September 29-30, 2021 -- We need an Executive Order establishing a January 6 military commission

publication date: Sep 29, 2021
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September 29-30, 2021 -- We need an Executive Order establishing a January 6 military commission

With Donald Trump and his January 6th co-conspirators using frivolous lawsuits to tie up in the courts subpoenas from the House select committee investigating the insurrection and a lethargic Attorney General in Merrick Garland, President Biden should follow the example of President Andrew Johnson. After it was determined that the conspirators who assassinated President Abraham Lincoln also intended to assassinate the entire Cabinet and "other officers of the Federal Government," Johnson, on May 1, 1865, signed an executive order creating a military commission to try the accused seditionists and assassins.

The military commission composed of nine military officers sat in Washington, DC. In addition to murdering Lincoln, two of the conspirators stabbed, with the intent of assassinating, Secretary of State William Seward and injured Seward's two sons and his daughter in the process. Seward's wife, Frances Seward, was so distraught over the attempt to murder her family, she succumbed to a heart attack on June 21, 1865. Another of the conspirators was to have assassinated then-Vice President Johnson and General Ulysses S. Grant, the commander of the U.S. Army who had accepted Gen. Robert E. Lee's surrender at Appomattox Court House just five days earlier. One of the conspirators who was found guilty of involvement with Lincoln assassin John Wilkes Booth and his colleagues was Confederate Army veteran Michael O'Laughlen of Baltimore. O'Laughlen, who was sentenced to life imprisonment at the U.S. prison on the Dry Tortugas, was believed to have tried to assassinate Secretary of War Edwin Stanton and General Grant, who he believed was staying at Grant's home at
14th and K Streets NW in Washington, not far from Ford's Theater where Lincoln was killed and the home where Seward and his children were stabbed.

Attorney General James Speed stated that a military commission was constitutional since the United States was in a state of war when the coup d'état attempt by the Southern sympathizer conspirators was carried out. Speed also justified a military commission to act against secret seditionists, who he classed as "
spies, brigands, bushwackers, jayhawkers, war rebels, and assassins." Actually, the country was no longer tactically at war when Booth and his colleagues attempted their coup. Lee surrendered his forces to the U.S. Army on April 9, 1865. Lincoln was shot on April 14, just five days later, dying from his head wound on April 15.

In June 1942, President Franklin D. Roosevelt signed an executive order establishing a military commission to try eight accused German saboteurs who landed in the U.S. by submarine. All of the Germans were found guilty and six of them were executed. In
Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court ruled that the president had the right to establish a military commission to try any unlawful combatant against the United States, including U.S. citizens. Two of the German saboteurs, Ernest Burger -- a former aide to Nazi Brownshirt leader Ernst Röhm, and Herbert Haupt, were U.S. citizens. Haupt was executed by electric chair in Washington, DC. Burger, who ratted out his fellow saboteurs to the FBI shortly after being deployed ashore at Amagansett, Long Island by U-202, saw his death sentence commuted and changed to life imprisonment by President Roosevelt. In 1948, President Harry S Truman issued executive clemency to Burger and another of his colleagues, George Dasch, a U.S. Army veteran and permanent resident of the U.S. who had his death sentence commuted to thirty years in prison by FDR. Burger and Dasch were deported to the U.S. occupation zone in Germany, where they were treated as traitors to the Third Reich by most Germans.

The Supreme Court later ruled in
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) that George W. Bush's zealousness in establishing military commissions to try enemy combatants in the wake of 9/11 was based on flimsy constitutional reasoning and it nullified the military commission established by Bush. Congress somewhat rectified Bush's error by passing the Military Commissions Act (MCA) of 2006, which gave limited legal backing to future military commissions. Congress further refined the military commission statutes by passing the Military Commissions Act of 2009, which applied the same rights for the accused as what exists under the Uniform Code of Military Justice (UCMJ). The courts have generally upheld the legality of military commissions as applied to cases of international terrorism.

The legal precedents set by the Johnson and FDR executive orders in trying U.S. citizens for sedition, notwithstanding the Supreme Court's somewhat convoluted ruling in
Ex parte Milligan, 71 U.S. 2 (1866) on the legality of the Johnson commission, trying U.S. citizens by military commissions in certain times -- defined by Chief Justice Salmon P. Chase in Milligan as periods when the civil courts "might be open and undisturbed in their functions ... yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators." At a time when a twice-impeached President of the United States continues to seditiously call the current constitutional administration "illegal" while simultaneously claiming to be the de facto president, Chase, who was the Chief Justice when the conspirators carried out their plot on April 14, 1865 and may, himself, have been a target in his home at
Sixth and E streets, might have called the current situation as mandating, using his predicate, a military commission to try the accused seditionists and insurrectionists. It is certainly the case that judges appointed by the insurrectionist former president are "wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators."

On July 7, 1865, four co-conspirators in the plot against the U.S. government,
Mary E. Surratt — the first woman to be executed by the federal government — George Atzerodt, Lewis Powell, and David Herold were hanged at the Washington, DC penitentiary, which is currently Fort McNair. [left] It would be fitting for a military commission to try chief seditionist and insurrectionist Donald Trump and, if the evidence shows their culpability, members of his family, Republican members of the Senate and House of Representatives, and other material conspirators in the failed attempt to overthrow the government, at Fort McNair, serendipitously in Grant Hall, named for the victorious Civil War general and former president who was also a target of the coup conspirators on the evening of April 14, 1865.

Other democratic nations never shied away from exacting the severest of sentences -- death by hanging or firing squad -- on leaders and seditionists who carried out treason against their governments.

In October 1945, the French government tried and executed by firing squad the former pre-war and Nazi Vichy regime Prime Minister Pierre Laval. The Netherlands tried and executed Nazi puppet leader Anton Mussert in May 1946. Former Minister of Defense and Nazi regime Minister-President of Norway Vidkun Quisling was shot by firing squad after his treason conviction in October 1945. He was joined at the firing squad post by two of his collaborationist Cabinet ministers,
Minister of Domestic Affairs Albert Hagelin and
Minister of Church and Educational Affairs Ragnar Skancke. Soviet Army General Andrey Vlasov was hanged in 1946 for defecting to the Nazis and leading the "Russian Liberation Army" against his countrymen. Retired Lt. General Mike Flynn, who continues to call for insurrection against the constitutional and duly-elected government of the United States should take note in this instance. William Joyce, an American-born Nazi propaganda broadcaster for the Nazis -- nicknamed "Lord Haw-Haw" was hanged for treason by the British government in January 1946. A few weeks prior to Joyce's hanging, John Amery, the leader of the British Waffen SS British Free Corps was hanged on December 19, 1945.

Canada is not known for carrying out the death penalty but on August 27, 1947, the Canadian government hanged Canadian citizen Kanao Inouye for assisting in the Japanese Army's torture and murder of Canadian prisoners-of-war in Hong Kong.

The United States must graduate from its pollyannish attitude of neither imprisoning nor executing for sedition and insurrection guilty past presidents. No president in American history was ever impeached of crimes even approaching those of Mr. Trump. The mere fact that Trump set such a hideous example for possible future rogue U.S. presidents requires that he be tried for sedition and insurrection and if found guilty, he and his co-conspirators should face the same sentences as those dealt to the Lincoln assassination conspirators.

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