Why Bush and Lincoln Both Suspended Habeas Corpus

There were differences and similarities in each president's decision

Bush Signs John Adams Commemorative Work Bill
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On Oct. 17, 2006, President George W. Bush signed a law suspending the right of habeas corpus to persons "determined by the United States" to be an "enemy combatant" in the Global War on Terror. President Bush's action drew severe criticism, mainly for the law's failure to specifically designate who in the United States will determine who is and who is not an "enemy combatant."

"What, Really, a Time of Shame This Is..."

To President Bush's support for the law -- the Military Commissions Act of 2006 -- and its suspension of writs of habeas corpus, Jonathan Turley, professor of constitutional law at George Washington University stated, "What, really, a time of shame this is for the American system. What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values."

But It Was Not the First Time

In fact, the Military Commissions Act of 2006 was not the first time in the history of the U.S. Constitution that its guaranteed right to writs of habeas corpus has been suspended by an action of the President of the United States. In the early days of the U.S. Civil War President Abraham Lincoln suspended writs of habeas corpus. Both presidents based their action on the dangers of war, and both presidents faced sharp criticism for carrying out what many believed to be an attack on the Constitution. There were, however, both similarities and differences between the actions of Presidents Bush and Lincoln.

What Is a Writ of Habeas Corpus?

A writ of habeas corpus is a judicially enforceable order issued by a court of law to a prison official ordering that a prisoner must be brought to the court so it can be determined whether or not that prisoner had been lawfully imprisoned and, if not, whether he or she should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. The right of habeas corpus is the constitutionally bestowed right of a person to present evidence before a court that he or she has been wrongly imprisoned.

Where Our Right of Habeas Corpus Comes From

The right of writs of habeas corpus is granted in Article I, Section 9, clause 2 of the Constitution, which states,

"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."

Bush's Suspension of Habeas Corpus

President Bush suspended writs of habeas corpus through his support and signing into law of the Military Commissions Act of 2006. The bill grants the President of the United States almost unlimited authority in establishing and conducting military commissions to try persons held by the U.S. and considered to be "unlawful enemy combatants" in the Global War on Terrorism. In addition, the Act suspends the right of "unlawful enemy combatants" to present or to have presented in their behalf, writs of habeas corpus.

Specifically, the Act states, "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

Importantly, the Military Commissions Act does not affect the hundreds of writs of habeas corpus already filed in federal civilian courts on behalf of persons held by the U.S.as unlawful enemy combatants. The Act only suspends the accused person's right to present writs of habeas corpus until after their trial before the military commission has been completed. As explained in a White House Fact Sheet on the Act, "... our courts should not be misused to hear all manner of other challenges by terrorists lawfully held as enemy combatants in wartime."

Lincoln's Suspension of Habeas Corpus

Along with a declaring martial law, President Abraham Lincoln ordered the suspension of the constitutionally protected right to writs of habeas corpus in 1861, shortly after the start of the American Civil War. At the time, the suspension applied only in Maryland and parts of the Midwestern states.

In response to the arrest of Maryland secessionist John Merryman by Union troops, then Chief Justice of the Supreme Court Roger B. Taney defied Lincoln 's order and issued a writ of habeas corpus demanding that the U.S. Military bring Merryman before the Supreme Court. When Lincoln and the military refused to honor the writ, Chief Justice Taney in Ex-parte MERRYMAN declared Lincoln's suspension of habeas corpus unconstitutional. Lincoln and the military ignored Taney's ruling.

On Sept. 24, 1862, President Lincoln issued a proclamation suspending the right to writs of habeas corpus nationwide.

"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 liable to trial and punishment by Courts Martial or Military Commission:"

Additionally, Lincoln's proclamation specified whose rights of habeas corpus would be suspended:

"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 fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission."

In 1866, after the end of the Civil War, the Supreme Court officially restored habeas corpus throughout the nation and declared military trials illegal in areas where civilian courts were again able to function.

On Oct. 17, 2006, President Bush suspended the constitutionally bestowed right of writs of habeas corpus. President Abraham Lincoln did the same thing 144 years ago. Both presidents based their action on the dangers of war, and both presidents faced sharp criticism for carrying out what many believed to be an attack on the Constitution. But there were some significant differences and similarities in both the circumstances and the details of the two presidents' actions.

Differences and Similarities
Recalling that the Constitution allows for the suspension of habeas corpus when "Cases of Rebellion or Invasion the public Safety may require it," lets consider some of the differences and similarities between the actions of Presidents Bush and Lincoln.

  • Presidents Bush and Lincoln both acted to suspend habeas corpus under the powers granted to them as Commander in Chief of the U.S. Military during a time of war.
  • President Lincoln acted in the face of an armed rebellion within the United States – the U.S. Civil War. President Bushs action was a response to the Global War on Terrorism, considered to have been triggered by the Sept. 11, 2001 terrorist attacks in New York City and the Pentagon. Both presidents, however, could cite "Invasion" or the much broader term "public Safety" as constitutional triggers for their actions.
  • President Lincoln suspended habeas corpus unilaterally, while President Bushs suspension of habeas corpus was approved by Congress through the Military Commissions Act.
  • President Lincoln's action suspended the habeas corpus rights of U.S. citizens. The Military Commissions Act of 2006, signed by President Bush, stipulates that the right of habeas corpus should be denied only to aliens "detained by the United States."
  • Both suspensions of habeas corpus applied only to persons held in military prisons and tried before military courts. The habeas corpus rights of persons tried in civilian courts were not affected.

    Certainly the suspension -- even if temporary or limited -- of any right or freedom granted by the U.S. Constitution is a momentous act that should be carried out in only in the face of dire and unanticipated of circumstances. Circumstances like civil wars and terrorist attacks are certainly both dire and unanticipated. But whether one or both, or neither warranted the suspension of the right of writs of habeas corpus remains open for debate.