JAG HUNTER HERE with TIM "FLIGHT LINE" HARRINGTON) (posting from the Sweetwater, Tennessee library):
"In the atmosphere of attainder, the only breathing, living thing is guilt!"
Our Constitution outlaws courts-martial!
America's Articles of war predate the Constitution.
British Articles of war of 1765 migrated to the Massachusetts colony in 1775. The British war articles are rooted in Roman-England antiquity.
Western Europe war articles reached full maturity in the 17th century.
English royalty favored and copied Sweden's adaptation and format fashioned by King Gustavus Adolphus in 1621.
American colonialists copied the English war articles of 1765 as evolved at the time as a military expedient. King George III was their author.
Revolutionary War combatants fought each other utilizing the same set of war articles.
On the English side King George's power was the single source regarding the war articles force and authority. The articles functioned under the king's jurisdiction alone.
Not belonging to or controlled by any other part of the government, the king's function as supreme commander empowered the king to issue--personally or through the military officer class--such orders and directions as were necessary and proper to ensure order and discipline in the subordinate classes.
In this unique societal scheme the king ordered martial surrogates to investigate criminal accusations, establish "facts," then recommend to the king punishments the king alone should inflict upon affected subjects.
A second scheme of government, one bringing about judicial reforms, was growing separately. This second type and kind of government is recognized by us today as Natural Law, or English Common Law.
War articles are dictatorial and despotic.
The Natural, Common Law is given expression through various Constitutions of the English speaking peoples.
War articles serve kings.
Constitutions serve the People.
These two governments are natural, instinctive combatants. What began as light engagements in the 12th century erupted into mortal combat in the 17th century whereupon the king's capricious and tyrannical enforcement of the war articles became intolerable.
Lord Chief Justice of England Sir Matthew Hale (1609-1676) condemned the war articles as no law at all--build upon no settled principles, totally arbitrary.
According the Chief Justice Hale, joined by so many others, the only acceptable use for the war articles was...well...during war! And only in war so severe, so extreme the combat forced closure of law courts and threatened the very existence of the nation and its government.
More agitated in their government in 1689, the English people began the process of legislating statue laws to independently regulate military forces. The slow process of decay for the war articles in England resulted eventually to their effacement.
Over time the People commanded that law courts with independent juries of strangers must be used--when open--to consider government accusations of criminal conduct.
In this context, it is with icy dismay we regard the substance and consequence of Winthrop's Curse. Saturated with tyranny, British war articles--as adapted and burnished--operate on American soil in the 21st century.
British war articles were seized upon by desperate colonialists responding to military emergency.
At Revolution's end, after Confederation government failed, our Founders breathed life into the Constitution; A set of laws that endured and survived the most grueling, most rigorous and participatory legislative process we know.
The Constitution completely effaced the Revolutionary war articles.
The Constitution outlaws courts-martial!
The Constitution outlaws ATTAINDER by commanding that independent, unbiased juries of strangers examine every government accusation of a criminal nature.
But on 29 September 1789, in a chilling vote never explained or examined, the First Federal Congress resurrected the war articles through an act of attainder.
Appropriate and necessary questions regarding the war articles slept dormant for over a half-century guarded as a military franchise during this period; never allowed outside contact. Fenced off, impenetrable, and invisible to civilian society, operation and enforcement of the war articles was a family affair.
The Civil War disrupted this affair.
Extraordinary expressions of presidential war power were subjected to severe Supreme Court examination. Cessation of armed combat on the field worsened matters by inflaming the spark of legal civil war into raging dry-grass wildfire pitting military aristocrats against High Court justices and the Constitution.
Soldier, JAG William Winthrop was assigned to the Army's Judge Advocate General's office when the showdown began (under General Joseph Holt).
High Court justices ruled some exercises of military authority unconstitutional. Those were stricken down as matters of law and condemned. Others remain standing as manifested by the contemporary variant of the American articles.
Obvious questions about attainder were left in slumber.
In the day, taken together with companion Supreme Court decisions--especially those threatening to wear thin the veil covering attainder--Winthrop, Holt and their JAG cohorts perceived the American articles frightfully exposed and endangered. The war articles were under direct attack.
