Sunday, June 14, 2009

The Power of a President

We have currently a president (legitimately or illegitimately in office) who fancies himself to be in the mold of Abraham Lincoln.

It behooves us to learn as much as possible about Lincoln's acts during the secession of some states from the union and the resulting civil war.

Did President Lincoln suspend Habeas Corpus?
Answer: Yes, in 1861 and 1862


As the Civil War started, in the very beginning of Lincoln's presidential term, a group of "Peace Democrats" proposed a peaceful resolution to the developing Civil War by offering a truce with the South, and forming a constitutional convention to amend the U.S. Constitution to protect States' rights. The proposal was ignored by the Unionists of the North and not taken seriously by the South. However, the Peace Democrats, also called copperheads by their enemies, publicly criticized Lincoln's belief that violating the U.S. Constitution was required to save it as a whole.

With Congress not in session until July, Lincoln assumed all powers not delegated in the Constitution, including the power to suspend habeas corpus.

In 1861, Lincoln had already suspended civil law in territories where resistance to the North's military power would be dangerous. In 1862, when copperhead democrats began criticizing Lincoln's violation of the Constitution, Lincoln suspended habeas corpus throughout the nation and had many copperhead democrats arrested under military authority because he felt that the State Courts in the north west would not convict war protesters such as the copperheads. He proclaimed that all persons who discouraged enlistments or engaged in disloyal practices would come under Martial Law.

Among the 13,000 people arrested under martial law was a Maryland Secessionist, John Merryman. Immediately, Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States issued a writ of habeas corpus commanding the military to bring Merryman before him.

The military refused to follow the writ. Justice Taney, in Ex parte MERRYMAN, then ruled the suspension of habeas corpus unconstitutional because the writ could not be suspended without an Act of Congress. President Lincoln and the military ignored Justice Taney's ruling.

Finally, in 1866, after the war, the Supreme Court officially restored habeas corpus in Ex-parte Milligan, ruling that military trials in areas where the civil courts were capable of functioning were illegal.

Copyright, 1999
American Patriot Network

Lincoln's Crackdown Suspects jailed. No charges filed.
By David Greenberg
Posted Friday, Nov. 30, 2001,

[A] . . . wartime leader who locked up civilians and resorted to army courts . . . Abraham Lincoln . . . his civil liberties record stands as a rare blot on his reputation.

In his authoritative Fate of Liberty: Abraham Lincoln and Civil Liberties (1991), Mark Neely has argued that during the Civil War these two policies—summary arrests and military justice—were of a piece. Both stemmed from the emergency of having an armed rebellion in the nation's midst, and they were viewed as two parts of a single policy.

First a definition: The Latin phrase habeas corpus means "you have the body." The privilege of the writ of habeas corpus refers to a common-law tradition that establishes a person's right to appear before a judge before being imprisoned. When a judge issues the writ, he commands a government official to bring a prisoner before the court so he can assess the legality of the prisoner's detention. When the privilege of the writ is suspended, the prisoner is denied the right to secure such a writ and therefore can be held without trial indefinitely. Habeas corpus is the only common-law tradition enshrined in the Constitution, which also explicitly defines when it can be overridden. Article I, Section 9 of the Constitution says, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Several times during the war, Lincoln or his Cabinet officers issued orders suspending the writ. The first came early in his presidency. Lincoln had been in office for barely a month when Confederate troops attacked the federal garrison at Fort Sumter in April 1861, starting the Civil War. One of his immediate concerns was how to keep an unobstructed route between Washington, D.C., and the North. He worried that if Maryland joined Virginia and seceded from the Union, the nation's capital would be stranded amid hostile states. On April 19, 20,000 Confederate sympathizers in Baltimore tried to stop Union troops from traveling from one train station to another en route to Washington, causing a riot. So on April 27 Lincoln suspended the habeas corpus privilege on points along the Philadelphia-Washington route. That meant Union generals could arrest and detain without trial anyone in the area who threatened "public safety."

In the last 140 years, America has not faced a crisis anything like the Civil War, and the power to suspend habeas corpus has mostly gone unused. Although (as I'll explain next week) the Supreme Court never definitively ruled Lincoln's suspensions unconstitutional, his actions did come to be seen as a blemish on an otherwise heroic record of wartime leadership. That disrepute into which his behavior fell just may have helped deter his successors from using such measures themselves.
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Military tribunals for American Civilians
From America's military tribunals through the ages.
By David Greenberg

Lincoln prosecuted American civilians. Still, now as then, using Army courts to try anyone but U.S. soldiers is to court the reproach of posterity.

Lincoln's Army tribunals began operating just a few months after the Civil War began. Disorder was acute in border states such as Maryland and Missouri, which remained loyal to the republic but contained many citizens who sympathized with or aided the Confederate rebels. In Maryland, Lincoln sought to quell the chaos by suspending habeas corpus (as discussed in last week's "History Lesson"). But Missouri was more intractable. In June 1861, the state's governor declared war on the Union forces even as he swore his fidelity to the United States; a month later, all-out combat had consumed the state. Union Gen. John C. Frémont imposed martial law in August.

