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Sovereign Immunity ~ the Tool of Tyranny (revised - 2nd edition)

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Department of Defense Appropriations Act of 2006 (H.R. 2863) and the license to torture

(2nd edition - July 2007) by A.O. Kime
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Since the early days Congress has voted to enact laws which were later ruled unconstitutional or were otherwise ‘un-American’ (unethical, unjust). While the reasons may be numerous, at least we know legislators often did so on behalf of special interests or were vote swapping (tit-for-tat). We might also suspect it was often a matter of expediency but still, in light of the consequences, all reasons must be considered on a par. In a very real sense, they are equally unforgivable and traitorous. After all, the result is the same... justice was compromised.

More recently however, those who voted for the Department of Defense Appropriations Act of 2006 (H.R. 2863) on December 21, 2005 will be remembered as the most damaging of legislators. The exception was that Senator John McCain and a few active supporters of his amendment at least tried to right a ongoing wrong. This amendment was the Detainee Treatment Act of 2005 (Title X prohibits the inhumane treatment of prisoners).

While initially Title X had some merit - although one of timidness - in the end its potential was negotiated away. In fact, the tables were turned... the amendment became a Trojan horse of political cozenage. And, as if nobody recognized the danger... the act was ratified. While the act itself may have been reasonable, the amendment should have been withdrawn if Section 1004 was to be included.

Of particular concern is Section 1004 (below)... the "Protection of United States Government Personnel Engaged in Authorized Interrogations*. Outrageously, it was a ‘concession’ granted to President Bush in exchange for his acceptance of this amendment (Detainee Treatment Act of 2005). It was a grave mistake... and the reason McCain and company were out-foxed.

While Senator McCain's attempt to prohibit the inhumane treatment of prisoners was a noble gesture, although doubtful it will have any positive effects in that regard, there is a monumental downside of horrid proportions... it puts American citizens in further jeopardy. By granting immunity to the CIA and other government agents from lawsuits arising out of claims of torture, this errant ‘concession' also dissolved that recourse for American citizens. While not in so many words was it dissolved... but that's the effect.

Broadening the scope of Sovereign Immunity

So, instead of reigning-in George Bush (as intended), Section 1004 only broadened the scope of Sovereign Immunity. It gave law enforcement tyrannous flexibility.

Chief Justice Marshall once said "there is no right without a remedy".

Justice Scalia wrote... "Nothing in our Constitution grants any person immunity. Nothing in our Constitution grants any person the power to grant immunity to another person. Nothing in our Constitution grants any officer, dignitary, member of the government, elected official, or government subdivision immunity. Yet today numerous government agents, officials and others claim to be immune from the same laws that you and I must follow."

In referring to H.R. 2863, Tom Wilner, a lawyer representing Kuwaiti detainees at Guantanamo Bay, said "I think this language being enacted will more than erase anything good that comes out of McCain."

As if actually needed, Section 1004 states it would protect CIA agents from lawsuits, except… the potential for lawsuits filed by foreigners is remote. The judicial apparatus makes it remote. If, however, the CIA was to be successfully sued by a foreigner… then it is probably warranted. In fact, the Medieval monarchical concept of 'sovereign immunity' has no place in a democracy and should be repealed entirely. After all, the very idea flies in the face of justice... it was even repudiated in the Magna Carta 800 years ago. Perhaps not even the recently exhumed Alien Tort Statute of 1789 should be considered a threat but instead an instrument of justice... see When can foreigners sue in US courts? (Christian Science Monitor website).

Far truer however, law enforcement need only fear the potential for lawsuits filed by American citizens. In that case then, it must be the greater reason for Section 1004. And, similar to how Sovereign Immunity was extended to cover virtually all government agents, such as IRS agents, judges, police and even caseworkers with the Child Protective Service, this immunity against claims of torture will soon gravitate downwards to anyone with a badge.

Whomsoever might be claimed a terrorist (a dangerously vague term) will be in jeopardy. Marching protestors could be considered terrorists… it only needs be said.

So, as if the government's license to kill wasn’t enough, George Bush won protection for his torturers. Further, by granting 'ignorance of the law' as a defense, it effectively re-allows all methods of torture disallowed by the McCain amendment.

The re-condoning of torture (of any sort)


(a) Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

(b) Counsel- The United States Government may provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution arising out of practices described in that subsection, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10, United States Code. (underlined added)

Professional ignorance of the law?

While ignorance of the law might often seem a reasonable ‘excuse’ for citizens, although it legally isn’t, the above is referring to professionals… law enforcement and military personnel trained and knowledgeable about such legalities. It should therefore NEVER be a defense.

Further, since no law enforcement officer or military personnel could be considered being in those positions without training, they WOULD or SHOULD know what is legal and what isn’t.

So why have this ‘protection’?

Well, to enable the government to operate outside the law at all times under any circumstance.

The enemies of America?

So, how should one characterize a legislator who voted for its passage? Is 'traitorous' too strong a word? After all, these same legislators also did some good... like increasing social security benefits for example. So how can this incongruence, if applicable, be reconciled? Perhaps on any given day one human trait must triumph?

While treason may be applicable in many instances over bad legislation, or perhaps stupidity, or that there was little due diligence, on which vote might either of these be applicable? After all, before a bill becomes law there are many motions one must vote upon. There are also amendments. In addition, strategies might explain a few yes votes during the initial stages.

While votes on amendments tell a story, the vote on final passage is the most telling. As far as H.R. 2863 is concerned, with this treachery included, no senators voted against it. Three senators, however, did not vote...Bunning (R-KY), Gregg (R-NH) and Leahy (D-VT)... (their reasons unknown)

While assuredly some senators must have recognized this snafu, or otherwise had reservations, except for the three mentioned they nonetheless voted for it. Why? Even though expediency may often be the culprit, or a sheep mentality which is often the case, as long as justice is in doubt then a 'no' vote is the only ethical alternative. Until kingdom come it is the only alternative. The reasoning "this is the best we can get" is no excuse if it sacrifices justice. If most senators held to this credo we'd get much better laws (and fewer).

A.O. Kime

* Some wording in Section 1004 was later amended by the Senate in S.3930.ENR on September 28, 2006 (the Military Commissions Act of 2006)... see SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING TO PROTECTION OF CERTAIN UNITED STATES GOVERNMENT PERSONNEL. (see http://www.issuepedia.org/US_Public_Law_109-366#SEC._8._REVISIONS_TO_DETAINEE_TREATMENT_ACT_OF_2005... )

Links to the Alien Tort Statute of 1789:

Resource Box: © A.O. Kime (2006)
A.O. Kime is the author of two books plus 70+ articles on ancient history,
spiritual phenomena, political issues, social issues and agriculture which
can be seen at http://www.matrixbookstore.biz

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Last modified: 03/07/16