OFFICERS MIGHT BE PROSECUTORS, BUT THEIR AUTHORITY COMES FROM THE COMMANDER-IN-CHIEF
by Sharon Rondeau
Cover page of William Winthrop's 1886 work, "Military Law and Precedents"
(Sept. 19, 2010) —William Winthrop was a colonel in the United States Army who wrote a treatise entitled Military Law and Precedents first published in 1880 as a compilation of JAG opinions. The second edition was published in 1920 but shows a copyright date of 1896. The work has been called “The blackstone of military law.” The book was reissued in 2000 by Beard Books and is available from several vendors, including in Canada.
Prior to his enlistment in the U.S. Army, Winthrop was a practicing attorney. His 1895 revised compendium acknowledged changes in “Army Regulation” and “statutory authority” and was used for “the instruction of the Cadets of the Military Academy” (page 7).
The current publisher describes the work as follows:
This comprehensive treatise details early military law, written and unwritten, and explains all of the intricacies of the courts martial process. Notable adjudications by civil courts and in military trials as well as the opinions of law officers are covered. Separate treatment is offered on the law of war and on the civil functions and relations of the military.
The second volume of Winthrop’s book makes reference to “The Law of Nations” and states that “the Law of War” “is quite independent of the ordinary law…Finding indeed its original authority in the war powers of Congress and the Executive, and thus constitutional in its source, the Law of War may, in its exercise, substantially supersede for the time even the Constitution itself…”
Chapter VI discusses “The Constitution of General Courts Martial”:
The law authorizing and relating to the constituting of General Courts-Martial is contained in the provision of the Constitution making the President the Commander-in-chief of the Army. In the Seventy-Second and Seventy-Third Articles of war, and in Secs. 1230 and 1320 of the Revised Statutes. By this law the authority to constitute these courts is vested in—I, The President; II, Certain military commanders.
In regard to the authority to convene a court martial, Winthrop provides the following historical background:
Upon the adoption of the Constitution and the division of the powers of the government, the executive power, previously exercised by Congress, was transferred to the President, and with it the function of commander-in-chief…Among these powers was the authority, properly incident to chief command, of issuing to subordinates and the army at large such orders as a due consideration for military discipline might require, and, among these, orders directing officers to assemble and investigate cases of misconduct and recommend punishments therefor—in other words orders constituting courts-martial.
Winthrop states that several presidents, both during peacetime and war, had used their authority to convene courts-martial (pp. 59-60). He then states:
Meanwhile, indeed, the provision of 1830, now incorporated in the second clause of the 72d Article, had specially devolved it upon the President to appoint the court whenever the military commander, otherwise competent for the purpose, should happen to be the “accuser or prosecutor” of the officer to be tried; but the effect of this, according to recent ruling, was “to limit the authority of commanding officers, not to confer power upon the President.” And the authority of the President to order such courts, generally and at discretion, as commander-in-chief, continued to be exercised irrespective of such provision. Otherwise indeed it would have resulted that many officers and soldiers, not under the command of a “department” or “army” commander, including general officers, certain officers of the general staff, cadets of the Military Academy, and sundry enlisted men of the Engineer Battalion, or Ordinance or Signal corps, or acting as clerks in the War Department, would, prior to 1874, (or, in the case of the cadets, 1873,) have remained exempt from amenability to military justice, to the serious prejudice of discipline. (page 60)
On page 61, Winthrop states:
“…a general power given by a statute to a subordinate is given necessarily to the superior, since the greater, in the system of military discipline and authority, must contain the less…A military officer can not be invested with greater authority by Congress than the Commander-in-chief, and a power of command devolved by statute on an officer of the Army or Navy is necessarily shared by the President…
2. UNDER THE 72d ARTICLE OF WAR. In the second clause of this Article it is provided that when a military commander authorized by the first clause to “appoint” a general court-martial, is the “accuser or prosecutor” of an officer of his command proposed to be brought to trial, the court shall be appointed by the President.”
