HEAD in the SAND THINKING ABOUT EMERGENCY POWERS and MARTIAL RULE
by Randy L. Geiszler, e-mail: behold@teleport.com April 1993
Once in a while we will send a complimentary copy of BEHOLD! Newsletter to a person who might wake up to the misinformation he puts out to the general public. In this instance we sent BEHOLD!, Vol. 8, No. 2, February, 1993, to Whitey Harrell, La-tham, Illinois. The following letter was received from Mr. Harrell in apparent response to the February, 1993, issue of BEHOLD!
Acts relating to martial law or Emergency Powers or War Powers, which had not been previously terminated, were terminated Sept. 14, 1976 - Public Law 94-412, National Emergency Act.
In Bauer v. U.S., F.2d 794 - 9th Cir. (1957) the court said:
"It seems vital as a matter of national policy that emergen-cy regulations and dictatorial powers granted or conceded in the turmoil of war, or cold war, economic revolution and the struggle to preserve a balanced democratic way of life, should be discard-ed upon return to normal conditions, least we grow used to them as the fittings of ordinary existence. Executive regulations drafted and confirmed for an emergency should expire with the emergency. There will be time enough to revivify these if anoth-er emergency require and congress be willing. Of course, if it seems essential to continue the subject matter of these criminal regulations now, Congress can so declare. But the power lies in Congress."
Werner v. U.S., 119 F. Supp. 896
"It seems to this court the determination that national emergency existed is a political judgment, and determination that the national emergency no longer exists is also a matter of political discernment, which judges have neither technical compe-tence NOR official responsibility to decide."
The political determination that national emergency (mili-tary law) is over was made in 1976. Thus all courts and judges are bound to their peace-time agreements.
To support and defend the original Constitution and Bill of Rights including all common law protections. (Is the damaged party present?)
Mr. Harrell shows his ignorance of the subject of the Law Martial in the instant letter, as he has shown concerning other subjects in the past.
First we will look at the two cases Mr. Harrell uses to make his point that all forms of the Law Martial ("acts relating to mar-tial law") were terminated by the National Emergencies Act, Approved September 4, 1976, P.L. 94-412, 90 Stat. 1255.
Bauer v. U.S., F.2d 794 - 9th Cir. (1957), deals with emer-gency powers granted to the office of President (as Commander in Chief) during World War I, the Depression of the 1930’s and World War II, to govern gold reseve a balanced democratic way of life."
The Bauer court made it clear, in the case of "cold war" or "economic" emergencies, that the President acts as "Commander-In-Chief" (a military distinction) to exercise "emergency powers," (e.g. the power of full martial law). While the Bauer court claims that these full martial law (emergency) powers should not
be exercised when the emergency has passed, the court also makes it clear that,
"This Court should not declare the end of any emergency as matter of law. Nor, except in exceptional circumstances, should judicial notice be taken by us of conditions from which we might be inclined to conclude an emergency has ended. Bauer v. U.S., F.2d 794, 797 - 9th Cir. (1957),
In other words, when martial law measures are implemented, the civil authority of the courts are suspended and the courts are not willing to lightly end the suspension of their own civil authority (judicial power), regardless of the destruction to our Republican Form of Government. Notice the Bauer court only wanted to "preserve a balanced democratic way of life," but, apparently, could have cared less about the survival of our Republican form of government.
By reading the Bauer case, Mr. Harrell’s opinion, that all mar-tial law has been terminated, is clearly incorrect. The Bauer court never said all forms of the Law Martial were terminated. The court only spoke to the general termination of martial law emergency presidential powers invoked by presidential (Commander-In-Chief) proclamation.
The main thing to learn from the Bauer court is that martial law powers can be, have been and could today be imposed without actual war or declaration of war. A point completely overlooked by Mr. Harrell.
