h. When [Ex Parte Milligan] came before the Supreme Court of the United States, the whole field of the interrelation of the civil and military power was covered in the arguments of able counsel. ... It was necessary there, as here, to determine whether a citizen, who is not a soldier, a prisoner of war, not a spy in a loyal state not presently invaded, is subject to military jurisdiction, or whether as a non-belligerent he must be tried by civil courts solely for offenses designated by Congress. ... But the opinion in all its phases is binding upon this court. It cannot be brushed aside as dicta, except by a process of wishful rationalization.
The rationale of both the main and concurring opinions is that the civil power in this country is supreme. Neither directly nor indirectly can the military power become dominant. The Constitution, laws and treaties of the United States control. Nor is the situtation changed by the incidence of war. This doctrine has been reaffirmed many times by the Supreme Court of the United States, citing the Milligan case.
...If this be a plea for the exercise of arbitrary power, it is not conceived that it has the support of the military authorities, and, certainly, has not the support of the decided cases....
...But there is no indication either in peace or war of a disposition to wear away the fundamental guarantees of liberty of the individual. Indeed, the emphasis, if not by extension, by construction at least has been strongly upon increasing vigilance in regard thereto....
...It is axiomatic that so long as no form of military jurisdiction is in force over a particular locality or person, the civil law will prevail.
The classical definitions of various situations where ordinary civil law does not apply is given in the concurring opinion in Ex parte Milligan, as follows:
"There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under Military Law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as Military Government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated Martial Law Proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights."
This is not a case here prosecuted under "military law" as above defined. ...Under the Articles of War, the right of the superior officer to legislate or establish rules and regulations for those under his command is clear. Violations of such orders are made punishable. ...until inducted, the civilian does not owe obedience to army orders or proclamations. ...
Nor is this a situation where a "military government" could be erected. Oregon [nt: like California] is not conquered territory nor hostile country. It is an area, the inhabitants of which are intensely loyal to the United States.... The application of military government has never been made except after the war between the states, when the area of the southern states was treated as territory conquered from a belligerent, and military governments were set up therein. The history of this experiment suggests that it be not repeated....
...The instant case relates to the power of the military commander to issue regulations binding indiscriminately upon citizen and alien, reserve officer, spy and civilian. Such power only is tolerated in the first instance if a state of "martial law" has been proclaimed by the proper authority and in the ultimate only if facts prove the existence of the military necessity therefor....
Whether declared by the President or by Congress or existing on account of conditions, the only basis for martial law is military necessity.
There is a pernicious doctrine known as "partial martial law", which was developed by an ambitious governor as a method of dictating regulations to the people of a state uncontrolled by the Constitution or laws thereof. ... The long history within recent years of the use of arbitrary power in the guise of martial law by the executives of the states, sometimes upon the flimsiest pretext, and occasionally, with the unjustifiable support of the judiciary, state and federal, in subversion of the rights and personal liberty of the citizen, indicates that a fear that the state official might in some future attempt further violations is at least justifiable....
The doctrine that there can be a partial martial law, unproclaimed and unregulated except by the rule of the military commander, expressed in orders or regulations proclaimed by him and enforced in the civil courts in a territory within the continental limits of the United States and at the time not occupied by any foreign foe, belongs in the category of such perversions, and cannot be justified by any sound theory of civil, constitutional or military law.... For a state of the United States or any portion thereof to be placed, in any essential function, or for citizens of the United States to be placed with regard to their fundamental rights, subject to the will of the commander alone, ... would be a complete surrender of the guarantees of individual liberties confirmed in the Constitution of the United States.... "But even the war power does not remove constitutional limitations safeguarding essential liberties." Home Building & Loan Association v. Blaisdell, supra, 290 U. S. 426, 54 S. Ct. 235, 78 L. Ed. 413, 88 A.L.R. 1481.
The replacement of the statutes of Congress, the courts and civil authority in this area can then be effected only by "martial law proper", under the definitions given.
(emphasis added) United States v. Yasui (1942), 48 F. Supp. 40, 45-51, resentencing in 51 F. Supp. 234, modified by 320 U.S. 115, 87 L.Ed. 1793, 63 S.Ct. 1393. (5)(d). [Yasui:] "This is a companion case to No. 870, Hirabayashi v. United States, decided this day [320 US 81, ante, 1774, 63 S Ct 1375]. ...
"Since we hold, as in the Hirabayashi Case, that the curfew order was valid as applied to citizens, it follows that appellant's citizenship was not relevant to the issue tendered by the Government and the conviction must be sustained for the reasons stated in the Hirabayashi Case. ..."
Yasui v. United States (1942), 320 U. S. 115, 116-117, 87 L. Ed. 1793, 63 S. Ct. 1392.
Read the full text here

