Petition for Writ of Certiorari — Sullivan v. United States
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/) 24breme Court,
| FILED
03-976 DEC 23 2003
No. OFFICE OF THE cy ERK
IN THE
Supreme Court of the United States
LTC DONALD SULLIVAN and
SP4 JEFFREY S. SULLIVAN,
Petitioners, Pro Se
Vv
UNITED STATES OF AMERICA,
HONORABLE GEORGE W. BUSH, President, HONORABLE
JOEL HEFLEY, Chairman, House Committee on Official
Conduct, HONORABLE HENRY HYDE, Chairman, House
Committee on International Affairs, JOHN BARGO, Chief-of-
Staff, House Committee on Official Conduct, and 535 John Does,
Respondents
On Petition for Writ of Certiorari
To The United States Court of Appeals For the Fourth Circuit
PETITION FOR- WRIT OF CERTIORARI
LTC Donald Sullivan and SP4 Jeffrey S. Sullivan
PO Box 3061
Wilmington, NC 28406
910-617-2559
Questions Presented For Review
Whether or not, under federal or State statute and law, the
Respondents have violated federal and/or State constitutional or
statutory law?
Whether or not, under federal constitutional law, the President can
become the "Commander in Chief of the Army and Navy, and the
militias of the several States," without the legislative act of
Congress?
Whether or not, under federal constitutional law, the Execut:ve has
authority to unilaterally engage a sovereign, foreign power on
foreign soil with no declaration of war by the Congress and while
not in the act of providing for the domestic defense (War Powers
Resolution)?
Whether or not, under federal or state constitutional law, the
United States may commit the states’ militias into service on foreign
soil, not in the act of repelling a "foreign vader", under the ruse of
the "National Guard of the United States" (National Defense Act of
1916, as amended in 1933)?
Whether or not, under federal constitutional or statutory law, there
is a "political question" in this matter which overrides constitutional
mandate?
Whether or not, under federal constitutional or statutory law, the
Petitioners’ have Standing?
Whether or not, under federai constitutional or statutory law, the
matters of Petitioners’ Complaint are moot?
Whether or not, under federal constitutional or Statutory law,
Petitioners’ Complaint was ripe for hearing by the Court of original
jurisdiction?
Whether or not, under federal constitutional law, this matter is one
of Article HI Original Jurisdiction for the Supreme Court of the
United. States because of the nature of the constitutional
adjudication required and the actions of the United States Court for
the Easter District of North Carolina and the United States Court
of Appeals for the Fourth Circuit?
Whether or not, under federal constitutional or statutory law, a
citizen a1.y longer possesses that right for "petition for redress of
grievances” as guaranteed and protected by the First Amendment to
the Constitution? |
Whether or not the United States Constitution is applicable or has
become obsolete and anachronistic, as proposed by the
Respondents?
Whether or not, under federal constitutional and statutory law, the
Respondents should be held accountable for their individual and
professional violations of constitutional or statutory law.
List of Parties
All Parties do not appear in the caption of the case on the cover
page. A full list of the Parties in the proceeding in the court whose
judgment is the subject of this petition is as follows:
Petitioners: Lieutenant.Colonel Donald Sullivan
Specialist Four Jeffrey S. Sullivan
Respondents: United States of America, Honorable George W.
Bush, President; Honorable Joel Hefley, Chairman, House
Committe on Official Conduct; Honorable Henry Hyde, Chairman,
House Committee on International Affairs; Mr. John Bargo, Chief-
of-Staff, House Committee on Intemational Affairs; Members of
Congress: Senators Allard, Allen, Baucus, Bayh, Bennett, Biden,
Bond, Breaux, Brownback, Bunning, Burns, Campbeil, Cantwell,
Carnahan, Carper, Cleland, Clinton, Cochran, Collins, Craig,
Crapo, Daschle, DeWine, Dodd, Domenici, Dorgan, Edwards,
Ensign, Enzi, Feinstein, Fitzgerald, Frist, Gramm, Grassley, Gregg,
Hagel, Harkin, Hatch, Helms, Hollings, Hutchinson, Hutchison,
Inhofe, Johnson, Kerry, Kohl, Kyl, Landrieu, Lieberman, Lincoln,
Lott, Lugar, McCain, McConnell, Miller, Murkowski, Nelson (FL),
Nelson (NE), Nickles, Reid, Roberts, Rockefeller, Santorum,
Schumer, Sessions, Shelby, Smith (NH), Smith (OR), Snowe,
Specter, Stevens, Thomas, Thompson, Thurmond, Torricelli,
Voinivich and Warner; Representatives Ackerman, Aderholt, Akin,
Andrews, Armey, Bachus, Baker, Ballenger, Barcia, Barr, Bartlett,
Barton, Bass, Bentsen, Bereuter, Berkley, Berman, Berry, Biggert,
Bilirakis, Bishop, Blagojevich, Blunt, Boehlert, Boehner, Bonilla,
Bono, Boozman, Borski, Boswell, Boucher, Boyd, Brady (TX),
Brown (SC), Bryant, Burr, Burton, Buyer, Callahan, Calvert,
Camp, Cannon, Cantor, Capito, Carson, Castle, Chabot, Chambliss,
ill
Clement, Coble, Collins, Combest, Cooksey, Cox, Cramer, Crane,
Crenshaw, Crowley, Cubin, Culberson, Cunningham, Davis (FL),
Davis (Jo Ann), Davis (Tom), Deal, DeLay, DeMint, Deutsch,
Diaz-Balart, Dicks, Dooley, Doolittle, Dreier, Dunn, Edwards,
Ehlers, Ehrlich, Emerson, Engel, English, Etheridge, Everett,
Ferguson, Flake, Fletcher, Foley, Forbes, Ford, Fossella,
Frelinghuysen, Frost, Gallegly, Ganske, Gekas, Gephardt, Gibbons,
Gilchrest, Gillmor, Gilman, Goode, Goodlatte, Gordon, Goss,
Graham, Granger, Graves, Green (TX), Green (WI), Greenwood,
Grucci, Gutknecht, Hall (TX), Hansen, Harman, Hart, Hastert,
Hastings (WA), Hayes, Hayworth, Herger, Hill, dilleary, Hobson,
Hoeffel, Hoekstra, Holden, Horn, Hoyer, Hulshof, Hunter, Isakson,
Israel, Issa, Istook, Jefferson, Jenkins, John, Johnson (CT), Johnson
(IL), Johnson (Sam), Jones (NC), Kanjorski, Keller, Kelly, Kennedy
(MN), Kennedy (RI), Kerns, Kind (WI), King (NY), Kingston,
Kirk, Knollenberg, Kolbe, LaHood, Lampson, Lantos, Latham,
LaTourette, Lewis (CA), Lewis (KY), Linder, LoBiondo, Lowey,
Lucas (KY), Lucas (OK, Luther, Lynch, Maloney (NY), Manzullo,
Markey, Mascara, Matheson, McCarthy (NY), McCrery, McHugh,
McInnis, McIntyre, McKeon, McNulty, Meehan, Mica, Miller
(Dan), Miller(Gary), Miller (Jeff), Moore, Moran (KS), Murtha,
Myrick, Nethercutt, Ney, Northrup, Norwood, Nussle, Osborne,
Ose, Otter, Oxley, Pascrell, Pence, Peterson (MN), Peterson (PA),
Petri, Phelps, Pickering, Pitts, Platts, Pombo, Pomeroy, Portman,
Pryce (OH), Putnam, Quinn, Radanovich, Ramstad, Regula,
Rehberg, Reynolds, Riley, Roemer, Rogers (KY), Rogers (MI),
Rohrabacher, Ros-Leitinen, Ross, Rothman, Royce, Ryan (WI),
Ryun (KS), Sandlin, Saxton, Schaffer, Schiff Schrock,
Sensenbrenner, Sessions, Shadegg, Shaw, Shays, Sherman,
Sherwood, Shimkus, Shows, Shuster, Simmons, Simpson, Skeen,
Skelton, Smith (MI), Smith (MI), Smith (TX), Smith (WA),
Souder, Spratt, Stearns, Stenholm, Sullivan, Sununu, Sweeney,
Tancredo, Tanner, Tauscher, Tauzin, Taylor (MS), Taylor (NC),
Terry, Thomas, Thornberry, Thune, Thurman, Tiahrt, Tiberi,
Toomey, Tumer, Upton, Vitter, Walden, Walsh, Wamp, Watkins
iv
(OK), Watts (OK), Waxman, Weiner, Weldon (FL), Weldon (PA),
Weller, Wexler, Whitfield, Wicker, Wilson (NM), Wilson (SC),
Wolf, Wynn, Young (AK), Young (FL).
TABLE OF CONTENTS
INDEX TO APPENDICES
TABLES OF AUHORHES CITED
OPINIONS BELOW
JURISDICTION
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE PETITION
CONCLUSION
aan
APPENDIX A:
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
INDEX TO APPENDICES
Dismissal Order and Judgment from Judge
James C. Fox, United States District Court,
Eastern District of North Carolina, dated
April 15, 2003
Judgment affirming decision of the District
Court from Judges Widener and Gregory,
and Senior Judge Hamilton, United States
Court of Appeals for the Fourth Circuit,
dated September 25, 2003
Congressman Helen Chenoweth article
entitled, "Our legal War", dated April 26,
1999
Congressman Ron Paul article entitled,
"Violating the Constitution With an Illegal
War", dated October 3, 2002
Senator Mark Dayton entitled, "On the
Senate Giving Up _—iIts__— Constitutional
Responsibility to Declare War", dated March
13, 2003
CASES
TABLE OF AUTHORITIES CITED
United States v. SCRAP, 412 US 669,687-688
Mottola v. Nixon, 464 F.2d 178 (1972)
Michel v. Anderson, 304 US App DC 324, 14F, 3d
623, 628 (1984)
Tiffany v. US, 931 F.2d 271 (1991)
Doe v. Bush, 323 F.3d (2003)
Hamdi v. Rumsfeld, 216 F.3d 450 (2003)
Campbell v. Clinton, 52 F Supp 2d 34 (1999)
Selective Draft Law Cases, 245 US 366 (1918)
Baker v. Carr, 369 US 186 (1962)
STATUTES AND RULES
OTHER
PL 107-243 (HJR 114) - Resolution to Authorize
the Use of United States Armed Forces Against Iraq
(2003)
28 U.S.C. 1254€1) - Supreme Court of the United
States Jurisdiction
50 U.S.C. 1543(a) - War Powers Resolution of
1973
39 Stat. 166 - National Defense Act of 1916, as
amended in 1933
Congressman Ron Paul, "Violating the Constitution
with an [legal War", October 3, 2003, Address to
the House.
Fred Volday, "he Progress Report", June 23, 2003.
Senator Mark Dayton, "On the Senate Giving Up Its
Constitutional Responsibility to Declare War",
March 13, 2003, address to the Senate.
Congressman Jesse Jackson, SJr., "The President
Must Have Congressional War Resolution Before
Starting War", February 13, 2003.
Congressman Helen Chenoweth, "Our Illegal War",
April 26, 1999.
Holy Bible, King James Version, from Mathew Ch.
7, Verse 6.
United States Constitution: Article 1, Section 8, Cls.
11, 12, 15; Article II, Section 2; Article IV, Section
4- Article V; and Amendments, Article 1.
- IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petiticners respectfully pray that a writ of certiorari
issue to review the judgments below.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fourth
District appears at Appendix B to the petition and is unpublished.
The opinion of the United States District Court for the Eastern
District of North Carolina appears at Appendix A and is
unpublished.
JURISDICTION
The date on which the United States Court of Appeals rendered
judgment in this case was September 25, 2003. No Petition for
rehearing was timely filed in this case.
The jurisdiction of this Court is nvoked under 28 U.S.C., Section
1254(1) and Article II, United States Constitution.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
\
United States Constitution, Article I, Section 8, cl. 11:
Congress shall have Power...To declare war...;
United States Constitution, Article I, Section 8, cl. 12:
Congress shall have Power...To raise and support Armies, brt no
Appropriation of Money to that Use shall be for a longer Term than
two years;
United States Constitution, Article I, Section 8, cl. 15:
Congress shall have Power...To provide for the calling forth the
Militia to execute the Laws of the Union, suppress Insurrections
and repel Invasions;
United States Constitution, Article I; Section 2: The President
shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into the
actual Service of the United States;
United States Constitution, Article LIL, Section 2: The Judicial
Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made,
or which shall be made, under their Authority;
United States Constitution, Article EV, Section 4: The United
States shall guarantee to every State in this Union a Republican
Form of Government. and shall protect each of them against
Invasion; ~
United States Constitution, Article V: The Congress, whenever
two thirds of both Houses shall deem it necessary, shall propose
xit
Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a
Convention for proposing Amendments, as Part of this
Constitution, when ratified by the Legislatures of three fourths of
the several States, or by Conventions in three fourths thereof, as the
one or the other Mode of Ratification may be proposed by the
Congress;
Amendments to the United States Constitution, Article I:
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.
STATEMENT OF THE CASE
Now come Petitioners, Lieutenant Colonel Donald Sullivan,
as a citizen and retired member of the United States Air Force
Reserve, and Specialist Four Jeffrey S. Sullivan, a citizen and
member of the North Carolina National Guard, before this
Honorable Court with their Petition for a Writ of Certiorari to have
heard arguments in support of the reversal of an Order for dismissal
from the United States District Court for the Eastern District of
North Carolina, CA-03-39-7-F, dated and filed April 15, 2003, by
the Honorable Judge James C. Fox, and affirmed by the United
States Court of Appeals for the Fourth Circuit, File No. 03-1611,
on September 25, 2003, by the Honorable Circuit Judges Widener
and Gregory, and Senior Judge Hamilton. It appears said pre-trial
order to allow Defendants’ Motion to Dismiss, without oral
arguments, was executed on issues of justiciability: Political
question, standing, ripeness and mootness, not the constitutionality
of the President's actions or the merits of Petitioners’ complaint.
The jurisdiction of this Court is invoked under 28 U.S.C., Section
1254(1), and United States Constitution, Art. III, Section 2.
As a practical matter, it appears this case, both for its having
been dismissed in a pre-trial ruling by the Federal District Court and
the Federal Court of Appeals and because it raises important
questions of federal law which have not been, but should be, settled
by this Court, may be viewed as in the Article III Original
Jurisdiction of the United States Supreme Court, and original
arguments heard, thus do Petitioners so request.
Petitioners’ original complaint, though filed hours before the
actual "declaration" of war and commencement of hostilities by the
President on March 18, 2003, was filed pursuant to written and
telephonic entreaties by Petitioner Lt. Colonel Sullivan to
Respondents Hefley and Bargo, shown in Exhibit 4 of the Original
Complaint, in their official capacities as chairman and Chief-of-Staff
l
of the House Committee on Official Conduct, using his First
Amendment right "to petition for redress of Grievances", to prevent
non-defensive and pre-emptive actions by the United States against
the sovereign nation of Iraq without proper representation by the
Congress as required by Article I, Section 8, of the Constitution,.
Lt. Colonel Sullivan's petitions were directed at preserving the
integrity of the United States Constitution as required by his oath of
commissioning, and, by using the Iraqi question then developing
under the authority of House Joint Resolution 114 (PL 107-243),
"To authorize the use of United States Armed Forces against Iraq”,
as a precedent example, to once and for all eliminate the United
States’ propensity for cavalierly entering into armed invasions of
sovereign governments without the representation of a direct issue
vote by the peoples’ representatives in the Congress, upon
information and belief an act repeated over 200 times since 1945.
As the Petitioners stated to the Court at the Hearing for a
TRO on March 20, 2003, "The Plaintiffs are disinterested in the
Iraq conflict, per se." Their interest was and is the prevention of
any further insertions of troops by the United States into any
foreign nation for any reason or policy, other than the repelling of a
foreign invasion, without a declaration of war by the Congress, and
the unquestioned support by the American people, via their
representation in that Congress, for War. (See Appendix D,
Violating the Constitution with an Illegal War, by Honorable Ron
Paul, October 3, 2002)
Further, the petitioners argued the intent of HJR 114 was to
tie any acts of war to appropriate sanctions of the United Nations,
maintaining, any participation in an invasion of Iraq would require a
congressional declaration of war, and to act unilaterally would have
the Executive in collision with the Legislative. The same argument
was raised by Doe, et al v Bush, et al, 323 F.3d (March 13, 2003),
but was disregarded by the Court stating, "For various reasons, this
issue is not fit now for judicial review. F or example, should there
be an attack, Congress may take some action immediately."
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Petitioners, unaware of the Doe case, filed their Complaint March
18, 2003, the very day the Respondent individually declared the
invasion of Iraq. At that time the Congress, though miffed, took no
action to prevent this offensive decision, having been caught in their
own trap with the very real and present need to "support our
troops” now before them,, thus proving their culpability and the
unconstitutional collusion between the Executive and the
Legislative to unconstitutionally invade Iraq.
The Petitioners were dismissed because of "justiciability”
issues and "mootness" on April 15,2003, after the hostilities were
prematurely declared over. The Defendants’ 33-page Motion to
Dismiss had been filed within 48 hours after Plaimtiffs’ original
Complaint. An argument can be appropriately made based upon
these events and others in this case, that there is not only collusion
between the Legislative and Executive branches, but also between
the Executive and Judicial. One might even conclude, given the
keen awareness and sensitivity of the Attorney General in the extant
case, as witnessed by the response time, Respondent Bush's
decision to move forward as suddenly as he did might have been
directly related to the timing of these matters. However, Defendant
Bush's announcement that hostilities were over was not "ripe",
since we have been involved in what television newscasterTom
Brokaw referred to in an interview with talk show host David
Letterman as "War IL, which is extremely dangerous for all those in
Iraq", and continue to lose our sons and daughters at an alarming
rate. One might well ask, "And for what?”
Petitioner Specialist Four Jeffrey S. Sullivan, a member of
the North Carolina National Guard, had been activated to the
National Guard of the United States in January, 2003, in support of
the intended invasion of Iraq and the "War on Terrorism” by the
President, and is currently serving in Bagram, Afghanistan, with the
1st/130th Aviation Battalion. The Court may recall, Afghanistan is
a "hostile" theater, where many of our troops are being killed and
wounded each week. The most notable recent loss being the
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downing of an Army helicopter from Specialist Four Sullivan's base
with six killed. Further, those National Guard Troops in
Afghanistan are merely place-holders such that other members of
the Armed Forces of the United States could be freed up to serve in
the Iraqi theater.
The "War" continues to this day, as occupation is not only a
part of war, but oftentimes even more dangerous. The ruling of
"mootness” by the lower court is baseless, and beyond the context
of plaintiffs’ action. The objectives of the Iraqi mission were
fraudulent from the beginning. We must accept that Respondent
Bush believed in what he was doing, for to think otherwise is
unthinkable; but, at the time of the invasion, the Congress most
likely did not. The requirement for a declaration of war would
most probably have prevented this debacle and the ensuing loss of
life, resources and national credibility. No one trusts the United
States any longer. Our record speaks for itself.
Prior to our intervention in Iraq in 1990, King Hussein, an
ally at the time, had asked the United States to define its response
should he invade Kuwait. He was informed officially there would
be no response as long as American interests were not threatened.
President Bush, the Elder, attacked Iraq anyway, without
Congressional approval. Again, onthe eve of this most recent
attack, the Executive was given assurances King Hussein would
absolutely comply with all United Nations resolutions and United
States requirements save the regime change. Respondent Bush, the
son, was not Satisfied and mvaded Iraq anyway. This apparent
result of the unconstitutional delegation of authority by the
Congress, whether intended or not, must be addressed by the
Judicial to prevent similar catastrophes from ever happening again
due to total power being transferred ta any one individual in the
Executive branch, including the President of the United States.
For this nation, and the federal Judiciary, to continue to
4
allow the office of the President of the United States to act without
the specific sanctions of the Congress in areas where only the
Congress has the authority to act, to sanction such acts even in the
face of there being no threat to the United States, no invasion of the
United States, and no vital national security or domestic defense
interests being served, where citizens of foreign nations are
needlessly and carelessly slaughtered in the name of peace, and
where the international and domestic credibility of the United States
is destroyed, is not only unconscionable, it is a shirking of their
responsibility as defined in the Constitution.
"In some ways, the claims made by plaintiffs here parallel
those made in Clinton [Clinton v. City of New York (524 U.S.
452)]: That the Constitution vested power in the legislative branch
as a necessary check on the power of the executive branch, and that
Congress is not free to upset the careful balance by giving power to
the executive. See 524 U.S. at 452 (Kennedy, J., concurring)
("That a congressional cession of power is voluntary does not make
it innocuous....Abdication of responsibility is not part of the
congressional design.") cf. New York v. United States, 505 U.S.
144, 182, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992) ("The
Constitution's division of power among the three branches is
violated where one branch invades the territory of another, whether
or not the encroached-upon branch approves the encroachment.")."
(Doe, et al, v. Bush, et al, supra)
Having proceeded with no declaration of war, and without
the requisite support of the United Nations, as referenced in HJR
114's preamble and by legislative history, Respondent Bush has
placed “all participants under the authority of the International
Criminal Court, recently seated but boycotted by the United States,
which stated purpose is the trial and punishment of tyrants and
other violators of international law, ie., the dictates of the United
Nations" (Count I, Original Complaint). Although the Executive,
through international bribes and concessions, is attempting to "buy-
off" member nations of the International Crime Commission (ICC)
5
to exempt Americans from the tribunals of that body, it is at the
same time establishing similar tribunals to bring to trial Iraqis and
others who may be guilty of the same "war crimes". While the
former action smacks of cover-up, the latter action most certainly is
disingenuous and will cause the "buy-off" attempts to suffer and
fail. It appears the United States would have been better served to
let the ICC investigate and bring to justice those who participated
in the 9/11 disaster, rather than attempting unilaterally to police the
world under the pretext of its "War on Terrorism”.
Of course, any discussion of this subject of "undeclared
war" begs the question of "What about the War Powers Resolution
of 1973 [50 U.S.C.S. 1543(a)}?" It must be, of course, repugnant
to the Constitutional Powers of Congress, which cannot be
delegated ta any other branch. The War Powers Resolution,
vetoed by President Nixon because it was repugnant to the
Constitution, is an overt attempt to. abrogate the legal authority of
the people, represented by that Constitution. "But this ‘act’ was
illegal because it was passed by ‘Joint Resolution’ rather than by the
individual chambers of Congress, and unconstitutionally delegates
(legislative) power to the (executive) President." Fred Foldvary,
supra) The Petitioners, therefore, include ‘it by association in this
pleading for certiorari, to have done with it once and for all, before
it "turns and rends us” (Matt. 7:6).