Next Mr. Harrell uses Werner v. U.S., 119 F. Supp. 896. All the Werner court is saying is, if you are charged with a crime under the Law Martial the court has no jurisdiction (civil judicial power) to hear arguments of constitutionality of any act related to declaration of a national emergency. The court considers this issue a political question, and the courts have ruled they cannot decide political questions. It is true the war power rests with Congress, as all acts under the Law Martial are enact-ed by the legislative power. But courts established under Article III (Const. for the U.S. of A.) have the power to determine in the first instance if any/all legislation passed by Congress is within the authority of Congress, under the organic law, and whether, in point of fact, the legislation is justified under a true state of facts.
On the other hand, Article I, Tribunals do not possess the judi-cial power of the united States of America and have no authority to determine the constitutional authority of Congress.
But these cases do not deal with the war power of Congress they deal with the power of the President as Commander In Chief,a military authority.
One point not discussed is whether or not the Bauer or Werner court were courts established under Article III or tribunals constituted under Article I. By their ruling it’s a good bet they were tribunals under Article I. In fact the Bauer court referred to the appellate court as a "tribunal."
"...There, as here, the court was urged to take judicial notice of the fact that such emergency conditions were no longer in existence, but, while sustaining the power of the court to find these conditions, nevertheless that tribunal ordered a remand."
Bauer v. U.S., F.2d 794, 797 - 9th Cir. (1957),
Finally Mr. Harrell cites the National Emergencies Act, Approved September 4, 1976, P.L. 94-412, 90 Stat. 1255. This act, of course, is the crux of Mr. Harrell’s argument that all emergency power (military rule) is terminated. This act is the central point presented by Mr. Harrell in his argument that we are not presently being governed by the power of Law Martial.
While the National Emergencies Act gives the impression that all national emergencies are considered terminated, for anyone who can read, the act clearly continues existing emergency legisla-tion (Martial Rule), while terminating the affect of some presi-dential proclamations of full martial law (emergency).
"Sec. 101. (a) All powers and authorities possessed by the President, any other officer or employee of the Federal Government, or any executive agency, as defined in section 105 of title 5, United States Code, as a result of the existence of any declaration of national emergency in effect on the date of enactment of this Act are terminated two years from the date of such enactment. Such termination shall not affect—"
"(1) any action taken or proceeding pending not finally
concluded or determined on such date;"
"(2) any action or proceeding based on any act committed
prior to such date; or"
"(3) any rights or duties matured or penalties that were incurred prior to such date."
"(b) For the purpose of this section, the words "any nation-al emergency in effect" means a general declaration of emergency made by the President." National Emergencies Act, Approved Sep-tember 4, 1976, P.L. 94-412, 90 Stat. 1255.
Notice the Act does not generally terminate any martial law legislation (i.e., statutes imposing martial law measures), whatsoever. At best the act only purports to terminate general declarations of emergency made by the President (in the capacity of Commander-in-Chief). This means that any statute imposing a martial law measure is unaffected by the National Emergencies Act.
Furthermore, the act continues any rights or duties that matured under presidential proclamations of national emergencies. An identical provision to continue any rights or duties that matured under presidential proclamations of national emergencies, is also provided with respect to any future declarations of National Emergency in Section 202 of the National Emergencies Act.
Mr. Harrell completely ignores the facts that (1) the emancipa-tion of slaves was caused, in the first instance, by presidential (Commander-in-Chief) military proclamation, followed by the Thirteenth Amendment, the Fourteenth Amendment and the Fifteenth Amendment and the civil rights acts (statutes) thereunder, which still continue in effect today; (2) the Social Security Act (statute) was put into effect as an "emergency measure" during the 1930’s, when Roosevelt used emergency powers (martial law powers) as Commander-In-Chief, under pretense of fighting an economic depression, and the communist welfare state under the Social Security Act continues to remain in effect by statute today; (3) today’s American banking system and monetary system was created and developed as a war measure, starting in the Civil War and continuing to date, supported by the Fourteenth Amend-ment, and statutes and proclamations dating back to the Civil War; (4) the reconstruction Acts (statutes) of the Civil War, which place a large portion, if not all, of the American public under a hidden form of military rule (Martial Rule), are still in effect today, and (5) the income tax, which was first enacted as a statute to collect revenue to support the Civil War, is still in effect today under Title 26 U.S.C..
