By Lt. Eric N. Shine USNR – USMMRR/USMMA KP
Military law is Title 10 in its entirety and by definition it is martial law. Article 32 of the Uniform Code of Military Justice (UCMJ) (Section 832 of Title 10, United States Code) is an important portion of Title 10, or Military law. Article 32 of the UCMJ “requires a thorough and impartial investigation of charges and specifications before they may be referred to a general court-martial.” This is akin to a Grand Jury investigation for Military personnel only. But now, American Civilians are coming under Article 32 military tribunals. This is in direct contravention and opposition to all National and International legal standards and precedence.
Why do I bring this up?
Because for one, the man now in charge of disaster relief in the Gulf relating to the oil spill is the man responsible for what I am writing about herein, which are war crimes. Also, I have been forced to undergo un-Constitutional military tribunals myself over the course of the past 8 years and understand just what is at stake and what the general outcome will be if this is allowed to continue on its present course. Not just for myself, but for America, in fact all Americans. The “bigger picture” of what is in store for all of us has been revealed to me in the course of these proceedings. More about that at another time, only so I can focus more tightly on the issues of the improper if not clearly illegal use of these military tribunals.
Copies of the transcripts from my own and ongoing ordeal, now in its 8th year, are posted on line for your benefit at CrossingtheRubicon.org. Charges were brought against me by the United States Coast Guard on March 06, 2003 and the four day trial was finally held over 5 years later between May 20 -23, 2008 at a Federal Fusion Center in Long Beach, Ca. Something I continue to endure to this day is rippling caustic effects upon my life due to being held “virtually” in a form of “indefinite psychological detention” as my latest “appeal” sits before the U.S. Coast Guard Commandant. This “self-declared” special Branch of Military has repeatedly over the course of the past 8 years placed me within one “stress” position after another in hopes of shortening if not clearly ending my life prematurely. I am presently held by orders of an “Admiral” of a self-declared, “special” Branch of Military I’m not in, nor ever served in or alongside, but which has identified, and targeted me instead as an alleged “civilian.”
Rather, I am actually a trained, Congressionally-appointed, Commissioned Naval Officer, a graduate of Kings Point. One of the four Federal Military Service Academies like West Point and Annapolis. “Charges” and a “civil complaint” were filed against me by the “Coast Guard”, a new self-proclaimed, even self-defined “Special” Branch of Military with self-proclaimed “floating jurisdiction” on March 06, 2003 just prior to launching war in Iraq. Due to my training I understand well what is being attempted.
Let me just say that the Coast Guard is thoroughly confused and extremely dangerous.
The Coast Guard is by definition under Title 14 a “civilian”, Federal Civil-Service Maritime police and regulatory body. It is not supposed to be carrying on in its own internal “Police Courts”, acting as if those it is carrying out the proceedings upon are somehow in the Coast Guard. That is beyond conflicted. It has even taken this Constitutional transgression a few steps further. Now the Coast Guard is carrying on its own Military – Police tribunals of American civilians under Title 10 and the UCMJ.
Yet, in these proceedings it identified me as a “civilian”, and as someone not in “its” uniform, but it still continues to prosecute me and others, anyway.
This article focuses more on the issue of Article 32 and military tribunals of civilians although these and surrounding matters are ripe with so many other issues and topic matter, such as; “Just exactly what is a “Federal Fusion Center anyway?” Even on that issue I could go on for awhile. However, those and other topics have been addressed in previous articles, or will be addressed further in more and subsequent articles as well. Please read them.
First, our citizens are not to come under Martial Law, not now, not ever, except, if they ever did before improperly, it would still have been under extra-ordinary circumstances where all citizens were to be under an identical system. We live in a common law system and as such the same law must apply to all, equally. This is part of the problem in everything going on today, but that again is another subject as well. Briefly, herein, this means whatever they can do to me, they can then do to you too. In our system today, the use of military personnel, military assets, or military tribunals for civilian affairs have all been made unlawful numerous times over and upheld as being such in a 1957 U.S. Supreme Court decision in Reid vs. Covert that is still controlling – a case where our High Court held that military tribunals of American civilians are indeed un-Constitutional.
