Most people who read my writing know that I am opposed to the war on terror (as it has been waged) but I have never really expounded upon that stance to explain why. As I have said recently, Congress has the authority to declare war, and like all constitutionally-delegated powers, that authority cannot be passed on to another branch of government.

Since no war has been declared since 1942, it follows that all the wars the U.S has been involved in through the last 70 years have been illegal (under our constitution).

When I tell people this, I also mention that the U.S could wage a war on “terror” by declaring war (for cause) against state sponsors of terror, one at a time. This also gives them no real answer because the wars we are currently engaged in are not against state actors, and this is because we didn’t follow the law initially. We should have declared war on Afghanistan (for being a harbor for the terrorist organization which hit the US on 9/11).

The reason I ask the question in the title “Is D.C. really serious…?” is because the federal government has not used the tools in the Constitution designed to deal with non-state entities that threaten us, namely letters of marque and reprisal.

From Wikipedia, this is the definition:

The formal statement of the warrant is to authorize the agent to pass beyond the borders of the nation (“marque” or frontier) and then to search, seize, or destroy an enemy’s vessel or fleet. It is considered a retaliatory measure short of a full declaration of war, and, by maintaining a rough proportionality, has been intended to justify the action to other nations, who might otherwise consider it an act of war or piracy. As with a domestic search, arrest, seizure, or death warrant, to be considered lawful, it needs to have a certain degree of specificity to ensure that the agent does not exceed his authority and the intent of the issuing authority.

This is the method of dealing with terrorists that would be constitutional. So… How many have been issued since 9/11/01? None. Not one has been issued.

Instead we sent in the Marines, which is like a surgeon trying to cut out a cancerous tumor with a broad sword. Don’t get me wrong, I’m a Veteran, my father was a Veteran, my grandfathers were both Veterans. I am a big proponent of the military. That being said, when there are bank robbers holed up in a local branch of our neighborhood bank I don’t expect the Air Force to drop tactical nukes.

So where does this leave us? Let’s leave out the human toll for now (not that it is unimportant, but rather difficult to calculate). How about the last 70 years that we have been at a continuous state of quasi-war. This period has seen the government snag rights from citizens continuously, based on “wars” that never got declared, from Korea to Vietnam, both which never ended but were viewed as a larger cold war. Then we had the “War on Drugs,” then Gulf War I, and now the War on Terror- which encompasses Gulf War II and Afghanistan.

If we count, we may have had a brief period of five years after WWII of peace, and maybe eight years after the fall of the Berlin wall before the War on Terror started. That is 13 years out of the last 70 that were peaceful.

And yet, not one declaration of war.

This leaves people who care about civil liberties in a very precarious situation. We cannot protest the continual infringement of civil liberties without being viewed as unrealistic.

If I believed that the continuous wars would end when we won, I would be pushing for an escalation to hasten the arrival of victory, so peace can follow. I, however, have no such faith, and as long as a simple authorization of military force can send us to a full scale war…

Neither should you.

When we actually begin following the constitution we will be able to end the War on Terror. A privateer, with a letter of marque, would be a much better soldier in the War on Terror than the mountains of man and steel we send to the fight.

For one thing, the privateer is not bound by the same laws we use to bind our military, nor are they bound by the Geneva convention as the government is. They are simple businessmen who can accomplish tasks that tens of thousands of soldiers could not do due to regulations and conspicuousness.

This is the approach that D.C would take if they cared about our safety AND freedom as opposed to just our safety.

Tim Reeves is the State Chapter Coordinator for the Oregon Tenth Amendment Center.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

As usual, our liberty is under attack by the federal government. An appeals court has just upheld a ruling that prisoners held in Guantanamo Bay are not entitled to habeas corpus, and thus, cannot challenge their detention in court.

So, once again, the federal government, through its court system, has overstepped the restrictions of the Tenth Amendment, by assailing the Constitution and its principles of limited government. What a surprise! An agent of the government upheld the actions of the government!

As reported by Reuters:

An appeals court on Tuesday upheld the part of a tough anti-terrorism law signed by President George W. Bush that took away the rights of Guantanamo prisoners to challenge their detention before U.S. federal judges.

The United States Constitution brought into being a government of limited powers, which is quite unusual in the pages of world history. This government is one in which the only powers it has are those that are listed in the Constitution itself. “Positive grant” is what this is called in Constitutional legalese.

