by Mary W Maxwell, LLB
This article has to do with the rumor that President Trump signed an order to have former President Bush, Sr executed. I don’t know if that really happened, but I’ll assume that it did, and will try to find any rule that would permit such a thing.
If Trump, or the ill-defined military tribunal, had declared Bush an enemy combatant, then possibly Bush could get executed. There is precedent for it, at least in the 1942 case of Quirin. There president FD Roosevelt ordered the execution of six enemy (i.e., German) saboteurs.
A lot hangs on whether Quirin should be overturned. In fact many thinkers “overturned” it during the last 70 years by showing its flaws.
A main flaw is that the president didn’t have to act urgently on the case – ordinary police could have captured the 8 saboteurs. They were physically in the US, having jumped ship from a German submarine in Maine.
The matter of an execution of a citizen (Bush) by Trump, entails our knowing what types of courts we have, and how political forces wield their power.
I will quickly scan military law, international law, “Executive Order” law and emergency law to see if there is scope for a citizen to be convicted outside the normal domestic justice system.
Military Law, the UCMJ
In a Gumshoe article dated December 16, 2018, I stated the fact that Congress has the Constitutional power to govern the military and has enacted an entire set of laws, the UCMJ. That’s the Uniform Code of Military Justice, dated 1950. It states what soldiers must not do, and it sets up a court, the court-martial, for trials of law-breakers.
The UCMJ gets updated frequently. Over the years many rights of due process have been added .The accused gets to see any evidence against him, gets the help of counsel, and can subpoena witnesses.
Bush could not be tried (court-martialed) under the UCMJ as he is not a soldier.
International Law – the Law of Armed Conflict
Various aspects of war law will not be dealt with here, such as which weapons are forbidden, or whether doctors and chaplains on the battlefield qualify as privileged persons. We are only interested in the part of the law of Armed Conflict that says how to deal with an accused person.
You may think a final answer can be found in, say, the Geneva conventions. Hmm. The fact is that there’s no global enforcer of international law. It is the prerogative of a nation to adapt those rules as it see fit.
American law of war purports to follow the international standard by which a soldier captured in war is to be treated. But we know the reality is different – both Abu Ghraib and Gitmo scandals tell us that. There are recent US Supreme Court rulings on the Gitmo prisoners’ rights – this will be outlined below especially the Hamdan case.
Executive-Order Law
No person can be subjected to a military tribunal based on executive-order law for the simple reason that there is no such thing as executive-order law. The US has a legislature to make law. No one but the legislature (Congress) makes law. Presidents cannot make law.
But isn’t the president the Commander in Chief of the Armed Forces, under Article II of the Constitution? Why yes he is. He can choose whether we will buy new aircraft carriers (though he would need Congress to appropriate the funds for that). He can write an executive order to say that the Army Band is going to play the Colonel Bogey March. But he can’t make military law. The UCMJ is a product of Congress’s legislation. Presidents do not make law.
(Just trust me. It’s in Article I, section 8, clause 18.)
Emergency Law
The president can do various things in response to an emergency. As far as a sudden attack on the US is concerned, the Constitution specifically allows him to act.
Also in response to other kinds of emergencies – a famine perhaps, or a fire – he can use his brain to decide what to do. Isn’t that making law? No. Congress already made the law that said he can do this, the National Emergency Law of 1976. Since 9-11 we have been under Emergency Law, although most presidents invoke it sparingly.
You may be surprised to learn that law on the books today can force able-bodied men to make bridges or roads in an emergency. And nurses can be sent door-to-door to force vaccinations on you. True.
Does emergency law mean a president can set up a military tribunal to deal expeditiously with wrongdoers? Perhaps, we shall see.
Recap. So far, I have argued that the UCMJ is for soldiers, not for American civilians, so Trump cannot court-martial Bush. Also, Bush can’t get be subjected to (non-existent) “executive-order law.”
As for whether Bush could be covered under the Law of Armed Conflict, we will have to look below at court cases to see how the US fulfills its treaty obligations. We shall also see if he can use Emergency law – a president may write an executive order in accordance with the existing legislation governing emergencies.
