Stewart Rhodes With David Codrea: Drones Not The Only Problem

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David Codrea

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Background: Mike Vanderboegh, over at Sipsey Street Irregulars, has posted an admonition spoken by David Codrea of the National Gun Rights Examiner and The War on Guns blog.

The admonition by David Codrea had to do with Eric Holder’s song and dance about the use of drones to strike American citizens here in the “homeland”. Here is the comment posted on Mike’s site-

I was talking to David Codrea this morning and he brought up a good point. Don’t focus on Holder’s claim of domestic drone strike legitimacy and think all he’s talking about is drone killings. Understand that if the claim extends to drones it extends to every killing tactic and platform available. What Holder is claiming is the right to kill American citizens by executive diktat using any means necessary — including federal police Einsatzgruppen.

That paragraph was seen by Stewart Rhodes, Founder of Oath Keepers, who was moved to write a thoughtful response, an elucidation if you will.  Enjoy:

-begin quoting Stewart Rhodes-

Gents,

Caught Mike’s comment on his site:

I was talking to David Codrea this morning and he brought up a good point. Don’t focus on Holder’s claim of domestic drone strike legitimacy and think all he’s talking about is drone killings. Understand that if the claim extends to drones it extends to every killing tactic and platform available. What Holder is claiming is the right to kill American citizens by executive diktat using any means necessary — including federal police Einsatzgruppen.

Exactly.  It is about the application of the laws of war to Americans, and under such laws of war, and such rules of engagement, the government could use any killing method that can be used in war – bullets, bombs, missiles (whether fired from a drone or by a pilot in a plane), mines, grenades, or a blade in the back.  Here is what I wrote about this back in 2004, in my Yale Law School research paper, titled “Solving the Puzzle of Enemy Combatant Status“, pg 66-70 (footnotes omitted):

Another problem with this status is that, even if the U.S. were to treat all suspected terrorists as lawful combatants, they would still be treated as combatants.   All “enemy” personnel – the supply clerk, the mechanic, the cook, the secretary at headquarters, – are fair targets since they are part of the military machine. Transferring these practices of war to the current struggle against terrorism would mean that anyone, from any country –including the U.S. – can be an “enemy,” whether the U.S. has declared war on their nation or not; that the entire planet, including all the U.S. is the battlefield; and any human being in the world, including any U.S. citizen, can not only be detained, but can be targeted by the military and killed outright if the President thinks they might be a terrorist, whether or not they are armed. Those are military rules of engagement. This is in contrast to the rules of engagement of civilian law enforcement where a police officer has a duty to take a suspect into custody for possible criminal proceedings and can only use lethal force if his
life or the life of another is in danger. The officer cannot shoot a suspect on sight just because he is a suspect while a soldier can shoot enemy personnel on sight just because they are enemy personnel.

Military rules of engagement have been a disaster in our history, from the Wounded Knee Massacre to the destruction of the Bonus Marchers’ tent city in D.C., to the Kent State Massacre, to the Philadelphia M.O.V.E. bombing, to Ruby Ridge, to the Branch Davidian tragedy in Waco, Texas. We can imagine what would have happened if this expanded notion of the enemy had been used not only in the Cold War but also in the turmoil of the 60s, and 70s when the war protesters were accused of hurting the war effort.

In the war on terror, what would otherwise trigger the status of criminal suspect can now trigger the status of enemy and then trigger a shooting. Under military rules of engagement, Padilla could simply have been shot in the head in O’ Hare International Airport or anywhere else he was spotted. A concrete example of this is the Predator drone strike on the carload of suspected al Qaeda in Yemen. We were not at war with Yemen and that strike was not carried out on a battlefield. It was simply a matter of convenience for the government, which deemed it impractical to use law enforcement methods to apprehend the men. Since the entire world is the battle- zone in the war on terrorism, the President could technically order a missile fired at a combatant wherever he is, even in the U.S.