(5)(e). [Hirabayashi:] "On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air force, Congress declared war against Japan. 55 Stat 795, c. 561, 50 USCA Appx. preceding Section 1. On February 19, 1942, the President promulgated Executive Order No. 9066. 7 Federal Register 1407. ... By virtue of the authority vested in him as President and as Commander in Chief of the Army and Navy, the President purported to "authorize and direct the Secretary of War, and the Military Commander whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion."
"On February 20, 1942, the Secretary of War designated Lt. General J. [John] L. [Lesesne] DeWitt as Military Commander of the Western Defense Command, comprising the Pacific Coast states and some others, ... On March 2, 1942, General DeWitt promulgated Public Proclamation No. 1. 7 Federal Register 2320. ... Among the military areas so designated by Public Proclamation No. 1 was Military Area No. 1, which embraced, besides the southern part of Arizona, all of the Coastal region of the three Pacific Coast states ... Military Area No. 2, designated by the same proclamation, included those parts of the coastal states and of Arizona not placed within Military Area No.1.
"Public Proclamation No. 2 of March 16, 1942, ...designated further military areas and zones. 7 Federal Register 2405.
"An Executive Order of the President, No. 9102, of March 18, 1942, established the War Relocation Authority, in the Office of Emergency Management of the Executive Office of the President; ...
" ...on March 24, 1942, General DeWitt issued Public Proclamation No. 3. 7 Federal Register 2543. After referring to the previous designation of military areas by Public Proclamation Nos. 1 and 2, it recited that "... the present situation within these Military Areas and Zones requires as a matter of military necessity the establishment of certain regulations pertaining to all enemy aliens and all persons of Japanese ancestry within said Military Areas and Zones. ..." ...
"Appellant does not deny that, given the danger, a curfew was an appropriate measure against sabotage. ... If it was an appropriate exercise of the war power its validity is not impaired because it restricted the citizen's liberty. Like every military control of the population of a dangerous zone in wartime, it necessarily involves some infringement of individual liberty, just as does the police establishment of fire lines during a fire, or the confinement of people to their houses during an air raid alarm-- neither of which could be thought to be an infringement of constitutional right. Like them, the validity of the restraints of the curfew order depends on all the conditions which obtain at the time the curfew is imposed and which support the order imposing it. ...
"Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. [cites omitted] We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. ...
"We need not now attempt to define the ultimate boundaries of the war power. We decide only the issue as we have defined it--we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power."
Hirabayashi v. United States (1943), 320 U.S. 81, 100-102, 87 L.Ed. 1774, 63 S.Ct. 1375.

Read the full text here

(5)(f). [Korematsu] "...Instead, this court certified to the Supreme Court in that case [Hirabayashi] the following question:
" "1. Was Lt. Gen. DeWitt's Civilian Exclusion Order No. 57 of May 10, 1942, excluding all persons of Japanese ancestry, including American citizens of Japanese ancestry, from and after 12 o'clock noon, May 16, 1942, from a particular area in Seattle, Washington within Military Area No. 1 established by General DeWitt's Proclamation No. 1 of March 2, 1942 and requiring a responsible member of each family, and each individual living alone, affected by the order to report on May 11 or 12, 1942, to the Civil Control Station in the said area in connection with said exclusion, a constitutional exercise of the war power of the President derived from the Constitution and statutes of the United States?" (Emphasis supplied)
"The Supreme court expressly refused to decide that question. ..." J. Denman concurring.
Korematsu v. United States (1943), 140 F.2d 289, 291-292.

(5)(h). "To the extent that Executive Order 9066 authorizes a Military Commander to prescribe rules of action--make laws--governing civilians in military areas set up in domestic territory upon the sole standard of military necessity, it is martial law; to the extent that Law 503 [Public Law 503, 77th Congress, approved March 21, 1942, entitled 'An Act to provide a penalty for violation of restrictions or orders with respect to persons entering, remaining in, leaving, or committing any act in military areas or zones.'] approves Executive Order 9066, it is declared martial law; and to the extent that Law 503 limits Executive Order 9066, it is qualified martial law. ...
In an article in the July-August 1942 Edition of the California State Bar Journal entitled "War-Time Martial Rule in California", the Governor of the State of California stated, "Although few realize it, federal martial rule is already partially in effect in California and other sectors of the Pacific Coast."
"In an article in the California Law Review in December 1942 (Vol. 131, No. 1 p. 6 et seq.) Col. W. A. Graham, formerly a Judge Advocate of the United States Army (1917-1939 retired) stated: "At this very moment, though the public generally does not realize it, we in California are living under conditions of martial rule; and we have been so living ever since the 19th of February, when the President promulgated his Executive Order Number 9066." ...
"Executive Order 9066 and Law 503, taken together, were not designed to supplant but to supplement and aid the civil authorities in carrying out their duties of prosecution and punishment under ordinary law as expressed in existing legislation. Title 50 U.S.C. sections 31, 32, 33, 34, 45, 101, 104, 105, 106, 21 and 24, 50 U.S.C.A. 31-34, 45, 101, 104-106 and 21, 24; 8 U.S.C. 451 et seq., 8 U.S.C.A. sections 451 et seq., 18 U.S.C. section 6, 9-14 and 88, 18 U.S.C.A. sections 6, 9-14, 88 as well as the Acts of Congress which are called the Articles of War, 10 U.S.C.A. section 1471 et seq. ..."
Ochikubo v. Bonesteel (S.D.Cal. 1945), 60 F. Supp. 916, 929-931.

6. There is no evidence in the Record that the judge holds a valid Commission as a military officer from either the President of the United States or from the Governor of California. Until such Commission(s) is/are entered into the Record, we must presume that the judge is not legally sitting under any valid authority.

7. The legal authority for this court to sit under the theory of a Military Government, under military necessity, has been expressly terminated:

(7)(a). "February 19th is the anniversary of a sad day in American history. It was on that date in 1942, in the midst of the response to the hostilities that began on December 7, 1941, that Executive Order No. 9066 was issued, subsequently enforced by the criminal penalties of a statute enacted March 21, 1942, resulting in the uprooting of loyal Americans...
"The Executive Order that was issued of February 19, 1942, was for the sole purpose of prosecuting the war with the Axis Powers, and ceased to be effective with the end of those hostilities. ...
"Now, therefore, I, Gerald R. Ford, President of the United Sttes of America, do hereby proclaim that all authority conferred by Executive Order No. 9066 terminated upon the issuance of Proclamation No. 2714, which formally proclaimed the cessation of the hostilities of World War II on December 31, 1946.
"I call upon the American people to affirm with me this American Promise--that we have learned from the tragedy of that long-ago experience forever to treasure liberty and justice for each individual American, and resolve that this kind of action shall never again be repeated.
"In witness whereof, I have hereunto set my hand this nineteenth day of February in the year of our Lord nineteen hundred seventy-six, and of the Independence of the United States of America the two hundredth.
"Gerald R. Ford"
Proclamation of the President, Number 4417, (February 19, 1976), U.S. STATUTES AT LARGE, Vol. 90, Part 2, p. 3078 [41 Fed. Reg. 7741 (February 20, 1976)].

