December 16, 2004  ·  Geof Stone

The most profound civil liberties issue during the Civil War involved Lincoln’s suspensions of the writ of habeas corpus. What is the writ? Suppose you are arrested by police or military officers while you’re walking down the street. You or your representative has the right to go to a court and seek a writ of habeas corpus. This writ gives the court the power to order the government to justify its action and it gives the court the authority to order your release if it finds that your detention is unlawful. The writ of habeas corpus is the bulwark of our constitutional system. Without it, the executive branch could unilaterally seize you and you would have no right to have an independent branch of government determine whether the seizure was constitutional. You would be completely at the mercy of the President.

Nonethelss, the Constitution express provides that the writ of habeas corpus can be suspended in cases of invasion or rebellion. The Civil War was certainly the latter. Lincoln first suspended the writ in 1861, shortly after the attack on Fort Sumpter. Seccesionists in Maryland had rioted and prevented Union troops from passing through Baltimore to protect the nation’s capital from attack. To restore order, which was beyond the capacity of the local law enforcement officer, Lincoln (reluctantly) suspended the writ of habeas corpus and authorized the military summarily to arrest and detain individuals in military facilities.

During the course of the Civil War, Lincoln suspending the writ on eight separate occasions. The most far reaching of these was a suspension in 1863 that applied across the entire Union and empowered military officials to arrest and confine any person “guilty of any disloyal act or practice.” As many as 38,000 civilians in the North were arrested by the military during the Civil War under these suspensions. Most were suspected of draft evasion, desertion, or sabotage. Some were accused of seditious utterance.

The most famous of these was Clement Vallandigham, a former congressman and a leader of the Peace Democrats, or “Copperheads.” Vallandigham opposed the war. In his view, it made no sense to compel the Southern states to remain in the Union against their will. He argued that the Union should simply let them seceed, rather than fight a bloody war that would eventually kill 600,000 soldiers. He also opposed the draft, the suspensions of habeas corpus, and the Emancipation Proclamation, which he regarded as an unconstitutional executive action. For going a speech in Ohio in 1863 in which he made these points, Vallandigham was arrested by General Ambrose Burnside and tried by military authorities for “disloyal speech” that would cause desertion and rebellion against the Union army. He was convicted by a military tribunal and sentenced to confinement in a military tribunal for the duration of the war.

There was a storm of protest, from Republicans as well as Democrats. Many Republicans argument that we weren’t fighting the war in order to destroy liberty in the Union. Lincoln found himself between a rock and a hard place. On the one hand, he didn’t want to embarrass his generals by publicly overriding them; on the other he didn’t want to turn Vallandigham into a political martyr. His solution: He order Vallandigham exiled to the Confederacy. (This did not please Vallandigham, who regarded himself as a loyal citizen of the United States. He quickly escaped the South and sneaked back into the U.S., where he participated actively in the 1864 Democratic National Convention.)

After the Civil War, the Supreme Court held in Ex parte Milligan that Lincoln had exceeded his powers as commander-in-chief by declaring martial law in those parts of the country (such as Ohio in 1863) where the ordinary civil courts were open and well-functioning.

So, here’s the question: More than two years ago, the administration arrested Jose Padilla at O’Hare Airport because government officials believed him to be a potential “dirty bomber.” Labelling him an “enemy combatant,” the government removed him to a military brig, where it held him incommunicado, with no access to a lawyer, no access to family and friends, with no judicial determination that there was a lawful basis for his detention. The government explained that, even though Padilla is an American citizen who was seized on American soil, he has no right to judicial reivew of his detention because the President has certified that he is an enemy combatant. Padilla, by the way, is still in custody in a military brig.

What do you think? How does this compare with suspension of habeas corpus?

  • http://evso.blogspot.com elizabeth

    Geof – I am really enjoying your posts. It is quite interesting to think of these much earlier acts and compare them with our current situation. Thanks!

  • Fernando

    In comparison, Lincoln suspended the Writ of habeas Corpus in toto whereas the former administration has found a loophole (in a time of �terrorist� invasion and rebellion) and has administered the suspension on a case-by-case basis, in virtue of executive interpretive powers as to who is rendered �an enemy combatant.� The question is, what happens when the War in Iraq concludes, resolving any further US involvement, would the executive powers to render citizens �enemy combatants� differ?

  • anon

    The habeas corpus provision in the US Constitution is in Article 1 – which is the part of the constitution which defines the powers of the Legislature – doesn’t that mean that only the legislature has the authority to suspend habeas corpus? And wouldn’t they have to suspends it wholesale and not on a case-by-case basis (to avoid bills of attainder)? If the Executive can decide when to suspend habeas corpus, isn’t this then an unconstitutional act under the separation of powers doctrine?

    And should the judiciary not have the opportunity to examine the individual cases to test the constitutionality of the suspension as applied to a specific individual (like Padilla)?

    Perhaps you should take a step back and explain exactly why and how habeas corpus is so important to a free society.

    I think you made the point in your post that habeas corpus is the most important protection we have in the Constitution, but it certainly bears repeating, and can’t be emphasize enough.

    Incidentally, what do you think of the American Brutus book about John Wilkes Boothe?

  • gjs

    What do you think? How does this compare with suspension of habeas corpus?

    I find the Padilla case interesting, because I think the government’s case against Padilla was the weakest of any of the terrorism cases the Court heard last term. I’ve still yet to see anything that suggests that Padilla was an actual threat to the United States, other than the possibility that he had a desire to to “do harm.” Yet as you say, the Court did not get to the merits of the case, so effectively it seems that we don’t really know whether Padilla was being illegally imprisoned (though the facts of his case do seem to suggest that he is).