(Footnote 164: Since [under the reasoning of this status]  there is no requirement to attempt apprehension, the U.S. was under no obligation to send in a Special Operations team to attempt a capture (though these units train constantly for just such operations).  165 Robert Schlesinger, U.S. war on terror expands, THE BOSTON GLOBE, Nov. 9, 2002. The Administration stated that it was not known that one of the targets was a U.S. citizen, but also made it clear that his citizenship was irrelevant, as the citizen could have been killed anyway.)

Also, as Judge Mukasey noted [in the Padilla case], unlawful combatants can be summarily executed even after surrendering. He describes how, after World War II, some Nazi SS soldiers were on trial for war crimes because they had executed some captured Eastern Europe partisans. Those SS troopers were acquitted because the partisans’ insignia, a red star, had not been large enough to be read at a distance, and thus they were considered unlawful combatants under the laws of war. It was not a war crime to summarily execute them.  Judge Mukasey did point out that, at least among the “civilized world,” such “Draconian measures have not prevailed.” But if we accept the legal reasoning of the Administration, and the courts, there are no constitutional or legal constraints on such
action.

Further, since this status can be applied to those who are not really even combatants, this means that those who are only suspected of aiding and abetting terrorists can be shot on sight too. In none of these scenarios would there be an opportunity for a judge to consider a some-evidence standard for a designation because the designated person would be dead. This is the most incongruous but factual reality of this status.

Other Practical and Logical Problems

The asserted criteria for being a lawful combatant who is protected by the Geneva Conventions is that the person:
a) Belongs to a recognizable command structure where officers have responsibility for their men. b) Wears a uniform or clear unit insignia, recognizable from a distance. c) Bears Arms openly. d) Obeys the laws of war (in their treatment of enemy personnel and civilian noncombatants).

A violation of any one of these requirements for prisoner of war status makes a combatant unlawful. Of course, as we all go about our daily business, very few of us meet any of those criteria. We don’t belong to a recognizable command structure, we don’t wear a uniform or clear insignia designating our unit, we don’t bear arms openly (with thousands or even millions of Americans carrying concealed handguns with or without permits), and we don’t even know the laws of war, let alone obey them. Hence, we are all technically in violation of the laws of war and potential enemy combatants. While this seems absurd, it is a fact that the only thing that keeps our daily activities from making us unlawful combatants is whether or not we are combatants at all and, according to the Administration, all it takes for any of us to become combatants is for the President to designate us as such. Once considered combatants of any kind, we are all automatically unlawful because of our civilian, non-military ways. [emphasis added]  END OF QUOTE FROM 2004 PAPER.

That paper can be found here:

http://oathkeepers.org/oath/wp-content/uploads/sr-enemy.pdf

When I wrote that, back in the Fall of 2003 and Spring of 2004, the U.S. government had not yet openly engaged in intentional targeted killing of US citizens, but it had already claimed the power to do so, as I noted in footnote 164 on the Yemen drone strike, with that power to kill on sight being justified as part of what can be done to the “enemy” in wartime, under the international laws of war.   Therefore, I knew that the claimed power to apply “enemy combatant status” to US citizens would not be confined to detention or trial, but would eventually be used to simply kill Americans on sight.   Since then, Obama has done Bush one better by openly and knowingly targeting US citizens and killing them, and openly acknowledging his intent to kill other US citizens he or his hitman, Mr. Brennan, have designated “unlawful combatants” or “belligerents.”   Obama has .simply taken this claimed power one step further on the path to its logical conclusion – that he can kill anyone, anytime, anywhere, including U,S citizens, here in the US.

And now Holder is finally taking it to its logical conclusion  by openly defending the use of this claimed power here in the U.S.   And though Holder presents a hypothetical about stopping an imminent terrorist attack – another 9-11 – this claimed power is not akin to shooting someone who is about to shoot someone else, or is about to detonate a bomb.  This is about killing “the enemy” wherever found, whether or not he is an immediate threat to anyone.  It is not like a policeman shooting someone who is about to shoot him or about to shoot others.  It is like a policeman driving down the street and seeing someone he thinks is “hinky” or who he “knows” is a bad guy and rolling down his window and shooting that person on sight, even if unarmed and not an immediate threat to anyone.   That is what it means to kill the enemy under the laws of war.