Cdr. Walter Fitzpatrick (Ret.) generously gave his time to The Post & Email to explain the concept of “attainder,” to whom the authority belongs to convene a court-martial, and the impact of a broken chain of command if indeed Barack Hussein Obama is ineligible to serve as President of the United States. He discussed in detail how it affects Lt. Col. Terrence Lakin, who has refused to obey orders based on his contention that Obama may not meet the constitutional qualifications to issue orders. Cdr. Fitzpatrick also discussed the potential results of Col. Denise Lind‘s recent claim that she and the Pentagon have the authority to conduct Lakin’s court-martial without authorization from the putative commander-in-chief.
MRS. RONDEAU: What is “attainder,” and why is it used in the military?
CDR. FITZPATRICK: I’ve worked very hard over the years to make the idea of “attainder” easily understood and accessible to anybody who comes to it. You’ve already published it: Punishment without law, punishment without a jury. That’s what “attainder” is. A court-martial is the practice of attainder.
MRS. RONDEAU: How did the practice of “attainder” evolve?
CDR. FITZPATRICK: Attainder is the practice of kings and parliaments, dictators and generals, when a single person has the power to rule alone; they don’t need anyone else to accuse a person and then find them guilty of some kind of criminal act and then visit punishment upon that person. The examples in British and European history, more widely, are found everyplace.
At the point in American history when we were under attack from the British and being oppressed by King George III, the moment of battle came upon us very rapidly. In the colonial administration, the Continental or colonial Congress, had all it could do with getting ready to fight that war and then actually engage the enemy, which included all the kinds of things that go into standing up against an armed force such as Great Britain. We didn’t have time to make rules for the military, but we had to have something. John Adams probably summed it up most succinctly, which is to say that before the British, the Romans used this system of military law; why don’t we just use it, too?…which is the court martial.
It is indeed the practice of attainder: to rule by a single person, to punish troops summarily and quickly with expediency. There are certain circumstances when you can come up on a troop who’s in a foxhole, asleep on watch, and shoot that man dead. That has happened. That’s the kind of summary judgment you have in the military: an expedient command that you have of people in the use of attainder, and it’s used for any number of reasons. The motives behind exercising punishment by the state directly against the citizen are a long list. But in our early days, we didn’t have time to figure out how; it was a distraction that we could not afford. We needed to get engaged with the enemy right away, so it’s one of the few times in history where you had the enemy, the combatants, fighting against each other using the same rules. We adopted the British rules of martial law to govern our armed forces during revolutionary times.
When the war was over and we were looking at standing up a brand-new Congress under a brand-new constitution that was to govern a brand-new nation, there came a point in time when our legislators in this country had a duty and an obligation to take a look at the rules for the military and reconcile them with the brand-new constitution. We came under a brand-new government with the United States Constitution upon its ratification. That reconciliation has never occurred. There was a time between the Revolutionary War and the ratification of the Constitution and its acceptance as our form of government. There was a period of time when we didn’t have an army and we didn’t have a navy. We stood them down. So those rules that have been used for the Army and the Navy no longer applied because we didn’t have an army or a navy. And that was at the moment in time when the Constitution came to life. So the Founders had an obligation to take a hard look at the rules for the military, reconcile those rules with the Constitution, and they never did that. Because the military has been declared a different part of our country, they don’t get the same protections that you and I have as regular citizens, it came to pass that those people who are defending the Constitution with their lives are not protected by the Constitution. It’s because we’re still using a form of government in the military that finds its source in the British practice of attainder.
MRS. RONDEAU: Can the military system be changed?
CDR. FITZPATRICK: It has to be changed. It’s a matter of a constitutional command. Through all of its 200+ years of history, there has never been enough force to bring upon the Congress, in the House of Representatives and the Senate, to make them look at this, deal with it and fix the problem.
Back in the day, John Adams was there, and he talked about the difficulty that would be placed upon us in trying to do that. It was not an easy issue, and I think it would be much easier today to bring our troops in under the protection of the Constitution. I don’t see where it would be that difficult. So the Congress has always been able to punt. We’ve never forced them to fix it. There have been several times in United States history where we came close, but the Congress had still never substantively dealt with reconciling the Constitution of the United States with the Articles of War. During the Revolutionary War, they were called the “Articles of War,” but they’ve been renamed the “Uniform Code of Military Justice.”