This Supreme Court case precedence covers an array of issues resounding into today, but that diverges in a number of ways from the core issue. However, the important point made in that case is that we are not to have a competing system of “courts” from underneath our Executive Branch, and that we have an independent Article III Judiciary for a reason. This again goes to a founding principle in the Separation of Powers Doctrine that established our Article I Legislature, Article II Executive and Article III Judiciary.
The core issue in Reid vs. Covert was prosecution of Mrs. Reid, the civilian wife of an American service member serving in England when she was charged, prosecuted and found guilty of her husband’s murder. All within a military tribunal. Americans should have been suspicious then based on the simple fact “Mother England” was again involved. The case was heard in 1956 and upheld, then reheard in 1957 and overturned all under the Administration of President Eisenhower, which was the only time the Supreme Court overturned itself in this manner. I recommend you study closely this case precedence.
For some background on military law and why we have kept military and/or martial law, and civilian law separate in America is outlined in an article by Dr. Edwin Viera, PHD entitled; “A Primer On Martial Law.” This is a very good accompaniment to the Reid vs. Covert case precedence to study.
This tradition of separating military and civilian law dates back at least 2,500 years or more, established well prior to the foundation of the United States, or even drafting of the Magna Carta. This bright line of separation between military and civilian affairs existed in beginnings of one of the earliest recognized “Republics“ in the State – Nation of Italy; a Republic that became the Roman Empire only after violating these self-imposed edicts. In fact, the legal and foundational historical landscape is outlined magnificently by U.S. Supreme Court Justice Hugo Black by his majority opinion in the well reasoned decision of Reid vs. Covert, 1957. In it, he goes back 742 years to the Magna Carta to make his point, but could have gone further back to issues raised in Italy over its military crossing of a river known as the “Rubicon” in 49 b.c. Instead his decision outlined why the Magna Carta of 1215 a.d. set the bright line of separation between military and civilian law and jurisdiction as sacrosanct. This is something that was carried over into our own legal system as well.
So just what is an Article 32 proceeding anyway, you might ask?
Well it’s defined as a proceeding under the Uniform Code of Military Justice [UCMJ] as part of and incorporated into Title 10 which is of course martial law. An Article 32 proceeding, by analogy in civilian law, is akin to a grand jury indictment proceeding to bring forth a presentment of charges and indict an individual for a crime – an actual violation of codified law, rule or regulation. Otherwise, if not charged with a violation of an existing and properly codified law, due process is thus violated and immeasurably so since “Notice“ of something “being a crime“ is entirely absent. Proper “notice” is a prerequisite to guarantee that due process is in order.
Although some say that “… ignorance is not a proper defense for violating a law…”, this is premised only on the simple fact that the law must be in existence and in place first before it was thus violated. To charge and prosecute someone for a “crime” that was not codified or “illegal” at the time, violates the foundational requirement of “Notice” so someone knows in advance something is a crime and what they may be liable for if violated. Like “… back in the good ol’ days..” when “Do Not Trespass” signs were posted to notify people – not to trespass. Another reason we have “posted” speed limits, and so on and so forth. Although almost all forms of “ex post facto” legislation have been held to be un-Constitutional, sometimes laws have been applied retroactively to those who have already been found guilty of something. An example is in forcing all “sex offenders” to register their whereabouts, even if not a requirement at the time they were found guilty of any “sex – related” crimes. This is the exception, rather than the rule.
Our Constitution prohibits such ex post facto legislation, or making something “illegal” after the fact. The contrarian position to this was carried out in Nazi Germany by the likes of Adolph Eichmann and others, which was to make a thing “legal” after the proscribed act had already been outlawed, so the criminal after the fact thus receives a sort of “legislative pardon“.
