Tag Archives: constitution

Has the US Constitution Been Lost to Military Rule?

by , January 05, 2015

On October 23, 2001, the Office of Legal Counsel issued a legal opinion that would shock most Americans if they realized its full implications. By all appearances, it is still in effect, judging by military surveillance operations taking place in the U.S. by the Department of Defense and the military command within it, the National Security Agency (NSA). The opinion was entitled: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (emphasis in original).

Martial law is not obvious to most people most of the time in the U.S., but military presence was evident on the streets, rooftops, and riverfront in St. Paul during the 2008 RNC political convention. Military was also used for crowd control at the DNC convention in Denver that year. Photo: Army News Service.

Martial law is not obvious to most people most of the time in the U.S., but military presence was evident on the streets, rooftops, and riverfront in St. Paul during the 2008 RNC political convention. Military was also used for crowd control at the DNC convention in Denver that year. Photo: Army News Service.

What is the Office of Legal Counsel – or “OLC” for short – that made such a bold move? It is a secretive office in the Department of Justice. The purpose of the OLC is straightforward. It sits as a de facto court within the White House that decides the legal questions that set the boundaries for how the federal government runs day-to-day. Be they the highest presidential appointee or lowliest bureaucrat, a government official who complies with the OLC’s opinion is generally immune from later prosecution or liability.

They are immune, that is, unless the OLC attorney was not giving “good faith legal advice” when, in fact, the lawyers were just following orders to “legalize” an otherwise criminal act. That “good faith legal advice” would not then serve to protect their clients. Lawyers can’t help with committing crimes, and when they do – even OLC lawyers – they can be prosecuted when they knowingly help plan or commit a crime. In fact, a lawyer was prosecuted at Nuremberg for his role in committing war crimes.

The lawyers who wrote the OLC opinion about the use of military force within the United States were Robert Delahunty, now teaching “law” at St. Thomas University Law School, Minneapolis, and John Yoo, who is back teaching the same sort of law at Boalt Law School, University of California, Berkeley. By “the same sort of law” is meant their idiosyncratic belief that the President, acting as “Commander in Chief,” has dictatorial-like powers.

This is the “unitary executive theory” – a radically un-American, unconstitutional and extralegal ideology that former Vice President and torture enthusiast Dick Cheney has been pushing since the Iran-Contra Affair. In other countries, but particularly Germany from 1933 to 1945, in which citizens lived under a dictatorship, this was called “prerogative” government, as described by German Jewish lawyers. Both Delahunty and Yoo continue working to shoehorn this radical legal theory into respectability with prolific writing of law review articles promoting it.

The argument was that because of these prerogative powers, the President was subject to no law – neither constitutional law nor international law. The October 23, 2001 opinion is particularly dangerous, as it essentially granted the President martial law authority, meaning the authority to act outside the Constitution. To reiterate, the conclusion the OLC drew was that the President has constitutional authority to use the armed forces in military operations against those deemed to be terrorists within the United States. Consequently, “these operations generally would not be subject to the constraints of the Fourth Amendment, so long as the armed forces are undertaking a military function.” This is a frightening prospect, since the Fourth Amendment is what protects us against unreasonable searches and seizures, which can lead to arbitrary arrests. (Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.)

Furthermore, according to Delahunty and Yoo, terrorists operate within the continental United States and “conceal themselves within the domestic society and economy,” which makes it difficult to identify them. By this logic, everyone is now “suspect.” Furthermore, they wrote, 9/11 created a situation “in which the battlefield has occurred, and may occur, at dispersed locations and intervals within the American homeland itself. As a result, efforts to fight terrorism may require not only the usual wartime regulations of domestic affairs, but also military actions that have normally occurred abroad.”

This opinion by Delahunty and Yoo formed a legal basis for a state of martial law which the Bush administration took to mean that they could fight a “war” against terrorism outside the U.S. Constitution but inside the U.S. geographic area as a “military state,” operating just the way paragons of legality Mubarak’s Egypt and Pinochet’s Chile did. Bush officials argued this was due to necessity, but in fact that was fallacious, as the U.S. military is not, and should not be, considered an antiterrorist force. Militaries exist to defend against foreign armies attacking, not to conduct the police work required for counter-terrorism. But as we’ve seen, when a military takes control of a country, occupying it as in Iraq and Afghanistan, or the Israeli occupation of Palestine, it enforces martial law on the civilians living there – in other words, the military operates as a dictatorship, or as our Supreme Court called it, “martial rule.”

