Lincoln and Habeas Corpus

In my previous post on James McPherson's latest book, This Mighty Scourge, I mentioned that the work touched on several issues of major contemporary significance. One of those issues, the suspension of habeas corpus rights, has been in the news at least twice in the last week. First, on June 7 the Senate Judiciary Committee passed the Habeas Corpus Restoration Act of 2007. This bill, introduced by Senators Patrick Leahy of Vermont and Arlen Specter of Pennsylvania, attempts to restore Habeas Corpus rights stripped by the Military Commissions Act of 2006. I'll quote here from Leahy's statement introducing the legislation:

"The administration has made it clear that they intend to use every expansive
definition and unchecked power given to them by the new law. 
Last month's Justice Department brief made clear that any of our legal
immigrants could be held indefinitely without recourse in court. Earlier in
November, the Justice Department went to court to say that detainees who
had been held in secret CIA prisons could not even meet with lawyers
because they might tell their lawyers about the cruel interrogation techniques
used against them. In other words, if our Government tortures somebody,
that person loses his right to a lawyer because he might tell the lawyer about
having been tortured. A law professor was quoted as saying about the
government's position in that case: ``Kafka-esque doesn't do it justice. This is
`Alice in Wonderland.' '' We are not talking about nightmare scenarios here.
We are talking about today's reality.

  We have eliminated basic legal and human rights for the 12 million lawful
permanent residents who live and work among us, to say nothing of the
millions of other legal immigrants and visitors who we welcome to our
shores each year. We have removed the check that our legal system provides
against the Government arbitrarily detaining people for life without charge,
and we may well have made many of our remaining limits against torture
and cruel and inhuman treatment obsolete because they are unenforceable.
We have removed the mechanism the Constitution provides to check
Government overreaching and lawlessness."

In the judicial branch, meanwhile, judges in the Fourth Circuit of the U. S. Court of Appeals on June 11 granted habeas corpus relief to Ali Saleh Kahlah al-Marri, who has been held in detention by the Bush Administration since December 12, 2000. In a stinging rebuke to the Bush Administrations claims, Judge Diana Gribbon Motz articulated a vigorous defence of habeas corpus rights as central to the liberties enshrined in the Constitution. Here's a link to the full decision. I've quoted some of the conclusion, omitting most notes:

"We do not question the President’s war-time authority over enemy combatants; but absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. . . . The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.”

A “well-established purpose of the Founders” was “to keep the military strictly within its proper sphere, subordinate to civil authority” In the Declaration of Independence our forefathers lodged the complaint that the King of Great Britain had “affected to render the Military independent of and superior to the Civil power” and objected that the King had “depriv[ed] us in many cases, of the benefits of Trial by Jury.” A resolute conviction that civilian authority should govern the military animated the framing of the Constitution. As Alexander Hamilton, no foe of Executive power, observed, the President’s Commander-in-Chief powers “amount to nothing more than the supreme command and direction of the military and naval forces.” “That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.” For this reason, the Supreme Court rejected the President’s claim to “inherent power” to use the military even to seize property within the United States, despite the Government’s argument that the refusal would “endanger the well-being and safety of the Nation.”

. . .

The President has cautioned us that “[t]he war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others.” Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a “war on terror” has no bounds. Justice O’Connor observed in Hamdi that “[i]f the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war,” the understanding that combatants can be detained “for the duration of the relevant conflict” “may unravel.” If the indefinite military detention of an actual combatant in this new type of conflict might cause the thread of our understandings to “unravel,” the indefinite military detention of a civilian like al-Marri would shred those understandings apart.

In an address to Congress at the outset of the Civil War, President Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital. Lincoln famously asked: “[A]re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” The authority the President seeks here turns Lincoln’s formulation on its head. For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he and his successors may exercise as they please.

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it – that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic."

As Motz's decision indicates, Lincoln's wartime actions are on the minds of many people besides McPherson. As Motz notes, what is so dramatically different between Bush's and Lincoln's actions is that Bush asserts that the suspension of habeas corpus rights is a prerogative inherent to the Executive Branch, rather than a deviation from established law and constitutional guarantees justified only under the most extreme circumstances.

In both of these statements, it becomes clear that the authors sense something momentous is underway in our nation. The right to habeas corpus, which in Anglo-American jurisprudence dates back to the Magna Carta, is so fundamental that any abridgment of the that right threatens to undermine all the others. Most of our legal rights are based on the ability to have ready access to law courts that are independent of the executive branch. If you cannot access the courts, many of the other rights enumerated in the first ten amendments to the constitution (freedom of speech, the right to a speedy trial, due process, protections against unreasonable search and seizure, the right to a jury trial, protections against cruel and unusual punishment) seem to simply evaporate.