Relevant Legislation
The court cases refer to certain laws, I will list them now– the AUMF, the Detainee Treatment Act, two Military Commissions Acts (the 2006 one was replaced by the 2009 one), and the National Emergency Act. Then a review of the relevant court cases: Quirin, Eisentrager, Hamdi, Hamdan, Rasul and Boumediene.
The Constitution has laid down the allocation of powers for punishing a criminal, but this gets fine-tuned by the legislature and the judiciary — sometimes in a dance with one another as was the case here.
The AUMF, 2001
The Authorization for Use of Military Force was passed by Congress 3 days after the 9-11 attacks, which were blamed on Osama bin Laden (without any investigation). It authorized the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
The DTA, 2005
The Detainee Treatment Act 2005 required that persons at Guantanamo Prison in Cuba have their status determined – were they enemy combatants? – by an executive branch’s Combat Status Review Tribunal – CSRT’s.
The MCA, 2006
The Military Commissions Act of 2006 was enacted “to authorize trial by military commission for violations of the law of war, and for other purposes”. It was a reply to the Hamdan ruling.
Note: The terms Military Tribunal and Military Commission seem to be used interchangeably.
The MCA, 2009
The Military Commissions Act of 2009 was a reply to the Boumediene ruling — to afford better rights for non-citizens who commit acts of terror against the US. It gave them, for example the right to counsel, to appeal, and the inadmissibility of information acquired by torture. (Fancy that.)
Emergency Act, 1976
In the National Emergency Act, Congress allowed president to decide if an emergency exists – and to not question it for 6 months! If the president wishes to his emergency power to stay in force, he must ask Congress to renew it every year.
In September 2001, President Bush declared an emergency based on 9-11 and got a renewal every year, as did his successors Obama and Trump. In the 17 years of the emergency’s existence, Congress has not questioned it.
Recap. So far we have seen that legislation authorizes the use of military force (abroad), authorizes the executive to determine if someone is an enemy combatant, increases the due process protection of Gitmo prisoners, and lets a president decide if there is an emergency, for 6 months.
Relevant Court Cases
The third branch, the Judiciary, also gets to weigh in on whether a citizen can be tried by a military tribunal.
Ex Parte Quirin, 1942
In 1942, the US president, FDR, used a military tribunal to convict six German saboteurs. That is to say, the decision of a justice matter, normally held in a court (or in a court-martial under Congress’s UCMJ legislation) was taken by the executive branch.
There is no question that the saboteurs were “enemies” of the US, as Germany and the US were at war. In the battlefield the president could order them killed. But did he have the right to “tribunalize” the captives in the US?
FDR issued a Proclamation: “all persons who are subjects, citizens or residents of any nation at war with the United States… and who during time of war enter or attempt to enter the United States … through coastal or boundary defenses, and are charged with committing or … sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals”.
The US Supreme Court in Ex Parte Quirin, 1942, held:
“Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege… And by Article 15 of the Articles of War Congress has made provision for their trial and punishment by military commission, according to ‘the law of war’.”
Johnson v Eisentrager, 1950
The men in this case were Chinese persons captured in China by the American army and held in US-occupied Germany. They sought access to US Courts. This was denied to them by the Supreme Court. The ruling said:
(d) A resident enemy alien is constitutionally subject to summary arrest, internment, and deportation whenever a “declared war” exists. Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and whether he is an alien enemy. Once these jurisdictional facts have been determined, courts will not inquire into any other issue as to his internment.”
Hamdi v Rumsfeld, 2004
Hamdi was a US citizen captured in Afghanistan and accused of aiding the enemy. The important point for us, from this trial, is that a US citizen can be designated an enemy combatant, but must be judged by a neutral court.
The Supreme Court decided to include Jose Padilla in the case, as he, like Hamdi, was a US citizen accused of planning to bomb a building in the US. Padilla was then moved from Gitmo to the brig in South Carolina, while Hamdi agreed to be freed at the expense of forfeiting his US citizenship.
Rasul v Bush, 2004
Rasul asked for the right of habeas corpus. The Supreme Court asserted its right to handle cases from Guantanamo
And ruled that detainees must have an impartial tribunal to challenge their detention.
Hamdan v Rumsfeld, 2006
Two senators filed as amici curiae to explain Congress’s intention in the Detainee Treatment Act of 2005. One of them, Lindsay Graham, had been a military lawyer. The Court held that the president could not set up military commissions without Congress’s say-so. Hence Congress wrote the MCA.
