Tuesday, August 15, 2017

Documenting the Confederacy, Part 1: The Confederate States of America and Treason

Second flag of the CSA, the "Stainless Banner", incorporating the
battle flag of Lee's Army of Northern Virginia on a field of white
to represent "the heaven-ordained supremacy of the white man
over the inferior or colored race"

The states of the Confederacy (the "CSA") declared their secession from the United States (the "Union") in a collection of documents which are called the Articles of Secession.  Several of the CSA also issued "Declarations of Causes" which provide supplementary information.

For those who haven't kept track, the eleven states of the CSA were: South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, Tennessee, and North Carolina.  They formed a self-proclaimed nation in 1861 after the election of Republican Abraham Lincoln and fought the Union until 1865, when they were defeated.  The last four states listed (Virginia, Arkansas, Tennessee, and North Carolina) did not declare their secession until after the attack of Fort Sumter by the other seven secessionist states.

No foreign government ever officially recognized the CSA as an independent country.  According to US precedent (notably SCOTUS Texas v. White), unilateral secession is an impossibility because the Constitution creates an "indestructible" union: the Article of Confederation call the Union "perpetual" and the US Constitution created a "more perfect union".
"[Salmon P.] Chase, [Chief Justice], ruled in favor of Texas on the ground that the Confederate state government in Texas had no legal existence on the basis that the secession of Texas from the United States was illegal. The critical finding underpinning the ruling that Texas could not secede from the United States was that, following its admission to the United States in 1845, Texas had become part of "an indestructible Union, composed of indestructible states." In practical terms, this meant that Texas has never seceded from the United States." (Pavkovic & Radan, 2007, p 222)
 Precedent leaves open the possibility of successful rebellion (as the CSA did not achieve) or an Act of Congress permitting secession.

Legalistically speaking, so far as the United States and the rest of the world is concerned, the CSA never existed as an independent nation.  Had they succeeded, they would have.  Because the CSA never legally existed, the taking up of arms against the Union met the definition of treason in 18 US Code 2381:
"Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason..."
During the war, President Lincoln had issued a number of pardons for treason and rebellion.  President Johnson chose not to have wholesale trials of 3/4 million soldiers who served in the Confederate Army.  Instead, he issued a series of general pardons, with a large number of exceptions. In a final act on Christmas Day, 1968, President Johnson declared:
"unconditionally, and without reservation, ... a full pardon and amnesty for the offence of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws ..."
Meaning that that vast bulk of Confederate participants in the Civil War were granted a pardon for Treason.

Why is that significant?  One word: Burdick.  OK, three words: Burdick v. US.

Burdick is a 1915 SCOTUS decision that clearly establishes an individual is allowed to reject a pardon.  As a result, the state cannot compel testimony covered by the 5th Amendment by offering a pardon -- the defendant must accept the pardon.  In accepting a pardon, however, one confesses guilt of the crime pardoned:
This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it.
Thus, any member of the Confederacy (in particular any member of the Confederate Army or Navy) who accepted their pardon and was not tried for treason confessed to the crime of treason against the Union.

One specific person of note, however, attempted to confess and was denied for 110 years, then accepted retroactively.  General Robert E. Lee, specifically covered by exception to the general pardon because he resigned his commission in the US Army to serve in the Confederate Army, and because his rank was above that of Colonel in the Confederate Army, made application to President Johnson on 13 June 1865:
"Being excluded from the provisions of amnesty & pardon contained in the proclamation of the 29th Ulto; I hereby apply for the benefits, & full restoration of all rights & privileges extended to those included in its terms. I graduated at the Mil. Academy at West Point in June 1829. Resigned from the U.S. Army April '61. Was a General in the Confederate Army, & included in the surrender of the Army of N. Va. 9 April '65."
Lee signed an Amnesty Oath on 2 October 1865, complying fully with Johnson's general pardon proclamation.  But Lee was never pardoned while alive, and President Ford signed a joint congressional resolution making the pardon effecting 13 June 1965.

And thus, 110 years after the end of the Civil War and 105 years after his death, General Robert E. Lee confessed to treason against the United States.

Part 0: Introduction
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Documenting the Confederacy, Part 0: Introduction

First flag of the Confederate States of America (CSA)
Found on the intarwebs, used without permission.

I found a blog a while back that was systematically going through a collection of documents about the Confederacy and pulling out the proof that secession was about slavery.  I've since lost that blog, can't find it, and think perhaps it has slipped down the memory hole.

So I'm going to start doing that.  I'll be periodically posting a link to each of the traitor state's document describing their reasons for leaving the Union and selecting pull quotes that describe their reasons.  By doing so, I will be documenting, in their own words, that slavery was a significant reason for secession.  It will provide a library of responses to "the Civil War wasn't about slavery, it was about ...".

There will be an opportunity to discuss the meaning of the Confederate flag, as well.

In the end, I hope to create, if not a definitive resource, a sufficient one.

Part 1: The Confederate States of America and Treason
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Wednesday, August 9, 2017

Maintaining Sacred Space at Arlington

Watch a member of "The Old Guard" get a bayonet through his foot while changing the guard at the Tomb of the Unknowns.  Here's the story.  There's a grimace, and there's blood showing on his boot.  And that's it.

What discipline.

What dedication.

What an amazing thing that we, as Americans, receive such performance -- freely given! -- from a young man dedicated to our defense.

How disturbing that many of us don't deserve it -- and have no idea how to return even the most basic respect to troops like that.

Here's a comment I wrote last year on Facebook after a visit to Arlington National Cemetery.  It was made on the Facebook announcement of this post about Colin Kaepernick on Stonekettle Station by Jim Wright:

I visited Arlington National Cemetery (ANC) recently. Within a few feet of entering the gate, I heard young men (high school students, I would guess) skirmishing and tussling behind me, and I asked them (rather sharply, I'm afraid) to settle down and quiet down and remember that this was a cemetery not a locker room, and that it was as close to hallowed ground as our system allowed us to create. They shut up, and one muttered an apology.