This Mighty Scourge

My introduction to the American Civil War was in eighth grade history class. Battle history lectures were the specialty of my middle school history department. History classes throughout seventh and eighth grade were punctuated by by lectures on significant battles of western history, including Thermopylae, Crecy, and Bunker Hill. All this culminated at the end of eighth grade with a month or two of lectures on significant battles of the Civil War given by our teacher, Mr. Peterson, complete with multiple blackboards providing battlefield diagrams and little blocks to represent troop movements. The detail and passion our teacher brought to these lessons was remarkable. Clearly this was a labor of love.

Two things about these lectures stand out to me today. First, we were never tested on this material. It was one of the rare times in my formal education when I was asked to simply absorb material for its own sake with no threat of evaluation attached. Second, the lectures were all presented from an explicitly pro-Southern perspective. Our teacher romanticized the Confederate Lost Cause and taught us to identify with the valor and bravery of Robert E. Lee, J.E.B Stuart, and "Stonewall" Jackson. Given that this was at a school in northern Illinois, where annual Memorial Day parades always ended with ceremonies around a memorial to local soldiers who fought for the Union armies, such an approach was hardly what one might have expected.

In the past few years I have renewed my interest in the Civil War mostly through reading the works of historian James McPherson. McPherson is best known for his Pulitzer Prize-winning work Battle Cry of Freedom, considered by many to be the best single-volume Civil War history now available. Although it goes on for over 800 pages, Battle Cry of Freedom is highly readable and engaging, even for a general audience. This is one of McPherson's great strengths: his ability to write serious scholarship that is nonetheless accessible to specialists and non-specialists alike. Reading his work has given me a greater appreciation for Lincoln and the struggles of the Union armies, an appreciation that I ironically didn't receive while being educated in the public schools of the self-proclaimed "Land of Lincoln!"

Just a few days ago I read McPherson's most recent book, This Mighty Scourge: Perspectives on the Civil War. The title of the work comes from Lincoln’s Second Inaugural Address. As with so much of Lincoln’s writing, the passage is both eloquent and profound:

Fondly do we hope—fervently do we pray—that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood draw with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether.’

Throughout his writing on the Civil War, McPherson has developed a single thesis, that the Civil War was in fact what he calls the Second American Revolution and that, contrary to the claims of many Southerners, the central struggle of that revolution was not over states rights or sectional interests but rather over the question of whether a republican form of government, that "last best hope of Earth" that Lincoln held so dear, could survive in a world even in the nineteenth century dominated by empires, kingdoms, and petty principalities, and whether such a republic could bring itself to uphold in practice its highest ideal, the belief that "all men are created equal."

This Mighty Scourge is not a single narrative but a collection of essays, many of which were written for The New York Review of Books. Although the essays are all focused on questions related to the Civil War, they touch on many issues of burning contemporary national importance, including the role of the president as commander in chief during times of war, the suspension of habeas corpus rights, the relationship of the country's intellectual, political, and economic elites to the war effort, and arguments for states' rights.

I'll try in the next few weeks to comment on some of these ideas in McPherson's book because I believe they demonstrate a basic sense that I've been feeling with more and more urgency in recent years, namely that we as Americans must thoroughly immerse ourselves in an understanding of our past struggles if we are going to begin to see our way through our current difficulties. In the meantime, I'm including a link here to a lecture given by McPherson on This Mighty Scourge. Enjoy!

A Tour Down Germantown Avenue

Several years ago I ran across Penn sociologist Elijah Anderson's book The Code of the Street, a study of how people negotiate street-level interactions in urban areas. The book is a follow-up to his earlier study Streetwise, which, though fictionalized, is clearly based on West Philadelphia's Powelton Village and Mantua neighborhoods. The Code of the Street begins with a sociological tour of Germantown Avenue, beginning in the affluent Chestnut Hill neighborhood and working towards the poverty-stricken neighborhoods of North Philadelphia. Given the tremendous socioeconomic diversity found along the

More recently I came across a short video created by students at Rutgers Camden in a course on social stratification. Students James Flatley and Etienne Jackson, who were studying The Code of the Street in their class, created a video tour of Germantown Avenue in order to illustrate the introduction to Anderson's book. The result is a brief but insightful portrayal of Northwest Philadelphia, worth a look.