Although Petitioners’ original Complaint was primarily
about the Congress’ avowed disregard for the Constitution as stated
on the record in meetings pursuant to the vote on House Joint
Resolution (HJR) 114, the passage of time has illuminated even
more such fundamental issues. Each of these Respondents has
violated law. Respondents Hefley, Hyde and Bargo were culpable
by their denying Petitioner Sullivan his constitutionally guaranteed
right to petition for redress of grievance and to expect a responsible
answer, most certainly on an issue of the importance of a
declaration of war. Petitioner's extraordinary standing to expect
such an answer is explained herein. Respondent Members of
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‘a
;
Congress, who swore in their oaths of office to "support and defend
the Constitution of the United States against all enemies, foreign
and domestic and bear true faith and allegiance to the same", have
individually violated the specific sections of the Constitution which
provide for only the Congress to have the power to declare war by
supporting and voting for HJR 114. Some, at the same time
acknowledging the resolution to be outside their constitutional
authority, were, upon information and belief, stating on the record
that the Constitution has been overwhelmed by events and by time,
and the declaration of war is no longer required. To wit,
"There are things in the Constitution that have been
overtaken by events and by time. Declaration of War is one
of them... There are things no longer relevant to a modern
society...Why declare War if you don't have to?...We are
saying to the President, use your judgment...So, to demand
that we declare War is to strengthen something to death.
You have got a hammerlock on this situation; and it is not
called for, imappropriate, anachronistic. It isn't done
anymore.” (Respondent Henry Hyde, elected defender of
the Constitution in his comments to the International Affairs
Committee, October 3, 2002). |
Ironically, some of these same congressmen voted down a
declaration of war resolution offered by Congressman Ron Paul in
the same House Committee on International Affairs meeting where
HJR 114 was approved; so this violation of constitutional law was
not done im ignorance (See Appendix D).
Due to that original act (HJR 114), which we have seen is
repugnant to the Constitution, and, apparently, due to peer pressure
and emotional uncertainty with regards to "supporting our troops”
once they were im harm's way, subsequently and unfortunately,
these same representatives of the people were drawn into unpopular
war finding allocations and took no actions to remedy their own
malfeasance. At that point, the ship had sailed, and the Congress
7
was unwilling to put on the brakes. These are career-threatening
and career-shattering times. They easily overlooked that their
solemn oath is not to a person, an institution, a country, a
government, nor to a president, but to the Constitution of the
United States, without which there can be no United States.
"The Constitution says simply, clearly, emphatically:
Congress shall declare war. Only Congress. No one else. Not the
President. Not the judiciary. Not the military. Only Congress.
100 Senators and 435 Representatives elected by, and acting for,
the people of the United States.” (Senator Mark Dayton, On the
Senate Giving Up Its Constitutional Responsibility to Declare War,
March 13, 2003, Appendix E) Yet, "A reporter recently stated to
President Bush that it appeared inevitable that the nation was
headed toward war with Iraq. The President responded, "That's not
for you to decide. That's for me to decide.” (Congressman Jesse
Jackson, Jr., The President Must Have Congressional War
Resolution Before Starting War, February 13, 2003)
This reluctance to actually stand up and protect the
Constitution by those who are entrusted with that awesome
responsibility to "support and defend” it, as demonstrated by the
Congress in this matter before the Court, is nowhere better
illustrated than in the recent experience of Petitioner Lt. Colonel
Sullivan himself, during a brief conversation with an experienced
member of the armed Forces of the United States, in uniform,
about a related subject at a National Guard Armory. In this
discussion, the issue of constitutionality came up as an aside. The
soldier asked for a constitutional reference for Petitioner Lt.
Colonel Sullivan's comment pertinent to foreign deployment of
troops, especially the National Guard of North Carolina. Petitioner
Lt. Colonel Sullivan offered him the very Constitution he had swom
to defend. Immediately after reading the applicable section, the
soldier informed Petitioner Lt. Colonel Sullivan the police would be
called, and he would be arrested, if he did not leave the premises
immediately. Our troops are so well trained, they fear any
8
knowledge of the reason for their profession, lest it interfere with
their objective, whether that objective be in keeping with their
solemn oath, or not. It seems the God and the Constitution of our
Founders is no longer welcomed by, and are being summarily
eliminated from, our government.
Petitioner President Bush, as chief executive officer for the
United States, did violate the intent of the Constitution by illegally
assuming the powers of Commander-in-Chief, by illegally calling
the militias of the several states into the service of the United
States, and by ordering the invasion of the sovereign states of Iraq
and Afghanistan, or "declaring" war, without such authority having
been allocated by the only branch of the government with legal
power to grant it. Or, as held in Hamdi v Rumsfeld (216 F.3d 450,
January 8, 2003), "The war powers thus. invest: 'the President, as
Commander in Chief, with the power to wage war which Congress
has declared,..."". In this matter before the Court, as in those
many similar matters herein referenced, Congress declared no war
which a President could legally wage.
"The War Powers Clause of the United States Constitution
provides Congress with the power to "declare war...." (U.S.
Constitution, Art. I, Section 8, cl.11). Congress’ power to declare
war works in conjunction with the authority granted to the
president under the Constitution to act as "Commander in Chief of
the Army and the Navy of the United States, and of the Militia of
the several States, when called into the actual Service of the United
States” (U.S. Constitution, Art. I, Section 2, cl. 1)” (Campbell, et
al, v. Clinton, 52 F. Supp. 2d 34). Unfortunately for the President
in this matter, and many others before it, this latter power is
contingent upon the Congress voting to call the "Militia of the
several States._into the actual Service of the United States". This
can only be done through a declaration of war, or other specific act
so doing, by the Congress, which has the power "To provide for
calling forth the Militia....", whether it be the "States Militia” or the
United States "Militia”.
9
"The role of the President as commander-in-chief is one of
the few executive powers enumerated by the Constitution" (Doe, et
al, v. Bush, et al, supra) is true as far as it goes. This power cannot
become effective unless and until the Congress validates this power
_ by law, or by declaration of war, even by the simplest interpretation
of the intent and punctuation of Art. Il, Section II, although some
interpretations would say different. Stated simply, the phrase, "and
the militia of the several States", is a parenthetical phrase the
deletion of which from the sentence does not change the intent of
that sentence one iota. Art. IL, Section 2, would then read, "The
President shall be the Commander in Chief of the Army and Navy
of the United States when called into the service of the United
States" (emphasis added). Only the Congress has the authority to
make war or wa!riors.
According to the Constitution, and until the Congress
declares war, by any reasonable interpretation of the words and the
careful punctuation of the above mentioned "Militia clause", the
President is merely the Chief Executive Officer unless and until the
Congress adds the awesome power of the United States armed
forces and the "Militias of the several States" to his authority by the
act of that Congress to declare war. The reason for this aspect of
the control of Congress, the peoples’ representative in government,
over the employment of the armed forces of the United States is
because the States knew at the founding of this nation, "standing
armies are dangerous to liberty, they shall not be maintained, and
the military shall be kept under strict subordination to, and
governed by, the civil. power" (Art. 1, Section 30, State
Constitution of North Carolina). Hence, the directive only the
Congress, representing "we the people”, may declare war and call
forth the militias of the several States.
Quoting Congressman Helen Chenoweth from her article,
"Our Illegal War", at Appendix C regarding Art. II Section 2, of the
United States Constitution,
10
"The text of the Constitution itself specifies, 'The President
shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when
called. into the actual Service of the United States....'_ In
other words, 'Commander in Chief describes a specific and
limited role played by the President. Rather than Congress
having a Commander in Chief before which it must prostrate
itself, it has in the President an executive it may entrust with
delegated war-making authority."
The. Founders of this nation knew best the intent of this
Constitution, stating as follows:
George Washington: "The Constitution vests the power of
declaring war in Congress; therefore, no offensive expedition of
importance can be undertaken until after they shall have deliberated
upon the subject and authorized such a measure." (1793)
"If, m the opinion of the people, the distribution of Constitutional
powers be wrong, let it be corrected by Amendment in the way in
which the Constitution designates. But let there be no change by
usurpation; for though this, in one instance, may be the instrument
of good, it is the customary weapon by which free governments are
destroyed.” (Farewell address of 1796)
Thomas Jefferson: "We have already given in example one
effectual check to the dog of war by transferring the power of
letting him loose from the Executive to the Legislative body...”
(Letter to Madison, 1789)
"Considermg that Congress alone is constitutionally vested with the
power of changing our condition from peace to war, I have thought
it my duty to await their authority for using force in any degree
which could be avoided." (Message to Congress, 1805)
1]
"In questions of power, then, let no more be heard of confidence in
man, but bind him down from mischief by the chains of the
Constitution.” (1798) [Compare this context with Respondent
Bush's comment regarding discussions on HJR 114, "Don't tie my
hands." See Senator Mark Dayton March 13, 2003, speech to the
Senate, "On the Senate Giving Up Its Constitutional Responsibility
to Declare War" at Appendix E]
Alexander Hamilton: "The President is to be commander-in-chief
of the army and navy of the United States...while that of the British
king extends to the declaring of war and the raising and regulating
of fleets and armies, all of which by the Constitution under
consideration, would appertain to the legislature." (The Federalist,
69, 1788)
"It is the province and duty of the Executive to preserve to the
Nation the blessings of peace. The Legislature alone can interrupt
those blessings, by placing the Nation in a State of War.”
James Madison: "...The power to declare war, including the
power of judging the causes of war, is fully and exclusively vested
in the legislature...the executive has no right, in any case, to decide
the question, whether there is or is not cause for declaring war."
(1793)
"The Constitution supposes, what the History of all Governments
demonstrates, that the Executive is the branch of power most
interested in war, and most prone to it. It has accordingly with
studied care vested the question of war to the Legislature." (Letter
to Jefferson, c. 1798)
[It is the]. "fundamental doctrine of the Constitution that the power
to declare war is fully and exclusively vested in the legislature."
(1793) fs
12
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7
William Patterson (Framer of the Constitution and Justice of the
United States Supreme Court): "...It is the exclusive province of
congress to change a state of peace into a state of war." (United
States v. Smith, 1806)
James Wilson (Framer of the Constitution and ratifier): "This
system will not hurry us into war; it is calculated to guard against it.
It will not be in the power of a single man, or a single body of men,
to involve us in such distress; for the important power of declaring
war is vested in the legislature at large..." (Address to the
Pennsylvania ratifying convention, 1787)
Fred Foldary, supra, asks, "May the President start a war
without a declaration of war?” He goes on to answer, generally,
that the authors of the Constitution wanted to avoid this
eventuality:
By requiring Congress, not the President, to initiate war,
the authors wanted to assure broad support for any war,
since Congress is more widely representative of the people
than the President. Yet, since World War II, the United
States has fought many wars, none having the luxury of a
declaration of war. The Excuse in Korea was that this was
a United Nations war, and the United States was
participating under the United Nations. But the power to
'declare war means the United States may not engage in a
war unless [and until] the Congress implicitly declares that
the United States is at war. If a power is allocated to the
Congress, it may not be legislated to the President."
"It may not be legislated to the President” without amending the
Constitution, and certainly cannot be delegated to a foreign power
such as the United Nations.