That Holder is asserting the domestic use of this doctrine comes as no surprise whatsoever to me.  I knew this was coming, since 2003, and this doctrine, more than anything else, is why I founded Oath Keepers.  This claim of power is no different than the power claimed by Hitler, Stalin, Mao or Mussolini – a dictator’s absolute power of life and death over the people, where all the dictator has to do is lift his finger and point, and anyone he wants can be killed outright, by any means he chooses, or grabbed up and stuffed into a black hole or into a Gulag, left to rot or starve, or they can be tortured into confessing their “crimes” and then paraded in front of the cameras in a show trial before a military tribunal made up of officers hand-picked by “The Leader” with a foregone conclusion of “guilty” already decided.

And it is this claim of power, more than anything else – more than Obama Care, more than attempts at further restrictions on guns – that has put us on a very clear, inevitable path to a civil war because it is an attempt to subject us to absolute despotism.  All of the legal infrastructure is in place.  The Supreme Court had a chance to put the martial law genie back in the bottle in the summer of 2004, when it heard the Hamdi case.  But instead they rubber stamped this claimed power to apply the laws of war to the American people by declaring “[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant.”  That is when the Court crossed the Rubicon once and for all, and put us on the path to civil war,  As I noted above, if a person can be held as an enemy combatant, they can also just be killed on sight.

Once the Court fully opened the door to the U.S. government applying the laws of war to Americans accused of making war on the U.S. or aiding the enemy, rather than trying them for treason (as Article III clearly demands), the Court placed us on the short track to either submitting to an absolute dictatorship or having to fight a civil war/revolution against a rogue government that has declared war on us, and is waging war on us.   And then Congress passed the NDAA, making it abundantly clear that Congress approves of the laws of war being applied to US citizens, including here at home (and they did so with full knowledge that Obama had already admitted to intentionally killing US citizens as “combatants” and admitted to having a secret “snuff” list of other Americans he intends to kill).

And so now here we are, with all thee branches of the Federal government supporting the application of the laws of war to US citizens, with the sitting president openly killing U.S. citizens overseas, and his Attorney General asserting his power to do so here at home.   First the power is claimed, then it is used, with the principle and precedent established and given “legal” support.  Then it is taken to its logical conclusion.  They tell you what they will do, and then they do it.   The U.S. government first claimed the power to detain US citizens as “enemy combatants” under the laws of war, and then did so (Jose Padill and Yasir Hamdi), with both the courts and Congress then coming in and rubber stamping that action, giving their support and assent, establishing the principle and the precedent.

Likewise, the U.S. government first claimed the power to kill anyone, including Americans, under the laws of war, and then began to actually use it overseas.  And now they are claiming the power to do it here at home, and so far, both the courts and Congress have given their stamp of approval, helping to establish the principle and precedent.  Once they accept the application of the laws of war against Americans, there is no legal difference between over there and over here.   What is done overseas will be done at home.   They consistently claim the power to treat Americans the same as Afghans or Iraqis. They are telling us what they will do, and then they will do it.  Those 30,000 drones will be used to kill Americans on U.S. soil.  Which is why we cannot allow them to be put into our skies.  We are on a short track to open conflict.  They are driving us to it.

They are tracking almost identically with the long train of abuses our Forefathers suffered under King and Parliament that compelled them to fight a revolution, among which was the denial of jury trial, application of military courts, attempting to make the military power superior to the civil power and the waging of war against Americans.

From the Declaration of Independence:

He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
….
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
….

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
…, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.

In the Founders’ day, the attempt to disarm them was the final straw, but it lay atop a long train of abuses.  Likewise, the attempt to disarm us may well be the final trigger, but the heart and soul of the collision course we are on is the assertion that the President can ignore the Bill of Rights (and in particular our right to jury trial) and treat America the same as occupied Iraq or Afghanistan, using the international laws of war to justify acting like an elected dictator with absolute power of life and death over all of us.  And it may well be the use of military force (targeted killing) or military detention on a “patriot” group or individual that sparks it.