Ten minutes later, leaving the Info Center, as Roosevelt Drive turned off and the road became Eisenhower Drive, I saw a cassion approaching, with full honor guard marching behind it. I got off the road, to the left of the sidewalk, and waited, attentive (not at attention -- I'm not a veteran, and I know the difference) and removed my hat as it approached. I got a nod from the NCOIC of the detail, which amazed me, until I turned to watch the cassion pass, and saw that there were a half dozen people IN THE ROAD with their cell phone cameras up, plus a couple of dozen more on the sidewalk and blocking Roosevelt going up the hill. Every last one had a cell phone up, most of them had hats on, and, as I said, a half dozen were standing in the road in front of the cassion. Before it had to stop, the docents got them out of the way and told the crowd that filming, especially from the road, was disrespectful (at least that's what I assume they said, because the phones came down) and reminded them to remove their hats.

I couldn't believe it. They had to almost physically remove one kid from the road. And they never did get his baseball cap off him.

At Arlington.

I agree with Jim (like that matters -- he's way more entitled to talk about this than I am) that we arent Romans, or Spartans, or even Watusi (thank you, Bill Murray), but these people buried here, they or their family went when we said "go", and they came back (if they came back) burdened with what we had them do in our names.

And we should damn well have the common decency to remove our hats, get the hell out of the way of their bodies, and have some goddamned RESPECT for them at their final resting place.

And since we're going to honor them, let's do so by remembering the ideals for which they fought, which include everyone's right to protest injustice.

Even NFL players.
I don't know what we need to do to make it clear to (especially young) Americans just how special a place Arlington National Cemetery is.  But I think we need to figure that out.
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Tuesday, February 21, 2017


I have successfully regained comments on the individual post pages.  As a result, I have also begun to examine the backlog of 8200+ comments from 2012 - 2014.  So far I have found four real comments from the last few months and hundreds of spam comments from 2014 and before.

I will therefore be deleting ALL the marked spam comments from 2012-2014 without examining them carefully for any gems that might actually be in there.

If there are any actual comments, I apologize.  But they'd be at least 2.5 years old anyway.

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Sunday, February 19, 2017

A Day That Should Live in Infamy

Manazar, CA

Manzanar War Relocation Center, on US 395, near Lone Pine, CA.
Photo by Evan Robinson.

Seventy-five years ago today, on 19 February, 1942, President Roosevelt signed Executive Order 9066, "Authorizing the Secretary of War to Prescribe Military Areas".  Roughly 120,000 American legal residents of Japanese descent -- about 70,000 of whom were American citizens -- were moved out of coastal exclusion zones and incarcerated in concentration camps.  Around 14,000 residents (or citizens) of German and Italian descent, as well as some refugees, were also rounded up and jailed under EO9066.

Assembly centers were set up at convenient locations like racetracks (Santa Anita in Southern California, and Tanforan in the Bay Area) and soon housed thousands of internees.  By October, ten "Relocation Centers" were set up outside the coastal exclusion zones: Manzanar and Tule Lake in California; Poston and Gila River in Arizona; Granada, Colorado; Heart Mountain, Wyoming; Minidoka, Idaho; Topaz, Utah; and Rohwer and Jerome in Arkansas.  Manzanar was the first, opened in March 1942.  Tule Lake was the largest, housing nearly 18,800 internees.

American citizens and legal residents had everything taken away but what they could carry, were stuffed into horse stalls and temporary housing, then moved hundreds or thousands of miles away and crammed into tar paper shacks behind barbed wire perimeters with machine gun towers.

In 1944, the Supreme Court ruled in Korematsu that the exclusion zones were constitutional, but sidestepped the question of incarceration.  In 1983, Fred Korematsu's conviction was overturned because the US government had knowingly submitted false information to the Supreme Court (in other words, the government perjured itself) and that the information was material to the Court's decision.  Other significant decisions upholding curfews for Americans of Japanese descent were Yasui and Hirabayashi.  Both were overturned in the 1980s for the same reasons as Korematsu -- government perjury.

So far as I can tell, no Supreme Court ruling ever addressed whether or not the internment (the incarceration of tens of thousands of legal residents and citizens) was constitutional, despite the occasional news story to the contrary.  Some such stories claim that Korematsu touched on the constitutionality of the internment, but the decision included the language:
"The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding."
which clearly excludes the question of the constitutionality of the internment.  Ex parte Endo further muddies the water by the ruling (on the same day as Korematsu) that there was "...no authority to subject citizens who are conceded loyal to its leave procedure."  In other words, the government had no authority to detain citizens not proven disloyal.  But they may imprison anyone for refusing to be illegally detained.

The Roosevelt administration lifted the internment orders immediately before the Korematsu and Endo rulings were announced. Public Proclamation No. 21, issued on 17 December 1944, rescinded the exclusion orders.

Legislation was signed in 1988 providing that the survivors of the internment were to be paid $20,000 in redress, and additional legislation appropriating additional funds was signed in 1992.  The internees did not get their property or belongings back, and fortunes were made by complicit white Americans who bought real property for pennies on the dollar during 1942.

And if, by chance, you think we would never do this again, let me quote from Executive Order: Border Security and Immigration Enforcement Improvements, issued 25 January 2017:
Sec. 5.  Detention Facilities.  (a)  The Secretary shall take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico.
Note that those to be detained are not "undocumented aliens" or "aliens illegally in the US", but any "aliens".

How many of you carry proof of citizenship with you at all times?

(Cross posted from Mischievous Ramblings II)
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