13
The excuse in Vietnam, another "undeclared war", was the
Gulf of Tonkin resolution which merely funded the "actions” m
country. This same "Gulf of Tonkin Incident" has, 30 years later,
been proven to have been merely a ruse to get public opinion
behind this mostly commercial enterprise. Not the first ruse to get
us into war by a long shot, and certainly not the last. Then there
were Cambodia, Laos, Grenada, Kosovo, Somalia, Panama,
Liberia, Libya, Afghanistan [, Iraq I, Afghanistan IL, now Iraq HU,
and many, many more, “all undeclared wars" which were
unconstitutional. Millions killed and wounded, and, in the final
analysis, for no good purpose whatsoever. The Petitioners’ intent is
that this mistake never be allowed to happen again.
Foldary, goes on to say,
"The declaration of war is important because a state of war
transforms the country. The entire country is at risk of
being, attacked, and the war becomes top priority for
everyone, whether they like it or not. Because this is so
serious, an explicit and specific declaration makes it very
clear that this is what the Congress, on behalf of the people,
intends. By merely passing a resolution and providing funds
[to support our troops], Congress is going along with a
Presidential war rather than taking responsibility for starting
a war.”
By contrast, Respondent Bush encoura ed the citizens of the
United States to continue with "busimess as usual”.
Likewise, the Congress is empowered "To raise and support
Armies, but no Appropriation of Money to that use shall be for a
longer Term than two years” (Art. I, Section 12, United States
Constitution). Obviously, the Founders were opposed to a
"standing" Army for periods longer than two years, except in a
national emergency such as a War declared by the Congress,
precisely because of their fear of that Army being "destructive to
14
Daan near RE REET RT Toso: RRO aE HTeR TETRIS RR
q
liberty.” Hence, the undeniable fact the Executive, through
compliant congressional legislation, has kept the United States in a
continuous state of emergency for at least 155 years to justify
keeping a "standing Army", in obvious disregard of constitutional
authority.
However, even when War is declared, according to any
straightforward interpretation of the United States Constitution as
written, unabridged and unabrogated by law, the President cannot
employ said "Militia of the several States" in any missions other
than those which "...execute the Laws of the Union, suppress
insurrections, and repel invasions" (Art. I, Section 8, cl. 15).
Therefore, the fact Petitioner Specialist Four Sullivan is currently
serving in Bagram, Afghanistan, along with thousands of other
members of the "Militias of the several States” serving in either Iraq
or Afghanistan, flies in the face of not only the limited authority
granted the President by the United States Constitution, but also
that granted by many State constitutions, including that of North
Carolina, Specialist Four Sullivan's home State, which he has swom
to support and defend and which states, "The Governor shall be the
Commander in Chief of the military forces of the State and may call
out those forces to execute the law, suppress riots and
insurrections, and repel invasions." (Art. 12, State of North
Carolina Constitution) Again, we see the purpose of the Militia is
solely homeland domestic defense, not pre-emptive projection of
force to sovereign, foreign soil. This "projection" can only occur
legally when the Militia is pursuing an invading foreign enemy. ©
Thus, the very idea of the United States staging a pre-emptive
strike, especially using the "Militias of the several States”, is totally
repugnant to the Constitution.
The Congress, exercising its authority under the "implied
powers” of the "implementation clause" in Art. I, Section 8, "to
make all laws which shall be necessary and proper for carrying into
execution the foregoing powers", moved to circumvent the
authority of the States with regards to their militias through the
15
passage and subsequent interpretation of the National Defense Act
of June 3, 1916, 39 Stat.166, which provided, in part, "That the
Amny of the United States shall consist of the Regular Army, the
Volunteer Army, the Officers’ Reserve Corps, the Enlisted Reserve
Corps, the National Guard while in the service of the United
States, and such other land forces aS are now or may hereafter be
authorized by law (emphasis added).” This law was used to
technically merge the several States’ militias into the Army such that
they lost all status as militiamen of the States, and therefore,
allegiance to same, so that they could be used in conflicts outside
the domain of the "militia clause”, a law we now sce is repugnant to
the Constitution.
Further, this abrogation of the power of the States to have
their own militia was strengthened by the Supreme Court in the
Selective Draft Law Cases, 245 U.S. 366 (1918), and in Cox v.
Wood, 247 U.S. 3 (1918), holding "the plenary power to raise
armies was "not qualified or restricted by the provisions of the
militia clause”. Subsequently, to remedy certain "defects" in the
National Defense Act, the Congress amended it in 1933,
establishing the simultaneous enlistment of National Guard
members. the militia of the. several States, into what was called the
"National Guard of the United States’. The effect of this
amendment was for members to be "relieved from duty in the
National Guard of their respective States" so they could then be
projected overseas, effectively amending the Constitution by the fiat
of Congress and, thereby, denying the States any authority over
their own militias, an act not only repugnant to the Constitution,
but also one which disrespected what the Founders were trying to
accomplish by the "militia clause", a separation of the armed forces
of the States from that of the United States, except in matters of
domestic defense. This is much the same thing as has been
accomplished by the United Nations, and the North Atlantic Treaty
Organization, in its employment of aur troops in manners not
approved by our own Congress. One need only to connect the dots
to understand where we are headed if we do not return immediately
16
to the restrictions of the Constitution. Otherwise, we must see it
condemned by our own leaders (See again Chenoweth at Appendix
C). It would seem, in fact, that the United States Constitution is
indeed in great peril of being rewritten, whether intentionally or not,
either by the fiat of willing judicial and legislative branches, or by
being wholly replaced with an all new document in Convention by
its enemies due to its "anachronistic" imperatives.
While the need for a well-equipped and well-tramed
National Guard militia to provide domestic defense for the several
States and nation is self-evident, the msidious developmen: of that
force into an offensive, imperialistic instrument of war must be
reckoned with and controlled. Otherwise, it will be as President
Theodore Roosevelt stated in his First Annual Message to Congress
in. 1901, "Our militia law is obsolete and worthless", but for a
totally different reason than that espoused by him.
Further, by allowing Respondent Bush to unilaterally "call
the Militia", in this case the National Guards of the several states,
into service for an undeclared, unnecessary and nation-threatening
war, the United States has unwittingly placed itself in a position
where it cannot effectively comply with its duties under Art. 4,
Section 4, of the United States Constitution which states, in part,
"The United States shall guarantee the States...and protect each of
them against Invasion." It is obvious, both from news reports as
well as from comments from our military leaders, the United States
has overextended its ability to protect any State of the Union, or the
Union itself, from mvasion by a foreign power. One must
remember, when the Roman empire finally fell, two of the major
failures at cause were: Rome had been overwhelmed by an influx
of "strangers", and the Roman legions were far-flung and unable to
defend the homeland. Further, by illegally drawing upon the
Militias of the Several States to augment the missions he has given
the armed forces of the United States, Respondent Bush has made
it impossible for the State governors to protect their own
constituents from either from invasion or the most basic of local
17
emergencies, as noted by leaders of the North Carolina National
Guard in comments preceding the recent hurricane Isabel.
The fact is, this country has already been, and is being,
‘nvaded. There are millions of foreign nationals m this country
today. The BICE estimates there are over 500,000 Mexican and
Central and South American nationals in North Carolina right now,
of which the greatest portion can rightfully be assumed to be
illegally here. Should even a fraction of their number decide to rise
up against us, we would be easy prey. Knowing the stated position
of some of the more radical elements of this group to conduct /a
Reconquista, the reconquest of the southwestern States, to form
the mythical home of the Aztecs, Aztlan, one foresees a real and
present danger (See again Chenoweth at Appendix C). It would
appear the colonization of the United States is well under way and
should be complete within the next 20 years, given the rate of
illegal immigration and the sustained birthrate and interbreeding of
the colonists. While we wait, our future, our wealth, our jobs, our
culture, our heritage, our identity and our nation are being forfeited.
Even more cause for alarm is the fact the communist Chinese have
a very serious presence in and around the Isthmus of Panama since
they took over the Panama Canal from the Panamanians, in
violation of the treaty under which we returned the Canal Zone to
the citizens of Panama. This presence, in and of itself, constitutes a
foreign invasion, especially under the auspices of the Monroe
Doctrine; and, given the stated attitude of the Chinese government
to destroy the power of the United States, nominally over the
"Taiwan Question", this threat is very real, albeit mostly ignored by
our government "solely for the faculty of making money" (Thomas
Jefferson to the Virginia Assembly, 1794). All this, while our
President takes the bulk of our military and illegally projects it
overseas for his personal war without the authority of the people.
It is undoubtedly with the realm of judicial authority and
responsibility to address these issues before it is too late for all of
us. We have survived over fifty years of disregard for the
18
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I POST LES LO LIE RL NE AI ON BOAT
Constitution's restrictions on wat-making ability. We will not
survive fifty more.
Reviewed separately, as the Supreme Court has previously
done on certain of the above questions, these violations of law and
abrogations of the Constitution may not be wholly threatening to its
viability and, consequently, to the United States. However, taken
as cumulative, the whole becomes greater than the sum of its parts,
and the powers created fit perfectly in the hands of a dictator, a
king or an oligarchy. This is where the United States stands today,
even as it pretends to export its form of socialist democracy,
something, our Founders feared and abhorred, above which they
chose one Constitutional Republic, Under God, and guaranteed "to
every State in this Union a Republican Form of Government” (Art.
IV, Section 4, United States Constitution).
The Congress has passed laws, inchiding, but not limited to,
HJR 114, the War Powers Resolution, the PATRIOT Act, aad
numerous funding measures in support of illegal wars, which serve
only to abrogate the safeguards of the United States Constitution,
under the guise of implementing the authority of that Constitution.
The matter now before this Honorable Court was commenced upon
the attitude of certam members of Congress, represented by the
Respondent Members, that "the Constitution has been
overwhelmed by events and by time.” Having this philosophy is
improper before the Constitution itself, which states it is only to be
altered by amendment (Art. V, United States Constitution).
We must all understand the Constitution is merely a binding
contract, a business arrangement, between and among the several
States meant only to establish a United States of America, Inc, and
to set for it rules of conduct and limits of authority, which
establishment, rules and limits are subject to the authority of the
stockholders of that corporation, the States. By the actions of the
Executive and ffats 6f the Legislative in the matter before this
Honorable Court, this contract has been disregarded, abrogated.
19
The only reasonable conclusion for these acts is that this
Constitution, and, thus, the United States it served to create, are no
longer viable creations, under law. This matter is being brought by
the Petitioners for the sole intent and purpose of bringing this
United States to order in this most critical realm of government, to
declare and wage war, and to force it to abide by the terms of its
contract, or, in the alternative, be dissolved due to its arrogance and
disrespect in the manner prescribed in Paragraph Two of our
Declaration of Independence. Our failure to perform in these
matters will leave us with a United States which is dismgenuous,
lacking even the credibility of its own law, and which can survive
only through the use of force, not only agaist any perceived
foreign threat, but also against its own citizens.
Petitioner will now address. the questions of justiciability
(political question doctrine, standing, ripeness and mootness) raised
by the Respondents im their Motion to Dismiss, by the District
Court in its Order, and referenced by the Court of Appeals.
The issue of political question doctrine must be rejected
explicitly since this Court has jurisdiction under Article III over all
"Cases under, Law and Equity, arising under this Constitution".