Fearful that liberty would still be violated by politicians hungry for power, the Founding Fathers added the Bill of Rights. To ensure the principles of limited government through positive grant, the Tenth Amendment was enacted. It explains this concept quite clearly:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Thus, under the Constitution, the federal government is a government of enumerated powers rather than one of general or unlimited powers. The issue here, then, is what constitutional right the federal government has to exert such power – the limitation or elimination of habeas corpus – over people in its jurisdiction.

The only place in which habeas corpus is even mentioned in the Constitution can be found in 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.

But, don’t just believe what you see here. I suggest you read the Constitution and the Bill of Rights, and then ask yourself this: what exactly is the power of the federal government in regards to habeas corpus?

Let’s examine this a little further:

1. As enshrined in the 10th Amendment, the federal government operates under the principle of positive grant – meaning that it can only exercise delegated powers listed in the constitution.
2. According to the Constitution, the only reference to limiting habeas corpus is “in cases of rebellion or invasion”

Since the qualifiers for suspension do not exist, the federal government cannot restrict, limit, or eliminate habeas corpus for anyone. Period.

Of course, there are war-lovers out there that feel the government can suspend habeas corpus because we’re at war. We must put up with invasions of civil liberties – and we must trust the politicians to make us safe.

In fact, one of the biggest reasons we even have the Constitution is to protect us from politicians, like the ones we currently have, during times of stress or danger. Yes, some constitutional provisions do mention exceptions, but there are no exceptions specified for simply being “at war.”

Anytime this issue comes up, invariably you’ll find people who claim that the Constitution doesn’t apply to foreigners – only Americans. The important point is that the Constitution doesn’t apply to Americans, it doesn’t apply to citizens, it doesn’t even apply to “people.” It applies to the federal government.

The body of the Constitution tells the federal government just what it is allowed to do. In some places it explains how the government is supposed to do things. The Bill of Rights tells the federal government what it is not allowed to do. Nothing more, and nothing less.

What you won’t find there, is the ability to restrict habeas corpus except in the specific instances mentioned above.

The essential point is that until a suspected “terrorist” receives due process – a fair and impartial trial – you can never know for sure whether or not this person even IS a terrorist! So, even if you think that foreigners shouldn’t have any rights, you still can’t be sure that they’re terrorists without due process – well, unless you trust everything your government does.

The Bush administration has now established procedures where it can lock up suspects for life without giving them access to an attorney, an appearance in court, and without the ability to tell anyone.

Now that we’ve allowed the government to have this power, the power to restrict inalienable rights when the president tells us it’s necessary, the question to ask is this: What group is next? What will be the next group that the politicians will determine to be unworthy of the Constitution and the Bill of Rights?

Consider this scenario:

You get arrested by some government agents because you’ve been misidentified as a foreigner who has worked with what the feds call a “terrorist organization.” They rush you out of the country on a CIA plane and take you to a prison in Eastern Europe. The jailers torture you endlessly to get information from you. You tell them nothing because you know nothing!

You tell them you’re an American and you’ve done nothing wrong, but this doesn’t stop the CIA torturers and the foreign thugs working for them. You’re told that you’ll never get released and you’ll never be allowed even a court hearing – because terrorists like you are just too dangerous to allow such liberties.

The big problem, though, is that you’re not able to prove that you aren’t a terrorist. You’re not even able to prove that you’re an American citizen. Why? Because you no longer have the right to challenge your detention as a foreign terrorist! You don’t get an impartial judicial hearing, you aren’t allowed an attorney, you can’t confront your accusers, and you definitely won’t get a trial by a jury of your peers.

But, as the President, the Congress, the Courts and much of the media have told us, you don’t deserve those rights because you’ve been accused of being a “terrorist” and a “foreigner.”

Fear-mongering? Sure. Call it what you’d like. But the abuse of power is not the real thing to be concerned about; it’s the power to abuse. And that power is real.

As the Founding Fathers knew so well, the greatest threat to your liberty comes from your own government. That’s the reason they wrote the Constitution. Going further, that’s the reason we have the Tenth Amendment – to limit the power of the government – to stop it from doing things that will infringe on your liberty.

Well, we shouldn’t worry about all this because your government would never do anything so awful…right? All those prisoners in Guantanamo and Eastern Europe must be horrible terrorists – and foreigners too! If they weren’t, your government would definitely let them go, right? Yeah. Sure.

If you really believe that, just go back to your TV. Go watch some sports or a fun little sitcom. You have absolutely nothing to worry about because your government is “protecting” you.