The term “Article 32” is derived from the Code Section of the UCMJ. It is taken from within Section VII entitled “Trial Procedure”. This subsection is codified under military law as Article 32 or defined in U.S. Code in Title 10 entitled “Armed Forces” – in sub-paragraph 832 which mandates this hearing to ensure due process for men and women in uniform. Let me say that again – for men and women in uniform who are in the Department of Defense. An Article 32 proceeding is for men and women in uniform, period: This means other men and/or women in the same uniform, under a uniform system for all services. The Army guarantees due process for the army, Navy the Navy and so on and so forth.
In addition, it is proscribed that any and all men and women in uniform who come under Title 10 and the UCMJ are thus prohibited from being involved in civilian affairs. This is especially so as to the “administration” of civilian affairs and civilian law and order. It was incorporated directly into Title 5 or the Administrative Procedure Act. Again, this is an extension of the Separation of Powers Doctrine as so pervasive throughout our system to be an actual cornerstone to its integrity along with and as a part of due process.
However, more about Article 32 though and what it is and what is going on with it, in a moment as I lay out why I am raising this issue in this article.
This is written to inform you that we have, yet again, another attempt by the U.S. Coast Guard at the joining of Civil Service and the Military as has been carried out before. This “Civil Service” agency is declaring it is now a “Special” Branch of Military. This entity is attempting to marry military law, or martial law into, even on top of civilian law. In fact, it is a self-declared “Special” Branch of Military imposing itself on top of civilian law and affairs, and even going as far as to “make” civilian law by doing this. This is what the three Napoleons and Bismarck did from under military dictatorships. So self-righteous in its new self-directed or covert “military” mission, and lack of indignation by the American people, this agency is now overturning U.S. Supreme Court case precedence and statutory, if not clearly numerous Constitutional provisions and prohibitions without care.
This “Special” Civil Service now turned “Branch of Military” is to this day known as the U.S. Coast Guard, but that’s not where it all began. Think for a moment how an “Agency” known as the “Revenue Cutter Service” in the Treasury Department, could marry itself with the “Lifesaving Service”; “Lighthouse Service”; “Ice-breaking Service” and somehow construe all of these benign civil services, once combined in the form of the Coast Guard, to somehow become a “special” Branch of Military in the end. One that can come under Title 10 and the UCMJ while lording itself over and policing, regulating even “deciding” civilian affairs. Worse, to do this not from under the DOD and the Pentagon, but from under DHS? So now there is a “Special Branch of Military” that has been moved into the Department of Homeland Security!
No “Branch” of Military, or anyone who comes under Title 10 and the UCMJ is at any time supposed to be “deciding” or adjudicating civilian affairs. The Coast Guard as this Special Branch of Military is filing “civil complaints” and “charges” against whom it is itself identifying as civilians.
When I use the term “special”, whether the Coast Guard under the Department of Homeland Security now uses this term itself, or not, to pitch its new program of “Legal Warfare“ against alleged or identified civilians, it actually is by default saying it is “special” by what its declaring, in fact doing. One must know or understand more about Title 10, the history of this “service”, the creation of a Uniform Code of Military Justice and a number of other topics to comprehend and be troubled by what the Coast Guard is now doing, once again. The Coast Guard is claiming it is now “under” Title 10 and the UCMJ, but prohibitions in Title 10 against using a “Branch of Military to administer civilian affairs” – do not somehow apply to it?
The Coast Guard now proclaims openly by defect and default that it is indeed “different” or “special” from all other military personnel who come under Title 10 and the Uniform Code of Military Justice. Yet, this is in fact and indeed why the “Uniform” Code of Military Justice was created so there would be no “exceptions” and that the Code would be “uniform” throughout. The Coast Guard is now declaring it’s not bound by restrictions of Posse Comitatus as incorporated into Title 10, Title 18, and Title 5 as well, which it is trying to use to “administer” while coming under Title 10.