Courts have been traditionally "sparmg in their reliance on the
political question". This "Court has found a case nonjusticiable on
the basis of the political question doctrine only twice" in the past 40
years (Bush v. Doe, supra). Albeit there is prominent on the surface
of this case "a textually demonstrable constitutional commitment of
the issue to a coordinate political department", as provided for by
the United States Supreme Court, the heart of the issue is the illegal
delegation and abandonment of strict constitutional authority by
one branch and usurpation of that authority by another to the great
harm of all, which acts, if ignored by the Judicial, will only be
duplicated time and time again, based upon the already existing
precedents for those acts and the justifications developed herein.
Such duplication can only result in ultimate harm to this nation and
its people.
20
Obviously, the Respondents claim "an unusual need for
unquestioning adherence to a political decision already made”
(Baker v. Carr, 369 U.S. 186); however, the Fourth Circuit Court
of Appeals has rightly concluded, "We do not hold, of course, that
any time a branch of the military asserts a national defense interest
to justify its acts, the court must avert its eyes." (Tiffany v. United
States, 931 F.2d 271) It would not be constitutionally appropriate,
nor in the best interest of this nation, for the United States Supreme
Court to "avert its eyes" and be silent in this matter.
While Respondents have stated in their original Motion to
Dismiss in the Fourth District, "With regard to decisions to employ
military troops, ‘it is not the function of the Judiciary to entertain
private litigation... which challenges the legality, the wisdom, or the
propriety of the Commander-in-Chief in sending our armed forces
abroad or to any particular region" (7iffany, supra), Petitioners —
contend not only was the President not empowered to be the
Commander-in Chief by the Congress or the Constitution, but also
the collisions and collusions identified herein show the interests of
the Petitioners, the public at large, and the Constitution were
subverted by certain individuals in the prosecution of these
conflicts. Further, the Supreme Court has also noted in Campbell,
et al, v. Clinton, supra, "the political question doctrine does not
apply to suits brought by individuals in their personal capacities
(emphasis added)." (Michel v. Anderson, 304 U.S. App. D.C. 325,
14 F.3d, 14 F.3d 623, 628 (D.C. Cir. 1994)
As "standing" is an affirmative defense, Petitioners’ do not
plead standing herein, but offer evidence of their standing to the
Court pertment to Respondents counter-claims in the lower courts.
Petitioners’ standing, although shared in some regards, have certain
sigmficant differences and will be defended separately herein.
Petitioner Lt. Colonel Sullivan certainly has the standing
“held m common by all members of the public, because of the
21
necessarily abstract nature of the injury all citizens share”
(Schlesinger, et al, v. Reservists, 418 U.S. 208, 1974). He also
recognizes that "public" standing does not alone support his request
for constitutional adjudication in this Court. However, he also has
actual and threatened concrete individual injury. To wit: Petitioner
Lt. Colonel Sullivan was specifically denied his First Amendment
right to petition the United States, in the person of the
Respondents, for redress of grievances, in matters which most
certainly were timely and most properly filed, and, potentially,
pertinent to the survival of this nation as a constitutional republic.
Further, he is threatened by the loss of a close family member, the
only son of his only brother, in the person of Petitioner Specialist
Four Sullivan, who has been placed in harm's way by the
unconstitutional actions and inactions of the Respondents, and as a
direct result of the failure of the Respondents to react
constitutionally to Petitioner Lt. Colonel Sullivan's petitions for
redress. These are particular and concrete injuries for which this
Honorable Court has judicial remedy.
Petitioner Specialist Four Sullivan's standing is even more
undeniable. He stands today on the soils of a foreign nation, under
the orders of Respondent Bush in an "undeclared war", in absolute
violation of the precepts of that very "Constitution of the United
States and the State of North Carolina" which he has taken a
solemn oath to defend. His petition to this Court is based solely
upon that oath, which he takes very seriously. He is denied his
rights to liberty and the pursuit of happiness, and stands in a hostile
theater, surrounded by his enemies, where even his right to life is
threatened. As the Ninth Circuit maintained in Mottola v. Nixon,
464 F.2d 178 (1972), "The legality of an order sending men to
participate in an ‘undeclared war’ should be raised by someone to
whom such an order has been directed.” Ji is within the power and
the authority of this Honorable Court to remedy said injuries to
Petitioner Specialist Four Sullivan by a favorable ruling in this
matter. For this Court "To deny standing to persons who are in
fact injured simply because many others are also injured, would
22
mean that the most injurious and widespread Government actions
could be questioned by nobody” (United States v. SCRAP, 412
U.S. 669, 687-688, as quoted in Schlesinger, et al, v. Reservists,
supra). Even the Respondents, as quoted in Campbell v. Clinton,
supra, admit, "Counsel for the President appears to have
acknowledged that an individual alleging personal injury from the
President's alleged failure to comply with the War Powers Clause or
the War Powers Resolution, as for instance a service person who
has been sent to carry out the air strikes against the Federal
Republic of Yugoslavia, would have standing to raise these claims.”
The Respondents claim in their "informal Brief of the
Appellees” to the United States Court of Appeals for the Fourth
Circuit that "Even if plaintiffs could establish standing, their claim is
now moot. During the course of this litigation, the United States
has invaded Iraq and defeated the Iraqi Army...and the President
has declared that major combat operations in Iraq have ended." Or,
put another way, "Why prosecute for murder. The man is dead.
He memorial has been held. He has been buried. The issue is
moot.” The simple truth is, violations of the spirit, mtent, origin
and letter of the Constitution have been committed once again
under the guise of military necessity and domestic defense; and the
Petitioners have personally suffered, and are personally suffering,
real and threatened injury therefrom. This case is not moot and the
injury continues. Petitioner Lt. Colonel Sullivan has received no
response to his petition for redress of grievance to the Congress,
and his nephew, Petitioner Specialist Four Sullivan remains with
other members of the North Carolina National Guard in
Afghanistan and Iraq, hostile theaters where our sons and daughters
are dying every day. While Respondent further states in his brief
"...a Judgment in this case could no longer provide any relief on
plaintiffs’ claims", there is no truth in that statement whatsoever,
based upon the facts in evidence and this Court's own knowledge of
events as they are occurring.
The "mootness” defense becomes even more disingenuous
23
when one considers the fact that Doe v. Bush, supra, was dismissed
first by the United States District Court for Massachusetts, and
subsequently affirmed with rehearing denied by the United States
Court of Appeals for the First Circuit on March 13, 2003, because
of ripeness, stating, "For various reasons... . For example, should
there be an attack, Congress may take some action immediately.
The purported conflict between the branches may disappear."
Petitioners filed five days later, on the same day Respondent Bush
declared "war", March 18, 2003. Now, because Respondent Bush
prematurely has claimed "major combat operations in Iraq have
ended", are we supposed to ignore the undeniable fact there have
been serious violations of constitutional law. If so, a very bad
precedent will have been set, which will undoubtedly be followed
by all future "Commanders-in-Chief", some who may not have our
best interests in mind.
Therefore, the Petitioners move this Honorable Court rule to
defend the United States Constitution from its inevitable
destruction and grant Petitioners’ Writ of Certiorari which seeks a
ruling to reverse the Order by the District Court and the
Affirmation of said Order by the Court of Appeals, and remand this
case. Or, in the alternative, this matter bemg in the realm of Article
{11 Original Jurisdiction, Petitioner prays this Honorable Court will
decide this matter for the Petitioners, ordering Respondent Hyde
expelled from Congress for his blatant disregard of the sanctity of
his oath; ordering Respondent Hefley reprimanded by this Court for
denying Petitioner his First Amendment rights and violating his
oath: ordering Respondent Members of Congress who supported
HJR 114, over the objections of the Constitution and in violation of
their oath to defend that Constitution, be censured by Congress;
ordering Respondent Bargo be reprimanded by this Court for
denying Petitioner his First Amendment rights, ordering Congress
to produce a declaration of war against Iraq and Afghanistan, or,
failing that, ordering the Executive to begin the orderly withdrawal
of all armed forces of the United States from the sovereign soil of
Iraq and Afghanistan, including Petitioner Specialist Four Sullivan
24
—
and all members of the National Guard, all the while holding said
Executive accountable for those actions taken in ignorant disregard
of its Constitutional authority, and admonishing both the Legislative
and Executive branches for having done so; or, failing that,
rendering in most very clear language the Power to declare war
rests solely with the Congress and shall nevermore be exercised by
the Executive without an Amendment to the Constitution
authorizing same; clarifying the interpretation of Art. I, Section 2,
as it regards the empowerment of the Commander in Chief only at
the order of Congress; declaring the War Powers Resolution of
1973, 50 U.S.C.S. 1543(a), to be repugnant to the Constitution
and, therefore, void; declaring the National Defense Act of 1916,
supra, as it has been interpreted regarding the employment of the
militias of the several States in a manner contrary to that proscribed
in the Constitution, repugnant to the Constitution and, therefore,
void, thus reinstating the original intent of the "militia clause"; and
reversing the opinion of the Court in the Selective Draft Law
Cases, supra, and in Cox v. Wood, supra, as regarding the
unconstitutional employment of the States’ militias, finding it to be
repugnant to the Constitution and, therefore, void, thus reinstating
the original intent of the "militia clause”.
25
AL DG BE IT ae YL 8 EATS
REASONS FOR GRANTING THE PETITION
The United States Government, represented by the Legislative and
the Executive branches, has departed so far from the stated imtent,
the origin, and the letter of the United States Constitution in the
area of War Powers as to call for an exercise of the Court's judicial
review authority.
The United States Court of Appeals for the Fourth District has
decided an important question of federal constitutional law, that of
War Powers, that should be settled by this Court.
The United States District Court for North Carolina, Southern
District, and the United States Court of Appeals for the Fourth
District have erroneously dismissed Petitioners' Complaints against
the United States Government on contrived and unfounded issues
of justiciability, thereby having denied said Petitioners their
constitutional and civil rights.
CONCLUSION
The Petition for a writ of certiorari should be granted, the merits of
Petitioners’ Case should be reviewed by this Court, or, in the
alternative, oral arguments should be heard, and the case tried
before the Supreme Court of the United States.
Respectfully submitted by:
°
pulg- 4A av (Pee
fe S. Sullivan, Petitioner, Pro Se
SP4, US Army
D Co, 1/130th Avn Bn
North Carolina National Guard
c/o 2025 National Guard Drive
Morrisville, NC 27560-0506
aa -
eG N ,
Donald Sullivan, Petitioner, Pro Se |
Lt Col, USAEFR (Ret)
PO Box 3061
Wilmington, NC 28406
910-617-2559
Date: December 23, 2003
APPENDIX A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT QF NORTH CAROLINA
FILED APR 15, 2003
DAVID W. DANIEL, CLERK
U.S. DISTRICT COURT
E. DIST. NO. CAR.
LTC DONALD SULLIVAN and
SP4 JEFFREY S. SULLIVAN,
ee ae a ae
Plaintiffs,
V
) JUDGMENT IN
UNITED STATES OF AMERICA, ) A CIVIL CASE
HONORABLE GEORGE W. BUSH, ) CA. #: 7:03-39- F1
HONORABLE JOEL HEFLEY, Chairman,
House Committee on Official Conduct,
HONORABLE HENRY HYDE, Chairman,
House Committee on International Affairs,
JOHN BARGO, Chief-of-Staff, House
Committee on Official Conduct, and 535
John Does,
ee a ee ee
Defendants
__ Jury Verdict. This action came before the Court for a trial
by jury. The issues have been tried and the jury has rendered a
verdict.
