April 27, 2012
Having the right to invoke a writ of habeas corpus allows an individual to challenge the legality of an arrest or commitment, and thus ensures that a person’s detention by the state is not unlawful.
Although the U.S. Constitution is silent on the affirmative right to habeas corpus, a combination of statutes, case law, and common law ensure that the privilege is presumed to exist within the United States and its territories unless explicitly suspended.
The Constitution is not silent on this suspension, though: Article I, Section 9, Clause 2 states that “[t]he 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.”
President Abraham Lincoln invoked this clause on April 27, 1861, suspending the privilege of the writ of habeas corpus for the first time in the nation’s history.
The order came within the first several weeks of the U.S. Civil War, which started with the Battle of Fort Sumter – a battle that the Union lost.
The geographical placement of Washington, D.C., put it at the mercy of the state of Maryland to receive troops and supplies from the rest of the Union forces in the North.
Although Maryland hadn’t seceded from the Union, secessionist sentiment among the populace was strong, and Unionist armies were already having difficulty crossing Maryland because of this.
For instance, 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.
Moreover, with the Maryland state legislature scheduled to convene within a few weeks, Lincoln was worried that it would act to restrict troop movements through the state, seriously jeopardizing the defense of the nation’s capital.
As such, Lincoln’s order suspended the writ of habeas corpus between Washington, D.C., and Philadelphia to give military authorities the necessary power to silence dissenters and rebels.
Under the order, commanders could arrest and detain individuals who were deemed threatening to military operations, and arrestees could be held indefinitely without indictment or arraignment.
The order resulted in the detainment of John Merryman, an active and vocal secessionist, on May 25, 1861, and the same day, Merryman’s lawyer petitioned to Chief Justice Roger B. Taney to issue a writ of habeas corpus (Supreme Court justices presided directly over circuit courts at the time).
Taney did so, and commanded General George Cadwalader, the military officer in charge of Merryman to show “the cause, if any, for his arrest and detention.”
Cadwalader responded to Taney’s order by sending a colonel to explain that he had suspended the writ of habeas corpus in Merryman’s case.
Taney responded by issuing a writ of attachment to order the general to court, and sending a U.S. marshal to the fort to physically retrieve him.
After the marshal was denied entrance to the fort, Taney ruled in the case – ex parte Merryman – that president can neither suspend habeas corpus nor authorize a military officer to do it.
Lincoln ignored the ruling, however, and continued the detainments until February 14, 1862, when Lincoln ordered the release of almost all political prisoners on parole.
In spite of an opinion from Attorney General Edward Bates to the contrary, Taney’s ruling was legally correct.
In 1863, Congress affirmed this through the Habeas Corpus Suspension Act, which, although it granted the Executive the authority to suspend habeas corpus for the duration of the Civil War, the passage of the Act itself demonstrated that the authority to do so lies solely with Congress.
Aside from a long line of historical court rulings, the notion that the ability to suspend habeas corpus rests solely with Congress was reiterated by the Supreme Court in 2004’s Hamdi v. Rumsfeld ruling.
Does that mean that another President in the future is precluded from repeating what Lincoln did during the Civil War – ignore the ruling of a federal court?
Certainly not, but the suspension of habeas corpus would probably only be tolerated by the populace in the face of another national crisis on the scale of the Civil War.
In such a case, the words of the Roman Cicero – Inter arma enim silent leges (In times of war, the law falls silent) – certainly apply.
Then again, why was the Constitution written to allow the suspension of habeas corpus only in times of national crisis if the law “falls silent” during these same times?