And of course, because of the facility of attainder, it works very well for someone who wants to rule by himself or force the rules on a citizenry. Military commanders love it. That’s why they’re not objecting to it. But it’s a problem that has never been substantively addressed. It normally comes up after a war or a major conflict. The Uniform Code of Military Justice became the UCMJ at the conclusion of World War II when we had anywhere from 12,000,000-16,000,000 people in uniform. On any given day, the number could be different; it depends on whom you talk to. But then you have their extended families. During World War II, a whole lot of people were connected to the military; more than most times of our history. A lot more people during World War II were exposed to the scope and operation of the military discipline system during that period of time than almost any other time in U.S. history, and they were not happy with what they found. They were pretty upset.
So the vets came home at the end of the war and related to their neighbors, friends and families and to the Congress exactly how draconian this system of martial law was. And that’s when the Articles of War used during the Second World War for the Army and Navy became the Uniform Code of Military Justice. There was another dynamic at work at the time, which is that we had the beginning of the United States Air Force. The U.S. Army Air Force was being transitioned into the U.S. Air Force, so that was another dynamic in the late 1940s when they were wrestling an alligator, and it was a contortion of conflicting interests to try and get this thing cobbled out to make it look as if it was a system of justice that paralleled, or very closely mirrored, what goes on in a civilian criminal setting.
This is written in Winthrop’s Curse, which I sent to you. The military discipline system has never been anything other than a patchwork; a smorgasbord: Pick from Column A, pick from Column B…it has been nothing but a mess. During the course of the Civil War, again, the exercise of the Articles of War was draconian, and that was not necessarily the driving force behind an inspection of the Constitution and the President’s role in the exercise of our Constitution. Lincoln was under extraordinary scrutiny from, among other people, the Chief Justice of the Supreme Court, Justice Taney. Because Lincoln, during the course of the Civil War, suspended certain parts of the Constitution. His famous quote was “The Constitution is on a suicide pact.”
Having said that, there are moments in our history when the Constitution cannot be our law of the land; we must go to a dictatorship; we must go to a military martial law. It’s at those times when the country is facing extreme necessity at the point of death. That was part of what was going on during the Civil War. At that time, the Constitution doesn’t work. If we had armed forces coming here from another country right now, we would have to turn off the Constitution; we couldn’t use it. We’d have to go to a dictatorship so that we could martial our forces in a way where we could prevail and survive as a nation, and then with that, by extension, keep our form of government alive. But the Constitution is not well-suited to defend a nation when it’s under the kind of attack that might end the life of the nation. Those moments in time come and go, but they’re brief in their span, all things considered.
So there’s a need for martial law; I understand it, and I would hope that in those times we have decent people doing the right thing, but that doesn’t always happen. However, there is a time and a place for martial law, and it was during the course of the Civil War that Lincoln, for example, found that to be the case and said, “We just can’t do this anymore,” and for that, he came under extraordinary scrutiny.
MRS. RONDEAU: Because the people were afraid that he was turning into a dictator and that things would stay that way?
CDR. FITZPATRICK: Right. But Lincoln was murdered, and I believe that in that moment in time, he was getting ready to restore the Constitution to its full glory. I’m sure that’s what he would have done, but that happened anyway. In the moment, you had military personnel such as this Colonel Winthrop who recognized the danger that came from a Supreme Court scrutiny which would have engendered legislative scrutiny into the scope and operation of the military discipline system. And it was a mess.
So after the Civil War, Winthrop put together this two-volume text, although it didn’t begin as two volumes. He wrote and published; then he wrote more and published; then he wrote some more and he published. The two volumes that I have here are his work as it existed and was republished and recast in 1896, three years before he died.
But you get the sense of it. After the Civil War, Winthrop wanted to maintain this military discipline scheme, and he recognized that it was not constitutional, so in his defense of this military martial law, Winthrop discusses early on in his 1,000-page work that “the Constitution is too weak; it’s too feeble; we can’t use it for the military; it doesn’t work quickly enough; it’s not encumbered by the embarrassment of the civil law, etc.” So Winthrop was clearly writing as a man who was intent upon maintaining the military’s own government.
MRS. RONDEAU: Was that over civilians as well?
CDR. FITZPATRICK: Yes, as a matter of fact, but to a limited degree. Winthrop wrote about civilians who are embedded with the military. During the Civil War, they were called “camp followers.”