X_ Decision by Court. This action came to trial or hearing before
the Court. The issues have been tried or heard and a decision has
been rendered.
A-1.
IT IS HEREBY ORDERED AND ADJUDGED that
pursuant to the court's order dated April 10, 2003, and the order
dated April 15, 2003, the defendant's motion to dismiss this action
is ALLOWED, and the plaintffs' motion for preliminary injunction
is DENIED as moot. The Clerk of Court is DIRECTED to close
this vase and remove it from the undersigned's docket.
THE ABOVE JUDGMENT WAS ENTERED TODAY, April 15,
2003, AND A COPY MAILED TO:
Donald Sullivan Vincent M. Garvey, Esq.
PO Box 3061 2Q Massachusetts Ave NW
Wilmington, NC 28406 Washington, DC 20530
Jeffrey S. Sullivan Matthew LePore, Esq.
North Carolina National Guard P.O. Box 883
c/o 2025 National Guard Drive Washington, DC 20044
Morrisville, NC 27560-0506
R. A. Renfer, Jr. Esq.
310 New Bern Ave., Ste 800
Raleigh, NC 27601-1461
April 15, 2003 DAVID W. DANIEL
Date Eastern District of North Carolina
Wilmington, North Carolina s/Susan K. Enyart
(By) Deputy Clerk
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:03-CV-39-F(1)
LTC DONALD SULLIVAN and )
SP4 JEFFREY S. SULLIVAN, )
Plaintiffs, )
} MEMORANDUM
Vs ) AND ORDER
)
UNITED STATES OF AMERICA, )FILED
et al., )APRIL 15, 2003
Defendants YDAVID W. DANIEL,
CLERK, U.S. DISTRICT,
COURT, E. DIST. NO. CAR
The pro se plaintiffs initiated this action on March 18, 2003,
seeking a temporary restraining order ("TRO") and a preliminary
ingunction to prevent President George W. Bush from entermg into
"any hostile action” in Iraq without a formal declaration of war
from Congress. Plaintiff LTC Donald Sullivan is a retired
Lieutenant Colonel in the United States Air Force and his son,
Plaintiff SP4 Jeffrey S. Sullivan, is a member of the North Carolina
National Guard. The plaintiffs allege that Jeffrey is under an order
of deployment to the theater of hostilities in Iraq.
On March 20, the Government filed a motion to dismiss on
grounds that the plaintiffs’ claims fail to present a justiciable
controversy. During a hearing on March 21, the plaintiffs mdicated
they no longer seek to enjoin the war, but rather now seek to force
Congress to ratify the President's actions by passing a formal
declaration of war. By order dated March 26, 2003, the court
A-3-
denied the plaintiffs’ request for a TRO and granted the plaintiffs
additional time to respond to the Government's motion to dismigs,
The plaintiffs have since done so.
After carefully considering the parties’ respective briefs on
the motion to dismiss, the court allowed such motion on April 10
and advised that a written memorandum would be forthcoming,
This order memorializes the court's reasons for dismissing this
action.
First the court finds that Plaintiff LTC Donald Sullivan
("Donald") lacks standing to obtain the relief he seeks. He is
neither an active member of the military under deployment orders
nor a member of Congress, and the Supreme Court has long
dismissed the notion that "citizens standmg"” may be used to
challenge Government actions. See Schlesinger v. Reservists
Comm to Stop the War, 418 U.S. 208, 220 (1974). In addition, the
law is well settled that the doctrine of "taxpayer standing" is
inapplicable in cases in which an individual seeks to challenge the
President's authority to make war. See id. Harrington y.
Schlesinger, 528 F.2d 455, 457-59 (4" Cir. 1975). Finally, when
the court finds that Plaintiff Donald Sullivan's status as a parent of
an active military member does not provide him with standing to
bring this action. Although the court has great empathy for Mr.
Sullivan's concems as a parent, the law is clear that injuries such as
those alleged by Mr. Sullivan are not sufficiently "distinct and
palpable" to satisfy the injury-in-fact element of standing.
Second, assuming that Plaintiff SPF Jeffrey Sullivan does
have standing, the court finds that his action is barred by the
political question doctrine.1 the question of if and when to enter
into war is a question committed to the sound discretion of the
political branches. Although Jeffrey has abandoned his effort to
enjoin the war, he still asks this court to step in and order Congress
1. The political question doctrine also would bar Plaintiff LTC Donald
Suttivan's claims. A-4
Se ae ee ee a en ee eee ee
. ee
De iad BRE
———— at
to declare war, That would be an extraordinary step and would
exceed far beyond the constitutional restraints of this court. The
court is simply not equipped to make the type of non-judicial policy
determinations that would be required to grant the relief Jeffrey
seeks.
In this end, the court finds that the plaintiffs’ only remedy
lies with their representatives in Congress. Accordingly, the
government's motion to dismiss is ALLOWED, and the plaintiffs’
motion for a preliminary injunction is DENIED as moot. The Clerk
of Court is DIRECTED to close this case and remove it from the
_undersigned's desk.
SO ORDERED.
This the 14" day of April, 2003.
s/James C. Fox
Senior United States District Judge
APPENDIX B
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1611
DONALD SULLIVAN; JEFFREY S. SULLIVAN
Plaintiffs - Appellants
versus
UNITED STATES OF AMERICA; GEORGE W. BUSH;
JOEL HEFLEY, Chairman, House Committee on Official
Conduct; HENRY HYDE, Chairman, House Committee
on International Affairs; JOHN BARGO, Chief-of- Staff,
House Committee on Official Conduct; 535 John Does,
Defendants-Appellees
Appeal from the United States District Court for the
Eastern District of North Carolina, at Wilmington. James
C. Fox, Senior District Judge. (CA-03-39-7-F)
Submitted: August 28, 2003 Decided: September 25,
2003.
B-L
Before WIDENER and GREGORY, Circuit Judges, and
HAMILTON, Senior District Judge.
Affirmed by unpublished per curiam opinion.
Donald Sullivan, Jeffrey S. Sullivan, Appellants, Pro Se.
Rudolf A. Renfer, Jr., Assistant United States Attorney,
Raleigh, North Carolina; Vincent Garvey, Scott Ramsey
McIntosh, Teal Elizabeth Luthy, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D. C., for
Apellees.
Unpublished opinions are not binding precedent in this
circuit. See Local Rule 36(c).
PER CURIAM:
Donald Sullivan and Jeffrey S. Sullivan appeal the
district court's order dismissing their complaint and denying,
as moot, their motion for preliminary injunction. We have
reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the District
Court. See Sullivan v. United States, No., CA-03-39-7-F
(E.D.N.C. Apr. 15,2003). We dispense with oral argument
because the facts and legal contentions are adequately
presented in the materials before the court and argument
would not aid the decisional process.
B-2
JUDGMENT
FILED: September 25, 2003
UNITED STATES COURT OF APPEALS
FOR THE
FOURTH CIRCUIT
No. 03-1611
CA-03-39-7-F
DONALD SULLIVAN; JEFFREY S. SULLIVAN
Plaintiffs - Appellants
versus
UNITED STATES OF AMERICA; GEORGE W. BUSH;
JOEL HEFLEY, Chairman, House Committee on Official
Conduct; HENRY HYDE, Chairman, House Committee
on International Affairs; JOHN BARGO, Chief-of-Staff
House Committee on Official Conduct; 535 John Does,
Defendants-Appellees
Appeal from the United States District Court for the
Eastern District of North Carolina, at Wilmington.
In accordance with the written opinion of this Court filed
this day, the Court affirms the judgment of the District
Court.
APPENDIX C
OUR ILLEGAL WAR
By Congressman Helen Chenoweth
(Congress must reclaim its authority)
When the order was given for American military
personnel to attack Yugoslavia, it was not issued following
a declaration of war from Congress. Nor was the order
given by a President as a means of repelling a sudden attack
on America by a foreign aggressor, or aS a measure
intended to rescue Americans abroad from unexpected peril.
In fact, the order to attack Yugoslavia didn't even follow the
pattern set in Korea and Vietnam, in which our nation was
committed to protracted foreign wars through unilateral
presidential action. On March 23rd (1999), the order to
commence hostilities was given to an American general by a
Spanish Marxist, NATO Secretary-General Javier Solana.
"I have just direeted the Supreme Allied Commander
of Europe, General [Wesley] Clark, to initiate air operations
in the Federal Republic of Yugoslavia", announce Solana,
who insisted that the attack "is intended to support the
political aims of the international community”. Congress
played no role in defining those political aims, which means
that the American people, in whose name Congress is
empowered to act, were not permitted to play any role m
the decision ta. commit our nation to war.
In the run-up to our war with Yugoslavia, Congress
was permitted by its leaders to carry out an impotent
charade of debate. On March 11th, the House approved a
non-binding resolution endorsing the use of American
C-1
'
\
'
troops to enforce a peace agreement between the
Yugoslavia regime of Slobodan Milosevic and secessionist
leaders in Yugoslavia's Kosovo province. On March 23rd,
just hours before Solana issued the order to begin the
bombing, the Senate approved a resolution supporting the
military campaign. But Clinton administration officials,
including the President, had by that time made it clear that
while they sought approval of the military action from
Congress, they did not consider it necessary for Congress to
authorize the military strike on Yugoslavia.
A few senators seemed to understand the
constitutional implications of these actions. Senator Don
Nickles (R-OK) pointed out, "If we start a massive bombing
campaign, we're going to war." Senator Ted Stevens (R-
AK) described the prospect of waging an undeclared
aggressive war upon Yugoslavia as "a precedent I don't
want to be involved in." Even more pointed were the
comments of Senator Pete Domenici (R-NM), "I say shame
on the President,” declared Domenici, momentarily
forgetting that Bill Clinton has repeatedly demonstrated that
he is incapable of shame . "If this is such an important
matter, why couldn't (the President) trust the United States
Senate and United States House and ask us whether we
concur?” [Petitioner Note: This same Pete Domenici voted
for the resolution which evolved into President Bush's
invasion of Iraq in 2003.]}
In order to appreciate the depth of the
Administration's deception regarding the war over Kosovo,
it is necessary to understand that the war was "authorized"
by NATO long before the bombing on March 24th (1999).
The day after the war began, the London Telegraph
reported that General Clark, NATO's supreme military
commander, "received his activation order for hostilities last
October (1998), The order was the official moment when
C-2.
authority over the forces to be used was transferred to him
from the top brass of the member countries supplymg them.
The supreme commander does not need new permission
from politicians or diplomats whenever he wishes to change
tactics, or increase or scale back operations." (Emphasis
added)
At 1:43 P.M. EST on March 24th (1999), with
American bombers en route to Yugoslavia and just minutes
before the first explosions were reported on the ground in
Kosovo, White House spokesman Joe Lockhart explicitly
admitted that the power to take our nation into war had
been surrendered to a foreign official, namely, the NATO
Secretary-General. Lockhart was asked by correspondent
Helen Thomas, "Who gives the green light on this now? Is
it the President himself, or the Supreme Commander of
NATO...?" Lockhart replied, "The Supreme Commander of
NATO acts on the authority of the political leaders of the
NATO countries, and he has that authority."
