Controversial questions over the assumption of war powers and the denial of civil rights that arose from 1861 to 1865 are every bit as potent and prevalent today.

For as long as there have been American wars, there has been scrutiny of the presidents who waged them. James Madison, officially the first chief executive to guide the United States through external conflict, quickly learned that Americans would make full use of their Constitutional right to question their government—a right he helped create—in the midst of war. Flash forward to 2007. President George W. Bush also finds himself under the political micro- scope, particularly over the decision to use specialized military tribunals to try enemy combatants detained at Guantanamo Bay, Cuba. The president is in good historical company, including that of one of the most revered figures in the world: President Abraham Lincoln.

During the Civil War, Lincoln decided to suspend the writ of habeas corpus, detain U.S. citizens and try them before a military tribunal. He paid dearly for those choices through a severe backlash from the public and the press. Then as now, the government walks a fine line between protecting the civil liberties we all hold dear and guarding the safety of our country’s citizens.

The decision to use tribunals inevitably elicits a variety of challenges from constituents, political coalitions, the press and the public in the form of legal action. This current attempt to expand executive power has led to accusations of forsaking civil liberties—the same criticism that Lincoln endured. We know that Lincoln’s decisions have stood the test of time. We also know that the accusations characterizing Bush’s actions as unprecedented are erroneous. But what can Lincoln’s wartime curtailments of civil liberties and expansions of presidential power teach us about these issues as they exist today? What light can closer examination of the atmosphere that inspired Lincoln’s choice to take extraconstitutional measures shed upon the Supreme Court’s recent decision to halt the executive power to create military tribunals? And, in turn, what light can examination of the current attempts to expand presidential power in the midst of war shed on Lincoln’s presidency and his complex role in our nation’s history?

This article comes at a time of intense controversy and significant change in the relationship between civil liberties and presidential prerogative. In June 2006, the U.S. Supreme Court ruled 5-3 against the use of specialized military tribunals to try the enemy combatants detained at Guantanamo Bay— a ruling described by The New York Times as “the most significant setback yet for the administration’s broad expansions of presidential power.” The blow Hamdan v. Rumsfeld delivered to the power of the executive branch cast a shadow of uncertainty over the president’s broader strategy for handling the United States’ war on terror. By virtually heralding the stronger role the Supreme Court planned to play in supervising military prosecutions, Hamdan’s seemingly narrow holding could in fact signal the collapse of the “bold and novel legal strategy” laid out by the Justice Department after September 11, 2001. This strategy included exemption from the Geneva Conventions for people deemed by the administration to be enemy combatants, and the use of coercive styles of interrogation and secret surveillance.

Professor John C. Yoo, one of the principal architects of this legal response and a former member of the U.S. Justice Department’s Office of Legal Counsel, spoke in strong terms of the possible effects of Hamdan. “It could affect detention conditions, interrogation methods, the use of force,” he said. “It could affect every aspect of the war on terror.” After the Supreme Court’s decision, the parameters were rewritten for the tribunals, which are now referred to as “military commissions.” Congress signed the changes into law last fall, and as anyone following the news today knows, the Guantanamo hearings are proceeding. The intense debate over this issue will likely continue.

In many ways, Hamdan raises more questions than answers: When is a president’s expansion of power during wartime acceptable? What role does judicial review play in such expansion? How do President Bush’s actions differ from those of Lincoln, and why and how is the public and judicial response so varied? An examination of the circumstances surrounding Lincoln at the time he grappled with the issue of civil liberties during wartime provides an interesting context for comparing Lincoln’s choices to the choices, and consequences, of military tribunals today.

To say that the situation facing Lincoln during the Civil War put him in a difficult political position would be a significant understatement. In the words of historian James G. Randall, “No president has carried the power of presidential edict and executive order (independently of Congress) so far as he did….It would not be easy to state what Lincoln conceived to be the limit of his powers.”

In the 80 days from his April 1861 call for troops and the convening of Congress in special session on July 4, 1861, Lincoln executed a series of important acts through a sheer assumption of presidential war powers. He increased the size of the Army and Navy; appropriated money for the purchase of arms and ammunition without congressional authorization; declared a blockade of the Southern coast (an act of war that arguably recognizes a belligerent nation); and, of course, suspended the fundamental privilege of the writ of habeas corpus.

