Microsoft Word - Habeas Corpus

LINCOLN MEMORIAL UNIVERSITY

LAW REVIEW

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VOLUME 8 WINTER 2020 ISSUE 1

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A COMPARISON AND CONTRAST OF THE

SUSPENSION OF THE WRIT OF HABEAS CORPUS

BY PRESIDENTS ABRAHAM LINCOLN & GEORGE

W. BUSH

Clayton Barnes

317 8 LMU LAW REVIEW 1 (2020)

Table of Contents

I. INTRODUCTION ....................................................................................... 318

II. CONSTITUTIONAL AUTHORITY & HISTORICAL INFORMATION .......... 319

I. THE POWERS GRANTED TO THE PRESIDENT AND CONGRESS IN THE

CONSTITUTION ....................................................................................... 319

II. THE HISTORY OF HABEAS CORPUS .................................................. 320

III. THE SUSPENSION OF HABEAS CORPUS BY PRESIDENT LINCOLN ...... 322

IV. BUSH’S SUSPENSION OF HABEAS CORPUS .......................................... 329

V. LINCOLN’S ACTIONS WERE JUSTIFIED AND BUSH’S WERE NOT ........ 332

318 8 LMU Law Review 1 (2018)

I. INTRODUCTION

During their presidencies, Abraham Lincoln and

George W. Bush both suspended the writ of habeas corpus; while

these two situations appear to be similar, the facts surrounding

each president’s suspension are vastly different. As I will later

discuss in detail, President Lincoln was faced with an imminent

rebellion near our nation’s capital that threatened the existence

of the United States, had it been successful. On the other hand,

President Bush called for the detention of enemy combatants on

foreign soil where there was no immediate danger posed to the

United States becuase a substantial amount of time had passed

since the terrorist attacks on our country.

Furthermore, President Lincoln was forced to act alone,

as the events causing his suspension of the writ of habeas corpus

arose while Congress was not in session, and would not be in

session for the next several months. President Bush found

himself in a much different situation, in that respect, as he had

a congress currently in session, yet he still decided to take

executive action without approaching legislators to suspend the

writ of habeas corpus in compliance with the constitution. In both

situations, the Supreme Court has ruled that access to the writ

of habeas corpus is a fundamental right, and suspension of such

by a president is in violation of the United States Constitution.

Abraham Lincoln’s suspension of habeas corpus during the Civil

War presented issues similar to those presented by the

Guantanamo detainee cases. Presidents Lincoln and Bush both

unconstitutionally suspended habeas corpus during a time of

war because the writ of habeas corpus is a fundamental right and

suspension is a power granted only to congress. Although the

suspension appears to be unconstitutional, President Lincoln

was justified in suspending the writ of habeas corpus due to

provisions in Article II of the United States Constitution.

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II. CONSTITUTIONAL AUTHORITY & HISTORICAL

INFORMATION

a. THE POWERS GRANTED TO THE PRESIDENT AND

CONGRESS IN THE CONSTITUTION

Article I of the United States Constitution sets forth the

legislative powers of the United States Congress.

Additionally,

Article I grants congress the sole power to suspend the writ of

habeas corpus. The text of Article I 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.”

Although I will address the specific situations that both

President Lincoln and President Bush were faced with later, it

is important to note that even in cases of rebellion or invasion,

the constitution clearly grants the power to suspend the writ of

habeas corpus solely to congress.

Article II of the United States Constitution addresses the

powers that are granted to the President of the United States.

Section one of Article II simply states that the President of the

United States has executive power. Section one also addresses

the election of the president, such as the selection of electors

along with the eligibility requirements that must be met to be a

presidential candidate. Section two of Article II addresses the

military powers of the president by providing the following:

The President shall be Commander in Chief of

the Army and Navy of the United States, and of

the Militia of the several States, when called into

the actual Service of the United States; he may

require the Opinion, in writing, of the principal

Officer in each of the executive Departments,

upon any Subject relating to the Duties of their

respective Offices, and he shall have Power to

grant Reprieves and Pardons for offenses against

the United States, except in Cases of

Impeachment.