Boumediene v Bush, 2007
The Supreme Court said that section 7 of the MCA was not good enough. The main issue here was Congress’s responsibility for invoking the Suspension Clause of the Constitution, that is, this clause of Article I, section 9:
“The Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The headnote to the Supreme Court’s findings says:
“Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo.”
For a far better look at these cases, please see Professor Louis Fisher’s comprehensive article on “Detention and Military Trial of Suspected Terrorists: Stretching Presidential Power.” It’s at loufisher.org.
The questions raised in this article were: Was Bush Sr an Enemy Combatant? and Could a Military Tribunal Legally Try Him?
I have not heard the charges that were allegedly laid against Bush, for which a military tribunal found him guilty. To qualify as an enemy combatant he would have to be acting in a warlike way against the United States. It is a good guess that evidence of that could be dug up. The point made in Hamdi is that a US citizen can be an enemy combatant.
As to whether a military tribunal could try Bush, I believe Quirin has never been specifically overruled. There, FDR on his own initiative ran a tribunal that tried and indeed executed six German saboteurs.
The fact is that the US is still in a declared emergency since September 2001, and in an emergency a president can act on his own while Congress waits 6 months to intervene. That means that Congress could intervene now; the 6 months ended back in 2002. Nevertheless Congress does not show any inclination to undo the 9-11 emergency; they renew it every year.
If Trump went about the trial of Bush by stealth, that brings up other issues, but it is at least conceivable that the Supreme Court would agree that he had the power to try Bush. If the crimes called for death penalty, the execution also could be considered legitimate.
I don’t like saying that! The normal prosecutors, the Department of Justice, can try any American for any crime including war crimes. Since 1991 we have had a War Crimes Act (Oddly passed by President GHW Bush!). It is codified at 18 USC 2441. Here is the opening bit:
(a)Offense.—
“Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b)Circumstances —
The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States …
(c)Definition. “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949… [etc.].
As I’ve said before, I agree with Scalia’s dissent in Hamdi. He said if Padilla wanted to blow up a building (or how about a Marathon), that qualifies perfectly under Article III sec 3 of the Constitution.
He would be indicted as a traitor, tried by a domestic court for treason and if found guilty, executed.
And this where Obama got the money to take to Iran
Mal, I belatedly capitulate to you about Senator Graham’s qq to Brett Kavanaugh. But I take Kav’s replies to be non-rehearsed.
Still, I could be wrong…
There are so many reports about GITMO being upgraded and prison barges on their way there.
Wonder if KSM, who claimed under torture (watered 83 times in one month) that he planned 911 from A to Zed and will he be sharing a cell with some of the real culprits if they are there or to arrive?
Love to be a fly on the wall in their Cuba shared prison cell!!!
Wonder when KSM will be tried, he was arrested in about 2004.
All nice legalise Mary, could be correct, but we are dealing with mass killers and traitors caused about three million DEAD……….all based on lies and accepted by a gullible public controlled by evil mass media personnel
For how long should they all be housed and fed?
Not much about Cheney…
Quite a few, besides Cheney, that are not ‘on the tweet’ recently.
Maybe they are out of communication range? Bermuda triangle?
Pelosi is reported to be in Hawaii.
Some ex US VP is having trouble in France with those local deplorables walking on ‘his’ beachfront.
Like to get the genuine ‘drif’t on those reported prison barges headed for Cuba.
Best they go there rather than here…………..we had our fill with all those Empire deplorables .
I can claim two I hear (H and W. Oops; ‘partner and partner’…sorry ABC! ) that made good from Tassie ….. hey: I am here.
”Prison’ ships in those days carried mostly reputable people…..who made this country GREAT.
Strasbourg shooting’s unanswered questions: http://veaterecosan.blogspot.com/2018/12/strasbourg-shooting-official-story-will.html
Thorough, as always, Mary, but did you cover what would allow a sitting president to secretly execute a former president, legally? I didn’t see that.
Secret executions which are somehow also lawful under the constitution just somehow doesn’t smell right to me.
Hey Joe,
secret executions are a daily experience all over the world e.g,. ask those who are not to be mentioned,
https://electronicintifada.net/blogs/maureen-clare-murphy/these-are-palestinian-children-israel-killed-2017.