So in writing an opinion authorizing martial law, Delahunty/Yoo asserted that the Fourth Amendment’s protections do not apply to domestic military operations in the United States, regardless of citizenship. They wrote that Federal Armed Forces must be free to use force when they deemed it necessary without being constrained by the Fourth Amendment, “even though force would be intentionally directed against persons known to be citizens.”

Additionally, as a final blow against the Constitution, Delahunty and Yoo stated: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. ‘When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’”

This OLC opinion laid the foundation for all the extra-constitutional actions by the Bush administration that would follow. They are still carried on by the Obama administration today with their assertions that the President can kill American citizens with a drone without any due process (whether inside or outside the U.S.). Amendment V provides that no citizen should be deprived life, liberty, or property without due process of law. However, in September of 2011, American-born and educated Anwar Al-Awlaki was targeted and killed in a U.S. drone strike in Yemen. Also killed in the strike was Samir Khan. Al-Awlaki’s 16-year-old son, Denver-born Abdulrahman al-Awlaki, was killed by American drones while attending a barbeque with cousins in Yemen the next month. For more information about the killings, seeinvestigative journalist Jeremy Scahill’s account in “Inside America’s Dirty Wars: how three U.S. citizens were killed by their own government in the space of one month in 2011” (The Nation, April 24, 2013). It would also explain the military operation currently being conducted against American citizens by the National Security Agency (NSA), a component of the U.S. Department of Defense, in violation of the Fourth Amendment.

The fruits of that opinion can be seen with an out of control CIA that has been on display with the release of the Torture Report summary released by Senate Select Committee on Intelligence Chair Diane Feinstein in 2014. The acts of torture described in this summary are war crimes because they were committed in the context of, and associated with, wars beginning in 2001. But the war criminals, which could include some lawyers, may believe that there is no accountability for the perpetrators of these war crimes because they are part of, and have the protection of what Professor Michael Glennon describes as a “double government” in his book National Security and Double Government, and in an article by the same name.

Glennon’s book puts into print, in the open and in the so-called mainstream, what some have known for years. The CIA and other national security agencies constitute a “deep state,” operating outside public view and, as we know now, without constitutional constraints or oversight.

But beyond setting the U.S. on a course of perpetual war and destroying democracy, the economy, and the Constitution, the opportunity was there for those within the deep state to protect their power even more by placing the country under “martial law.” Though we don’t normally see troops on the streets controlling and keeping an eye on us, and most have not felt the effects of a state of martial law, it is in effect with the constant NSA surveillance now permitted by law and the potential of military detention under Section 1021 of the 2012 National Defense Authorization Act (NDAA). Even though these statutes seem to ratify the underlying military authority put into place, that doesn’t change its character as “martial law.” Martial law exists whenever the military assumes authority over civilian officials. When General DeWitt ordered the removal of the Japanese Americans from the West Coast in 1942, a martial law act, that character did not change because Congress, to its later shame, ratified it by providing penalties for violating DeWitt’s order.

In the 21st century, martial law was effectively imposed when the military (NSA) was given the military mission of surveillance of the population (us), the same mission they were given when Iraq was invaded by the U.S. and the NSA mission was to spy on Iraqi civilians. In the U.S., they were tasked to monitor all of our thoughts as expressed in our communications as if they were conducting a counterinsurgency operation. The Minneapolis and Chicago antiwar activists under investigation by a grand jury are an example of what occurs when a country is under martial law, as are other antiwar activists who have come under the scrutiny of the government for their nonviolent political activities which are critical of U.S. foreign policy in the Mideast. (It is not required under martial law that only the military enforces it – civilian law enforcement authority is used to enforce it as well.) (For more information, seestopfbi.net and uspcn.org.)

While seeming to withdraw portions of the October 23, 2001 opinion, a 2008 OLC memo corroborates the meaning of the October 23, 2001 opinion fundamentally, but offered that “appropriate caution should be exercised” before relying on the opinion. Because they are wrapped in secrecy, we have no way of knowing current interpretations, except that we know the NSA/military is still spying on us through all of our communications and Section 1021 of the 2012 NDAA is still on the books as public law, providing for military detention “pending disposition under the law of war.”