Do you know where the term “hooker” came from?
MRS. RONDEAU: No, I don’t.
CDR. FITZPATRICK: Joseph Hooker was a Union general, and he had camp followers, some of them women. These camp followers became known as “Joseph’s Hookers.” So what I’m saying is that there were many, many kinds of civilians near an army for any number of reasons: to provision them, resupply them, carry their goods and provide services of any type and kind. Winthrop recognized the need to bring these camp followers under the military law because they had information which could have been very dangerously compromised or delivered to an enemy force. For that, Winthrop correctly observed that when people were close to the army like that, they have to be governed in a military environment. But only in that time of war that I’ve described: War with a capital “W,” when the life of the nation is at risk.
Take, for example, the War of 1812. Who knew where that was going to go at that time? We were being put asunder by an enemy force, the Brits.
So for part of the civilian populace, the Articles of War apply, but only in that time of war as I use it here with a capital “W.”
Winthrop stated that martial law (military law) is of such great age and dignity, it is so grand and so efficient and so good that it should be imitated. He said, “The lawyer who, if he has not been led into the old error of confounding the military law proper with martial law, has perhaps viewed this as consisting of merely an unimportant and uninteresting scheme of discipline, and the lawyer will, it is hoped, discover in these pages that there is a military code of greater age and dignity and of more elevated tone than any existing American civil code.”
When he says “American civil code,” he’s talking about the United States Constitution. Let me read that again:
The lawyer will find in these pages a military code of greater age and dignity and of a more elevated tone than any existing American civil code, as also a military procedure, which, by its freedom from the technical forms and obstructive habits that embarrass and delay the operations of the civil courts, is enabled to result in a summary and efficient administration of justice well worthy of respect and imitation.
Winthrop’s attack on the Constitution is veiled, but it’s there. If nothing else, he wanted to ensure the survival of the military law proper. That’s where his Military Law and Precedence comes from, and he wrote a very impressive work. There is a need for a military law. Maybe by cleaning it up the way he did, when it did come into operation, it was more efficient in its application of the Articles of War than it was before he wrote these books. But to suggest that it should become the law of the land is frightening.
MRS. RONDEAU: Is that what we’re seeing between Gen. Carla Hawley-Bowland and Col. Lind with the court martial of Lt. Col. Lakin? Are they forcing military law on both him and the rest of the population?
CDR. FITZPATRICK: It’s worse than that. I believe that if Winthrop, writing this in 1896, could have pulled it off, he would have said, “The military doesn’t need a commander-in-chief. We can operate on our own. We can do this all by ourselves.” To his credit, in his writings, Winthrop recognizes the authority of the civilian commander-in-chief. The first paragraph of the preface to the 1886 edition of Military Law and Precedence begins:
In view of the absence and want of a comprehensive treatise on the science of Military Law, it has been for some years the purpose of the author—a member of the bar in the practice of his profession when, in April, 1861, he entered the military service—to attempt to supply such want with a work, which, by reason of its extended plan and full presentation of principles and precedents, should constitute, not merely a text book for the army, but a law book adapted to the use of lawyers and judges.
In other words, “You know, the new people coming into the military scheme of things are going to be shocked by this, so let me see if I can square it away.” So he started in 1861. He says, “The present treatise was essentially completed in 1880,” which meant that he worked on it for almost 20 years, and he was doing what he could in those days in the field to get this squared away. It started in 1880, and it was 16 years in its gestation to come to the point where I’m holding it in my hand. This is a paperback reprint which comes from the year 2000. This book is still in print; I’m using it now today, in this conversation. This is the foundation of military discipline. This is how we know what we know.
I have another book, actually more of a pamphlet, which talks about the patchwork. This came from medieval Europe. Now to come back, how does this all relate to what’s going on today with Lt. Col. Lakin, Gen. Hawley-Bowland and all these other people?