U.S. CONST. art. I § 1.

U.S. CONST. art. I § 9, cl. 2.

U.S. CONST. art. II.

U.S. CONST. art. II § 2, cl. 1.

SUSPENSION OF THE WRIT OF HABEAS CORPUS 320

However, nowhere in the text of this section, which addresses

military powers, does the constitution provide any mention of

the president having the power to suspend the writ of habeas

corpus. Section three of this article discusses the president’s state

of the union address; however, it fails to provide any

information regarding the suspension of habeas corpus.

Likewise, section four of Article II also does not address the

president having the power to suspend the writ of habeas corpus.

Instead, section four states that the president and vice president

may be removed from office through impeachment, while

providing the reasons for impeachment.

One provision in Article II, that is of the utmost

importance to President Lincoln’s defense to his suspension of

the writ of habeas corpus, is found in Article II section one. It

states that before taking office, the president shall take an oath

stating that “I will faithfully execute the Office of President of

the United States, and will to the best of my Ability, preserve,

protect, and defend the Constitution of the United States.”

This

section gives the President the ability to take drastic action, if

necessary, to defend the constitution. In the case of Lincoln, this

is important because this provision allowed him to take the

drastic actions to preserve the United States from further

damage.

b. THE HISTORY OF HABEAS CORPUS

The writ of habeas corpus has deep roots, going back to

England before the United States existed. Before the passage of

the federal statute in 1789, several states had already passed

their own version of habeas corpus laws.

In addition to its most

common use in criminal matters, the writ of habeas corpus has

been used in numerous civil cases as well; this includes cases

involving child custody matters and cases involving slaves.

The suspension of habeas corpus by President Abraham

Lincoln has long been a hotly debated constitutional law topic,

that has had a major impact on supreme court decisions over

the past two decades. The writ of habeas corpus is applied for

U.S. CONST. art. II § 1, cl. 8.

BADSHAH K. MIAN, AMERICAN HABEAS CORPUS: A HISTORICAL VIEW

(1980).

Id.

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when an individual is alleged to be unjustly held.

When the

writ is issued, whoever is holding that prisoner, generally the

military, shall bring the person before the court and show cause

as to why the individual is being detained.

If cause is not

shown for the detention, the individual will then be released.

Essentially, “[t]he object of habeas corpus is to inquire into the

legality of imprisonment, whether it is by competent authority

and for a sufficient reason; and according to the evidence given

at the hearing, the prisoner is either discharged, bailed, tried, or

remanded to custody.”

Before the Civil War, the issues surrounding the

suspension of the writ of habeas corpus had never really

surfaced.

However, a few judges had begun to discuss the

issue of the authority to suspend habeas corpus.

The first major

opinion that addressed this issue was Ex Parte Bollman, in which

the Court established that the suspension of the writ of habeas

corpus is a legislative power by stating the following:

If at any time the public safety should require the

suspension of the powers vested by this act in

the courts of the United States, it is for the

legislature to say so. That question depends on

political considerations, on which the legislature

is to decide. Until the legislative will be

expressed, this court can see only its duty, and

must obey the laws.

Following this case, there were several other opinions issued

with similar rulings in the years leading up to the civil war.

S. G. F., The Suspension of Habeas Corpus During the War of the

Rebellion, 3 POL. SCI. Q., 454, 454–55 (1888).

Id.

BADSHAH K. MIAN, supra note 6.

Id.

Ex Parte Bollman, 8 U.S. 75, 101 (1807).

BINNEY, 1 THE SUSPENSION OF HABEAS CORPUS UNDER THE UNITED

STATES CONSTITUTION, 34 (1862).