For anyone skeptical that this constitutes martial law, a vigorous advocate of martial law for World War II, Charles Fairman of Harvard University, considered a martial law expert writing in 1942, justified it, to include the removal of the Japanese Americans from the West Coast that was conducted under the military authority of General DeWitt. Fairman cited this routine aspect of martial law from World War II Hawaii: “No action should be maintained against a member of the armed forces for any act under color of duty, or against any person employed in an activity essential to the national defense for any act within the scope of such employment; nor should such a person suffer judgment by default, or be subpoenaed as a witness.”

We have seen this principle applied since 2001 in those numerous cases against various national security officials which are routinely dismissed on the grounds of “state secrets,” which can be presumed to be what the torturers are relying upon.

This is not the first instance of a “dual state” in what was once considered an enlightened, democratic country. In a book of the same name, a German-Jewish lawyer, Ernst Fraenkel, wrote as the opening line in 1939: “Martial law provides the constitution of the Third Reich.” Fraenkel broke German government into the “prerogative state” and the “normative state.” The prerogative state constituted that part of the German state under martial law and run by the security apparatuses. Prerogative power, which Delahunty and Yoo still advocate for, is martial law, or “martial rule” as our Supreme Court once described it.

A giant JLENS blimp will float over skies in the U.S. like one already does in Kabul – Photo: Raytheon

A giant JLENS blimp will float over skies in the U.S. like one already does in Kabul – Photo: Raytheon

But we don’t need to permit our country to fall into the abyss as Germany did, or even to be a less severe version. We do not need to give up our constitutional rights anymore in exchange for “safety,” knowing as we do that to suppress speech and intimidate the citizenry is really only to protect the incompetents of the deep state, who are driving the U.S. into an abyss – though different than the German example, an abyss nevertheless.

All we have to do is to demand accountability, starting with the torturers and their legal enablers, whoever they may be shown to be. Demand accountability of our government for these war crimes committed by our government, or call on international organizations and foreign nations that may be willing to assert universal jurisdiction over war crimes. That is what it took to bring war criminal Augusto Pinochet to justice. There is no statute of limitations for war crimes, so we must not give up until torturers and enablers are held accountable for what the Torture Report has shown to be war crimes. We can do no less unless we want future generations to demand of us: why didn’t we do something?

Todd E. Pierce, Major, U.S. Army (Ret.), served as Defense Counsel in the Office of Chief Defense Counsel, Office of Military Commissions, from June 2008 to November 2012. He was on defense teams representing three clients held at Guantánamo Bay, Cuba. He was co-counsel in the case of U.S. v. Ibrahim al Qosi, who was returned to his native country in July 2011 after serving two years of his sentence. He continues to serve as CO-counsel on the appeal of the 2008 Military Commission’s conviction of Ali al Bahlul, for whom two of three convictions have been vacated by D.C. Circuit Court of Appeals on constitutional grounds, with one remaining under deliberation.

This article originally appeared in the Women Against Military Madness newsletter (Winter 2014) and is reprinted with the author’s permission.


Interview: Gabriel Rothblatt Congressional Candidate in Florida’s 8th District

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I recently got together with Congressional candidate Gabriel Rothblatt who is very possibly the first openly transhumanist political candidate in the United States.

Gabriel is well known for his membership in the Terasem movement and for his famous transhumanist parents Martine and Bina Rothblatt.

Peter: Can you say a bit about what you’ve achieved in Florida, exactly what office you are running for, the locale etc.?

Gabriel: I’m running for the House of Representatives, America’s ‘House of Commons’ in Florida’s 8th Congressional District. Currently the 8th district is made up of Brevard and Indian River Counties with a small population in Orange County too. It includes the Space Coast and Northern Treasure Coast, with attractions such as well as the Indian River Lagoon, and NASA’s Kennedy Space Center.

The 8th district used to be one of the youngest in the country, the silicon valley of the 70’s. It is now one of the oldest and its electoral politics have become much more focused on conservative social issues instead of the advancement of America’s space program.

I’ve observed an interesting paradigm where the ‘good old-boy club’ which generally determines the Republican outcome is mirrored by a ‘good old-girl club’ which does the same for the Democrats. I had to overcome a handpicked primary challenger to become the democratic nominee, a testament to how effective simple hard-work and grassroots efforts can still be.