(7)(b). "Section 1601. Termination of existing declared emergencies
"(a) All powers and authorities possessed by the President, any other officer or employee of the Federal Government, or any executive agency, as defined in section 105 of Title 5, as a result of the existence of any declaration of national emergency in effect on September 14, 1976 are terminated two years from September 14, 1976. Such termination shall not effect--
"(1) any action taken or proceeding pending not finally concluded or determined on such date;
"(2) any action or proceeding based on any act committed prior to such date; or
"(3) any rights or duties that matured or penalties that were incurred prior to such date.
"(b) For the purpose of this section, the words "any national emergency in effect" means a general declaration of emergency made by the President." 50 UNITED STATES CODE ANNOTATED, section 1601.

8. This court's authority to sit as a court-martial has been effectively terminated by the clear absence of any military necessity within California.

(8)(a). Judicial notice is required that with the destaffing, closing, decommissioning, and return to civilian control of various bases of the land forces of the United States [for example: Fort Ord, the former Camp Mather, The San Francisco Presidio], the United States Military Authority [whoever that may be] in California has effectively conceded that there is no "military necessity" to maintain such facilities. Hence, they apparantly perceive no immediate threat of actual foreign invasion or of insurrection; nor any immediate threat of invasion or insurrection in California.
Certainly, Declarant has never personally felt the threat of immediate invasion by the uniformed Armed Forces of North Korea, North Vietnam, Panama, Grenada, Somalia, Bosnia, Haiti, or any other pitiful little country half-way around the world that the United States has bullied to "justify" the existence of this supposedly non-ending "State of National Emergency" under 50 U.S.C.A. sections 1701 et seq. and/or under 50 U.S.C.A., Appx., sections 1-44.

(8)(b). [Hohri (586 F.Supp. 769):] "Indeed, plaintiffs argue that the Supreme Court's "finding" of military necessity in Korematsu practically precluded any future challenge to the government's actions. ...
"But the doctrine of fraudulent concealment has been applied to the United States by other courts, and nothing in Kubrick establishes that those holdings are wrong. See Diminnie v. United States, 728 F.2d 301 at 305 (6th Cir. 1984); Japanese War Notes Claimants Association of the Philippines, Inc. v. United States, 373 F.2d 356, 358-59, 178 Ct.Cl. 630, cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). ...
"It is undisputed that reports from the FCC, the FBI, and Naval Intelligence contradicting the claim of military necessity were concealed by defendant throughout the war, as most graphically illustrated by the Ennis and Burling memoranda urging the disclosure of these findings in the Hirabayashi and Korematsu briefs. Obviously, Ennis and Burling strongly believed that these documents could have affected the Supreme Court's decisions. ...
" ...Ringle's detailed report, which concluded that only limited individual detention of Japanese Americans was needed, was published at least as early as 1949 in Martin Grodzin's book, Americans Betrayed: Politics and the Japanese Evacuation 188-89 ...Finally Grodzin points out that all this information was gathered by the Justice Department in preparation for the Supreme Court litigation. Id. at 291 n. 50. ...
"Plaintiffs cannot claim that the facts underlying their suit were discovered by the Commisssion on Wartime Relocation and Internment of Civilians. Its synthesis of the material has made it easier for plaintiffs to challenge the military necessity rationale of Korematsu. ...
"The most significant of the newly released documents are the memoranda by Edward Ennis and John Burling discussing the inaccuracies in DeWitt's Final Report and urging that notice be taken of those inaccuracies in the Hirabayashi and Korematsu briefs. These memoranda show that some Justice Department officials believed that DeWitt's military necessity rationale was questionable but that their superiors decided nevertheless not to disclose to the Supreme Court probative evidence contradicting that rationale. ...
" "It was not until the [Commission's] work and related archival findings uncovered and published evidence of intentional government concealment and misrepresentation, that plaintiffs had evidence obviously different from that earlier ruled on by the Supreme Court...." Plaintiffs' Supplemental Memorandum on the Statute of Limitations at 7-9 (Jan. 20, 1984)...
"However it is the Ringle, Fly, and Hoover documents, not the Ennis and Burling memoranda, which contain the direct evidence requisite to challenging the finding of military necessity. ... They fully justify the condemnation of the wartime Department of Justice voiced by the Commission and the plaintiffs. ..."
Hohri v. United States (1984), 586 F.Supp. 769, 787-790.

(8)(c). [Hohri (847 F.2d 779):] J. Baldwin, [concurring and] dissenting-in-part: "Appellants [Hohri et al.] argue that their claims did not acrue until the completion of work by the Commission on Wartime Relocation and Internment of Civilians (CWRIC), established by Pub. L. No. 96-317, 94 Stat. 964, 96th Cong., 2d Sess. (1980), and the publication of the CWRIC Report of its investigation entitled Personal Justice Denied in 1982. Appellants' position is that the Supreme Court erected an insurmountable legal barrier with its decisions in Hirabayashi v. United States, 323 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) and Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), when it upheld the internment policy in deference to the military. This barrier could be removed they assert only by an affirmative statement by one of the "war-making" branches that military necessity did not require the internment policy. They argue that the creation of the CWRIC and the publication of Personal Justice Denied is the first event constituting such a statement. This conclusion is premised upon the disclosure in Personal Justice Denied that the government fraudulently concealed significant and vital information concerning its role in the Korematsu and Hirabayashi decisions. ...
"These appellants' claims were effectively foreclosed by Hirabayashi and Korematsu as a direct result of appellee's [the United States] conduct. ...
"Where a defendant [the United States] fraudulently conceals information, and that concealment has the effect of dooming a plaintiff's claims at the outset, the statute of limitations should be tolled until such time as the plaintiff discovers or should have discovered, through due diligence, the facts concealed.
"Appellee's actions during the War clearly constituted fraudulent concealment. The district court found, based on the pleadings and the historical evidence, that appellee did, in fact, conceal critical evidence during the prosecution of Hirabayashi and Korematsu before the Supreme Court. 586 F.Supp. at 787-788. ...
"The act creating CWRIC, Pub.L. No. 96-317, 94 Stat. 964 (1980) supports this reasoning. Section 2(a)(3) states that "no sufficient inquiry has been made" into the exclusion and internment. Section 2(b)(1) says one of the purposes of the Act was to "review the facts and circumstances surrounding" the exclusion and internment. This was the first intimation by any branch of the government that the Court's deference to the military was legally erroneous and possibly subject to attack. Prior statements simply noted the immorality of the actions. See, e.g., Presidential Proclamation No. 4417 (1976); H.R.Rep. No. 732, 80th Cong., 1st Sess.(1947) (Report accompanying the American-Japanese Evacuation Claims Act stating that the "only clear recourse" for the victims was through private bills, suggesting that the evacuees could not state an actionable claim); S.Rep. No. 601, 82nd Cong., 1st Sess.(1951) (amendments to same act restating same view); H.R.Rep. No. 1809, 84th Cong., 2d Sess.(1956) (amendments to same act referencing earlier legislative history). ..."
Hohri v. United States (Fed. Cir. 1988), 847 F.2d 779, 781-784; cert. den. 488 U.S. 925, 102 L.Ed.2d 326, 109 S.Ct. 307 (1988).

