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 Vermont News: To The Editor: Military Commissions Act

OpinionTo the Editor:
22 October 2006

Last Wednesday (Oct. 18), at the Woodstock-Union Middle School campaign event, I was present with about 20 candidates for many offices. A number of people were upset about the Military Commissions Act of 2006 (the torture bill), which was signed into law that day.

That act is a direct assault on the U.S. Constitution, granting dictatorial powers to the presidency, voiding the right to trial (as embodied in the writ of habeus corpus), eviscerating our Bill of Rights, and retroactively pardoning government officials for any war crimes they may have committed (including authorizing or performing torture) since September 11, 2001.

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All of this is an outrageous and profound assault on constitutional democracy in the United States today - indeed, so long as the Military Commissions Act remains the law of the land, constitutional democracy and the rule of law no longer exist in this country, although the worst consequences have yet to be felt.

The next day, last Thursday, I went to, a candidates' forum for side judges and legislators. There was much hand-wringing at this forum about the absence of young people, but not a word from anyone about the loss of constitutional democracy. How ironic it is that the eighth graders' event was more substantive than the forum, where no one mentioned this shift of power that destroys our system of checks and balances and makes the American justice system subject to the whim of one government official.

While I discussed the Military Commissions Act with several eighth graders and others on Wednesday, on Thursday I did as every other candidate and audience member did and remained silent on the subject. In retrospect, I think that was a mistake, which this letter begins to rectify. The seriousness of the challenge this act poses to our system is mortal.

William Boardman
Windsor County Assistant Judge
Woodstock, VT.

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"To The Editor: Military Commissions Act" | Login/Create an Account | 6 comments | Search Discussion
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Re: To The Editor: Military Commissions Act (Score: 1)
by Toeg on Sunday, October 22 @ 18:42:26 EDT
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Sir, I indeed blame you for not speaking out with more vigor against this dispicable law. Every fiber of this American calls out to right the wrong presented by this bill, and the blight it has caused on our nation. Only the most vigorous denouncement of this law, which is a travesty of the very premise of our nation, can and shall be accepted. As a man of stature it is more than your duty, it is your obligation to inform the general public, be they children in school or adults at the voting booth, that this law is very anti-American. Unless those who are part of the government condemn vigorously this anti-American bill, we all will be subject to Stalinistic repression for the forseeable future. It is your obligation, sir, to condemn in the strongest words this travesty which cloaks our nation today.

Re: To The Editor: Military Commissions Act (Score: 1)
by Blue1moon on Sunday, October 22 @ 19:54:55 EDT
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It would be beyond belief that this could have happened, except that it has.

I feel like I'm living in a nightmare, as I watch daily the damage done to our rights and the Constitution.

