Wednesday, September 27, 2006

On the permanence of War powers to (military) justice--By Paul Greenberg

"'Such decisions,' Mr. Justice Jackson once observed, 'are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility . . . .'"

JAG Hunter here: The central question of the moment regarding the role of government, or any branch of that government, in the punishment of our enemies is what balance is to be achieved in protecting the natural rights of man versus defending the life of our nation against a real or perceived, credible threat.

There is a Latin verse that reminds us the highest seat does not hold two (summa sedes non capit duos). For America, the highest seat is held by the commander-in-chief during a time of War only when the country is in extremis (its life in danger). George Washington and Abraham Lincoln have both held this highest seat of government in our national history.

The supreme office of dictator is unnecessary during time of peace, or even in time of elevated conflict wherein neither our form of constitutional government nor the life of the country are at risk of takeover.

Government is shared during conflicts lower in threat level then War in deferrence to the protection of the natural rights of the governed. We must be very careful in our determinations whether the United States is at War, because our decisions may justify deploying a form of government where there are no checks, there are no balances.

Such a government, when placed into existence, must be indulged only for so long as its necessary. It must be temporaty, not permanent.

Permenant War powers represent a clear and present danger. Unceasing War power acts like acid. It is corrosive. And it raises up a very real threat to our peace time government, and to our country.

Shared government, with essential oversight, must be practiced in every instance possible.

Mr. Greenberg's mention of Alexander Hamilton and Robert H. Jackson nicely serves to buttress my assertions. Both men have had a hand in making War powers permanent. Former judge advocate and senior officer of the Army, Major General (2-stars) Hamilton (not colonel) is chiefly responsible that America's Articles of War (renamed in 1951 the Uniform Code of Military Justice -- UCMJ) were left operative after the end of the Revolutionary War rather than rendering them dormant. Lieutenant General (3-stars) Robert H. Jackson authored the Feres doctrine, a permanent War power barring American servicemen from bringing suit "for injuries cause by the Federal Government's negligence." The Feres doctirne, a permanent War power, is widley recognized as "unfair to those in service."

New legislation creating a different kind of military tribunal is little more than a governmental card trick to make another War power permanent.

New law is not needed.

Our chief executive, wearing his military hat as commander-in-chief, can declare enemy combatants Prisoners of War this instant and order courts-martial opened (convened) immediately, regulated by the UCMJ. The court-martial of Marine Sergeant Clayton J. Lonetree is but one example whereupon America was able to keep its secrets secret during a court-martial exercising existing UCMJ protocols.

I strenuously warn Mr. Greenberg, and like-minded people, against making permanent the power of government to trepass upon the Rights of Man: War powers. If American was really at War, we'd all be serving, temporarily, in some way. Many of us would be called in military service, including Mr. Greenberg (who might even hold the rank of colonel). And we'd ferouciously dispatch with our enemies, while keeping our secrets secret.


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