U.S. General Maps New Tactic to Pursue Taliban and Qaeda

The commander of American-led forces in Afghanistan said Tuesday that the military had adopted new tactics to combat Taliban and Al Qaeda militants in the country.

The officer, Lt. Gen. David W. Barno of the Army, said that in the past three months, American units down to the level of 40-soldier platoons had been dispatched to live in villages where they can forge ties with tribal elders and glean better information about the location and activities of guerrillas.

According to the linked article, the military in Iraq has adopted a new tactic in the fight there: sending soldiers to live in the villages. But wait -- isn't there something in the Bill of Rights about that? Indeed there is: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law..

We don't know whether the soldiers have the "consent of the owner" in this case, but if they do not, and if Congress has not passed any laws specifically authorizing this tactic ("but in a manner to be prescribed by law", meaning, the military commander on the scene can't just make it up), then it seems we are faced with a clear violation of the Bill of Rights. And that's scary.

I don't expect Iraqi citizens to be familiar with this particularly obscure amendment. Nor, indeed, would most Americans recognize it unprompted. But the Iraqi resistance (much as I think they are on the wrong side) are in a situation very similar to the American colonies during the Revolutionary War. That is, they are resisting occupation by a foreign power. And, disturbingly, the United States proposes to respond with the same tactics the British used against us some two centuries ago.

And our Constitution does not specify that these rights are accessible only to US citizens, or within the borders of the US. The wording is any house, not any house in the United States, or any house owned by a US citizen.

At a minimum, to make this legal, Congress must pass specific laws authorizing and defining the practice. Whether those laws are valid is then a separator issue, since whether US law has jurisdiction over Iraq is an open question. (De facto, we control the territory; de jure, I'm not certain). And somehow, I doubt that Congress has found the time to pass anything specifically authorizing this tactic; they don't move fast enough.

So we are faced with a government that openly violating the Bill of Rights. What, then, are we to do?

I asked Jon Roland, who runs constitution.org, to comment on this issue:

This practice of quartering U.S. troops in private Iraqi homes raises the question, does the Third Amendment protect against this, without congressional legislation to regulate it?

The simple answer is no. Although the Bill of Rights recognizes rights that are the rights of persons everywhere, neither Congress nor U.S. courts have jurisdiction to legislate or adjudicate for persons outside U.S. territory, and thus provide a remedy. The ancient principle is that there is no right without a remedy.

If there were a declared state of war, then the laws of war, authorized under the Laws of Nations Clause, would apply, which are essentially laws governing U.S. forces and diplomatic personnel abroad, and for the purposes of this situation, the Uniform Code of Military Justice.

So, essentially, without a declaration of war or letters of marque and reprisal, the actions of U.S. forces in Iraq are piracy, and all persons involved are subject to criminal prosecution. However, since the emergence of the practice of U.S. courts to deny access to private parties for the conduct of criminal prosecutions, only U.S. attorneys would be allowed to prosecute, and they are not going to prosecute the President or his troops.

For more on this see http://www.constitution.org and use our local search engines to search on the terms used in this article.