get involved.

"We need to refocus on our priorities and get the war on terror back on a lawful and constitutional footing," Leahy said.

The court's decision met sharp criticism from conservative legal scholars and the three dissenters - Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, who warned that the decision was a dangerous intrusion on the president's power to wage war. Thomas, usually silent in open court, took the rare step of reading part of his dissent from the bench.

The ruling, Thomas said, would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

Douglas W. Kmiec, a Pepperdine University law professor who served in the Justice Department under President Ronald Reagan, said the ruling demonstrated that "the court has simply failed to grasp that we are at war."

But administration critics said the outcome was an important check of presidential powers. Michael Ratner, president of the Center for Constitutional Rights, which represents many of the Guantanamo detainees, said that by invoking protections under a key provision of the Geneva Conventions - Common Article 3 - the decision would have broad ramifications for the U.S. treatment of terrorist suspects.

"What this says to the administration is you can no longer decide, arbitrarily, what you want to do with people - you have to abide the dictates of the Geneva Conventions' Common Article 3," Ratner told reporters.

The court's holding that the provision should apply drew considerable attention from appellate lawyers and legal scholars. Writing for the majority, Stevens noted that it requires that individuals prosecuted for war crimes must face "regularly constituted courts" that afford widely recognized judicial guarantees. But it also holds that detainees should "in all circumstances be treated humanely" and prohibits acts of "cruel treatment and torture."

In its majority decision, the court also rejected the government's argument that the president's authority to create the military commissions stemmed from Congress' approval in September 2001 to use military force against the perpetrators of the terrorist strikes on New York and the Pentagon. Although not addressed in yesterday's decision, the government has made the same assertion in defense of the NSA warrantless surveillance program.

There is nothing in the history of that congressional action "even hinting" at the kind of expansion of presidential authority inherent in the military commissions, Stevens wrote.

The focus yesterday for government lawyers was what comes next for the 10 detainees at Guantanamo Bay who have been charged with war crime offenses, and the other 40 to 80 detainees who also could face military commissions. Senior administration officials, who spoke on the condition of anonymity, said justice and defense officials were reviewing all possibilities but appeared likely to seek help from Congress to re-create the commissions.

Carl Tobias, a law professor at the University of Richmond who has written about terrorist prosecutions, said that the government probably is reluctant to go to civilian court and risk the kind of legal spectacle that accompanied its prosecution this year of convicted Sept. 11 conspirator Zacarias Moussaoui.

But University of Maryland law professor Michael Greenberger, a top counterterrorism official during the Clinton administration, said trials could proceed without changing current law.

"For those who have really violated the law of war, they could quickly get convictions in public court-martial proceedings and accomplish that objective," Greenberger said. "And if they believe that there are those that they fear to be dangerous but can't prove it, they can keep them off the streets by holding them under prisoner-of-war status. They get nice treatment, but they're not free - they're imprisoned.

"The one hindrance is it would make interrogation more difficult, but I think the interrogation value of these people has long since passed by."

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