These prohibitions and restrictions “uniformly” prohibit anyone coming under Title 10 or UCMJ from being involved in any civilian affairs whatsoever. What is really bizarre is Title 10 was written specifically for the Department of Defense and all of those “Armed Forces” in DOD, only. Yet, the “Coast Guard” is somehow saying it comes under Title 10, when it is not “in” or “under” Title 10, but under Title 14 in “Homeland” Security. The Coast Guard is only mentioned within Title 10 so that when any of its personnel are transferred into the Department of Defense under the Department of Navy that they will thus understand the codes of conduct that they must ascribe to once transferred under Title 10 Executive Orders.
What is disturbing is the U.S. “Coast” Guard now says it comes under Title 10 and the Uniform Code of Military Justice for all of its own internal purposes [somehow], including due process and discipline but at the same time is saying it can ignore more critical provisions and prohibitions in Title 10 and the UCMJ and administer civilian affairs. Those proscriptions that actually prevent all personnel who come under Title 10 and UCMJ from becoming involved in civilian affairs. The manner by which the Coast Guard has now decided to become involved in civilian affairs is even more egregious.
It has re-instituted military tribunals upon what it itself defines as civilians.
The “Coast Guard” as supposedly a Civil Service Law Enforcement Agency defined in Title 14 is now saying all of its personnel can and do come under Title 10 and UCMJ at all times, but can “administer” civilian affairs and civilian law. That these “military personnel” can police, regulate, even adjudicate civilian affairs themselves under indefinite martial law.
In fact, this is carried to such a degree that a self-declared special Branch of Military believes it can carry out Article 32 proceedings on those it identifies as civilians, and is in fact already doing just that. This means the Coast Guard believes it can carry out military tribunals of civilians, such as Article 32 grand jury indictment proceedings like with me, and use personnel who come under Title 10 and UCMJ to do so like Judge Advocate General Counsel. Like USCG JAG Prosecutor Lieutenant Commander Christopher Tribolet.
The premise is, that this is done for “Public Safety” and under “Emergency Powers.” What they are doing is un-Constitutional, and in violation of existing law, both National and International. The Coast Guard and many individuals involved in all this are working to “change” the law, though in an ex post facto fashion, to make use of military tribunals of American civilians somehow “legal”. This is what the “Military Commissions Act”, “Warner Defense Authorization Bill’s” rider, and more were all about. This is impossible, as in the case of Reid vs. Covert, 1957, the highest court in the land has already ruled in an all encompassing manner that military tribunals of civilians are un-Constitutional.
Nothing can ever be passed to make what is un-Constitutional somehow Constitutional. The only means possible would be by Constitutional Amendment, which would require a 2/3 majority in Congress, in both houses barring the issue. It is doubtful that both Houses of Congress would ever agree to place the American People under control of the military, or in fact could do this “Constitutionally.”
In summary and marching toward conclusion.
Remember, as defined in Title 10, Article 32 comes under the UCMJ as part of and incorporated into Title 10. This is in fact military law as a form of martial law. An Article 32 proceeding once again is akin to a grand jury proceeding bringing forth a presentment of charges to indict individuals for criminal activity. Normally, this is supposed to occur under “Articles of War” in a time of war, and for war crimes and is to be much more tightly constrained on the issues it can reach. The Article 32 term itself as stated is taken or derived from Title 10 itself as in the Code Section of the UCMJ that it comes from in Section VII entitled “Trial Procedure”. This subsection is entitled Article 32 or as defined in U.S. Code under military law for “Defense Forces” [what were Department of War Forces] as in Title 10 sub-paragraph 832 that mandates this hearing to ensure due process for men and women in uniform.
Certain things are to be provided prior to, leading up to, in the midst of and throughout the proceedings until concluded and an individual found “guilty”. These are things like “presumption of innocence”, due process, and right to counsel as provided or at least paid for by the “Branch of Military” that an individual is a “uniformed” member of. None of this is to be provided to anyone that any “Branch of the Military” might deem as someone who is not in their uniformed service.