I’ve been talking about treason as it’s practiced by military commanders for 21 years now. When Obama came to office, I see now that the impostor commander-in-chief, the fake, disrupted the military chain of command in a way that it’s never been disrupted in our history. This cannot be allowed to continue. Mr. Obama’s treason is extraordinary. He’s been attacked over and over and over on this treason. The significance with what’s going on with Col. Lakin today is that you now see, as has been predicted, military personnel joining in Mr. Obama’s treason. They are trying to visit upon Col. Lakin an authority that this country does not recognize at all, or ever, which is the authority of the military on its own to do whatever it wants. They’re breaking their own rules because under those rules, they recognize that they don’t exist; they cannot operate without a legitimate civilian president as commander-in-chief. That’s the first issue. You can’t operate the United States Armed Forces under our Constitution and under these adopted Articles of War; everywhere you look, you will always find a legitimate civilian president as commander-in-chief. You find it in Winthrop, and you find it in the Manual for Courts-Martial, which has been around since the early 1950s. You see it everyplace.
There has never been a time when there has been a question about the legitimacy of a civilian president as commander-in-chief, and there has to be a civilian president as commander-in-chief for the Armed Forces to be issued orders. Now you start getting into the details about how this particular court-martial is operating, and they have just given us a window into what it is they’re doing. The ruling of 2 September told us this: Bowland and Lind do not know for themselves whether or not Obama is legitimate. Have you read that ruling?
MRS. RONDEAU: Some of it.
CDR. FITZPATRICK: It’s only ten pages, and you don’t have to read every word of it, but it says in there that in arguendo, the Latin term for “the sake of argument,” “We don’t know whether Obama is legit, but that’s not the issue here.” So they admit to the fact that they don’t even know, but they’re going to proceed on their own authority to court-martial Lakin. That’s really dangerous, because they can’t proceed on their own authority. That’s against the law. Do you know what that’s called? That’s called treason. They cannot proceed on their own.
As you find in Winthrop, the court-martial is the creature of an order, and this is military jurisprudence vs. constitutional jurisprudence. It’s in there. The court-martial is the creature of an order. What is an order? It’s an executive mandate. This comes from Winthrop; again, the bedrock of military law and discipline. There’s no argument about that. So let’s just make believe that today we don’t have a Col. Lakin; we don’t have anybody who’s standing in the dock, and all of a sudden, the commander-in-chief or someone acting on his behalf recognizes that there’s been a crime committed inside the military which is justiciable under the Uniform Code of Military Justice. Let’s say it’s Sharon Rondeau. Come hither, Sharon, we’re going to court-martial you, and the reason we’re going to court-martial you is that we’ve received an order from our commander-in-chief, a civilian president. We have an executive mandate here which says that we must court-martial you and by that, determine whether or not you have committed a crime, and then within that, determine what punishment you should receive if that’s appropriate.
The first duty of the people who have received the order from this man, the commander-in-chief, is they must know if he’s legitimate. They have to know for themselves that Mr. Obama is legit. For the sake of this conversation, let’s just say that he is legit. Then all of this stuff about Lakin would be a non-issue, wouldn’t it? Lakin is saying the same thing: whatever order this man gives is not lawful because he’s not the commander-in-chief.
Lakin could have brought any dog into this courtroom that he wanted. And every court-martial that’s been conducted under Obama is unsustainable for the reasons that I’ve already laid out. You can’t do it. So the military is using this opportunity to disconnect itself from the requirement, the constitutional command, that a legitimate commander-in-chief be in office. The military is saying here, “We don’t need him.” That’s really bad. That’s the significance of the Bowland-Lind operation as it exists today. They say, “We do not know for ourselves that Obama is legit.” So then the question becomes, “OK, ladies, how is it, then, that you can proceed with the court-martial if you don’t know for yourselves that his orders are lawful?”
Now the issue of attainder returns, because once you get into that court-martial environment, they can do whatever they want to you because there’s no jury. It’s punishment without the oversight of a jury. If there were a real independent jury of people from a community as is stated in the Constitution, Lakin could walk away from this thing.
MRS. RONDEAU: But these ladies, in this case, are totally disregarding the Constitution and essentially saying, “We don’t care if he’s legitimate or not.”
CDR. FITZPATRICK: That’s right. What they’re saying is that it’s not a factor in the Terry Lakin court-martial, that it doesn’t play a part. And I’m thinking to myself, “Excuse me, it is at the heart of this case.”