Re: To The Editor: Military Commissions Act (Score: 1)
by -Z on Monday, October 23 @ 19:05:48 EDT
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My Dear Sire, Your Honor, Sire...I, your humble battered serf but beg to query...I tremble to inquire, but be I may; How long hath thoust held court outside of the Vermont and U.S. Constitution beside or beneath a gold-fringed American Flag in your royal courtroom? Have you not already ruled under common martial-law for quite some time, Sire? How can you possibly be upset with HR-6166 being signed into law when you become so much further empowered, Sire? Should you NOT be delighted at this flag's further empowerment of your unconstitutional and UN-American ilk?!
May I quote, "It is commonplace to see a gold-fringed United States flag standing in the present-day courtrooms. Is the gold fringe there for decoration only, or does it signify a certain jurisdiction? Make no mistake about it -- the American People have been put on notice that the normal constitutional functions of government have been suspended and that their Land has been placed under martial law. The information below is not by any means exhaustive, but will at least point the reader in the right direction to do additional research on his own.          Flag, an emblem of a nation; usually made of cloth and flown from a staff. From a military standpoint flags are of two general classes, those flown from stationary masts over army posts, and those carried by troops in formation. The former are referred to by the general name flags. The latter are called colors when carried by dismounted troops. Colors and Standards are more nearly square than flags and are made of silk with a knotted Fringe of Yellow on three sides....          Use of the flag. The most general and appropriate use of the flag is as a symbol of authority and power (National Encyclopedia, Volume IV).          Placing of fringe on the national flag, the dimensions of the flag, and arrangement of the stars are matters of detail not controlled by statute, but within the discretion of the President as Commander-in-Chief of the Army and Navy ([1925], 34 Op.Atty.Gen. 483).          Ancient custom sanctions the use of fringe on regimental colors and standards, but there seems to be no good reason or precedent for its use on other flags (Adjutant General of the Army, 28 March 1924).          A military flag is a flag that resembles the regular flag of the United States, except that it has a Yellow Fringe border on three sides (Title 4 United States Code Chapter 1, Sections 1, 2, and 3; Executive Order No. 10834, August 21, 1959, 24 C.F.R. 6865).          The Flag is trimmed on three sides with Fringe of Gold, 2 ½ inches wide. Such flags are flown indoors, only in military courtrooms. The Gold Fringed Flag is not to be carried by anyone except units of the United States Army, and the United States Army division associations (United States Army Regulations, AR 840-10, 1 October 1979).          Pursuant to the "Law of the Flag," a military flag does result in jurisdictional implications when flown (Ruhstrat v. People, 57 N.E. 41, 45, 185 Ill. 133, 49 LRA 181, 76 Am).          Whenever feasible, martial law is carried out in cases of individual offenders by military courts....          Military jurisdiction is of two kinds: first, that which is conferred and defined by statute; second, that which is derived from the common law of war..... In the armies of the United States the first is exercised by courts-martial..... (Francis Lieber, Instructions for the Government of the Armies of the United States in the Field, General Orders 100 [1863], Section I, Clauses 12-13).          It is to be hoped that the normal balance of Executive and Legislative authority may be wholly adequate to meet the unprecedented task before us. But it may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure.          I am prepared under my constitutional duty to recommend the measures that a stricken Nation in the midst of a stricken world may require. These measures, or such other measures as the Congress may build out of its experience and wisdom, I shall seek, within my constitutional authority, to bring to a speedy adoption.          But in the event that the Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis -- broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe (Franklin Delano Roosevelt, First Inaugural Address, 4 March 1933).          ...[T]he full meaning of that word "emergency" related to far more than banks. It covered the whole economic and therefore the whole social structure of the country. It was an emergency that went to the roots of our agriculture, our commerce, and our industry; it was an emergency that had existed for a whole generation in its underlying causes and for three and one-half years in its visible effects. It could be cured only by a complete reorganization and a measured control of the economic structure. It could not be cured in a week, in a month, or a year. It called for a long series of new laws, new administrative agencies. It required separate measures affecting different subjects; but all of them component parts of a fairly definite broad plan. Most of all, it called for readiness and understanding on the part of the people. We could never go back to the old order (Roosevelt, On Our Way [1934], pages 35-36).          Since March 9, 1933, the United States has been in a state of declared National Emergency.... This vast range of powers, taken together, confer enough authority to rule this country without reference to normal Constitutional process.          Under the powers designated by these statutes, the President may: seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communications, regulate the operation of private enterprise, restrict travel, and, in a plethora of particular ways, control the lives of all American citizens.... (United States Senate Report 93-549, 19 November 1973).          ...[I]t was necessary, in order to give the government the means of defending itself against domestic or foreign enemies, to maintain its authority and dignity, and to enforce obedience to its laws, that it should have unlimited war powers; and it must not be forgotten that the same authority which provides those safeguards, and guarantees those rights, also imposes upon the President and Congress the duty of so carrying on war as of necessity to supersede and hold in temporary suspense such civil rights as may prove inconsistent with the complete and effectual exercise of such war powers, and of the belligerent rights resulting from them. The rights of war and the rights of peace cannot coexist. One must yield to the other. Martial law and civil law cannot operate at the same time and place upon the same subject matter. Hence the constitution is framed with full recognition of that fact; it protects the citizen in peace and in war; but his rights enjoyed under the constitution, in time of peace are different from those to which he is entitled in time of war.          None of these rights, guaranteed to peaceful citizens, by the constitution belong to them after they have become belligerents against their own government....          ...[T]here are no limits to the war-making power of the President, other than the law of nations, and such rules as Congress may pass for their regulation....          While war is raging, many of the rights held sacred by the constitution -- rights which cannot be violated by any acts of Congress -- may and must be suspended and held in abeyance (William Whiting, The War Powers of the President [1862], pages 51, 58, 59; emphasis in original).          Hence any section of this country, which... shall

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