MILITARY SUBVERSION of the Constitution (WINTHROP'S CURSE!) remained the only strategy available to desperate commanders and JAGs under siege within an embattled defense establishment.
There are many sponsors to the battle plans eventually drafted, but JAG Colonel William Winthrop is the chief architect of the TREASON that ensues.
Born of reaction to High Court exploration and criticism of the war articles, Winthrop's malignant purpose was a calculated subversion of the Constitution. Winthrop accomplished his treasonous goal using two tactics. The first was literary disguise and cloaked comparison.
In his subtle and sublime condemnation, Winthrop opines the Constitution feeble, weak and inefficient in the proper discipline of military men. The Constitution is immature and untested in combat. The Law of the Land is too cumbersome and clumsy; it's unworthy of respect.
The Winthrop/Defense Department Doctrine of Subversion--by way of contrast--holds the war articles time-honored and more elevated than the Constitution. The military code is of greater age and dignity. America's war articles are simple, efficient, vigorous, summary, strong and successfully combat tested.
However, a second tactic was necessary. Attacking the Constitution as incompetent wasn't enough to masquerade the illicit operation and purposes of the war articles--most especially in peacetime--leaving the articles still vulnerable to extreme judicial or legislative alteration if not outright effacement.
No matter their excoriating, treasonous analysis, Winthrop's claque had to face this fact: The Constitution was still the Law of the Land!
So Winthrop's dilemma was this: Military men do not make, change, or repeal laws. To continue illegal operation of the articles, and deflect attention away, Winthrop devised and employed a second linguistic artifice.
Winthrop appropriated words found in the Constitution, redefined their meanings to his needs and uses, then wrote the words with his new definitions in describing the functioning articles (Winthrop's two volume opus: Military Law and Precedents).
Winthrop's magic act has worked well for over a century.
In Winthrop's world "judges" and "juries" wear uniform prominently displaying insignia announcing warfare specialty, rank (class), valor, performance excellence, status, and esteem.
In Winthrop's world it is this simple body of military men--who under orders and in service to the President as Commander in Chief--investigate criminal accusations, determine "facts," and recommend pains and punishments appropriate for the president to inflict upon the affected subordinate.
To be blunt, Winthrop's depiction of judges and juries is of a kind with Ray Bradbury's portrayal of firemen (Fahrenheit 451).
By crafty deception and deceit Winthrop's Defense Department Doctrine liberates military associates from having to cope with the obstructive and embarrassing habits of constitutionally acceptable juries and judges.
Conjuring visual images now, please consider the consequences attaching to the administration of law and justice should--for instance--the hearing officer and panel from the movie RULES OF ENGAGEMENT, be replaced by the judge and jury depicted in THE VERDICT. Also consider the outcome brought about in THE UNTOUCHABLES when the juries were swapped.
In the United States of America, no person or assembly is lawfully sanctioned to strip a fellow citizen the protection of a constitutionally constructed jury.
And yet, the Attainder Act of 1789 remains undisturbed in its essentials.
We are left instead with Winthrop's subversion, treason and betrayal. Winthrop's 1886 bloodless coup de grace forced a military amendment on the Constitution and on its people.
Neither judges , juries, nor innocence are present in the hearing rooms of those ritual inquests known as courts-martial when they're in session. In the commission of attainder, military governors don't have to bring a case, never mind prove one. Accused service men stand naked in the dock, unarmed. In the atmosphere of attainder, the only breathing, living thing is guilt.
Supreme Court capitulation in legal Civil War profiles in high-relief the sort of contradiction Ayn Rand made infamously classic in her novel, ATLAS SHRUGGED:
England's parliament--obedient to the Natural, Common Law--put an end to the king's despotic and tyrannical infliction of pains, penalties and punishment upon the people.
Britain abolished their war articles in 1881.
In 1951, Congress retitled the American war articles a "Uniform Code of Military Justice."
The upshot of all this is that the character, quality, and nature of America's war articles in 2008 are identical to the character, quality, and nature of the English articles in the 17th century!
Here endth the lesson.
Copyright © The JAG HUNTER 2008
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