Published June 26. 2011 4:00AM
In the history of the United States, there have been only two occasions in which a president has suspended the writ of habeas corpus, a person's right to challenge in court the legality of his imprisonment.
Most recently, on Oct. 17, 2006, President George W. Bush, with the approval of Congress, suspended the right of habeas corpus to persons "determined by the United States" to be terrorists.
While Bush was widely criticized for breaching this fundamental constitutional right, he was not the first president to do so.
The first was Abraham Lincoln.
Lincoln suspended the right of habeas corpus on April 27, 1861, along the Philadelphia to Washington railroad line. By year's end, he would extend that suspension to rail lines running from Philadelphia to New York, from New York to Bangor, Maine, and to the state of Missouri. He would eventually, in the fall of 1862, suspend the writ nationwide.
What this meant, in effect, was that the government could imprison anyone suspected of being a rebel spy or saboteur indefinitely without having to show cause or make a case for the arrest in court.
Like Bush, Lincoln came under fire for his decision.
In particular, Lincoln stated the objection this way: that the president, "who is sworn to 'take care that the laws be faithfully executed,' should not himself violate them."
But when he addressed Congress on July 4, 1861, Lincoln defended his decision on two grounds: that it was essential to preserving the Union and that it was constitutional.
"Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Lincoln asked. "Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?"
And Lincoln cited the provision in the Constitution - Article I, Section 9, clause 2 - that authorized his action: "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.''
The difference between Bush and Lincoln, of course, is that while Bush suspended the right for "aliens detained by the United States," Lincoln did so for American citizens.
Perhaps it is too soon for history to judge Bush's action, but historians have reached a verdict on Lincoln's, says Michael Burlingame, the Chancellor Naomi B. Lynn Distinguished Chair in Lincoln Studies at the University of Illinois at Springfield, and the author of "Abraham Lincoln: A Life," which is considered the definitive work on the 16th president.
Historian Mark Neely, for example, "examined the records of thousands of military tribunals and concluded that the Lincoln administration did not abuse the power of suspension by arresting people simply because they criticized his policies," Burlingame says.
"Rather the arrests were overwhelmingly justified by the circumstances of the war," he says. "Most historians believe that Lincoln did not violate the Constitution in suspending the writ."
Lincoln's fiercest critic was Chief Justice Roger B. Taney, who, serving in the capacity of the federal circuit court judge in Maryland, issued an opinion that one John Merryman, who was arrested in his bed at 2 a.m. on May 25 and imprisoned at Fort McHenry, was arrested "without warrant from any lawful authority."
Merryman "appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts which, in the judgment of the military officer, constituted these crimes," Taney wrote on June 1, 1861.
By Taney's reading of the Constitution, only Congress - not the president - had the right to suspend habeas corpus.
"If the president of the United States may suspend the writ, then the Constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen, than the people of England have thought it safe to entrust to the crown," he wrote.
Taney, Burlingame points out, "was the author of the infamous Dred Scott case, arguably the worst decision ever rendered by the high court."
Dred Scott was a slave who sued for his and his family's freedom, arguing that since they had lived with their master, an Army doctor, in a number of states and territories where slavery was illegal, their master had forfeited his legal right to hold them in bondage.
On March 6, 1857, Taney issued the court's opinion, ruling that no person of African descent - whether slave or free - could be a citizen of the United States and therefore had no legal standing to file a suit in federal court. Scott and other slaves, Taney ruled, were simply private property.
Black people, Taney wrote, were "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect."
Moreover, Taney ruled, it was unconstitutional for Congress to ban slavery in the expanding territories of the nation.
Needless to say then, Taney's criticism of Lincoln's suspension of habeas corpus came from a deep political bias.
As to Taney's argument that only Congress had the right to suspend the writ, Burlingame says, "Lincoln had a good argument, for Congress in that era was often out of session, and an invasion or rebellion might well take place during one of its long recesses, just as had occurred in April."
Secessionist sympathizers, including, most likely, Merryman, had burned bridges to stop federal troops from marching through Maryland to defend Washington, so "clearly, in the case of Maryland that spring, emergency conditions prevailed," Burlingame says.
"The framers of the Constitution pretty clearly were worried that a rebellion or an invasion might occur during a recess of Congress and might even make the assembling of the body impossible," he says.
"Clearly they wanted the government to repel an invasion or put down a rebellion, and they wanted the suspension of habeas corpus to be used as a tool to effect that end. The president was on duty full time and could respond promptly, whereas Congress might well be unable to do so."
When Taney ordered the commander of the fort to show cause for Merryman's arrest, the commander ignored him. When Taney sent a marshal to arrest the commander for contempt, the marshal wasn't allowed in the fort.
Taney sent his opinion to Lincoln as well. Lincoln ignored him.
As to John Merryman, he was indicted for treason on July 10, released on bail and never tried.