(8)(d). From Personal Justice Denied, The Report of the Commission on Wartime Relocation and Internment of Civilians, Part 1 (1982) [Library of Congress Call No. Y3W1910.J98]:

SUMMARY

The Commission on Wartime Relocation and Internment of Civilians was established by act of Congress in 1980 and directed to
1. review the facts and circumstances surrounding Executive Order Numbered 9066, issued February 19, 1942, and the impact of such Executive Order on American citizens and permanent resident aliens;
2. review directives of United States military forces requiring the relocation and, in some cases, detention in internment camps of American citizens, including Aleut civilians, and permanent resident aliens of the Aleutian and Pribilof Islands; and
3. recommend appropriate remedies.

In fulfilling this mandate, the Commission held 20 days of hearings in cities across the country, particularly on the West Coast, hearing testimony from more than 750 witnesses: evacuees, former government officials, public figures, interested citizens, and historians and other professionals who have studied the subjects of Commission inquiry. An extensive effort was made to locate and to review the records of government action and to analyze other sources of information including contemporary writings, personal accounts and historical analyses.
By presenting this report to Congress, the Commission fulfills the instruction to submit a written report of its findings. Like the body of the report, this summary is divided into two parts. the first describes actions taken pursuant to Executive Order 9066, particularly the treatment of American citizens of Japanese descent and resident aliens of Japanese nationality. The second covers the treatment of Aleuts from the Aleutian and Pribilof Islands. [pp. 1-2.]