Let’s say if the Navy were prosecuting an individual in the uniform of the Navy, with of course other Navy personnel. That person would be presumed of course “innocent”. Along with this Constitutional presumption of innocence he/she would also continue to receive full pay, medical benefits, per diem, housing allowances, legal aid and would thus not lose any rights or privilege or promotions or be stripped of rank during the pendancy of any and all proceedings. The problem is when a “civilian”, or someone identified as a “civilian” comes under these type of proceedings – an Article 32 or military tribunal, he/she doesn’t receive any of that and must somehow figure out a way to survive the onslaught of targeted attacks by a Branch of Military from which he/she doesn’t receive any benefits from, including the presumption of innocence.
Instead, the presumption is one of “guilt” and to the point that this “Special” Branch of Military will do everything required of it to win, at any and all cost, regardless of the guilt or innocence of any accused civilian, and regardless of the damages that this “Branch of Military” can carry out upon any such targeted civilian. This is to such a point that this “Special Branch of Military” has admitted even within my own proceedings, that the proceedings themselves will “probably kill him” [me]? How can that be? How can something that is supposed to be a “Lifesaving” outfit be allowed to set up “Admiralty Courts” or Military Tribunals that by their very nature are un-Constitutional and so tortuous that an individual will die within and as a direct result of the proceedings themselves? This is what they said.
Captain Arthur French, USCG, a supposed “Doctor” was called in, and in his testimony he gave “oral evidence” that was used to convict me of being “medically/mentally incompetent” somehow. This man had never met me before, never “treated” me ever – for anything, nor did he have any authorization or release by me to do so or to even look at my records, and of course was not qualified to do so either. The Coast Guard is claiming that I am a “civilian”, while it uses military assets like a Uniformed Military JAG Officer Attorney as Prosecutor, bringing in individuals like Captain Arthur French, USCG as a supposed “Doctor” who is not only in the same Branch of Military as the Prosecutor, but both “represent” the “complainant.”
Captain Arthur French “observed” me from within the proceedings and declared that due to the way by which I defended myself from within the proceedings – I was “guilty”. I simply objected to each and all objectionable matters of law, fact, or process or procedure, or the lack thereof and this was used against me as “evidence”. It was declared that my “objections” were a “symptom” of my so-called disease. A disease I do not know that I have, since I have never been diagnosed with one. The Coast Guard even openly declared that the very nature of the disease I have is that I don’t know that I have it.
One must remember as well, that I have been forced by the “Coast Guard” to represent myself and act as my own counsel somehow. This is very interesting as well, since in the first portion of the “proceedings” the first “ALJ” – McKenna by “Contingent Summary Judgment” declared me to be “medically/mentally incompetent”. Of course I appealed his decision even though the aftermath of what the Department of Homeland security had carried out up to this point had bankrupted me several times over and left me homeless as well, losing two homes and more only after the Coast Guard brought charges against me. I ended up walking the parking lots of Cosco at one point searching for change that dropped out of people’s cars to buy a slice of pizza while being held for about 8 months in a hotel room in La Jolla.
Coast Guard Vice Admiral Crea “heard” my appeal and I supposedly “won” the appeal even though I had just been proven to be “medically/mentally incompetent” somehow and the case was thus remanded? What I “won” was an “E-Ticket” to ride another junket of waste, fraud, abuse and gross mismanagement and a further attempt to bury me within the proceedings. All of this even though I have been contesting “jurisdiction” all along and been attempting to get out of these proceedings somehow as they clearly have every intention of killing me one way or another. Far worse, I was in U.S. Federal District Court where “Homeland Security” through the use of the “Coast Guard” filed a “counter-complaint” within what is clearly a military tribunal in order to drag me in it so as to quash the civil complaints.