These measures are all continued as a result of legislation (statutes) imposing the jurisdiction of the Law Martial in its third form (Martial Rule), a subject Mr. Harrell apparently refuses to recognize. P.L. 94-412 does little to terminate any legislation (statute) enacted under Law Martial, contrary to what Mr. Harrell would lead us to believe.
If you don’t believe that statutes actual enact martial law (emergency) measures, just look at National Emergencies Act, Title 5, 90 Stat. 1258. This title of the National Emergencies Act is entitled Repeal and Continuation of certain Emergency Power and Other Statutes. The National Emergencies Act, Title 5, pertains only to a select few statutes. It is clear that Con-gress believed these statutes contained "emergency power" (the power of Law Martial). In the meantime the bulk of statutes which impose Martial Rule are unaffected by the National Emergen-cies Act.
It is of particular importance that the Tennessee Valley Authori-ty Act, Approved May 18, 1933, 48 Stat. (Part 1) 58, is mentioned in the National Emergencies Act, Title 5, Section 501 as an emergency statute. The actual title of the Tennessee Valley Authority Act is "AN ACT To improve the navigability and to provide for the flood control of the Tennessee River; to provide for reforestation and the proper use of marginal lands in the Tennessee Valley; to provide for the agricultural and industrial development of said valley; to provide for the national defense by creation of a corporation for the operation of Government properties at and near Muscle Shoals in the State of Alabama, and for other purposes." Notice by the title of the Tennessee Valley Authority Act that this act has very little to do with the war power and has nothing to do with an actual declaration of war whatsoever. Most of the act is related to a so-called "economic emergency" and imposes martial law measures by statute as a remedy for the so-called emergency.
On many occasions Mr. Wangrud and I have cited the case of Ashwander v. the Tennessee Valley Authority, (1935) 297 U.S. 288, 346, 56 S.Ct. 466, 482, 80 L.Ed. 688, as the case which sets out the rules the Supreme Court will follow in an attempt to avoid adjudicating cases on the bases of constitutional questions. Clearly, the court established these rules as a means to avoid disturbing statutory martial law measures (Martial Rule). The Ashwander case was decided only months after enactment of the Social Security Act, and, apparently, the Tennessee Valley Au-thority Act of 1933 was adopted as a martial law (emergency) measure just like the Social Security Act, during the so-called emergency of the Roosevelt era.
Also of importance is the fact that R.S. (Revised Statutes) sec. 3477 and R.S. sec. 3737 are amended by National Emergencies Act, Section 502. These sections of the Revised Statutes of the United States (the first code of the United States) date back to and have connection with the martial law of the Civil War and are kept in effect, although amended, by the National Emergencies Act. Yet, the National Emergencies Act leaves most Law Martial statutes of the Civil War unaffected whatsoever.
R.S. sec. 3737 was derived from a military act (statute) enti-tled:
An Act to define the Pay and Emoluments of certain Officers of the Army, and for other Purposes, Approved July 17, 1862, Ch. 200, sec. 14, 12 Stat 494, 496.
R.S. sec. 3477 was derived from another act of Martial Law enti-tled:
An Act requiring the commanders of American Vessels sailing to foreign Ports and Persons prosecuting Claims, to take the Oath of Allegiance, Approved July 17, 1862, Ch. 205, 12 Stat 610.
A portion of this act was also codified in R.S. sec. 3478 which required:
"Any person prosecuting claims, either as attorney or on his own account, before any of the Departments or Bureaus of the United States, shall be required to take the oath of allegiance, and to support the Constitution of the United States, as required of persons in the civil service." R.S. sec. 3478
The notorious "oath of allegiance" was used to require the people of the United States of America to swear allegiance to the Thir-teenth Amendment, Fourteenth Amendment and the Fifteenth Amend-ment, after their adoption, and many of "the people" who would not swear the oath of allegiance lost property and political position (right to vote and hold office) as a result.
The National Emergencies Act continues these martial law provi-sions, as amended. The National Emergencies Act, clearly recog-nizes the continuation of Martial Rule (imposed by statute) in the United States. These are the historical facts clearly identifiable from the National Emergencies Act.
