Review Essay: At war with the Constitution

Feb 1, 2003

Judging Lincoln 
Frank J. Williams, Southern Illinois University Press, 2002 

All the Laws But One 
Civil Liberties in Wartime 
William H. Rehnquist, Vintage Books, Random House Inc., 1998

Bush at War 
Bob Woodward, Simon & Shuster, 2002

Review essay by Aaron Chambers

The Latin maxim inter arma enim leges silent is a favorite of wartime observers. It means in time of war, the law is silent.

The phrase encapsulates the supremacy of security over liberty that typically accompanies national emergencies. Yet the law is not silent during wartime. It’s elastic. In their efforts to exert power, wartime chief executives merely stretch the bounds of the law.

President Abraham Lincoln preferred military action to restricting civil liberties. He put the option of firing on Maryland, where Confederate sympathizers disrupted the flow of Union troops to Washington, D.C., before blocking prisoners from contesting their detentions in court.

But he suspended the right soon after taking office in 1861, and his military proceeded to arrest and detain dissidents throughout the North. In doing so, he also provided a relevant framework for discussion on contemporary dealings with personal freedom.

Civil liberties historically have been a casualty of wartime. This is as true today, with President George W. Bush’s efforts to fight terror, as it was during the Civil War. Lincoln was struggling to suppress a rebellion and reunite a nation. The current administration is avenging the deaths of more than 3,000 people during the September 11 terrorist attacks, while trying to prevent such acts in the future. In both instances, the rule is the same: The nation’s chief executive determines the balance between an individual’s personal freedom and the nation’s collective interest.

Lincoln’s paradox was provoked by events in Maryland, where residents rioted and burned railroad bridges to prevent passage of the troops promised to the president by Northern governors. The Copperheads, as Northerners who sided with the South were called, threatened to isolate Washington, D.C., from the rest of the North.

The Maryland legislature convened to consider whether to secede from the Union altogether. Lincoln wrote to his commanding general that if Maryland voted to arm its people against the United States he should “adopt the most prompt and efficient means to counteract, even, if necessary, to the bombardment of their cities and, in the extremist necessity, the suspension of the writ of habeas corpus.”

Guaranteed under federal law, habeas corpus derives from English common law and is generally available to anyone detained by the government. The writ is a court order directed to the official with custody of the prisoner, and it requires the official to demonstrate the basis for detention. With the writ suspended, prisoners have no mechanism to challenge the legality of an arrest in a civilian court.

The most common present-day use of the writ is an appeal to the federal court of state court criminal convictions when the petitioner believes constitutional rights were violated by state procedure. Death Row inmates in Illinois routinely file habeas corpus petitions after exhausting direct and post-conviction appeals with the Illinois Supreme Court.

Lincoln maintained the democratic experiment could succeed only through the preservation of the Union without secession, and he resolved to restore rebellious states to the Union. He said he sacrificed the so-called Great Writ to save the other existing laws — and, by extension, the nation itself. He told Congress that preserving habeas corpus could allow “all the laws but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated.”

Frank Williams, chief justice of the Rhode Island Supreme Court, examines this point in his new book Judging Lincoln, a collection of essays about aspects of the 16th president’s character and leadership. “Lincoln faced this in a no-win position,” Williams writes. “He would be condemned regardless of his actions. If he did not uphold all the provisions of the Constitution, he would be assailed not only by those who genuinely valued civil liberty but also by his critics. Far harsher would have been his denunciation if the whole experiment of the democratic American Union failed, as seemed possible given the circumstances. If such a disaster occurred, what benefit would have been gained by adhering to a fallen Constitution? It was a classic example of the conflict: Do the ends justify the means?”

The Bush Administration assumes a parallel posture in its war on terror. And it has pushed civil liberties protections to their limits. In the roundup that followed the terrorist attacks, the government detained more than 1,200 people it accused of fighting against the United States, being material witnesses to terrorism or violating immigration laws. The administration has authorized military tribunals to prosecute alleged terrorists, detained without formal charges American citizens labeled as enemy combatants and held hundreds of deportation hearings in private.

The administration also has broadened the investigatory powers of federal law enforcement officials. For instance, it enacted a rule permitting federal agents to monitor conversations between some jailed defendants and their lawyers. Prosecutors are blending intelligence with criminal investigations. And the Pentagon reportedly is constructing a vast computer system to track Americans’ personal data.

The White House calls such measures necessary to prevent further acts of terror. Bush echoes Lincoln’s “all the laws but one” rationale in defending his administration’s approach. “The enemy has declared war on us,” Bush was quoted as saying a month after the 2001 attacks. “And we must not let foreign enemies use the forums of liberty to destroy liberty itself.” 