On top of being the father of four, a dedicated husband and Property Manager, I’ve been active in many groups from Cubscouts, PTO and School Advisory Committee to Leadership Brevard and Toastmasters with countless voluntary, business, social and political activities in between. I’ve already achieved a great amount in the few years of community involvement here in Florida. Both in my own accomplishments and in the forced reactions from the incumbent, I’m proud of what we have done and where we are going. We’ve seen my opponent introduce legislation on issues he has denied existed and modernize his positions on space, all coincidentally within the weeks after I qualified for the ballot.


P: In setting up this interview you mentioned that it was time for h+ to become political. What do you mean? 

G: Every movement begins as a fringe, successful movements eventually grow to become dominant trends, and that entails having a political voice. Especially in America there is great divide growing between science and politics, a divide that in a time of enormous technological growth, itself poses an existential risk for humanity. We cannot continue to let government ignore and fail to respond to the rapidly changing technological world around us. Transhumanism, must gain mainstream acceptance, or lose out to the idiocracy of luddites with thermonuclear capabilities.

In the early 90’s we saw some of the first movements towards the acceptance of ‘queers.’ Now twenty years later we are seeing a tsunami of supportive legislation. Same in the 50’s and 60’s with civil rights, the 10’s and 20’s with suffrage. Transhumanism is the next battleground for civil rights, and it needs leaders to do more than pontificate in chatrooms and internet comments.

Transhumanism, like feminism is more than just a single issue, it’s a philosophy and relates to many issues. Consumer Protections, Veterans, Healthcare, Property Rights, Civil Rights, Surveillance and Sousveillance, the 2nd amendment, personhood, immigration, disabilities… technology and multi-culturalism have changed how we interact with everything, in my opinion transhumanism is a path to understanding these relationships.

I consider myself the oldest millennial. It’s a self-proclaimed title admittedly but 30 is an age of maturity. Every day, Millennials begin crossing that threshold and as they do we are seeing the future mature before our very eyes. Throughout time this has often come with changing trends, but never before has a generation been at the cusp of as much change as this one faces. Those of us young and old who believe that technology should enhance our lives and not destroy it need to draw a line in the silicon.

P: How does your association with transhumanism influence your campaign? Is it a help or a hindrance?

G: My personal identification and experiences as a transhumanist has certainly informed my world view. Those connections and inspirations have led me to where I am, in those terms, I would never have gotten here and I owe them the entirety of my progress.

There are definitely people who choose to see my belief in transhumanism as a weakness. My former primary opponent grabbed on it quickly and did persuade a number of people that it made me unfit to express my political positions. The incumbent hasn’t yet made any clear statements, but I was banned from a ‘conservative’ group after the June 23rd, 2014TIME Magazine article.

Ultimately, I haven’t seen anyone who wasn’t going to judge me for being African-American and/or Jewish, judge me for being a transhumanist. More people have shown respect and intrigue than aversion. In today’s media world controversy is king, and if being ‘weird’ gets me more exposure, I win. I also find it’s important to stand your ground, defending yourself, hiding from your affiliations and beliefs never works. Ghandi said ‘first they laugh at you, then they fight you, then you win,’ I only have one step left.

P: can you say something about the transhumanist elements of your campaign or your platform?

G: My platform is predominantly about making education a solution and not an industry. My campaign does seek to educate people about the realities of the present and the choices of the future. It is my intention that through this campaign many people will take a closer more serious look at what transhumanism is and how they may already be, unknowingly well in its grasps. I always get a good chuckle when someone creates a vlog critical of transhumanism or posts anti-Terasem messages on FB.

I’m an extremely passionate advocate for Space, which is very much the essence of and a major driver for transhumanism. I also have a great amount of empathy for our veterans returning from wars and the difficulties of living with the realities and stigma of being ‘disabled.’ These issues highlight the already widespread, and long history of transhumanism. It’s now finally a time that we can connect the dots and begin pushing for public acceptance and equality for those already living as transhumanists and those who may choose to become one.

The issue of choice and more centrally, liberty, is something transhumanist I intend to push for. Specifically, I believe we may need an addition to our Bill of Rights to ensure our liberty in a exponentially technologically world. That is, what I would describe as the Freedom of Form, a right to exist and to transform into whatever extant reality possible. This would protect future beings who would chose to make adaptations to their body in an effort enhance their appearance, enjoyment or safety. It would maintain rights and protections for beings in stasis or virtual perpetuity.

P: What has been the reception for your ideas on the street level?

G: Most people, especially those directly interested or involved in space find them fascinating. Not all necessarily agree but appreciate my vision and respect my intellect for entertaining them. There are others however who can’t seem to muster more than the word weird, and then try to link me into every other term they can think of and don’t like.

