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by Walter Francis Fitzpatrick, III, ©2006

Have Articles of War replaced the U.S. Constitution?

(Sept. 5, 2010) — Saint Crispin’s Day 2006

“Today, you are the law!”

So begins Frank Galvin’s summation to the jury in the movie The Verdict. Galvin’s narration laconically illustrates to citizens in the jury box that their participation, inspection, deliberation, and approval of government action defines the rule of law. More to the point Galvin’s succinct charter defines the rule and role of citizen juries.

The scales of justice in criminal proceedings balance the interests of the state against the rights and interests of citizens. In peacetime jurors do the assaying.

In time of WAR (large letters), the rules change.

The first casualty of WAR is the jury. Truth’s survival is irrelevant.

Juries are silent in time of WAR (inter arma leges silent).

WAR as I mean it describes that level of mortal combat that when concluded a nation or its form or government or both fall dead next to its soldiers. During times of dire predicament only a dictatorship, the lawless enforcement of discipline upon a country’s citizenry and military, works to effectively put that nation on a WAR footing.

Courts are closed by the advance of an invading armed force. WAR time criminal proceedings eliminate fundamental procedural rights. There are no juries, no judges, no courts or trials, no due process, no bail, no habeas corpus, no appeal. There are no verdicts. No accusers need step forward; no physical evidence is necessary nor testimonial evidence. There needs not even be a crime to execute punishment of a citizen. Shooting citizens on sight is an approved military disciplinary custom. Survival of the state is the only interest served in an environment populated by government actors in a time of WAR. Resistance is futile.

Punishment decisions are vested in a single person and are totally discretionary. WAR time enemies face our government at its most vicious and merciless moment. Military governors are unconcerned with arguments made in self-defense by combatants who in that instant before capture were trying to kill us. Concerns about full and fair hearings, ethics, truth, innocence, justice or rights are rejected outright and rendered irrelevant. Americans lock their enemies up or kill them after the commander in chief determines extant threat at his discretion.

In time of WAR the commander in chief becomes a dictator so that success on the field of battle is possible when the life of the nation is at risk. Articles of WAR are substituted for fundamental constitutional principles of jurisprudence in answer to a survival instinct.

AWs were adopted by the Continental Congress empowering General George Washington with dictatorial control of his army. Without absolute control of its discipline, Washington “would not have an army” capable or competent to fight. The essence of military proceedings under the AWs “is summary and vigorous action…courts-martial are no part of the Judiciary of the United States, are not even courts in the full sense of the term…” We are warned martial law is no law at all “but something indulged, rather than allowed as law: the necessity of order and discipline in [the armed forces] the only thing which can give it countenance.” Military law is so severe, so draconian it “ought not be permitted in time of peace, when the…courts are open for all persons to receive justice according to the laws of the land.”

The Revolutionary WAR ended when the British government and its holdings lay dead next to their soldiers. A new nation, America, stood tall. The Continental Army and Navy were disbanded; the Articles of WAR were effaced to be eventually replaced by our U.S. Constitution.

Jury inspection of all criminal allegations was restored in the Vth Amendment commanding…“Any person accused of a capital (serious) or infamous (horrible) crime, except a person on active duty with the military forces during time of war (small letters) or public danger, must be indicted (charged and held for trial) by a grand jury (twelve to twenty-three persons selected to decide if there is enough evidence or information against the accused to hold a trial).”

Our Founders mandated that grand juries give permission before trail juries should be allowed to examine and render final judgments regarding guilt or innocence. In time of war (small letters) or public danger, when courts are open and operating, the grand jury is skipped for members of the land and naval forces on active duty. Then in that circumstance, criminal allegations are advanced directly to jury trials.

Beyond placing restraint upon the government from wrongly or capriciously acting against citizens, juries are additionally and immeasurably invaluable by keeping connected and accountable the armed forces to its people.

Direct government punishment absent jury approval is called “attainder.”