THE SUPREME COURT CASES

Immediately after the announcement the Supreme Court handed down opinions in both Korematsu and Ex parte Endo.[106. Korematsu v. United States, 323 U.S. 214 (1944); Ex parte Endo, 323 U.S. 283 (1944).] In Korematsu, a divided court upheld the criminal conviction of Fred Korematsu for failing to report to an assembly center in May 1942 pursuant to the plan through which he would be excluded from California and sent to a relocation center. Justice Hugo Black wrote a short opinion for the majority which is remarkable in its treatment of both the facts and the law. The Court did not undertake any careful review of the facts of the situation on the West Coast in early 1942. It avoided this task by choosing to give great deference to the military judgment on which the decision was based. This approach of deferring to the military judgment rather than looking closely at the record which the government had been able to pull together was the only plausible course for the Court to follow if it were to conclude that exclusion was constitutionally permissible. If the Court had looked hard, it would have found that there was nothing there--no facts particularly within military competence which could be rationally related to the extraordinary action taken. Justice Murphy's vehement dissent made that plain as he dissected and destroyed General DeWitt's Final Report. It is the inevitable conclusion of those who carefully studied the opinion, the briefs and the record immediately after Korematsu was decided. Eugene Rostow wrote the seminal article about the cases in 1945 and dealt pointedly with the issue of factual proof of "military necessity." Rostow believed a convincing and substantial factual case had to be made before civil rights could be permissively invaded as they were here, but he concluded that one did not have to insist upon that rule of proof to conclude that the Japanese American cases were wrongly decided:
No matter how narrowly the rule of proof is formulated, it could not have been satisfied in either the Hirabayashi or the Korematsu cases. Not only was there insufficient evidence in those cases to satisfy a reasonably prudent judge or a reasonably prudent general: there was no evidence whatever by which a court could test the responsibility of General DeWitt's action, either under the statute of March 21, 1942, or on more general considerations. True, in the Hirabayashi case the Court carefully identified certain of General DeWitt's proclamations as "findings," which established the conformity of his actions to the standard of the statute--the protection of military resources against the risk of sabotage and espionage. But the military proclamations record conclusions, not evidence. And in both cases the record is bare of testimony on either side about the policy of the curfew or exclusion orders. There was every reason to have regarded this omission as a fatal defect, and to have remanded in each case for a trial on the justification of the discriminatory curfew and of the exclusion orders.
Such an inquiry would have been illuminating. General DeWitt's Final Report and his testimony before committees of Congress clearly indicated that his motivation was ignorant race prejudice, not facts to support the hypothesis that there was a greater risk of sabotage among the Japanese than among residents of German, Italian, or any other ethnic affiliation. The most significant comment on the quality of the general's report is contained in the government's brief in Korematsu v. United States. There the Solicitor General said that the report was relied upon "for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. We have specifically recited in this brief the facts relating to the justification for the evacuation, of which we ask the Court to take judicial notice, and we rely upon the Final Report only to the extent that it relates such facts." Yet the Final Report embodied the basic decision under review and stated the reasons why it was actually undertaken. General DeWitt's Final Recommendation to the Secretary of War, dated February 14, 1942, included in the Final Report, was the closest approximation we have in these cases to an authoritative determination of fact. [107. Eugene Rostow, "The Japanese American Cases--A Disaster," 54 Yale Law Journal 489, 520 (1945)(footnotes omitted).]
We have already analysed the conclusory beliefs about ethnicity determining loyalty which are central to DeWitt's final recommendation, and have pointed out the weakness of the government's case when it was put to its proof on the facts in cases such as Ebel and Schueller.
No one reading the Supreme Court's opinion today with knowledge of the exclusion, evacuation and detention can conclude that the majority opinion displays any close knowledge of the reasoning used by the government in the momentous historical events under review. The only concrete item pointed out to show disloyalty among evacuees was the fact that approximately 5,000 American citizens in the relocation centers had refused to swear unqualified allegiance to the United States, a fact that is meaningless without understanding conditions within the camps.
What of the law on which the case was based? There are two principles in contention in the majority opinion; the presumption against invidious racial discrimination which requires that racial classifications be given strict scrutiny, and the deference to military judgment in wartime based on the war powers of the constitution and expressed in the banal aphorism that the power to wage war is the power to wage war successfully. In this case, of course, the Court found that military interests prevailed over the presumption against racial discrimination.
Today the decision in Korematsu lies overruled in the court of history. First, the Supreme Court, a little more than a year later in Duncan v. Kahanamoku, reviewed the imposition of martial law in Hawaii and struck it down, making adamantly clear that the principles and practices of American government are permeated by the belief that loyal citizens in loyal territory are to be governed by civil rather than military authority, and that when the military assumes civil functions in such circumstances it will receive no deference from the courts in reviewing its actions. [108. Duncan v. Kahanamoku, 327 U.S. 304 (1946); see analysis in Chapter 11, Hawaii, pp 280-82.] Korematsu fits the Duncan pattern--the exclusion of the Nikkei not only invaded the recognized province of civil government, it was based on cultural and social facts in which the military had no training or expertise. General DeWitt had assumed the role of omniscient sociologist and anthropologist. Duncan makes clear that no deference will be given to military judgments of that nature.
The other leg of the opinion, the failure to strike down an invidious racial discrimination, stands isolated in the law--the Japanese American cases have never been followed and are routinely cited as the only modern examples of invidious racial discrimination which the Supreme Court has not stricken down. Typically, Justice Powell wrote in 1980:
Under this Court's established doctrine, a racial classification is suspect and subject to strict judicial scrutiny. ...Only two of this Court's modern cases have held the use of racial classifications to be constitutional. See Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943). Indeed, the failure of legislative action to survive strict scrutiny has led some to wonder whether our review of racial classifications has been strict in theory, but fatal in fact. [109. Fullilove v. Klutnick, 448 U.S. 448, 507 (1980) (Justice Powell concurring).]
Moreover, the law has evolved in the last forty years and the equal protection of the laws, once applicable only to the states by the language of the Fourteenth Amendment, has now been applied through the due process clause of the Fifth Amendment to actions of the federal government. [110. Bolling v. Sharp, 347 U.S. 497 (1954).] Thus the constitutional protection against federal discrimination has been strengthened. Korematsu is a curiosity, not a precedent on questions of racial discrimination.
Finally, insofar as Korematsu relied on the inherent authority of an executive order from the Commander in Chief and not on a program articulated and defined by statute, that precedent has been overruled by the decision of the court in the steel seizure case. [111. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).]
Korematsu has not been overruled--we have not been so unfortunate that a repetition of the facts has occurred to give the Court that opportunity--but each part of the decision, questions of both factual review and legal principles, has been discredited or abandoned.
The result of the companion case of Ex parte Endo was very different. The court unanimously reversed Endo and ruled that an admittedly loyal American citizen could not be held in a relocation camp against her will. But even this ruling was on the narrow ground that no statute or even an explicit executive order supported this course of conduct. The Supreme Court does not reach constitutional issues unnecessarily, but the tone of Justice Douglas's writing in Endo was nonetheless crabbed and confined. Even this very substantial and important victory for the evacuees did not come with an air of generosity or largeness of spirit. [112. In his autobiography, Justice Douglas commented on the decisions and his own later view of the cases:
Was it constitutional to evacuate only citizens of Japanese ancestry? That was an issue hotly contested both in the curfew case (Hirabayashi v. United States, 320 U.S. 81) and in the evacuation case (Korematsu v. United States, 323 U.S. 214).
The Pentagon's argument was that if the Japanese army landed in areas thickly populated by Americans of Japanese ancestry, the opportunity for sabotage and confusion would be great. By doffing their uniforms they would be indistinguishable from the other thousands of people of like color and stature. It was not much of an argument, but it swayed a majority of the Court, including myself. The severe bite of the military evacuation order was not in a requirement to move out but in the requirement to move out of the West Coast and move into concentration camps in the interior. Locking up the evacuees after they had been removed had no military justification. I wrote a concurring opinion, which I never published, agreeing to the evacuation but not to evacuation via the concentration camps. My Brethren, especially Black and Frankfurter, urged me strongly not to publish. "The issue of detention is not here," they said. "And the Court never decides a constitutional question not present." The latter was of course not true, as John Marshall's famous Marbury v. Madison (5 U.S. 137) shows. Technically, however, the question of detention was not presented to us. Yet evacuation via detention camps was before us, and I have always regretted that I bowed to my elders and withdrew my opinion.
On the same day that we decided the evacuation case we held that there was no authority to detain a citizen, absent evidence of a crime (Ex parte Endo, 323 U.S. 283). Meanwhile, however, grave injustices had been committed. Fine American citizens had been robbed of their properties by racists--crimes that might not have happened if the Court had not followed the Pentagon so literally. The evacuation case, like the flag-salute case, was ever on my conscience. Murphy and Rutledge, dissenting, had been right. (William O. Douglas, The Court Years: 1935-1975 [New York: Random House, 1980], pp.279-280.)]
Personal Justice Denied. The Report of the Commission on Wartime Relocation and Internment of Civilians, Part 1 (1982), pages 236-239.