In Reid vs. Covert, 1957, Mrs. Reid’s father was the one to intercede in her ordeal on her behalf. He was able to convince the Solicitor General and Attorney General, and presumably President Dwight D. Eisenhower as well to intercede and fight on behalf of his daughter. Due chiefly to what the U.S. Military carried out upon Mrs. Reid in abuse after abuse of due process and civil rights she was unfortunately driven mad by the military incursions into civilian affairs and civilian life. This is just one of so many reasons why any “Branch of Military” is disallowed from ever getting involved in civilian affairs. They go to war against any and all civilians regardless.
This is exactly what the Coast Guard has in store for me, and for anyone and everyone else who might befall these un-Constitutional proceedings.
The problem is the “Coast Guard” is now saying that it can charge, or even as a Special Branch of Military, file civil complaints against those it believes or identifies as civilians. Doing this within what are clearly the Coast Guard’s own self-constructed military tribunals in order to prosecute what it is itself clearly identifying as civilians. This is egregious.
It even uses what it considers to be Uniformed Commissioned Military Judge Advocate Officers, a direct military asset, as trained Lawyers to prosecute civilians in these proceedings. The problem is that the “playing field” in these proceedings is far from fair or level, as civilians are forced to face off against Commissioned Military Officers as JAG attorneys with unlimited resources and an unbridled computer system not provided to “defendants”. In a system where hearsay is admissible and can be used to have you declared “medically/mentally incompetent” on what “someone else” heard “someone else” say in what they heard from “someone else” said that you said. Seriously, without oath or affirmation, or even appearance by anyone in the daisy chain of scuttlebutt. The Coast Guard informed me that these were not “Constitutional” proceedings. I believe it now after what I’ve endured.
Seriously, go read my transcripts as posted on-line.
Beyond this, this “Branch of Military” affords no “defendant” any “defense” whatsoever. No discovery. No right to counsel even if it is part of the core issues. No privacy. No privilege. None of the rights outlined in the first ten amendments. Nothing. Counsel representing the “defendants” from Federal District Court can be forced upon you, and so much more. This is the new doctrine in Legal Warfare being run surreptitiously from underneath the Pentagon and DOD where our own Military gets to target and attack civilians, not with a “tank” like the Chinese did at Tianeman Square. Instead, with a gavel and use it to beat them over the head with one civil rights violation after another, with one due process violation after another.
Not only are “civilians” being forced to face off against their own “Defense Forces”, but do so with an unfair disadvantage going in. Most civilians don’t have any idea what they are walking into. No idea at all. This is why Posse Comitatus was passed in the first place, so no “Defense” forces, or our own military could be used against our own citizens or civilian population. Go read Reid vs. Covert from both 1956 and 1957.
Terms like administrative rendition, extra-constitutional rendition, even more recent terms like indefinite detention as expressed by President Obama himself, and other terms spring to mind when I think about what has befallen me. What I have been forced to confront and stand up against and to fight since I understand well what the Coast Guard is attempting to do, and not just to me, but to expand and grow this program exponentially.
What the Coast Guard is doing is akin to, but worse than what President Ronald Reagan did in the 1970’s with the Professional Air Traffic Controller’s Union. Reagan used Uniformed Military personnel as Air Traffic Controllers to replace over 13,500 Civil Service Safety workers. To pink slip over 13, 500 fellow Americans and to break up that union, and use the U.S. Military to help do it. So much for the Pinkertons, Wackenhut or the firm formerly known as “Blackwater”. Here instead, President Obama is using the Coast Guard to create an extra-Constitutional system of military tribunals that can, has been and continues to be applied to U.S. Citizens. An extra-Constitutional Branch of Military that answers directly to him as POTUS.
So, now that you know and better understand at least some of what is going on and what is at stake, the question in the end remains;
“What are you going to do about it?”
©2010 Lt. Eric N. Shine
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By Lt. Eric N. Shine USNR – USMMRR/USMMA KP