In brief, the power to declare war in Kosovo was
exercised by NATO Secretary-General Solana; the power to
make war was given to NATO's Supreme Commander; the
President of the United States played the role of "selling"
the war to the public, and Congress was tacitly told that its
duty was to rubber-stamp the decision to take our nation
into war, and to authorize payment of the resultmg
expenses.
"No power but Congress can declare war,” observed
Daniel Webster in 1846, "but what is the value of this
constitutional provision, if the President of his own
authority may make such military movements as must bring
on war?" The Administration's actions in committing our
country to enforce, through military action, diplomatic
initiatives in Kosovo presented Congress with a fait
C-3
accompli. The only recourse left to Congress was to
defund military deployments to which the Administration
had previously committed our country, but the political will
for that is not evident. Unfortunately, the majority in both
houses of Congress have abdicated their responsibility and
have acquiesced in the usurpation of their powers. The
passivity of the House in allowing Bill Clinton to carry out
an illegal war is particularly galling in light of the fact that
the same body impeached him last December (1998) for
muc less serious crimes.
Under the Constitution, explamed Alexander
Hamilton, "It is the province and duty of the Executive to
preserve to the Nation the blessmgs of peace. The
Legislature alone can interrupt those blessings, by placing
the Nation in a state of War." By surrendering to a series of
executive usurpations (those of Bill Clinton being the most
brazen), Congress has abandoned the separation of powers
Principle", in which Congress meekly endorses the decisions
of an imperial "commander-in-chief".
Kings had always been involving and impoverishing
their people in wars, pretending generally, if not always, that
the good of the people was the object", wrote Abraham
Lincoln in 1848. The royal war-making prerogative, which
permitted one man to commit his country to way, was
regarded by our Founding Fathers, "to be the most
oppressive of all kindly oppressions”, Lincoln explained.
For this reason, the statesmen who gathered at the
Constitutional Convention of 1787 "resolved to so frame
the Constitution that no one man should hold the power of
bringing this oppression upon us.”
James Madison's notes on the Convention record the
care with which the Founders assigned the power to declare
war to the legjslative branch. This was done, as George
C-4.
Mason of Virginia noted, for the purpose of "clogging,
rather than facilitating, war." At the initiative of Madison
and Elbridge Gerry, the original language authorizing
Congress to "make" war was changed to the power to
"declare" war, thereby (in Madison's words) "leaving to the
Executive the power to repel sudden attacks.”
In an April 2, 1798, letter to Thomas Jefferson,
Madison further elucidated the reasoning behind this careful
assignment of powers, "The Constitution supposes, what
the History of all [governments] demonstrates, that the
[executive] is the branch of power most interested in war,
and most prone to it. It has, accordingly, with studied care,
vested the question of war in the legislature."
Alexander Hamilton, who favored a_ strong
Executive Branch, observed in the Federalist, No. 69:
"The President is to be commander-in-chief of the army and
navy of the United States. In this respect, his authority
would nominally be same with that of the king of Great
Britain, but in substance much inferior to it." (Emphasis
added) Where the power of the English king "extends to
- the declaring of war and to the raising and regulating of
fleets and armies," Hamilton explained, the authority of the
U.S. President "amounts to nothing more than the supreme
command and direction ef the land and naval forces, as first
general and admiral" after the declaration of war has been
issued by Congress.
The text of the Constitution itself (Article II, Section
2) specifies, "The President shall be Commander in chief of
the Army and Navy of the United States, and of the Militia
of the several States, when called into the actual Service of
the United States..." In other words, "Commander mn
Chief describes a specific and limited role played by the
President. Rather than the Congress having a Commander
C-5.
in Chief before which it must prostate itself, it has in the
President an executive it may entrust with delegated war-
making authority.
It bears repeating that i the Kosovo War, the role
of commander in chief, by the Administration's own
admission, has been assigned to NATO's Supreme
Commander, who exercises (in Hamilton's words) "the
supreme command and direction of the land and naval
forces" called into service by Secretary-General Solana.
Perhaps, given Mr. Clinton's own history of "loathing" for
the military, personal cowardice, and bottomless corruption,
it is of benefit to the morale of American servicemen
fighting in Yugoslavia to know that it is General Clark who
serves as their commander in chief. Nevertheless, this
arrangement gravely undermines the constitutional
mechanisms designed to protect our liberties and national
sovereignty.
In my remarks to the House of
Representatives, during the March 11th debate, I reminded
my colleagues that nothing in the laws or the Constitution
suggests that a determination by the United Nations
Security council or by the North Atlantic Council (NATO's
governing political body) is a substitute for a congressional
declaration of war. Furthermore, by making war on a
sovereign nation, NATO acted in violation of both its own
charter and that of the United Nations.
The North Atlantic Treaty states that NATO will
"refrain in [its} mternational relations from the threat or use
of force in any manner inconsistent with the purposes of the
United Nations." The document specifies that NATO was
created to defend "the territorial integrity, political
independence or security" of is members in exercising the
right of "collective self-defense recognized by Article 51 of
C-6 :
the Charter of the United Nations." Whatever one thinks of
the actions of the Milosevic regime in suppressing a
secessionist movement within its own borders, it must be
admitted that the Yugoslav regime did nothing to threaten
the "integrity, political independence or security" of NATO
members. Thus NATO's attack on that ae violated the
alliance's founding treaty.
Furthermore, NATO's commitment to act im
harmony with "the purposes of the United Nations” requires
that the alliance be bound by the United Nations Charter.
Article 2, Section 7, of the UN Charter states, "Nothing
contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within
the domestic jurisdiction of any state", the suppression of
Kosovo's ethnic Albanian secessionist movement is clearly
within Yugoslavia's domestic jurisdiction.
Under the precedent set in the Kosovo war, America
may find itself committed to military intervention in ethnic
conflicts around the world. Should we attack Turkey to
protect the Kurds, who chafe under Turkish rule? Should
we go to war with China in support of independence-
minded Tibet? Will U.S. planes attack Sn Lanka m defense
of Tamil separatists, or bomb targets in India on behalf of
Muslims in Kashmir? The logic of the Kosovo precedent
dictates that U.S. troops can be committed to war, without
congressional sanction, anywhere in the world where
atrocities are captured by the «amera lens.
The war on Yugoslavia, we must remember, was
brought about by NATO's demand that Milosevic consent
to the foreign occupation of his country by an mternational
army, which would enforce the terms of an agreement
intended to grant "autonomy" to ethnic Albanian rebels.
When Milosevic refused to permit the occupation, NATO
C-7
threatened to bomb his country, and ultimate'y carried out
that threat. Once again, the Clinton Administration has
been devastatingly candid about key facts. On February
10th, in testimony before the Committee on International
Relations, Under Secretary of State for Political Affairs
Thomas Pickering confirmed that Kosovo is part of
Yugoslavia's sovereign territory, and that an attack upon
Yugoslavia waged because of Milosevic's refusal to allow
foreign intervention would be nothing less than an act of
war.
It is a remarkable spectacle to see the Clinton
Administration and NATO taking over from the Soviet
Union the role of sponsoring "wars of national liberation”.
More remarkable still, and even more unsettling, is the fact
that the beneficiary in the case of Kosovo, the so-called
Kosovo Liberation Army (KLA), is a collection of Maoist
drug-peddlers and terrorists who have been armed by Iran
and provided with training and support by Saudi terrorist
financier Osama bin Ladin, who is the world's most
notorious sponsor of international terrorism.
When Bill Clinton, in an earlier crime against the
Constitution, unilaterally launched missile strikes on
Afghanistan and Sudan, he claimed that his target was the
terrorist network operated by bin Ladin. However, in
Kosovo, Bill Clinton has committed America's military
might to the support of bin Ladin's Balkan allies, and the
policy of the Clinton Administration seeks the creation of a
Balkan outpost for bin Ladin's terrorist network.
THE NEW AMERICAN was the first national
publication in this country to document the KLA's narco-
terrorist background ("Diving into the Kosovo Quagmire",
March 15th [1999] issue), and I made this magazine's
findings available to many of my colleagues on Capitol Hill.
C-8
Although few U.S. publications have looked into the KLA's
role in international terrorism, the 7imes of London for
March 24th [1999], in a story published just before NATO
commenced airstrikes upon Yugoslavia, reported that the
KLA, in "the judgment of senior police officers across
Europe." Is "a Marxist-led force funded by dubious sources,
including drug money." Police forces in three Western
European countries, together with Europol, "are separately
investigating growing evidence that drug money is funding
the KLA's leap from obscurity to power," continued the
report.
A report filed on the same day by Steve Rodan of
the World Tribune described how an "autonomous" Kosovo
under KLA control could serve as a springboard for Iranian
sponsored terrorism throughout Europe and beyond.
According to Western European security experts, wrote
Rodan, "Iran, Saudi Arabia and some of their terrorist
beneficiaries have exploited the fighting to establish a sphere
of infludnce that spans from Greece to the Austrian border."
‘NATO's willingness to go to war on behalf of Muslim ethnic
Albanians in Kosovo could ignite insurrections across
Europe,\ to which the KLA's terrorist sponsors would
eagerly lend support. "The concern of European strategists
is that an Iranian sphere of influence would do greater
damage to such Western countries as Britain, France and
Germany," reported Rodan. "France has about two million
Muslims, most of them poor and alienated. Britain has
about 1.5 million." A European diplomat told Rodan,
"Once these minorities feel they can obtain the support of
NATO, we could see flare-ups everywhere."
We could see "flare-ups" within our own country as
well, and the Kosovo precedent would justify military
intervention by the "international community" to settle such
conflicts within our own borders. Consider the case of the
C-9
southwestern United States, a region referred to as
"Aztlan", the mythical homeland of the Aztecs, by such
militant groups as the "Brown Berets". Aztlan radicals have
announced their intention to conduct /a reconquista, the re-
conquest, of that region through unrestrained illegal
immigration, as well as subversion and violence. It is not
difficult to foresee a future scenario in which the
"international community" authorizes the use of military
force in support of "autonomy" for Aztlan, in the same way
that the war in Yugoslavia was launched in support of
"autonomy" for an Albanian Muslim-dominated Kosovo.
Had Congyess performed its constitutional duty, all
of these facts woud have been rigorously examined before
our nation found itself committed to an illegal war in
Yugoslavia. We would have demanded that the President
make his best case to the peoples’ representatives in a
formal request for a declaration of war. This would have
given us the opportunity to require that he defend an
alliance with drug-dealing Marxists bent upon promoting
terrorism throughout Europe. Had Congress been willing
to exercise a check on presidential ambitions by withholding
funds for the envisioned military deployment, we would
have learned, in a timely fashion, about the unconstitutional
arrangement through which the power to declare war was
delegated to a Spanish Marxist, and the power to make war
was assigned to NATO's military commander. Had we
acted with statesmanlike deliberation, we would have
soberly discussed and contemplated the implications of the
Kosovo precedent for our nation's future.
It was our duty to do all of this before deciding
whether or not to interrupt "the blessings of peace...by
placing the Nation in a State of War." Instead, Congress
submitted to the usurpations of a corrupt, impeached
C-10
President, and made itself complicit in his crimes against our
Constitution and our national sovereignty.
Congress can reclaim the powers it has surrendered.
Indeed it must, if our descent into tyranny and the erosion
of our sovereignty are to be arrested. But this will not
happen until a critical mass of public understanding is
reached, and informed pressure is brought to bear. The
actions of an imperial President can, as Lincoln warned,
"bring this oppression upon us”; but only if, through our
indifference, we allow those malign designs to flourish.