“Any sufficiently advanced technology is indistinguishable from magic.” – Arthur C Clarke.

I’m a futurist and a visionary, I don’t expect people immediately to comprehend my ideas, they wouldn’t be unique if they did. I don’t expect everyone to agree with me, I don’t always agree with myself.

I make a great spokesperson for natural and developed reasons. I’m attractive, articulate, and active in the community. When people actually meet me, they see that I’m a nice, honest, hard-working and a charismatic person. It’s only easy to hate and despise me and my ideas when they remain foreign and abstract, again why I believe that transhumanism needs to become political, visible, and identifiable. It’s already everywhere you go, it shouldn’t be so taboo.

P: I know you are especially interested in promoting space exploration and related ideas. Can you say a bit more about this?

G: My ten year plan is to see a thousand people living in space with launches occurring daily. I’d like to attain weekly launches of heavy lift rockets within 5 years. Between SpaceX, SLS and the competition those two will inflict on others, I’m confident with the right leadership we can crowdsource the remaining difficulties. I also am a strong advocate for new, revolutionary ideas about access to space, including a spce elevator.

I am a Volunteer Ambassador for the Seasteading Institute and strongly believe that the Port of Canaveral offers everything the first ocean stations need as a home berth. Florida is already home to many ocean based industries including Victory Casinos, The World and Freedom Ship. I believe that along with these, NASA, Disney and the contractors around Canaveral, Titusville and Palm Bay will find the ocean to be a productful and profitable playground from which to experiment with potential space programs.

Both seasteading and spacesteading open up enormous amounts of real estate, industry, opportunity and freedom. Government and religion has stretched from coast to coast on every continent. There is so little room to grow within the confines of terrestrial society, I believe pursuing the future cities and culture that sea/spacesteading allows will give us an explosion of new diversity. But there is also an important reciprocating reality of sea/spacesteading. The process of living in these more foreign environments necessitates technologies and methods that are optimally efficient, and the application of those systems in our cities and towns actually makes us more sustainable on land and earth.

It’s always been in our nature to explore, without boundaries to push, stars to reach for, being human loses much of its meaning.

P: What do you think your chances of winning are?

G: No handicapper yet ranks this race as competitive. My opponent has been in elected office longer than I’ve been alive and this is a Republican leaning district. I actually find comfort in that, I’m looking to for an astronomical challenge, pun intended. No race anywhere has seen a candidate like me before, this district has new lines, there is an anti-incumbency fervor in the wind and Florida is voting on medical marijuana. If anything is for sure, it’s that this election will be an anomaly.

P: Who is your opponent?

The incumbent is Bill Posey, aka Birther Bill because he is the Representative who asked for Obama’s birth certificate on the floor of congress. He is a climate change denier and believes that vaccinations cause autism. He often says supportive statements to the notion the Earth is only 6k years old and makes devastating legislation to women and science. It’s amazing this man represents America’s Spaceport, one of its top tech centers and the continent’s most bio-diverse estuary.

P: How can people learn more about you and follow the campaign?

G: My website is http://gabrielrothblattforcongress.us/ and my twitter handle is @gabeisgreat. I’m available on many social media platforms, regardless of the outcome of this election, this will be an interesting race to watch.

WAR COMES HOME – The Excessive Militarization of American Policing��

© 2014 ACLU Foundation

Police State in America

Across the country, heavily armed Special Weapons and Tactics (SWAT) teams are forcing their way into people’s homes in the middle of the night, often deploying explosive devices such as flashbang grenades to temporarily blind and deafen residents, simply to serve a search warrant on the suspicion that someone may be in possession of a small amount of drugs. Neighborhoods are not war zones, and our police officers should not be treating us like wartime enemies. However, the ACLU encountered this type of story over and over when studying the militarization of state and local law enforcement agencies.


This report provides a snapshot of the realities of paramilitary policing, building on a body of existing work demonstrating that police militarization is a pervasive problem. Analyzing both existing secondary source materials and primary source data uncovered through the ACLU’s public records investigation, this report examines the use of SWAT teams by state and local law enforcement  agencies and other aspects of militaristic policing.2

As explained in the Methodology section, our statistical analysis included more than 800 SWAT deployments conducted by 20 law enforcement agencies during the years 2011-2012.3

WAR COMES HOME – The Excessive Militarization of American Policing��