Smell the hypocricy?
Just ask the nefarious and sinister CIA and Mossad in their decades of assassinations and over throwing of governments
Try this for a smell test.
The Clinton dead body count:
http://www.whatreallyhappened.com/RANCHO/POLITICS/BODIES.php#axzz5bJgKVaVH
Then add the 3m+ dead in the Middles East due to invasions and killings based on lies with msm promotions..
If the barges are ‘dinki d’i, then we have a few from our political milieu to contribute.
Ned, just because your great-great-(etc)-grandparents came to Oz on a convict ship does not make you an arbiter of who should be punished today.
Oh, wait a minute, maybe it does.
Joe, you say I am thorough but my excursion into 5 laws and 6 court cases may be very lacking. I really don’t know what I might be missing.
I sat down to write this article expecting to list the bits and pieces that show such an execution to have been illegal, but to my surprise I did not find any. Please, everybody, don’t consider the above article definitive.
Joe, you say I have shown it to be lawful (constituional) but really the concentration of power into any one branch of government — in this case the executive — goes against the structure and spirit of the Con.
See Lou Fisher’s many books on this subject. He worships the balance of power.
As do I.
Ned you are forgetting the Vietnam war and Laos with Cambodia as well where the CIA and the military industrial complex corporations and the chemical corporations were involved. Look up President Eisenhower’s speech on Youtube of the ‘military industrial complex’ corporations and President Kennedy speech on ‘secret societies’ and the media and press.
PLEASE SOME ONE TELL ME WHAT THE HELL DID THIS OLD WOMAN JUST READ WOW SO I BELIEVE OBAMA HILLARY BILL BRUSH’S AND SOROS GOT RICH ON THE TOWERS KILLED ALL THEM PEOPLE WHAT THE HELL THIS IS UPSETTING ME MY HEART IS BROKEN IVE BEEN CRYING READING THIS PLEASE SOME ONE TELL ME THIS NOT TRUE IVE HERD ALOT PEOPLE SAYING THIS IS TRUE….
Dear Rebecca,
When I first started delving into 911 about 2003-4 and determined that the official 911 conspiracy theory was crap, it took me two weeks to emotionally overcome the deceit and betrayal I was being subjected to.
To be lied to to such an extent by our politicians and mass media and realising it from impartialy examing the scientific evidence is the foundationn of my freedom.
I am happy with the red pill despite all the vilification from friends and colleagues.
Then one realises that idiots surround and one cannot fix stupid.
Try it and gain your freedom.
Dear Rebecca,
My apologies. I forget that newcomers might see this aticle. I have to say it really is only a hypothetical; we don’t know if anyone executed anyone. Still, many of our leaders should have been arrested in the normal way, years ago, but instead they “got away with murder.”
Could it be that some band of patriots dcided to take the law into thir own hands? I don’t know.
As Ned said, the shock will pass. You can join a group called 9-11 Truth (in most US cities) and they will help you cope. Truth is both soothing and empowering.
Folks, go to pegc.blogspot.com if you want to see great legal detail about war crimes. That blog was profided by Charly Gittings before his death at age 56 (if you know what I mean). The intiitals stand for project to Enforce the Geneva Conventions.
I see he commented as follows:
“And there are now four decisions which confirm that the administration’s detainee policies are in violation of 18 USC § 2441(c)(2): Boumediene (detainees have the right to habeas); Hamdan (Gitmo military commissions are illegal; and the DDC opinions by Judge Green in In re Gitmo (5th amendment protects all detainees), and Judge Robertson in Hamdan (detainees have POW status under GPW arts. 4-5).”
Anything Charly says you can trust.
On page 107 of my book “Prosecution for Treason,” I quoted Atty Gen John Ashcroft answering a qq by Rep Hank Johnson at a 2008 House Judiciary Conmittee hearing. Either Ashcroft did not have a clue or was being deceitful. He said it was not his job to try war crimes — that was the job of military tribunals.
He said “The attorney general … deals with laws enacted by Congress.”
Do you think he is unaware of The War Crimes Act? And also was he not aware that “the war crimes tribunals that try war crimes” (I think he meant courts-martial) are part of the UCMJ which was of course enacted by Congress? Like wow.