America’s Founding Fathers stripped attainder power from all government officials and strictly, specifically prohibited its renewal through new legislation. Under the Constitution, no single person or group of people is empowered to practice attainder. Federal and state government officials are expressly prohibited from punishing any U.S. citizen without a jury’s permission. Protection from juries against direct action by the state was regarded so inviolable that the Founders placed stern prohibitions blocking federal and state legislatures from eliminating jury participation. Bills of attainder are illicit.

Unfortunately for members of the armed forces no one powerful enough is in a position to stop the Congress then or since when it authorizes military government under renewed Articles of WAR irreconcilable with the U.S. Constitution.

Despite constitutional prohibitions preventing Congress from either seizing attainder power, or extending attainder power it does not possess to another, Congress has passed, nurtured and kept hidden in plain sight bills of attainder throughout our nation’s history. To the detriment of our armed forces Congress replaced juries with “bodies of military men ordered to investigate accusations, arrive at facts, and—where just—recommend a punishment” to the commander in chief. Attainder by confession is currently forced upon the seven Marines kept in a cave at Camp Pendleton, California.

Juries are missing from all U.S. military criminal proceedings be they courts-martial, tribunals, or commissions. While juries are required under the Constitution, the word jury is nowhere found in America’s Articles of WAR (renamed the Uniform Code of Military Justice in 1950), nor in the Military Commissions Act of 2006.

The facility of the Military Commissions Act of 2006, for instance, is subterfuge. It’s a contrivance being used to fool our citizenry into believing that two different standards of punishment are being employed against 1) our servicemen, and 2) enemy pirates.

Neither protocol includes trial by jury. Both operate as illicit bills of attainder when used to punish American citizens criminally.

More: Every member of the armed forces punished by the commander in chief through the agency of military governors is wrongfully “attainted;” that is, punished without law. Those incarcerated today through the workings of a congressionally created criminal hearing process (attainder by confession for instance) are political prisoners in every sense the phrase can be understood.

The same government methods being used to punish pirate enemies trying to kill us are simultaneously directed against countrymen who’ve pledged their lives to save ours. This is an outrage!

These thoughts in closing:

Our enemies are domestic.

America’s armed forces have never been so disconnected and unaccountable from our citizenry than is the case today.

No citizen oversight or accountability exists regulating or restraining America’s standing, professional armed force.

Supreme Court condemnation of attainder and responsibility is deserted.

It needs be repeated that the Congress must be held accountable for bills of attainder and attainder by confession at work in the moment.

Articles of WAR must be short-lived. AWs on the books now must be put to sleep until made necessary again. Instead Congress has made AWs permanent. Just last week the commander in chief approved the most expansive extension of attainder power over citizens known to Americans since the Civil WAR.

The Constitution renders dormant the Articles of War (UCMJ). The operation of one mutually excludes the operation of the other. Courts are either open or closed.

Military officers supporting the continued operation of the Articles of WAR in time of peace, the practice of attainder, must resign their commissions instantly in obedience to their oaths of office. This includes, of course, the most senior military officer, the commander in chief.

Don’t enlist. Don’t re-enlist. The force is all-volunteer.

Force Congress to shut-down all unconstitutional military police forces. Their congressional charter is to enforce bills of attainder (NCIS, Army CID, Air Force OSI, CGIS).

The Constitution applies to all Americans whenever the courts are open. Our contemporaneous combat with air, land, and naval pirates is war writ small. American jury courts are open today; I trust they’ll be open tomorrow.

Fight back at the ballot box. There you be the jury. Demand in the upcoming election and every election afterwards public accountability from incumbent federal office holders and challengers regarding their public positions regarding the extraordinary rendition of juries.

Immediately, and especially for those like the Marines being kept in a cave at Camp Pendleton stand up as united American’s we speak out with one united voice demanding: NO MORE PUNISHMENT WITHOUT LAW!

Here endth the lesson! The JAG Hunter 2006©

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  1. The alternative is what is good for the goose is good for the gander. There is no room for two governments and neither is there room for one which is foreign to the one set out in writing either in action or intent.

    Thanks Walter, the lesson is well understood.

  2. Wow, this is really interesting. Can’t say that I understood it all, but what parts that I did were eye-openers. Thanks Walt. Great article.