# Petition for Writ of Certiorari — Sullivan v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0916%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 540 U.S. 1184 ## Text /) 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." 2 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 3 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 6 ‘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 * = Es & Pua RE Ree ec eReeR aec cree eco RO eR SREIRSEgREIRRIMENC ERR IC UE ROR! Toe econ ar em 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 SAIC IN NMR EST SC oR Te ANN Pe TCR Ne Mee ROE Se ere SF Moe OTC"