In Lincoln’s time, the Maryland legislature did not, as the president feared, vote to secede from the Union. Instead, it voted to preserve its neutral stance between the North and South. Lincoln nonetheless authorized his army to suspend the writ of habeas corpus if necessary to protect public safety while suppressing the insurrection in that state.

Lincoln’s decision didn’t go uncontested. Actions the following month, May 1861, began a showdown between Lincoln’s military and U.S. Chief Justice Roger Taney. The military arrested a Maryland resident named John Merryman on charges 

of destroying railroad bridges and Taney signed a writ of habeas corpus. But the Army refused to produce Merryman, and an aide to General George Cadwalader told the court that Lincoln had duly authorized the suspension of the writ. 

Taney threatened to haul the general into court, but declined because his marshal would likely have been met with superior force. Instead, he issued an opinion saying Congress alone can suspend the writ. He noted the section of the federal Constitution that permits suspension of the writ “when in cases of rebellion or invasion the public safety may require it” is contained in the congressional article.

Lincoln turned to Congress, and Congress gave him express authority to unilaterally suspend the writ while the rebellion continued. Though Congress rubber-stamped the action, the suspension triggered the most heated constitutional dispute of the Lincoln Administration.

“Not least is the sense that we get, in a case like Merryman, of what a clash between the executive and the judiciary is actually like,” wrote Williams, who was critical of Taney’s decision. “This provides a healthy reminder of how much we usually rely, in the last resort, on executive submission in upholding the rule of law, as it is the executive branch which, under the Constitution, is responsible for enforcing the laws.”

Five years after Merryman, after Lincoln’s death and the end of the Civil War, the nation’s top court reached a similar conclusion in a case involving another Copperhead named Lambdin Milligan. An Indiana lawyer, Milligan associated with a group that plotted to overthrow the government. He was tried before a military tribunal and sentenced to death.

The Supreme Court ruled that the writ of habeas corpus could be suspended in accordance with the Constitution but that the government could not simply bump a defendant outside the normal judicial process to a military tribunal. In fact, the court said, civilians could not be held for trial before a military tribunal where civil courts were functioning, as they were in Indiana.

The court concluded, “Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. 

If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them.”

George W. Bush is not struggling to keep this nation intact. Rather, he is moving to protect the nation from an elusive enemy. It should be noted that the government has not formally declared war on terror. Yet Bush is building government power and infrastructure as if in a war. He told Bob Woodward in Bush at War, Woodward’s book on the administration’s deliberations following the terrorist attacks, “The job of the president is to unite a nation to achieve big objectives. Lincoln understood that, and he had the toughest job of all uniting a nation.”

This entails a barrage of criticism for Bush, just as for Lincoln. Criminal defense attorneys and groups such as the American Civil Liberties Union are litigating against Bush’s post-September 11 policies on all fronts. 

In a case involving the proposed use of military tribunals, the Center for Constitutional Rights, a nonprofit legal center based in New York, wants a federal appeals court in Washington, D.C., to direct a lower court to consider the application for a writ of habeas corpus sought by Australian and British detainees held at the American military installation in Cuba. 

“They don’t come out and say explicitly that they’re suspending the writ of habeas corpus, but in the text of that military order [that provides for tribunals] that’s what they’re saying: Any person that the president labels as an enemy combatant or that the president labels under the military order will not have access to any court for any remedies,” says Timothy Lynch, director of the criminal justice project at the Cato Institute, a libertarian-minded think tank based in Washington, D.C. “That is in effect saying that the person cannot get into a civilian court using habeas corpus. So the president is definitely trying to deny the Great Writ to anybody he accuses of being involved in terrorism.”

Another case involves Jose Padilla, an American citizen arrested in Chicago, who is being held by the military. The Bush Administration tied him to the al-Qaeda terrorist network and labeled him an “enemy combatant.” At issue before a New York federal court is whether the government can hold him indefinitely.

Other cases involve such concerns as a government policy imposing a blanket ban on public access to immigration hearings of foreign nationals detained after the terrorist attacks, and the pervasiveness of government surveillance.

During all of America’s major wars, the government restricted civil liberties in the name of national security. 

During World War I, Congress passed the Espionage Act, which banned material urging “treason, insurrection of forcible resistance to any law” from the mail. During World War II, the government removed Japanese Americans to internment camps. And in 1798, well before the Civil War, at the time of the French Revolution, Congress enacted the Alien and Sedition Acts. The laws gave the government authority to expel citizens of hostile nations during wartime and made it a crime to speak against the government.

“It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime,” U.S. Supreme Court Chief Justice William Rehnquist wrote in concluding his 1998 book, All the Laws But One: 

Civil Liberties in Wartime. “But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government’s claims of necessity as a basis for curtailing civil liberty.

“The laws will thus not be silent in time of war, but they will speak with 
a somewhat different voice.” 



Illinois Issues, February, 2003