Yet Frémont and his successor, Henry W. Halleck, believed (incorrectly) that they could legitimately employ military courts in Missouri because they had imposed martial law there. This belief probably stemmed from innocent confusion since, despite a Lincoln administration white paper spelling out the differences between the two concepts, few people understood them.
The defendants who came before these tribunals weren't Confederate soldiers, who, when captured, typically became prisoners of war and weren't put on trial. Rather, the defendants in military court were mainly civilians suspected of aiding the rebels. Gen. Halleck explained the rationale: In Missouri, he said, those burning bridges or buildings weren't "armed and open enemies" but "pretended quiet citizens living on their farms." These civilian rebels couldn't be treated as prisoners of war, but neither could they be entrusted to the local courts, which Halleck deemed "very generally unreliable"—not least because so many locals were likely to sympathize with the South. (International war crimes tribunals, like those used to try the Nazis at Nuremberg after World War II, weren't yet common practice.) So starting in September 1861, Missourians were prosecuted under military tribunals that Union generals established. Lincoln did nothing to deter his generals from doing as they saw fit to subdue Missouri.
Eleven months later, such tribunals were given explicit sanction to operate nationwide. In August 1862, Secretary of War Edwin Stanton, on Lincoln's orders, suspended habeas corpus across the country and decreed that a range of civilian criminals and dissenters would face arrest and trial before military courts. Of the 4,000-plus military trials throughout the war, about 55 percent took place in the border states of Missouri, Maryland, and Kentucky (where the Union military maintained a strong presence and where generals wouldn't trust juries composed of locals). Roughly 32 percent occurred in the Confederate states. The rest occurred in Washington, D.C. (which was also under martial law for some of the war), and the North.

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ByBrian Pulito

When one considers all that occurred during the very turbulent period of the American Civil War, President Abraham Lincoln is usually considered to be a hero. During his presidency, he managed to keep the United States of America together and gave a people held in bondage, American slaves, the freedom they so desperately deserved. Like almost every president who preceded him, Lincoln's actions at the time were somewhat controversial. Some of his most controversial decisions might actually be considered now to be abuses of the Presidential power. During his terms as president, he suspended the Writ of Habeas Corpus, and upheld the Declaration of Independence above the Constitution.

The writ of Habeas Corpus protects Americans from being unjustly imprisoned. Without it, law is a sham. The writ creates the gap between freedom and despotism. Its origin dates back to the formation of our country, and the tenet that all men have equality under the law. The writ ensures that no on can be unjustly imprisoned. Any prisoner feeling this right is being abused has the ability to petition to be seen before a judge, who can declare his arrest unlawful and have him released. Yet, during the initial year of the American Civil War, Lincoln used his power and removed that right, first in Baltimore, New York, and eventually the entire union. He authorized military officers to suspend the writ before he made an official proclamation. Joshua Kleinfeld, an author who has researched this issue, wrote that "when Lincoln suspended the Writ of Habeas Corpus, he clothed himself with more power then any individual had possessed in America before, or since.

Lincoln contended that he removed the Writ in order to ensure victory and preserve the union. In fact he preserved more power for himself and removed a great deal from the United States legislative and judicial branches. The first proclamation to remove the Writ of Habeas Corpus was made in September of 1862. Not only did this proclamation, which had no scheduled end, remove the writ, it also established Mar[tial] law. It gave full power to close down "hostile, anti war newspapers," and to arrest individuals for protesting the war.

Lincoln removed a great deal of power from the legislative branch with this proclamation. He was not empowered under the Constitution to make such a declaration. In fact, that right belonged to Congress alone. Roger Taney, Supreme Court Chief Justice, contended that Article I of the Constitution declares: "a state of rebellion is the only time when Congress could declare the writ removed." He also believed: "This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive branch.."

The Supreme Court went on to order Lincoln to bring prisoners who had been arrested without reason before the court. He refused on the notion that the writ's suspension gave him that right to do so. Lincoln contended that, "It was not believed that any law was violated". The fact that he got away with suspending the Writ of Habeas Corpus gave more power to the presidency during a time of war than ever before. Nearly 100 years later, Franklin D. Roosevelt, would once again abolish the writ in order to imprison Japanese Americans during the Second World War. Lincoln set a precedent which F.D.R later used to justify his own wartime actions.

By ignoring the rights of the judicial and legislative branches of the government, Lincoln abused the power of the presidency by giving it more power than it was allowed by the Constitution. The Declaration of Independence is simply a document, not a tool--a paper that declared this country's intentions and justification for separation from a hostile tyrant, England. The founding fathers of our country never intended for it to be held above the Constitution. During his Gettysburg Address, Lincoln tried to justify the emancipation of slaves, which until that time had been considered unconstitutional, by upholding the Declaration of Independence. The Declaration states "all men are created equal," while the Constitution is very selective in its wording of which men are in fact considered to be equal.

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