The National Emergencies Act also recognizes that declarations of "national emergency" are synonymous to "declarations of war," for the purpose of imposing emergency (martial law) regulations upon the people of the United States of America.
"When the President declares a national emergency, or Con-gress declares war, the President shall be responsible for main-taining a file and index of all significant orders of the Presi-dent, including Executive orders and proclamations, and each Executive agency shall maintain a file and index of all rules and regulations, issued during such emergency or war pursuant to such declarations." National Emergencies Act, Approved September 4, 1976, P.L. 94-412, sec. 401(a), 90 Stat. 1255, 1257.
Clearly, proclamations and legislation adopted in the Roosevelt era under a presidentially proclaimed national emergency, being synonymous to rules and regulations under a declaration of war, are provisions of full martial law. This was the so-called "New Deal" offered by Roosevelt. And, since most of the martial law legislation (statutes) of both the Civil War and the 1930’s depression remain intact (although amended), the only rational conclusion that can be drawn is that America continues to be governed by statutory provisions of martial law (e.g. Martial Rule). The only way we could avoid this conclusion is by stick-ing our heads in the sand and ignoring the facts.
In addition, to name a few, the present physical facts are (1) in Los Angeles, and elsewhere in the country, we have recently seen the artificially created emergency of the Civil War, and the supposed cure, continue to exist, with respect to race rela-tions; (2) the artificially created emergency of the 1930’s depression and its supposed cure continue under the Social Secu-rity Act in a communist "welfare state;" (3) we are constantly on the brink of "full martial law" which can be imposed arbitrarily by presidentially proclaimed emergencies, which are still author-ized by the National Emergencies Act, while, in the meantime, Congress is perpetually governing the country with martial law (rule) powers under statute, by a policy of national emergency and police power (martial law), and (4) in the meantime, the United States presently has a president (Commander-In-Chief) who purposes, in the Roosevelt tradition of Martial Rule, to impose an additional communist program upon the people of the United States, "National Health Care." President Clinton makes no bones about the fact that Roosevelt is his hero, and his actions to date show a clear intent to follow the Roosevelt tradition of Martial Rule by creating an even heavier imposition of martial law regulations.
All the National Emergencies Act does is regulate the imposition of Full Martial Law and a select few Statutes of Martial Rule. This act is merely a congressional regulation of present and future impositions of the Law Martial. And, "Acts relating to martial law or Emergency Powers or War Powers" are not terminated by the National Emergencies Act.
Unfortunately, some people are blind, deaf and dumb, sticking their head in the sand and denying we are being governed by martial law powers. In the face of the Weaver incident in Idaho, periodic racial riots quashed by military forces, federal (mar-tial law) civil rights trials in the Rodney King incident, and the military siege in Waco, Texas, they blindly claim we are not being governed by military powers (Martial Rule), and that mili-tary rule has ended.
While these people hide their heads in the sand, the military and the paramilitary (so-called civil police forces) are constantly poised for the imposition of full martial law. In the meantime the paramilitary (invisible militia) continually imposes Martial Rule (Martial law regulations imposed by statute) upon the populace of the entire country on a daily basis.
For those who can read, what do the National Emergencies Act, and the Bauer and the Werner cases mean, with respect to the question of whether or not we are presently being governed by the third form of martial law (Martial Rule)? The answer is, Nothing! These authorities only deal with "full martial law" measures. But, these authorities do serve to prove that martial law which has been imposed in the past, through statutorily authorized presidential proclamations, and will continue to be authorized in like manner in the future under the National Emergencies Act, in order to perpetually provide for the immediate imposition of "full martial law." In the meantime, it is clear that Congress and the State legislatures intend to continue the policy and practice of governing without constitutional authority by a despotism of Martial Rule legislation.
You can close your eyes to the whip, but you will still feel the sting of the whip masters stripes. People like Mr. Harrell apparently have the attitude of an Ostrich. We cannot afford to put our heads in the sand on this issue at this late date in the struggle for liberty.
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