9. Were this "court" to attempt to claim jurisdiction over Declarant under the United States Uniform Code of Military Justice, this "court" must bear the burden of proving by competent Evidence before presuming jurisdiction that Declarant is somehow subject to that Code [10 U.S.C.A., sections 801 et seq.].

(9)(a). 10 U.S.C.A., Section 802, reads, in relevant part:

802. Art. 2. Persons subject to this chapter
(a) The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.
(2) Cadets, aviation cadets, and midshipmen.
(3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.
(4) Retired members of a regular component of the armed forces who are entitled to pay.
(5) Retired members of a reserve component who are receiving hospitalization from an armed force.
(6) Members of the Fleet Reserve and the Fleet Marine Corps Reserve.
(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.
(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.
(9) Prisoners of war in custody of the armed forces.
(10) In time of war, persons serving with or accompanying an armed force in the field.
(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(b) The voluntary enlistment of any person who has the capacity to understand the signigance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.
(c) Notwithstanding any other provision of law, a person serving with an armed force who--
(1) submitted voluntarily to military authority;
(2) met the mental capacity and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;
(3) received military pay or allowances; and
(4) performed military duties;

is subject to this chapter until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. ...

(9)(b). "In McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S. Ct. 305, 4 L.Ed.2d 282 (1960), and Grisham v. Hagan, 361 U. S. 278, 80 S. Ct. 310, 4 L.Ed.2d 279 (1960), the Court expressly invalidated Article 2(11) of the Uniform Code, 10 U.S.C. section 802--the provision placing under this code "persons serving with [or] employed by *** the armed forces outside the United States (with irrelevant exceptions)."
Saylor v. United States (1967), 374 F.2d 894, 899.

10. Declarant is currently a loyal, non-combatant, non-belligerent, American and one of the People of California.
Declarant is not an "enemy" as defined in 50 U.S.C.A., Appendix, Section 2, nor an "alien", nor a "unlawful enemy belligerent".

(10)(a). 50 U.S.C.A., Appx., Section 2:

The word "enemy," as used herein shall be deemed to mean, for the purposes of such trading and of this Act [section 1 to 6, 7 to 39 and 41 to 44 of this Appendix]--
(a) Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory, and any corporation incorporated within such territory of any nation with which the United States is at war or incorporated within any country other than the United States and doing business within such territory.
(b) The government of any nation with which the United States is at war, or any political or municipal subdivision thereof, or any officer, official, agent or agency thereof.
(c) Such other individuals, or body or class of individuals, as may be natives, citizens, or subjects of any nation with which the United States is at war, other than citizens of the United States, wherever resident or wherever doing business, as the President, if he shall find the safety of the United States or the successful prosecution of the war shall so require, may, by proclamation, include within the term "enemy."

(10)(b). "Subjects of a country with which the United States is at war do not come within the definition of "enemy" as laid down in the Trading with the Enemy Act, unless, of course, they have been included within the term "enemy" by a proclamation of the President pursuant to section 2(c), 50 USCA Appx section 2(c), 11 FCA title 50, section 24(2)(c). Vowinckel v. First Federal Trust Co. (1926; CCA 9th) 10 F(2d) 19; Stadtmuller v. Miller (1926; CCA 9th) 11 F(2d) 732, 45 ALR 895; Von Schwerdtner v. Piper (1928; DC) 23 F(2d) 862; Bernheimer v. Vurpillot (1942: DC) 42 F Supp 830; Wolf v. Cudahy Packing Co. (1919) 105 Kan 317, 182 P 395; Tortoriello v. Seghorn (1918; NJ Eq) 103 A 393; Heiller v. Goodman's Motor Exports Fan & Storage Co. (1918) 92 NJ 415, 105 A 333, 3 ALR 336."
Annotation, 148 A.L.R. 1423 (1944).

(11). It is very difficult for Declarant to openly Rebut secret, hidden, and silent presumptions and silent judicial notice of hidden and secret relationships. However, the premises behind these silent and hidden presumptions are so hideous that they deserve detailed examination here and extensive scrutiny by the "court".

(11)(a). The "court" system at large throughout the United States of America and at all levels seems to have silently adopted the hidden presumptions that:
(1) all "courts" have the right to be sitting as courts-martial under "partial martial law" during a virtually-unending "state of national emergency";
(2) each one of the People of the United States of America, upon the act of applying for a Social Security Account Number and upon the subsequent issuance of such a Number ceases to be one of the People of the United States of America [voluntarily "alienates" himself or herself from his/her Sovereign Citizenship] and becomes a U.S. CITIZEN;
(3) that every such U.S. CITIZEN is automatically an "enemy" of the United States and an "alien" within each State wherein he/she is either "RESIDENT" or "NON-RESIDENT"; and
(4) that said U.S CITIZEN appears before the "court" as a "unlawful enemy belligerent" [through a gross misinterpretation of the United States Supreme Court's decision in Ex Parte Quirin], automatically not entitled to the protections afforded the People by the Constitution for the United States of America.
The advantage to the "court" and "the Government" of such presumptions is that the "court" does not have to respect the individual, or the Constitutionally-protected Rights of the individual, or the very Constitution itself; because it has already pre-judged that the individual does not have any Constitutional Rights as a result of his/her imputed and/of presumed "status".
Of course, the presumptions become more than a little complicated and strained when the "court" must also purport to having been legally "voted for" and legally "elected by" these very same "aliens" and "enemies".
The mentioned presumptions also make the institution of slavery as practiced in the 1800's look positively benign and appear to be a prelude to Nazi Germany-Part II or Stalinist Russia-Part II.