    But to answer the question: I think this is quite different from the suspension of habeas corpus, mostly because — as I think someone else mentioned — the government is able to have the benefits of suspension of habeas corpus. If instead the government were to make a concerted, out-in-the-open effort to suspend habeas, we (or our representatives) would at least be able to see what is happening, and make a more informed judgment on the propriety of such an action. But by not making such an open action, the government enshrouds its activity in secrecy.

    My greatest concern is this secrecy. At least when Lincoln moved to suspend habeas, the country knew what he was doing. Here we simply do not know — I think the loss of that sort of dialogue is, in the long run, the more significant threat.

  • Andrew Boysen

    “where the ordinary civil courts were open and well-functioning”

    If this is a suspension of habeas corpus, as I feel it is, it is unconstitutional, per the above. Or is it?

    I’ve heard many arguements that the courts are not “well-functioning” and therefore, what doors have we opened?

  • Relentless

    I concur with those who have already commented that the subjective application of this suspension and the secretive way in which it has taken place are extremely significant differences between the actions of Lincoln and the current administration.

    What I think is even more significant is the temporal uncertainty that this administration seems to rely so heavily on. While it is true that War by its nature can not be predicted to have a date certain as its endpoint, clearly it was accepted in Lincoln’s time that the Civil War would end and that life after it would be governed differently than life during it.

    In today’s world we live within a vast milieu of ceaseless “wars” that not only lack a certain end point… they lack the expectation of an endpoint. The war on drugs, war on poverty and war on terrorism do not claim a specific enough enemy or specific enough measure of an end point to allow people to reasonably expect them to conclude.

    Suspending the writ of habeas corpus for the duration of the Civil War was in my opinion an extreme and unsupportable course of action for Lincoln to take. Nonetheless, I can empathize with the position he found himself in and understand that without the benefits of historical hindsight his decision can at least be argued with a straight face.

    As for Padilla, Bush has essentially suspended a lot more than habeas corpus, but more importantly he has done so with no set end point and without even the allusion to what would constitute an end point. That is a laughable approach� unless you are Padilla. At least Clement Vallandigham could sit in his prison cell and know that when the cannons stopped firing he could expect to be tried or released soon after.

  • David Hayes

    So the President has the power to suspend habeas corpus during time of rebellion or invasion. Hmm… The United States has been attacked, but not invaded. Twenty terrorists arriving through legally-issued visas is not an invasion. There is no rebellion in the United States at the moment. No war has been declared. It doesn’t appear that the prerequisites have been satisfied.

  • Harry

    I really enjoy your posts, I wish I had something more fruitful to comment about, but honestly, I don’t.

    What you are saying reminds me of Howard Zinn’s Book _The_Peoples_History_of_the_United_States_ Do you have any other books you might recommend?

    Also, why do you think the situation (seems to me) be so different between the United States and Canada? What is the relevant history that explains why the attitude seems so different across the border.

  • Fernando

    In Response to David:

    Two jet airliners slamming into the world trade center towers do constitute an invasion, in fact, one with tragic mortality tolls. Also notice the operative disjunction in the key phrase �invasion or rebellion�. One could apply without the other–once you reconfigure the disjuncts into whole sentences in virtue of propositional logic (only one disjuct need apply to fulfill the conditions). Moreover, claiming whether or not the 9/11 ordeal does or doesn�t amount to an �invasion� is to turn the issue into a semantic game. Or, to clarify your point, it may prove useful to supply the necessary and sufficient conditions as to what constitutes an �invasion�.

  • Jardinero1

    The “enemy combatant” issue makes me sick. Bush should be impeached for that alone. According to internationally accepted laws of war there are only two types of combatants: lawful and unlawful. The following article defines the distinction between the two:

    http://en.wikipedia.org/wiki/Unlawful_combatant

    “Enemy combatant” is something the administration made up out of thin air for terrorist suspects to avoid having to adhere to the laws of war and to avoid having to deal with our own legal system as well. I wish the Supreme Court had the courage to say “this enemy combatant stuff is nonsense, label this guy correctly and deal with him accordingly.”

    I can’t see any reason in any case to deny a combatant/terrorist suspect the opportunity to hear the evidence against him. You can seal the courtroom and the court documents if the intelligence value of the evidence is soooo important. I doubt it is.

  • Geof Stone

    Reply to GJS:

    I agree with your assessment of the Padilla case. To me, the administration’s claim in Padilla was the most astonishing assertion of executive authority ever put forward by the President of the United States. In effect, the administration maintains that it has the power, on its own initiative and without any legislative approval or judicial review, to declare an American citizen an “enemy combatant” (whatever that is), to seize him off the street, not to tell anyone what has happened to him, to hold him in a military base without counsel and completely incommunicado, for as long as it wants. I don’t like to throw around inflammatory rhetoric, but this seems to me precisely what we mean when we say “Gestapo-like tactic.” Of course, the Supreme Court emphatically rejected this assertion of authority in the Hamdi case (with only Justice Thomas dissenting). But that the administration could even make the argument with a straight face is, to me, unnerving.

    Geof Stone

  • http://www.management-one.com Ryan w.

    I’m curious if anyone here has any thoughts on this blog posting about the confederate attack on Fort Sumpter, as a way to shore up the confederacy.
    link