MRS. RONDEAU: Because Lakin wants to know whether or not Obama is legitimate, and they won’t answer the question.
CDR. FITZPATRICK: They can’t answer the question for themselves; they say that they’re not going to answer. So how can they proceed? They’re not operating under a lawful order, either. That’s Lakin’s defense. All he has to do is stand up and say, “OK, from where does the authority flow into this court-martial hearing room?” In other words, Lakin can ask them the question: “OK, this court-martial is proceeding because you two have determined for yourselves that it can.” And this goes back to 1 September, because we didn’t know where Bowland and Lind stood exactly, but now they’ve put it in writing, so hallelujah.
But on the first of September, anybody could have stood up and said, “Excuse me, ladies, but how do you know that he’s legit? That’s your duty; you have to figure that out first for yourselves.” And they didn’t do that. Now they’ve told us that they don’t care; it’s not the issue, and they’re not going to deal with it. And I’m saying to them, “Oh, no. This is the issue that’s out there.”
So that’s where you get the White Paper. Then you see the consequences that come from a court-martial of Terry Lakin. Whether or not he’s punished or not punished, this court-martial, which is under way right now, without a legitimate commander-in-chief, allows the military to be free from the command of a civilian president as commander-in-chief and to do whatever it wants.
MRS. RONDEAU: The U.S. Constitution was supposed to protect us from that by designating the President as Commander-in-Chief.
CDR. FITZPATRICK: Exactly, but that’s not the case anymore. This is treason in its highest form. And you have military commanders who have yet to stand up to Mr. Obama and say, “Excuse me, sir, but I have a question about your eligibility here, your birthright…” and no active-duty military commander has done that, except Lt. Col. Lakin. There have been military officers who have objected, and I’m one of them, but no active-duty people that I can point to other than Lakin.
MRS. RONDEAU: Do you think it is fear that’s preventing them from confronting him?
CDR. FITZPATRICK: Upton Sinclair said it well: “It is difficult to get a man to understand something when his salary depends upon his not understanding it.” In other words, these admirals and generals get promoted because of their go-along-to-get-along demeanor. They’re like leaves in the wind. McChrystal would be one of them. They’re animals, frankly, political animals. They drive me nuts, and I’ve run into them before. So they’re going along to get along; it’s the avarice of rank. They’re wearing stars on their collar; that’s a very, very empowering kind of thing. That’s what you strive for in the military: to succeed in what you’re doing. It’s what I call the avarice of rank and the position and power that come with that. They get a pretty hefty retirement; they get to be called “Admiral” or “General” for the rest of their lives; it’s a very lofty kind of feeling; it’s rarefied air that they breathe. That’s part of the reason why. Once they retire, if they go along to get along, who knows what other kinds of jobs and positions and power will come their way? General Jones, who is now the national security adviser, is one example. I could point to other admirals and generals as well. Why would they not talk against this? Because it’s not in their best interest.
MRS. RONDEAU: Personally, yes. But what about the Constitution that they took an oath to uphold?
CDR. FITZPATRICK: Now isn’t that the pesky question? Where is their allegiance? This is what I have been saying for a long, long time, and this should stand the hair on the back of your neck on end. I know it does. I learned 21 years ago, and I have been saying it from that day to this day that I realize the betrayal by my senior officers, and I have been calling this out for 21 years. You have military officers in high rank who are no more obedient to the United States Constitution than is Mr. Obama. We have military commanders working against the Constitution. They’re working against it for their own self-interests. We see that going on now in real time, in demonstrable, real ways, with Gen. Hawley-Bowland and Col. Denise Lind.
MRS. RONDEAU: In a corporation or private company, if the executives are caught embezzling money or committing some other crime, they are normally brought to account. Isn’t what’s going on within the military now criminal?
CDR. FITZPATRICK: Yes. You have a government machine here which is doing everything it can to protect itself. This is tyranny writ large; this is treason writ large. Anybody who stands up and speaks against the government gets knocked down. Their families get knocked down or they get knocked down. There are people out there who are cowards and they’re going along to get along because, you know what? It’s working for them. Sinclair Lewis said, “When fascism comes to America, it will be wrapped in the flag and carrying the cross.” That’s what we have going on today.