(11)(b). 50 U.S.C.A., Section 23 reads:

"Section 23. Jurisdiction of United States courts and judges
"After any such proclamation [?, see secs. 20-22] has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident in and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed."
(11)(c).
"Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; ... It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commisssions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions.
"By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. ...
Paragraph 8 (1940) [1940 Rules of Land Warfare promulgated by the War Department for the guidance of the Army] divides the enemy population into "armed forces" and "peaceful population," and paragraph 9 names as distinguishing characteristics of lawful belligerents that they "carry arms openly" and "have a fixed distinct emblem." ...
"The definition of lawful belligerents by paragraph 9 is that adopted by Article 1, Annex to Hague Convention No. IV of October 18, 1907, to which the United States was a signatory and which was ratified by the Senate in 1909. 36 Stat at L 2295. The preamble to the Convention declares: "Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."
Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear "fixed and distinctive emblems."...
"By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful belligerents punishable as such by military commission. ...
"It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. ...
"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.
"The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered--or, having so entered, they remained upon--our territory in time of war without uniform or other appropriate means of identification. ...
"We construe the court's statement as to the inapplicability of the law of war to Milligan's Case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as--in circumstances found not there to be present and not involved here--martial law might be constitutionally established. ..."
Ex parte Quirin (1942), 37 U.S. 1, 87 L.Ed. 3, 63 S.Ct. 2.

(11)(d). Of course, the very existence of the current "courts" depends upon still further silent and hidden presumptions that:
(1) there is a state of war which exists between "the Government" of the United States and the lawful government: the People of the United States of America; and
(2) the People of the United States of America are aware of that war and are all actively engaged in it as "unlawful enemy belligerents".
Presumption (1) would be legally impossible for, if true, said "Government" would have immediately forfeited any pretense of legitimacy and with it any lawful or legal claim upon the loyalty, obedience, or property of the People and would be immediately liable to the lawful Remedies of Revolution, Retortion, and/or Reprisal.
Were presumption (2) true, it would mean that all members of the "Government" [supposedly elected or employed by and for the People of the United States of America], and all those allied with them, would be liable under the exact same laws of war; i.e. any "Government" enemy belligerent in uniform and bearing arms could be immediatedly eliminated upon sight by any uniformed member of the opposing armed force and any "Government" enemy belligerent not in uniform could be eliminated, upon Capture, as a spy.
Moreover, waging war upon civilians is still recognized as a "war crime" under the international laws of war.

(11)(e). If the situation set out above were to accurately portray the current condition in the United States of America, Declarant and all other similarly situated People of the United States of America would almost have to recognize that there were in existence and effect a Private, Secret, Hidden, and Undeclared War [hence unlawful and unjustifiable even under the international laws of war] which would exist between all licensed members of the American Bar Association and all other affiliated Bar Associations in the United States of America [i.e.; Attorneys, and Attorneys-acting-as-"Judges"], on the one side; and the People of the United States of America, on the other.
Since it would appear such a war would be implemented by the deliberate mis-use and mis-application of words, Declarant would also have to presume that any Lawyer/Attorney in uniform [the standard Three-Piece Suit] and armed [carrying a loaded Briefcase] would be lawful and legal Prize, Capture, or Casualty to any armed and uniformed member of the opposing force [the People] just as soon as the People realized they were at war.

(11)(f). However, such a hidden and silent Presumption would explain "the Government's" obsession with gun control [disarming the People and the several statutory and non-statutory Militias]. Moreover, it would explain "the Government's" current insistence upon, and obsession with, guards and metal detectors at more and more "Government" facilities. If those facilities had somehow been self-determined to be military "outposts" in "hostile territory" during a "time of war", then "the Government's" position would at least be logically consistent, even if totally unlawful.
It would also explain the current presumptuousness of the Immigration and Naturalization Service's "screening" of the People, when applying for a job, for "eligibility" to work in our own Nation.
Of course, if said facilities had been really deemed "outposts in hostile territory", the "Government" would have immediately removed itself from the "status" of de jure government; would have passed completely through the "status" of de facto government; through the "status" of fraudulent and invalid and bogus government; having ended in the status of Piratical or Tyrannical pseudo-government; and would have immediately become lawfully and legally liable, under the international laws of war and the law of nations, to what one Justice of the United States Supreme Court once called, "a terrible retribution".

(11)(g). Declarant would also have to Presume that this "court" had been sitting far outside both its lawful and its legal authority; "in subversion of the rights and personal liberty of the citizen" [Yasui]; as a "gross usurpation of power" [Milligan]; in an "exercise of arbitrary power" which "has not the support of the decided cases" [Yasui]; engaged in "nothing less than lawless violence" [Ableman]; and as "perversions [which] cannot be justified by any sound theory of civil, constitutional or military law" [Yasui].

12. Unless, or until, the United States Supreme Court overrules Milligan AND Quirin AND Endo AND Duncan AND Youngstown..., they are still standing case Law, required to be judicially Noticed by this "court", and this "court", whatever it conceives itself to be, is bound by them.

13. Now, it might conceivabably be reasonable for the "court" to expect Declarant to ignore the evidence of Declarant's senses [the military flags]; but it becomes questionable when the "court" expects Declarant to also ignore official Government documents [Army Regulation AR 840-10]; and becomes probable cause for major investigation when the "court" expects Declarant to ignore over one hundred years of United States Supreme Court precedent [set out above] which consistently and strongly suggest that this "court' is prima facie In Error simply by purporting to exist.

14. Therefore, absent the immediate production of relevant and competent Evidence entered into the Record to Prove that (1) the "court" has any current lawful or legal existence whatsoever; AND (2) that the "court" has any lawful business in Declarant's affairs, Declarant must respectfully and lawfully deny the "court" any lawful or legal jurisdiction whatsoever over my person or over the subject matter, on the dual grounds of: (1) blatant violation, in application to Declarant, of the Constitution for the United States of America and of the Constitution of the State of California; and of (2) Complete and Total Lack of Competence of the "court".

(14)(a).