SUSPENSION OF THE WRIT OF HABEAS CORPUS 322

c. THE SUSPENSION OF HABEAS CORPUS BY PRESIDENT

LINCOLN

Monday, March 4, 1861, was a crucially important day

in the history of the United States. On this day, Abraham

Lincoln, a lawyer from Springfield, Illinois, stood face to face

with Chief Justice of the United States Supreme Court, Roger B.

Taney, to take the Presidential oath of office. Not only did

President Lincoln take his oath of office that day, he also stood

in front of the man whom he would become locked in an

enormous legal battle with. The subject matter of this legal

battle is still debated to this day.

With congress not set to be in

session for several more months, President Lincoln was now

faced with challenges unlike any faced by a President before

him.

“He was therefore, confronted with an armed enemy to

the south, and at the same time had to deal with the intrigue,

subversion, and treason on his flanks, and even at his rear.”

At that point, it was solely up to him to uphold the oath he had

just taken which was to “preserve, protect, and defend the

Constitution of the United States.”

Tensions of secession and rebellion continued to build

when finally, on April 25, 1861, President Lincoln provided

General Winfield Scott with the following message permitting

him to suspend habeas corpus in Maryland:

I therefore conclude that it is only left to the

commanding General to watch, and await their

action, which, if it shall be to arm their people

against the United States, he is to adopt the most

prompt, and efficient means to counteract, even,

if necessary, to the bombardment of their cities—

and in the extremest necessity, the suspension of

the writ of habeas corpus.

Sherrill Halbert, The Suspension of the Writ of Habeas Corpus by

President Lincoln, 2 The AM. J. OF LEGAL HIST. 95, 96 (1958).

Id.

Letter from Abraham Lincoln to Winfield Scott (Apr. 25, 1861), in

IV COLL. WORKS OF ABRAHAM LINCOLN, 344, 344 (Roy P. Basler ed.,

1953).

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This powerful message from Lincoln shows that he understood

the potential implications of suspending the writ of habeas

corpus in Maryland. In fact, President Lincoln was quite hesitant

to suspend the writ of habeas corpus by instructing General Scott

to suspend the writ only in the “extremest necessity.”

Ex Parte Merryman is the landmark habeas corpus case

regarding President Lincoln’s suspension of the writ. This is

mainly due to the strongly worded opinion delivered by Chief

Justice Roger B. Taney. On May 25, 1861, Mr. Merryman was

taken into custody, by force from his own home in Maryland,

for recruiting, training, and leading a drill company for

Confederate Service.

He was then detained in prison at Fort

McHenry without a warrant.

Mr. Merryman’s lawyer then filed for a writ of habeas

corpus. Chief Justice Taney ordered General George

Cadwallader to appear in court on May 28 and to have

Merryman with him.

However, President Lincoln had already

sent word to the Commanding General of the United States

military that they had the authority to suspend the writ of habeas

corpus.

When habeas corpus was served on a commanding

officer, the officer simply stated that he had been authorized by

President Lincoln to suspend the writ of habeas corpus at his

discretion, and he did in this case.

On May 28, Taney ruled

that the president did not have the power to suspend the writ

of habeas corpus and that an opinion to support his ruling would

soon follow.

In the opinion, Chief Justice Taney stated that his

thoughts regarding the writ of habeas corpus were that “it was

admitted on all hands that the privilege of the writ could not be

suspended except by any act of congress.”

He went on to

discuss Article I of the constitution, where the language setting

Sherrill Halbert, supra note 16, at 98.

James A. Dueholm, Lincoln's Suspension of the Writ of Habeas Corpus:

An Historical and Constitutional Analysis, J. OF THE ABRAHAM

LINCOLN ASS’N, Summer 2008, at 49.

Ex parte Merryman, 17 F. Cas. 144, 144 (C.C.D. Md. 1861) (No.

9,487).

Id.

James A. Dueholm, supra note 22.

Ex parte Merryman, 17 F. Cas. at 148.

SUSPENSION OF THE WRIT OF HABEAS CORPUS 324

forth the right to suspend the writ of habeas corpus is located.

Taney stated, “[t]his article is devoted to the legislative

department of the United States and has not the slightest

reference to the executive department.”

Chief Justice Taney

then moved on to discuss Article II of the Constitution in order

to prove that President Lincoln had acted beyond the scope of

the authority granted to the president. In doing so, he took

another shot at President Lincoln by stating:

The only power, therefore, which the president

possesses, where the “life, liberty or property” of

a private citizen is concerned, is the power and

duty prescribed in the third section of the second

article, which requires “that he shall take care

that the laws shall be faithfully executed.” He is

not authorized to execute them himself, or

through agents or officers, civil or military,

appointed by himself, but he is to take care that

they be faithfully carried into execution, as they

are expounded and adjudged by the co-ordinate

branch of the government to which that duty is

assigned by the constitution.

Next, Chief Justice Taney reiterated the constitutional

provisions and stated that “fundamental laws, which Congress

itself could not suspend, have been disregarded and

suspended, like the writ of habeas corpus.”

Finally, he closed by

saying that if the authority of the constitution may be illegally

taken away by military force under any circumstances, citizens

are “no longer living under a government of laws.”

Although President Lincoln never took any public

notice of Ex Parte Merryman, it became quite evident that he had

been made aware of Chief Justice Taney’s opinion, when he

delivered the following message to congress:

I have been reminded from a high quarter that

one who is sworn to ‘take care that the laws be

faithfully executed’ should not himself be one to

Id.

Id. at 149.

Id. at 152.

Id.

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violate them. Of course, I have some

consideration to the questions of power and

propriety before I acted in this manner.

Here, President Lincoln is not suggesting that he broke any

laws by acting unconstitutionally as suggested in Justice

Taney’s opinion. However, it seems from this statement that he

was more than just aware of the opinion and he was starting to

realize that he had potentially violated the constitution. In a

different message to congress, President Lincoln publicly

denied violating any laws in the following statement:

In my opinion, I violated no law. The provision

of the constitution that “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,” is equivalent to a

provision – is a provision – that such privilege

may be suspended when, in cases of rebellion or

invasion, and the public safety does require the

qualified suspension of the privilege of the writ

of habeas corpus.

Although this statement from President Lincoln suggesting that

he did not violate any laws is a compelling argument, there are

some things he did not take into consideration before speaking

to Congress. He is citing to a provision in the constitution from

Article I, which gives Congress the power to act. This provision

gives no authority to the executive branch to suspend the writ

of habeas corpus, which suggests that, contrary to his statement,

he did in fact violate the law.

President Lincoln’s failure to publicly acknowledge

Justice Taney’s opinion presented constitutional issues beyond

habeas corpus. Judicial review is the power of the courts to

examine the actions of the legislative and executive branch to

determine whether such actions are in violation of the

Message to Congress in Special Session (Jul. 4, 1861), in IV COLL.

WORKS OF ABRAHAM LINCOLN, 321, 329 n.1 (Roy P. Basler ed.,

1953). See IV JOHN G. NICOLAY & JOHN HAY, ABRAHAM LINCOLN: A

HISTORY, 176 et. seq. (1890) (includes the full text of the autograph

manuscript of this portion of the message).

Id.

SUSPENSION OF THE WRIT OF HABEAS CORPUS 326

Constitution. President Lincoln was defying the power of

judicial review in this situation, which is a cause for great

concern. As a result, President Lincoln set a troubling precedent

for any Presdient of the United States to potentially ignore any

Supreme Court order that they do not like.

By September of 1862, President Lincoln issued a

proclamation suspending the writ of habeas corpus throughout

the United States. This proclamation stated:

Whereas, it has become necessary to call into

service not only volunteers but also portions of

the militia of the States by draft in order to

suppress the insurrection existing in the United

States, and disloyal persona are not adequately

restrained by the ordinary processes of law from

hindering this measure and from giving aid and

comfort in various ways to the insurrection;

Now, therefore, be it ordered, first, that during

the existing insurrection and as a necessary

measure for suppressing the same, all Rebels

and Insurgents, their aiders and abettors within

the United States, and all persons discouraging

volunteer enlistments, resisting militia drafts, or

guilty of any disloyal practice, affording aid and

comfort to Rebels against the authority of United

States, shall be subject to martial law and be

liable to trial and punishment by Courts Martial

or Military Commission: Second. That the Writ

of Habeas Corpus is suspended in respect to all

persons arrested, or who are now, or hereafter

during the rebellion shall be, imprisoned in any

for, camp, arsenal, military prison, or other place

of confinement by any military authority or by

the sentence of any Court Martial or Military

Commission. In witness whereof, I have

hereunto set my hand, and caused the seal of the

United States to be affixed. Done at the City of

Washington this twenty fourth day of

September, in the year of our Lord one thousand

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eight hundred and sixty-two, and of the

Independence of the United States the 87th.

Once again, this formal proclamation by President Lincoln

shows that he was very hesitant in his suspension of habeas

corpus by stating that it was a “necessary measure.” The tone of

how he demonstrates the necessity in the proclamation exhibits

that he was taking what he considered to be the best course of

action, whether it was actually legal to do so or not.

On September 15, 1863, President Lincoln issued

another proclamation suspending habeas corpus, but this time it

was based upon legislation passed by congress in March of

1863. Lincoln did not want to use the legislation passed that

spring, saying that he did not need it.

However, as tensions

continued to rise, Lincoln felt that he had no other choice than

to issue a proclamation with the legislation that had been

passed by congress, giving the president the authority to

suspend the writ of habeas corpus.

The proclamation regarding

the Habeas Corpus Suspension Act stated the following:

Whereas the Constitution of the United States

has ordained that 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; and Whereas a

rebellion was existing on the third day of March,

1863, which rebellion is still existing; and

Whereas by a statute which was approved on

that day it was enacted by the Senate and House

of Representatives of the United States in

Congress assembled that during the present

insurrection the President of the United States,

whenever in his judgment the public safety may

require, is authorized to suspend the privilege of

the writ of habeas corpus in any case throughout

TEACHING AMERICAN HISTORY, PROCLAMATION SUSPENDING THE

WRIT OF HABEAS CORPUS

https://teachingamericanhistory.org/library/document/proclam

ation-suspending-the-writ-of-habeas-corpus/ (last visited Nov 4,

2019).

James A. Dueholm, supra note 22, at 50-51.

Id.

SUSPENSION OF THE WRIT OF HABEAS CORPUS 328

the United States or any part thereof; and

Whereas, in the judgment of the President, the

public safety does require that the privilege of

the said writ shall now be suspended

throughout the United States in the cases where,

by the authority of the President of the United

States, military, naval, and civil officers of the

United States, or any of them, hold person under

their command or in their custody, either as

prisoners of war, spies, or aiders or abettors of

the enemy, or officers, soldiers, or seamen

enrolled or drafted or mustered or enlisted in or

belonging to the land or naval forces of the

United States, or as deserters therefrom, or

otherwise amenable to military law or the rules

and articles of war or the rules or regulations

prescribed for the military or naval services by

authority of the President of the United States, or

for resisting a draft, or for any other offense

against the military or naval service: Now,

therefore, I, Abraham Lincoln, President of the

United States, do hereby proclaim and make

known to all whom it may concern that the

privilege of the writ of habeas corpus is

suspended throughout the United States in the

several cases before mentioned, and that this

suspension will continue throughout the

duration of the said rebellion or until this

proclamation shall, by a subsequent one to be

issued by the President of the United States, be

modified or revoked. And I do hereby require all

magistrates, attorneys, and other civil officers

within the United States and all officers and

others in the military and naval services of the

United States to take distinct notice of this

suspension and to give it full effect, and all

citizens of the United States to conduct and

govern themselves accordingly and

inconformity with the Constitution of the United

States and the laws of Congress in such case

made and provided. In Testimony whereof I

have hereunto set my hand and caused the seal

of the United States to be affixed, this fifteenth

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day of September, A.D. 1863 and of the

independence of the United States of America

the eighty-eighth.

Although this act provided the president with power to

suspend the writ of habeas corpus, part of the legislation strongly

restricted a president’s ability to suspend the writ due to time

restrictions imposed that would free anyone not indicted by the

first available Grand Jury.

This imposed a great burden on

Lincoln’s ability to detain those who had not actually

committed crimes because he was having the military detain

people who were undermining and disrupting the war by

assisting the Confederates.

At the end of the Civil War, after

Andrew Johnson had assumed the office of President, he used

the act to overturn a writ of habeas corpus in a case.

Eventually

suspension of the writ of habeas corpus resided in both the North

and South as some provisions expired, while other provisions

were repealed and replaced.

IV. BUSH’S SUSPENSION OF HABEAS CORPUS

In the days, and even years, following the terrorist

attacks of September 11, 2001, President George W. Bush, just

months after taking office, felt that taking executive action

similar to that of President Lincoln during the Civil War was

necessary.

His actions to suspend air travel following the

attacks were not at issue here because such actions were de

minimis. However, his actions taken to deny the privilege of the

writ of habeas corpus to individuals held captive as enemy

combatants during the war on terrorism were a major

constitutional issue. In fact, “President George W. Bush’s

Presidental Proclimation (Sep. 17, 1863), WRITINGS OF ABRAHAM

LINCOLN, (Arthur Brooks Lapsley ed., 1906).

James A. Dueholm, supra note 22, at 53.

Id.

CIVIL WAR ON THE WESTERN BORDER: THE MISSOURI-KANSAS

CONFLICT, 1854-1865, HABEAS CORPUS SUSPENSION ACT,

https://civilwaronthewesternborder.org/timeline/habeas-corpus-

suspension-act (last visited Nov 4, 2019).

Id.

James P. Pfiffner, Federalist No. 70: Is the President Too Powerful?,

71 PUB. ADMIN. REV. 112 (2011).

SUSPENSION OF THE WRIT OF HABEAS CORPUS 330

assertions of executive authority were arguably the broadest of

any president.”

President Bush decided to try the accused terrorists in

Military Tribunals and had a detention camp set up at a U.S.

Navy base located in Guantanamo Bay, Cuba.

Military

Tribunals are special court proceedings that are used

specifically for prosecuting war crimes that are unlike normal

criminal courts in the United States. The most important

distinction between Military Tribunals and criminal courts is

that Military Tribunals do not have to provide those individuals

being tried with many rights such as the Sixth Amendment,

rules of evidence, and the right to appeal.

Soon after detainees, held as enemy combatants, arrived at

Guantanamo, where they were to be housed, habeas corpus

petitions began to be filed.

The first petitions along with those

that followed were all dismissed. This trend continued until

public tensions concerning the situation in Guantanamo

heightened to the point where the Supreme Court decided to

expand the rights of the detainees housed there.

A 2004 Supreme Court decision in the case Hamdi v.

Rumsfeld is the first landmark decision of this era concerning the

writ of habeas corpus and the actions taken by President Bush. In

that case, Hamdi was a United States Citizen who was captured

in Afghanistan by United States allied forces and was turned

over to the United States military.

He was then transferred to

a United States Navy base in Virginia, where he was still being

detained when his father filed a habeas corpus petition on his

behalf.

The court ultimately concluded that Hamdi’s right to

habeas corpus was in no way dependent on the status of his

citizenship.

Rasul v. Bush was another 2004 Supreme Court

decision involving detainees who were being held as enemy

Id.

BILL OF RIGHTS INSTITUTE, GEORGE W. BUSH AND MILITARY

TRIBUNALS - PRESIDENTS AND THE CONSTITUTION,

https://billofrightsinstitute.org/educate/educator-

resources/lessons-plans/presidents-constitution/military-

tribunals/ (last visited Nov 4, 2019).

Id.

Hamdi v. Rumsfeld, 542 U.S. 507, 511 (2004).

Id. at 510.

Id. at 523.

331 8 LMU LAW REVIEW 1 (2020)

combatants.

In this case, the Court held that the district court

had jurisdiction to hear the habeas corpus challenges.

Rasul was

the first case in this era that dealt with detainees that were being

held at the Guantanamo Bay Naval Base in Cuba. In making its

decision, the Court determined that it was immaterial that the

aliens were being held in military custody when it came to the

district court’s jurisdiction to hear the claims.

After these decisions by the Supreme Court, President Bush

was successful in his efforts of getting the Republican majority

congress to pass legislation into law that prevented habeas

corpus from applying to aliens who were being held as enemy

combatants.

The legislation was named the Military

Commissions Act of 2006.

Also in 2006, the Supreme Court, in the case of Hamdan v.

Rumsfeld, held that detainees had the right to appeal their habeas

corpus petitions to federal appellate courts.

In that case, the

court determined that President Bush’s determination of

practicability was insufficient to justify any variances from the

typical procedures governing courts-martial.

In 2008, the Supreme Court addressed the Military

Commissions Act of 2006 that President Bush, and his fellow

Republican majority of congress, had passed into law in the case

of Boumediene v. Bush. In that case, the petitioners were all aliens

who were detained at Guantanamo Bay after being captured

outside of the United States and labeled as enemy combatants.

As a result, each of the petitioners in the case filed a writ of

habeas corpus but were denied in District Court, where it was

ordered that the cases were to be dismissed for lack of

jurisdiction because Guantanamo is located outside United

States territory.

In the case, the Supreme Court held that the

petitioners did have the constitutional privilege of habeas corpus

and the protections afforded by it regardless of their

designation as enemy combatants or their detention at

Rasul v. Bush, 542 U.S. 466 (2004).

Id. at 483.

Id. at 485.

BILL OF RIGHTS INSTITUTE, supra note 45.

Id.

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Id. at 622.

Boumediene v. Bush, 553 U.S. 723, 732 (2008).

Id. at 734.

SUSPENSION OF THE WRIT OF HABEAS CORPUS 332

Guantanamo.

This decision rendered the Military

Commissions Act of 2006 as an unconstitutional suspension of

the writ of habeas corpus by President Bush and his fellow

legislators in congress who helped him pass the legislation. In

making its decision, the Court relied on intent of the framers by

stating that the framers considered the writ of habeas corpus to

be a vital instrument in protecting individual liberty.

The

Court noted that the vitality was evident because of the

specified limited grounds for suspending the writ of habeas

corpus in the Suspension Clause.

The Court even went as far

to say that the Clause was designed to protect abuses of the writ

by both the Executive and Legislative Branches of

government.

V. LINCOLN’S ACTIONS WERE JUSTIFIED AND BUSH’S WERE

NOT

Presidents Lincoln and Bush were both faced with a great

crisis near the beginning of their respective presidencies.

President Lincoln faced rebellion at the beginning of the Civil

War and President Bush had taken office just months before the

9/11 terrorist attacks. Both of these situations appeared to

require executive action, with each president feeling

“compelled to violate provisions of the constitution."

President Lincoln took executive action suspending habeas

corpus to prevent a complete rebellion that would encircle the

nation’s capital and threaten the existence of the United States

as a country. Ultimately, Lincoln admitted to violating the

Constitution by basically taking the role of Congress away in

his suspension of the writ of habeas corpus.

He was able to

justify his constitutional violation by arguing that, had he not

acted in the way he did, the Union would be jeopardized. In

doing so, Lincoln stated:

are all the laws but one, to go unexecuted, and

the government itself go to pieces, lest that one

Id. at 732.

Id. at 743.

Id. at 745.

Id. at 758.

James P. Pfiffner, supra note 43.

Id. at 115

333 8 LMU LAW REVIEW 1 (2020)

be violated?... It was decided that we have a case

of rebellion, and that the public safety does

require the qualified suspension of the privilege

of the writ, which was authorized to be made.

This is an extremely valid argument by Lincoln because, had

the Maryland capital fallen during the rebellion, Washington

D.C. would have been next and there would have been no way

of stopping it from happening. At the time of the initial

suspension, congress was not in session and would not be for

several months. In his statement President Lincoln mentioned

that there was a case of rebellion in which the public safety

required the suspension. This shows that President Lincoln

followed the guidelines set forth in the constitution giving

congress the power to suspend the writ. However, with

congress not being in session, he realized that it was solely up

to him to take action regardless of actually having the

constitutional power to do so. Had congress been in session and

ready to take up the matter, this apparent constitutional

violation by President Lincoln would not have been justifiable

because he could have approached them about a possible

suspension of the writ. What makes this suspension justifiable

is a provision located in Article II of the constitution. During the

oath of office, President Lincoln swore to preserve and defend

the constitution. This statement by him shows that he knew he

was violating the constitution but, at the same time, felt he was

taking the best course of action to preserve it for the future

because taking no action would put the country’s existence in

jeopardy.

On the other hand, President Bush initially took action by

shutting down the national air transportation system, which

appears to be an appropriate response due to the multiple

attacks on the United States by the use of airplanes that day.

However, over the next few years, Bush took several executive

actions, such as denying habeas corpus to enemy combatants that

had been taken captive during the war in the Middle East, who

were held at Guantanamo in violation of the constitution.

His

first actions came nearly nine months after the attacks occurred.

Unlike President Lincoln, Bush did not argue that denying

Id.

SUSPENSION OF THE WRIT OF HABEAS CORPUS 334

enemy combatants the writ of habeas corpus was a necessity.

Instead he argued that “he was acting with the inherent

authority of the presidency.”

This is a very troubling

argument at attempting justification by a then sitting president

because that opens the door for any president in the future to

use that same argument used by President Bush to basically

have free reign as an inherent power of the presidency

whenever they want, regardless of the laws of the United States.

The major difference in the actions of both Presidents,

which makes Lincoln’s violation of the constitution justifiable

and Bush’s not justifiable, revolves around the difference in the

facts of the situations. President Lincoln was faced with a true

public safety issue and actual rebellion. President Bush took

action as a response to the global war on terrorism, triggered by

the attacks on September 11, 2001. Citing invasion or public

safety as a reason for taking actions works for President Lincoln

because he truly had no other alternatives and Article II

provided him with the option to take such action. However,

President Bush cannot cite these as reasons before taking

actions because he had the military detain these enemy

combatants on foreign soil, years after the actual attacks, with

no solid proof that they were actually involved in the attacks or

currently posing a threat to attack the United States. It would

have been much more reasonable and potentially justifiable for

the same reasons as those of President Lincoln had President

Bush denied habeas corpus to the terrorism suspects and enemy

combatants in the months following the attacks in the case of

such an emergency.

However, if it were such a necessity on

the basis of invasion, President Bush should have approached

congress asking them suspend the writ of habeas corpus shortly

after the attacks instead of waiting until much time had passed

before taking such drastic, unconstitutional action. By taking

these actions, not only did President Bush violate the

constitution, but he also did more damage to the country by

severely harming international relations with countries, such as

those in the Middle East, who provide a large quantity of oil for

the United States.

Although the Supreme Court has ruled otherwise, the

suspension of the writ of habeas corpus by President Lincoln was

not a violation of the Constitution pursuant to the provisions in

James P. Pfiffner, supra note 43.

Id.

335 8 LMU LAW REVIEW 1 (2020)

Article II that gives the President the power to protect and

preserve the United States Constitution. President Bush,

however, unconstitutionally suspended the writ during a time

of war as noted by Supreme Court rulings and pursuant to the

United States Constitution.