C-11
APPENDIX D
Violating the Constitution With an Illegal War
by Congressman Ron Paul, MD
Delivered to the House of Representatives, October 3, 2003
The last time Congress declared war was on December 11,
1941, against Germany in response to its formal declaration of war
against the United States. This was accomplished with wording
that took less than one-third of a page, without any nitpicking
arguments over precise language, yet is was a clear declaration of
who the enemy was and what had to be done. And in three-and-a-
half years, this was accomplished. A similar resolve came from the
declaration of war against Japan three days earlier. Likewise, a
clear-cut victory was achieved against Japan.
Many Americans have been forced into war since that time
on numerous occasions, with no congressional declaration of war
and with essentially no victories., Today's world political condition
is as chaotic as ever. We're still in Korea and we're still fighting the
Persian Gulf War that started in 1990.
The process by which we've entered wars over the past 57
years, and the inconclusive results of each war since that time, are
obviously related to Congress’ abdication of its responsibility
regarding war, given to it by Article 1, Section 8 of the
Constitution.
Congyess is about to circumvent the Constitution and avoid
the tough decision of whether war should be declared by
transferring this monumental decision-making power regarding war
to the President. Once again, the process is being abused. Odds
are. since a clear-cut decision and commitment by the people
through their representatives are not being made, the results will be
D-1
as murky as before. We will be required to follow the confusing
dictates of the UN, since that is where the ultimate authority to
invade Iraq is coming from, rather than from the American people
and the U.S. Constitution.
Controversial language is being hotly debated m an effort to
satisfy political constituencies and for Congress to avoid
responsibility of whether to go to war. So far the proposed
resolution never mentions war, only empowering the President to
use force at his will to bring about peace. Rather strange language
indeed!
A declaration of war limits the presidential powers, narrows
the focus, and implies a precise end point to the conflict. A
declaration of war makes Congress assume the responsibilities
directed by the Constitution for this very important decision, rather
than assume that if the major decision is left to the President and a
poor result occurs, it will be his fault, not that of Congress. Hiding
behind the transfer of the war power to the executive through the
War Powers Resolution of 1973 will hardly suffice.
However, the modern way we go to war is even more
complex and deceptive. We must also write language that satisfies
the UN and all our allies. Congress gladly transfers the legislative
prerogatives to declare war to the President, and the legislative and
the executive branch both acquiesce in transferrmg our sovereign
rights to the UN, an unelected imternational government. No
wonder the language of the resolution grows in length and
incorporates justification for starting this war by citing UN
Resolutions.
In order to get more of what we want from the United
Nations, we rejoined UNESCO, which Ronald Reagan had bravely
gotten us out of, and promised millions of dollars of U. S. taxpayer
support to run this international agency started by Sir Julian
Huxley. In addition, we read of promises by our administration that
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once we control Iraqi oil, it will be available for allies like France
and Russia, who have been reluctant to join our efforts.
What a difference from the days when a declaration of war
was clean and precise and accomplished by a responsible Congress
and an informed people!
A great irony of all this is that the United Nations Charter
doesn't permit declaring war, especially against a nation that has
been in a state of peace for 12 years. The UN can only declare
peace. Remember, it wasn't a war in Korea; it was only a police
action to bring about peace. But at least in Korea and Vietnam
there was a fighting going on, so it was a bit easier to stretch the
language than it is today regarding Iraq, Since Iraq doesn't even
have an Air Force or a Navy, is incapable of waging a war, and
remains defenseless against the overwhelming powers of the United
States and the British, it's difficult to claim that we're going into
Iraq to restore peace.
History will eventually show that if we launch this attack,
the real victims will be the innocent Iraqi civilians who despise
Saddam Hussein and are terrified of the coming bombs that will
destroy their cities.
The greatest beneficiaries of the attack may well be Osama
Bin Ladin and the al Qaeda. Some in the media have already
suggested that the al Qaeda may be encouraging the whole event.
Unintended consequences will occur, what will come from this
attack is still entirely unknown.
It's a well known fact that the al Qaeda are not allies of
Saddam Hussein and despise the secularization and partial
westernization of Iraqi culture. They would welcome the chaos
that's about to come. This will give them a chance to influence
post-Saddam Hussein Iraq. The attack, many believe, will confirm
to the Arab world that indeed the Christian West has once again
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attacked the Muslim East, providing radical fundamentalists a
tremendous boost for recruitment.
An up or down vote on declaring war against Iraq would
not pass the Congress, and the President has no intention of asking
for it. This is unfortunate, because if the process were carried out
in a constitutional fashion, the American people and the U.S.
Congress would vote "No" on assuming responsibility for this war.
Transferring authority to wage war, calling it permission to
use force to fight for peace in order to satisfy the UN Charter,
which replaces the Article 1, Section 8 war power provision, is
about as close to 1984 "newspeak" that we will ever get in the real
world.
Not only is it sad that we have gone so far astray from our
Constitution, but it's also dangerous for world peace and threatens
qur liberties here at home.
APPENDIX E
Statement of Senator Mark Dayton
On the Senate Giving Up Its Constitutional Responsibility To
Declare War
March 13, 2003
In a few moments, we will vote to. consider the nomination
of Miguel Estrada to the Second Highest Court. We've spent over
100 hours on the Senate Floor on this nomination. Compare that
100 hours on one judicial appointment with the number of hours
we've spent this year discussing and debating a declaration of war
before commencing a war. Zero. Not one hour. Not one minute.
With this nation poised on the brink of war. A war which
the United States is instigating without direct provocation. Without
imminent threat to our national security.
The first war of preemption. We've claimed the right to
attack another country because they might become a future threat.
The first war in which the United States is perceived in the eyes of
the world as the provocateur, as the threat to world peace.
The Times of London recently commissioned a poll where
they asked who is the greatest threat to world peace. Forty-five
percent responded Saddam Hussein and forty-five percent
responded President Bush. Another poll in Dublin, Ireland, asked
the same question, and 31 percent said Saddam Hussein and 68
percent said George Bush. In the Arab world, most populations are
overwhelmingly against a U.S. invasion.
Osama bin Ladin is attempting to exploit those emotions,
exhorting his members of al Qaeda and followers to rise up against
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the invader, the Crusader. Those sentiments come as a great shock
to us. They are unwarranted and undeserved. However, to a few,
unfortunately at high levels in this Administration, this doesn't
matter. To them it is irrelevant.
18 months ago, the United States had the sympathy and the
support of the world. That has been needlessly squandered, and it
is not easily regained. At home, our citizens receive color-coded
warnings of greater or lesser unspecified threats. They're told to
stockpile water, food, plastic sheets, and duct tape...or told nothing
at all.
The Secretary of Defense recently said in a hearing: "We
are entering what may prove to be the most dangerous security
environment the world has ever known” In the midst of this
ominous, dangerous, fateful time, the 108th session of the United
States Senate devoted no time to debate or discussion [on this war
with Iraq].
Over the last three days, we've considered this spectacle of a
bill which purports to ban "Partial Birth Abortions", a matter of
importance, of great concern to some, but not one that required the
attention of the Senate at this moment.
This judge. Another judge. Another judge. Does it appear
that we are avoiding something? We are. We are avoiding our
Constitutional responsibility, perhaps the most important
responsibility placed upon us by the U.S. Constitution, whether or
not to declare war.
The Constitution says simply, clearly, emphatically:
Congress shall declare war (Emphasis added). Only Congress,
No-one else. Not the President. Not the judiciary. Not the
military. Only Congress. 100 Senators and 435 Representatives
elected by, and acting for, the people of the U.S.
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Last October, a majority of Members of the 107th
Congress, a majority in the House and Senate, voted to transfer that
authority to the President. Five months before he has made his final
decision regarding war or peace, Congress was asked to give him
that authority, that the Constitution assigns only to us, and
Congress did. The resolution gave the President the authority to
use whatever means necessary, including the use of force, against
Iraq.
We use such clever euphemisms here, words which disguise
the meaning of our intentions. Use whatever means necessary, and
oh, by the way, lest you forget, It's OK with us, if you use "force".
Not the lives of American men and women. Not their bodies, their
blood, their patriotism. Use force, not deadly, ear-splitting, earth-
shattering, people-maiming, death-dealing bombs. The most
devastating, overwhelming, terrifying, death-dealing "force" the
world has ever known. ["Shock and Awe"] Coming from us. The
good guys. The protectors. The preservers of world peace.
THE UNITED STATES OF AMERICA! (Emphasis added)
What foresight the Founders of this great nation had in not
wanting a decision that enormous, that earth-shaping or earth-
shattering to be made by one person. Not by this President. Not by
any President. Instead this President asked for, and Congress
acquiesced to give complete, unrestricted authority, no conditions,
no restraints.
"Don't tie my hands", the President said. Don't tie the
President's hands. What did the Founders think of that? Thomas
Jefferson in 1798 said, "In questions of power, then, let no more be
heard of confidence in man, but bind him down from mischief by
the chains of the Constitution." Bind him down from mischief by
the chains of the Constitution. Tie his hands? That is not enough.
We should chain him to the Constitution. We m Congress are
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supposed to be chained to the Constitution.
We take an oath when swom in, we promise to "support
and defend the Constitution of the U.S. against all enemies, foreign
and domestic. Bear true faith and allegiance to that same
Constitution." Our oath and allegiance are not to country, or state,
or government. We swear allegiance to the Constitution of the
United States of America.
Our Founders had other admonitions for us regarding the
Constitution. Follow it or change it. Don't evade it or ignore it.
George Washington, in his farewell address in 1796 said, "If, m the
opinion of the people, the distribution of Constitutional powers be
wrong, let it be corrected by Amendment in the way which the
Constitution designates. But let there be no change by usurpation;
for this, in one instance, may be the instrument of good, it is the
customary weapon by which free governments are destroyed."
Finally, from another perspective, author Edward Gibbon
wrote in the History of the Decline and Fall of the Roman Empire,
"The principles of a free Constitution are irrevocably lost, when the
legislative power is taken over by the Executive.”
In this instance, the legislative power wasn't taken over by
the Executive. We gave it away. Here, Mr. President, you decide.
Decide. Hf you're right, we'll try to share the credit. If you are
wrong, you take the blame.
I respectfully urge the Majority Leader, and I respectfully
urge all of my colleagues, to tum our attention to this fateful
decision when we return next week. A decision on whether or not
to vote a declaration of war is the one that would be a very difficult
vote, one that would be a career-shapimg or career-shattering vote.
But it would be one that the Constitution requires of us, our fellow
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citizens elected of us. And it's one that only we can or must do to
_ vote whether or not to declare war. I would urge the Senate to turn
its attention to that matter when it resumes next.
[Unfortunately, "next week" was too late to salvage our
Constitution or our dignity. March 13, 2003, the day of the
preceding speech to the Senate, was a Thursday. On Sunday,
March 16, 2003, Respondent Bush issued his 48-hour ultimatum to
King, Hussein. On Tuesday, March 18, 2003, Petitioners filed their
original complaint and Motion for a Temporary Restraining Order
at or about 12:00 noon. At or about 7:00 PM EST that same day,
Respondent Bush ordered the bombing of Baghdad. At that
moment the United States of America became a terrorist threat to
the entire world. ]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.