Here is another case I just found, later than Boumediene but it is only DC Circuit (appeals) not Supreme Court.
It is Al Bihami v Obama. “In 2001 a local sheik issued a religious chllenge to Al Bihami,” hereinafter Al B. He then “went through Pakistan to Afghanistan to defend against the Northern Alliance. Along the way he stayed at what US government alleges were Al Qaeda guesthouses. [Check with Robin Cook please.] Al B disputes this but agrees that he fought with the Taliban which included Al Qaeda members.”
The takeaway for me is this odd item from the Circuit: “The Supreme Court has provided scant guidnce on these questions, consciously leaving the contours of the substantive and procedural law of detention open for lower courts to shape in a common law fashion.”
Also, for Charly Gittings followers — the Court said:
“There is no indication in the AUMF, the DTA, or the MCA that Congress intended the International Laws of war to act as extra-textual limiting princples for the President’s war powers under the AUMF. THE INTERNATIONAL LAWS OF WAR AS A WHOLE HAVE NOT BEEN IMPLEMENTED DOMESTICALLYBY CONGRESS AND ARE THEREFORE NOT A SOURCE OF AUTHORITY FOR US COURTS.” [Emphasis added]
Brett Kavanagh was a judge on the DC Circuit at that time, I think, but I don’t know if he judged Al B’s case.
In war winner takes all . The losers are lucky if they come out alive , and the winners write the history as they see it . Usually a perverted false version that can only be done by war pigs .
Sadly in war there is no law , bar one , kill or be killed . The survival of the greediest .
As long as these types rule over us , I don’t see much hope for a better way .
Eventually the stench and enormity of the lies will become so unbearable for the subdued mass to swallow any longer . Then I believe theTruth will come , to all believers , first in Spirit and then in the Flesh to pass judgment on all satanists .
Otherwise I see no light , the damage of the military industrial is too far entrenched .
But let’s not lose faith the Spirit is coming and He will awaken people just at the time when all seems lost . The greatest that ever lived came as a Newborn , in a manger , and it is He they fear the most .
Of course, if one imagines a war where the weaponry is more legislative /administrative than it is guns (though there’s always space for guns) and and the sides are defined by ideologies and allegiances rather than simply by Nation States, then maybe the issue at hand is treason (which sort-of doesn’t exist until you lose), but against who, or what? Maybe its not really a Military or civilian thing, but something else altogether? Whatever, its all the most intriguing political narrative I’ve ever seen playing out.
Hey, maybe 56 up there is closer to what’s going on than many of us would like to think!
Thanks Paul This is from Benjie Britten’s Ceremony of Carols:
All hell doth at His presence quake,
Though He HImself for cold do shake
For in this weak, unarmoured wise
the Gates of hell He will surprise.
Normally it is quite simply stand trial or commit suicide, hence no execution occurs. You are also confusing murdering someone with executing someone. By it’s very nature execution is public, so someone can be killed what they call ‘execution style’ but executions only really occur when they are public, otherwise it is just murder or as is the norm in those kind of situations allowed suicide.
Lets just wait and see how many arrests occur in the New Year, every time Trumps popularity drops, there is chat about arresting the Clintons, every time.
If there is one thing Americans do really well and practice all of the time at every level and especially in government, is LIE. Lie yesterday, lie now and lie tomorrow, just lie, lie, lie and lie some more and lie about lying and of course call every else a liar. I would not trust any information coming out of the US, none of it, they lie, not just a little but a whole lot and about everything.
You here to do some muddying, Robert?
A number of Q websites said that the criminal of the century George Snr was indeed assassinated as a plea deal had been done to save his “good name’ and who knows what else. Apparently the seditious traitor John McCain was also assassinated as well under the same circumstances. The so-called US Government has been infiltrated at the highest levels by the seditious traitors and criminals so they have forced many to resign and many have been fired in the US administration of the DOJ and the FBI. They had to wait to get Judge Kavanaugh in so they could commence with the military tribunals. All of that nonsense by that woman falsely alleging sexual misconduct as she was a CIA asset and later said she lied.
https://gumshoenews.com/2018/12/07/world-first-george-h-w-bush-executed-by-military-tribunal/