At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. ...
The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or any other branch of Government, which is free from the restraints of the Constitution.
Article VI, the Supremacy Clause of the Constitution, declares:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; ...."
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. ... It would be manifestly contrary to the objections of those who created the Constitution, as well as those who were responsible for the Bill of Rights--let alone alien to our entire constitutional history and tradition--to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. ...
This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of the conflict renders the treaty null. ...
The term "land and naval Forces" refers to persons who are members of the armed services, and not to their civilian wives, children, and other dependents. ...
It is true that the Constitution expressly grants Congress power to make all rules necessary and proper to govern and regulate those persons who are serving in the "land and naval Forces." But the Necessary and Proper Clause cannot operate to extend military jurisdiction to any group of persons beyond the class described in Clause 14--"the land and naval Forces." Under the grand design of the Constitution civilian courts are the normal repositories of power to try persons charged with crimes against the United States. ... By way of contrast the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, section 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections. Having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of Clause 14. ...
Since the exception in this Amendment [the Fifth] for "cases arising in the land or naval forces" was undoubtedly designed to correlate with the power granted Congress to provide for the "Government and Regulation" of the armed forces, it is a persuasive and reliable indication that the authority conferred by Clause 14 does not encompass persons who can not be fairly said to be "in" the military service. ...
For instance, Blackstone went so far as to assert:
"For martial law, which is built upon no settled principles, but is entirely arbitrary in its decision, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land."
Reid v. Covert (1957), 354 U.S. 1, 1 L.Ed.2d 1148, 1157-1169, 77 S.Ct. 1222.

15. Were the foregoing not bad enough, it appears that this "court" is also in blatant violation of both the English Petition of Right of 1628 [which Petition is part of our Common-Law heritage from England] and of the English Declaration of Rights of 1689 as set out below:

(15)(a). 7. And whereas also by authority of Parliament, in the 25th year of the reign of King Edward the Third, it is declared and enacted, that no man shall be forejudged of life or limb against the form of the Great Charter, and the law of the land; and by the said Great Charter and other the laws and statutes of this your realm, no man ought to be adjudged to death, but by the laws established in this your realm, either by the customs of the same realm or by Act of Parliament: and whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm; nevertheless of late divers commissions under your Majesty's Great Seal have issued forth, by which certain persons have been assigned and appointed Commissioners with power and authority to proceed within the land, according to the justice of martial law against such soldiers and mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, and by such summary course and order, as is agreeable to martial law, and is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death, according to the law martial:
8. By pretext whereof, some of your Majesty's subjects have been by some of the said Commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought to have been, adjudged and executed:
9. And also sundry grievous offenders by color thereof, claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused, or forborne to proceed against such offenders according to the same laws and statutes, upon pretense that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm....

(15)(b). "There is no doubt that the Declaration of Rights is the antecedent of our constitutional text. (This document was promulgated in February 1689 and was enacted as the Bill of Rights, 1 Wm. & Mary, Sess 2, ch 2, in December 1689. See Sources of Our Liberties 222-223 (R. Perry & J. Cooper eds 1959); L. Schwoerer, Declaration of Rights, 1689, pp 279, 295-298 (1981).) ... In fact, the entire text of the Eighth Amendment is taken almost verbatim from the English Declaration of Rights, ...
"Thus, not only is the original meaning of the 1689 Declaration of Rights relevant, but also the circumstances of its enactment, insofar as they display the particular "rights of English subjects" it was designed to vindicate."
Harmelin v. Michigan (1991), 501 U.S. 957, 966-967; 115 L.Ed.2d. 836, 846-847; 111 S. Ct. 2680.

16. The final question is: "What would a lawful Common-Law civilian court of the United States of America or of the State of California look like?"

Declarant has, to his knowledge, never seen or been in a actual lawful Common-Law court; so Declarant must argue from example and analogy.

(16)(a). Declarant has been a local elections official for several State of California elections. At the polling place, Declarant, under direction of the County Clerk/Recorder, displayed the United States flag thus:
The un-fringed United States flag was displayed hanging flat against a wall and/or from an exterior overhang, with the union in the flag's own upper left and the red and white stripes running horizontally.

(16)(b). Declarant believes the United States flag, without fringe, should be displayed similarly, behind the judge and to the judge's own right.
Presumably the California flag, without fringe, should be displayed in a similar manner to the judge's own left.

(16)(c). Declarant believes the "judge" should be sitting in civilian clothing, not in the ubiquitous Black Robe; and seated at the same level as his peers (those Citizens who elected him), not "Lording" it over his "subjects" from the "bench".

(16)(d). Declarant believes that the flagstaffs and fringed flags should be removed from the court room.

17. Declarant Declares that Declarant has more than probable cause to believe that the "court", its affiliates, and adjuncts are one and all, each and every, jointly and severally, prima facie in violation of the Law of the United States of America and of the statutes of both the United States and the State of California; in Default upon their Oaths of Office (if any) to both the United States of America and to the State of California; and in Default upon their individual and several Official Bonds (if any).

18. The act of assuming or presuming such unlawful and illegal "jurisdiction" over Declarant would be per se a clear, direct, blatant, and unlawful violation of Declarant's Privileges and Immunities as a Citizen of the United States of America, as secured to Declarant by the Constitution for the United States of America [incorporated in full by reference], and also a clear, direct, blatant, and unlawful violation of Declarant's Privileges and Immunities as one of the People of California as secured to Declarant by the Constitution for the State of California [incorporated in full by reference], and will subject this "court" to all applicable Lawful Remedies, to all applicable criminal penalties, and to all applicable civil liabilities, for any and all such unlawful actions taken against Declarant in "clear absence of jurisdiction".

19. This "court" will not contact or attempt to contact Declarant, from this time forward, in any way or manner whatsoever, directly or indirectly, through any agent or pretense of "agency", or under any excuse or "justification" or "authority" or "color of authority" without full lawful Due Process under the Law of the United States of America and of the State of California.

I certify within the laws of the state of California, that the foregoing is true, correct, and complete.

Dated: _________________________________

At: ____________________________________

Signed: __________________________________________________

END

Previous, Part 2

E-mail me here: