[Peace-discuss] July 4th float -- okay, seriously...

[Neil Parthun]

If we want to talk powerful speeches, then how about his support of  
indefinite detentions during wartime that was even used by the  
Supreme Court to defend their wartime curtailing of freedoms?  If  
only Bush would have been so bold to extend the suspension of the  
writ of habeas rights as Lincoln did...

Just because the myth of Lincoln is popular doesn't mean it shouldn't  
be challenged.  Didn't we commit political "suicide" (her words) in  
the days/weeks after 9/11 when we questioned the efficacy of bombing/ 
invasion of a country?  Didn't we commit political "suicide" when we  
opposed the Iraq war since its inception when it was totally  
unpopular to do so?

 From David Greenberg's piece "Lincoln's Suspension of Habeas  
Corpus" (bolded portions for yr. reading pleasure)

Several times during the war, Lincoln or his Cabinet officers issued  
orders suspending the writ. The first came early in his presidency.  
Lincoln had been in office for barely a month when Confederate troops  
attacked the federal garrison at Fort Sumter in April 1861, starting  
the Civil War. One of his immediate concerns was how to keep an  
unobstructed route between Washington, D.C., and the North. He  
worried that if Maryland joined Virginia and seceded from the Union,  
the nation's capital would be stranded amid hostile states. 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. So on April 27 Lincoln suspended the  
habeas corpus privilege on points along the Philadelphia-Washington  
route. That meant Union generals could arrest and detain without  
trial anyone in the area who threatened "public safety."

Controversy followed. The most explosive incident centered on John  
Merryman, a Marylander arrested for insurrectionary activities.  
Summarily jailed, Merryman petitioned for a habeas corpus writ, which  
Chief Justice Roger Taney granted. But the commanding officer at Fort  
McHenry, where Merryman was held, refused to release the prisoner,  
citing Lincoln's edict. With the army loyal to Lincoln, Taney  
couldn't enforce his order and railed against the president while  
Merryman stewed in jail for seven more weeks. After being freed, he  
was never tried.

The Merryman case and others like it ignited a debate over Lincoln's  
actions. Democrats argued they were unconstitutional. Taney noted  
that Article 1 of the Constitution, where habeas corpus is discussed,  
deals exclusively with congressional powers, meaning that Congress  
alone can authorize the privilege's suspension. Although correct,  
Taney's argument framed the debate around a legalistic and secondary  
issue, that of congressional versus presidential power. It skirted  
the question of whether the situation warranted a suspension of  
habeas corpus at all. Thus when in March 1863 Congress passed the  
Habeas Corpus Act, effectively endorsing Lincoln's actions, civil  
libertarians were stripped of their main argument.

Where Democrats marshaled constitutional arguments against Lincoln's  
order, Republicans replied that in an emergency, only the president  
could act fast enough to protect the public safety. Lincoln himself  
took this line in a famous July 4, 1861, speech to Congress. He also,  
more memorably, used a pragmatic argument. "Are all the laws but one  
to go unexecuted," he chided his critics, "and the government itself  
go to pieces, lest that one be violated?" The phrase has been quoted  
ever since and even provided the title of a recent apologia by Chief  
Justice William Rehnquist for wartime suppression of freedoms.

Despite the rhetorical power of Lincoln's speech, there's no evidence  
the government would have gone to pieces. By the time he issued his  
April 27 order, Union troops had made their way through Baltimore,  
and it should have been clear that Washington wasn't going to be  
fatally isolated. As for dissuading Maryland from seceding,  
contemporaneous accounts suggest that whatever the administration's  
fears, no such move was imminent.

If Lincoln's Maryland actions were dubious, a wave of arrests the  
following summer under another habeas corpus suspension was downright  
indefensible. The wave began after Congress instituted the first-ever  
military draft in July 1862. Because the draft proved highly  
unpopular and hard to enforce, Secretary of War Edwin Stanton, at  
Lincoln's behest, issued sweeping orders on Aug. 8 suspending habeas  
corpus nationwide—the first time the writ was suspended beyond a  
narrowly defined emergency area. Stanton decreed that anyone  
"engaged, by act, speech, or writing, in discouraging volunteer  
enlistments, or in any way giving aid and comfort to the enemy, or in  
any other disloyal practice against the United States" was subject to  
arrest and trial "before a military commission."

The exceedingly broad mandate precipitated a civil liberties  
disaster. It allowed local sheriffs and constables to decide  
arbitrarily who was loyal or disloyal, without even considering the  
administration's main goal of enforcing the draft. At least 350  
people were arrested in the following month, an all-time high. Some  
of the accused had done nothing worse than bad-mouth the president.  
(That was also true before Aug. 8. On Aug. 6, for example, Union Gen.  
Henry Halleck arrested one Missourian for saying, "[I] wouldn't wipe  
my ass with the stars and stripes.")

On Sept. 8, the federal official overseeing these arrests decreed  
that law enforcement agents were enforcing the Aug. 8 orders too  
stringently. It was evident that people were being arrested who posed  
no threat to the public safety. Thereafter, the arrests subsided.  
Still, Lincoln himself reiterated the suspension on Sept. 24, and  
arrests without trial continued. Overall between 10,000 and 15,000  
people were incarcerated without a prompt trial. On balance, their  
detention almost certainly did not enhance American security nor  
hasten the Union victory.

Solidarity,
-N.

Neil Parthun
  Sports journalist, Public i  ||  http://publici.ucimc.org

"There are many victories worse than a defeat." - George Eliot




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