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?