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“Official Immunity”

“Official Immunity” flies in the face of a fundamental principle on which America was founded, that “in a republic * * * every magistrate ought to be personally responsible for his behavior in office”—The Federalist No. 70

Last Updated on November 8, 2021 by Constitutional Militia

“Official Immunity”: The Constitution Calls for One, and Only One, “Official Immunity”

If, for purposes of argument, public officials are properly engaged in a “war on terrorism”, those among them who turn out to be rogues should be liable to prosecution and punishment for any “war crimes” they commit in the course of that “war”—or, in light of their repeated, strident, and self-satisfied assertions that “the ” is legitimate, they should at least be stopped from denying and evading their exposure in that regard even if “the war on terrorism” is bogus. Among recognized “war crimes” are torture and other cruel or inhuman treatment, murder, deportation, and the taking of hostages.[2] So, because the purported powers to kidnap Americans through “extraordinary renditions”, to detain Americans indefinitely in military custody, to torture Americans, and to assassinate Americans are not conceivably constitutional (but indeed are self-evidently anti-constitutional), each and every official who participates in such acts in the course of “the war on terrorism” should be condemned as a “war criminal”.[3]

One can be sure, however, that if ever called to account for their “war crimes” (or any other crimes, for that matter), rogue public officials would stridently assert a supposedly all-embracing “official immunity” that insulated them from every form of personal liability, no matter where and against whom they might have perpetrated their thuggery, or in what tribunal or under what laws they might be charged. Such a defense would at best be effrontery, because:

First and foremost, “official immunity” is the classic means that tyrants employ to insulate their myrmidons from legal responsibility for their acts of political and other criminality. For example, describing the Nazis’ “PURGE OF POLITICAL OPPONENTS AND TERRORIZATION”, the prosecutors at Nuremberg pointed out that, “in direct contrast to the severity of the criminal law as it affected the general population of Germany, the Nazi conspirators adopted and endorsed a large body of unwritten laws exempting the police from criminal liability for illegal acts done under higher authority”. The guiding principle was that “‘[t]he police never act in a lawless or illegal manner as long as they act according to the rules laid down by their superiors * * * . As long as the police carry out the will of the Government, [they are] acting legally.’” And “[w]here no definite law protected terroristic acts of Nazi conspirators and their accomplices, proceedings against them were in the first instance suppressed or thereafter their acts were pardoned”.[1]


1.) Office of United States Chief of Counsel For Prosecution of Axis Criminality, NAZI CONSPIRACY AND AGGRESSION (Washington, D.C.: United States Government Printing Office, 1946), Volume I, at 244, 247 (emphasis in the original).

Second, “official immunity” flies in the face of a fundamental principle on which America was founded, that “in a republic * * * every magistrate ought to be personally responsible for his behavior in office”.[1]


1.) The Federalist No. 70 (Alexander Hamilton).

Third, the Constitution itself excludes it. The only “official immunities” the Constitution recognizes are that “Senators and Representatives * * * shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place”.[1] Although perhaps no pure “Speech or Debate in either House” could constitute a “war crime” (in contrast to an actual vote in favor of some bill that purported to authorize an unconstitutional “war”), all “war crimes” should fairly fall within the category “Felony”; and some “war crimes” could be prosecuted specifically as “Treason”, if they amounted to “levying War against the[ United States]”, as waging a “war of terrorism” against WE THE PEOPLE certainly would. So the constitutional immunity, by its explicit terms, would not “privilege[ ]” the perpetrators of such acts “from Arrest” even in the very course of their performing their official functions. And the Constitution would hardly bother to allow for the actual “Arrest” of “Senators and Representatives” at those times, unless it presumed that their “Arrest[s]” could be followed by further criminal investigations, presentments or indictments, trials, convictions, and punishments against which no “official immunity” could be interposed.[2]


1.) U.S. Const. art. I, § 6, cl. 1.

2.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1625-1626.

One need only recall that the Supreme Court upheld the supposed legality of the mass evacuation of Japanese-Americans during World War II on the grounds of the possibility of disloyalty among some of them, but refused to rule on the question of subsequent indefinite detention in concentration camps of the individuals so evacuated.[1] Yet, later on, Congress “acknowledge[d] the fundamental injustice of the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II”, and determined to “make restitution to those individuals of Japanese ancestry who were interned” and to “discourage the occurrence of similar injustices and violations of civil liberties in the future”.[2] When Congress did so, it necessarily recognized and repudiated the viciously erroneous nature of the Court’s actual holding on the evacuation, as well as its evasion of the issue of detention, in Korematsu—which acknowledgment, recognition, and repudiation for all intents and purposes constituted a legislative declaratory judgement reversing that holding and condemning that evasion. Moreover, Congress agreed to “make restitution” to the aggrieved Japanese, in the form of monetary compensation.[3] Thus, in effect, the victims of the evacuation and internment, having lost in the judicial system, took a political appeal of Korematsu to Congress and at length prevailed with a judgment of law and an award of damages—proving that the General Government actually operates, when public officials properly operate it, on the principle of legislative, not judicial supremacy.[4]


1.) Korematsu v. United States, 323 U.S. 214 (1944). The Court did rule, however, that a Japanese-American citizen, whose loyalty the government conceded, could not be so detained. Ex parte Endo, 323 U.S. 283 (1944). During the war, however, the government never conceded the loyalty of most detainees—but it never proved their disloyalty, either.

2.) An Act To implement recommendations of the Commission on Wartime Relocation and Internment of Citizens, Act of 10 August 1988, Pub. L. 100-383, § 1(1), (4), and (6), 102 Stat. 903, 903.

3.) See Act of 10 August 1988, § 105(a)(1), 102 Stat. at 906 (“to each eligible individual the sum of $20,000”).

4.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1627-1628.

1.) U.S. Const., art. 1 § 6 cl.1.

2.) See, e.g., 18 U.S.C. § 2441(d)(1)(A), (B), (D), and (I). See also Rome Statute of the International Criminal Court, Part 2, Article 8, § 2(a)(ii), (iii), (i), (vii), and (viii).

3.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1624-1625.

4.) U.S. Const. art., cl.3.

5.) South Dakota v. North Carolina, 192 U.S. 286, 328 (1904) (White J., dissenting).

6.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).

7.) See generally Edwin Vieira, Jr., Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (Chicago, Illinois: R R Donnelley & Sons, Inc., GoldMoney Foundation Special Edition [2011] of the Second Revised Edition of 2002), Volume 2, at 1643-1662.

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