May 28, 2010
“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.” – U.S. Constitution, Article I, Section 9
Abraham Lincoln was the first president to revoke habeas corpus, the legal filing that gives an imprisoned person the right to challenge the legality of his or her detention before a court. The Civil War had just started, Congress wouldn’t be in session until July, and Lincoln said he needed a way to control Confederate agitators residing in certain parts of the Union.
Among the first to be denied habeas corpus under Lincoln’s order was John Merryman, a Maryland secessionist accused of burning bridges and disrupting telegraph lines. He was roused in the middle of the night by Union soldiers and taken into military custody. The very next day, another Maryland native – Roger Taney, the chief justice of the U.S. Supreme Court – came to his defense.
Chief Justice Taney issued a writ of habeas corpus for Merryman in defiance of Lincoln’s order. Lincoln and the military ignored Taney’s writ, which prompted the chief justice to issue an opinion on May 28, 1861.
In Ex parte Merryman, Taney pointed out that the constitutional provision regarding habeas corpus is found in Article I of the Constitution, the part that addresses Congressional powers, which meant that only Congress could lawfully suspend it – not the president.
Lincoln’s defenders argued that the provision doesn’t spell out who has the power to suspend habeas corpus. They also argued that it was clearly intended as an emergency measure and that the founding fathers could not have meant for it to be used only when Congress was in session.
Constitutional or not, Lincoln’s suspension of habeas corpus was used by the military to detain more than 13,000 citizens during the Civil War.
George W. Bush was the only other president to revoke habeas corpus, although he did it with the backing of Congress when he signed the Military Commissions Act of 2006. And while Lincoln’s order applied to U.S. citizens, the law signed by President Bush applied only to aliens who were deemed “enemy combatants.”
Westlaw users: Read Chief Justice Taney’s ruling in Ex parte Merryman (17 Fed.Cas. 144) on Westlaw. (Sign-on required)