Further, Congress does not need to pass new “gun control” for Obama to come for our guns.  He can just assert that he faces domestic military enemies in the “war on terror” – such as the militias and three percenters, or us pesky Oath Keepers – and then apply the laws of war to Battlefield USA.   While doing so, he will argue that if individuals or groups he has designated as unlawful “enemy combatants” can just be killed on sight, or thrown into a domestic version of Gitmo, surely they have no “right” to bear arms and can also be disarmed, and to do so, no warrant will be necessary.    This is something we anticipated from the outset, and that is why the first four of our list of Ten Orders We Will Not Obey all work together, seamlessly:

1. We will NOT obey orders to disarm the American people.
2. We will NOT obey orders to conduct warrantless searches of the American people
3. We will NOT obey orders to detain American citizens as “unlawful enemy combatants” or to subject them to military tribunal.
4. We will NOT obey orders to impose martial law or a “state of emergency” on a state.

Those four are our first in line because such orders are most likely to be used together with “martial law” or a state of emergency declared, and then road blocks and cordon and search used to seize both weapons and targeted dissidents.   The assertion that the President can apply the international laws of war to Americans is essentially a form of martial law, which has been defined as being nothing more than “the will of the commander on the battlefield.”  It is what is done to a conquered enemy nation, such as we did to conquered Japan and Germany, or conquered Iraq and Afghanistan.   What has been done to them will now be done to us – unless we stop it.e

And I must yet again remind everyone that on April 19, 1775, the Regulars were not just coming for the guns and powder.  They were also coming for people – John Hancock and Sam Adams.  Gage hoped to seize the top leaders of the resistance.  And you can bet that they were NOT going to get a jury trial.   If they were not summarily executed, they would have been stuffed into a Royal Navy brig ship in Boston harbor and left to rot.   History is repeating itself, and now it is our turn to stand against the modern-day “Red Coats.”

Stewart Rhodes

Founder of Oath Keepers

ADDITIONAL COMMENT BE STEWART:

In 2009, when I wrote #3 in our Declaration of Orders We Will Not Obey, I already knew that the claimed power to designate U.S. citizens as “enemy combatants” included the claimed power to intentionally kill them under military ROE (kill on sight), along with using military detention and trial by tribunal, and I had written extensively on that claimed power.  However, since such intentional targeted killings of Americans had not yet been done, as of 2009 (as far as we know), while military detention HAD been used, I left a statement that we will not obey orders to use such targeted killing on Americans out of that declaration.   I did so as a matter of strategy, since I knew that our enemies would accuse us of conspiracy theory and paranoia, and I wanted to keep the focus on what has already been asserted and done – the use of military detention and the intent to use military trial on U.S. citizens.    When speaking to current serving police and military,  I wanted to be able to say “see, this has been done..”    Credibility is the coin of the realm, and I wanted to be able to wake them up to what is going on by pointing to examples that had actually happened and were irrefutable.  In speeches I did point out the logical conclusion of that claimed power, but in the written declaration, we discussed only military detention and trial.

Well, since then, Obama has indeed begun to intentionally target U.S. citizens for assassination – a.k.a. “targeted killing” and has already intentionally killed at least three U.S. citizens (that we know of) by means of Predator Drone strike overseas.   And now, his Attorney General has finally asserted, in public statements, that Obama can do the same here on U.S. soil.

So, now it is time to amend and update that particular plank of our Declaration of Orders We Will Not Obey.  I will work on it this weekend.  You should consider that update to be akin to moving the hands on the “battle for freedom dooms-day” clock at least a half hour closer to midnight.  I’d say we are now at about 11:45.  All of the legal, political, and physical infrastructure for a total destruction of the Republic/spark of a civil war is now in place, and is only awaiting a sufficient trigger event.