Habeas corpus is a procedural method by which one who is imprisoned can file a writ in an appropriate court to have his or her imprisonment reviewed. If the imprisonment is not found to conform to the law, the individual is entitled to immediate release. With Lincoln’s suspension of the writ, immediate judicial review of imprisonment became unavailable, and prisoners could be held indefinitely without trial. The suspension triggered the most heated constitutional disputes of the Lincoln administration.

Lincoln avoided characterizing the situation facing the nation in 1861 as a civil war when he suspended habeas corpus, but instead noted the existence of “combinations too powerful to be suppressed by the ordinary course of judicial proceedings.” He called on the militia to “suppress said combinations.” Only Congress of course is constitutionally empowered to declare war, but suppression of rebellion has been recognized as an executive function, for which the prerogative of setting aside civil procedures is placed in the president’s hands.

This issue is still hotly debated today. But despite Bush’s aggressive tactics in the name of national security, and the agressive judicial response that has followed, Lincoln did far more in his day. He made far-reaching decisions and crucial commitments while Congress was not in session—all without having to worry about public polls.

It was events in Maryland that ultimately provoked Lincoln’s suspension of the writ of habeas corpus. Fort Sumter was fired upon on April 12, 1861; on April 19, the 6th Massachusetts militia arrived in Washington, D.C., after literally fighting its way through a hostile Baltimore; and on April 20, Marylanders severed railroad communications with the North, very nearly isolating Washington from that part of the nation for which it remained the capital. On April 25, the 7th New York militia finally reached Washington after struggling through Maryland as well.

The right of habeas corpus is so important to the structure of this country’s legal system that Lincoln actually considered the bombardment of Maryland cities as an alternative to suspending it—having been authorized by the Army’s general in chief, Winfield Scott, to shell hostile cities in case of “necessity.” By contrast, only “in the extremist necessity” was Scott to suspend the writ of habeas corpus.

Maryland was also the home of John Merryman, who expressed dissent from the course Lincoln was chartering in both word and deed and spoke out vigorously in favor of the South. He recruited a company of soldiers for the Confederate Army and became their drillmaster. Thus he not only exercised his constitutional right to disagree with what the government was doing but also engaged in raising an armed unit to attack and attempt to destroy that government.

Merryman’s actions precipitated legal conflict between the president and the chief justice of the U.S. Supreme Court, Roger B. Taney. On May 25, 1861, Merryman was arrested by the military for various alleged acts of treason and detained at Fort McHenry in Baltimore. Shortly after Merryman’s arrest, his counsel sought a writ of habeas corpus from Taney, alleging that Merryman was being held illegally. Taney, already infamous for his decision in the Dred Scott case of 1857, took jurisdiction as a circuit judge. On May 26, 1861, he issued a writ to Fort McHenry’s commander, Brig. Gen. George Cadwalader, directing him to produce Merryman before the court the next day at 11 a.m. Cadwalader respectfully refused on the grounds that President Lincoln had authorized the suspension of habeas corpus.

To Taney, this was constitutional blasphemy. He immediately issued an attachment for Cadwalader for contempt of court. The marshal could not enter the fort to serve the attachment, so the old justice, recognizing the impossibility of enforcing his order, produced the now famous opinion, Ex Parte Merryman.

Notwithstanding the fact he was 85 years old, the chief justice vigorously defended the power of Congress alone to suspend habeas corpus. Taney took this position in part because permissible suspension was in Article I, Section 9 of the Constitution, the section describing Congressional duties. He ignored the fact that it was placed there by the Committee on Drafting at the Constitutional Convention in 1787 as a matter of form, not substance. Nowhere did Taney acknowledge that a rebellion was in progress and that the fate of the nation was at stake. He missed the crucial point made in the draft of Lincoln’s report to Congress on July 4:

The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?

By addressing Congress, Lincoln had ignored Taney. At the time, nothing more was done about Merryman. He was eventually released from custody and disappeared into oblivion. Two years later, Congress resolved the ambiguity in the Constitution and permitted the president the right to suspend the writ while the war continued.

Five years later, after the final Union victory and with Lincoln’s own appointee Salmon P. Chase having taken the seat of chief justice, the Supreme Court reached essentially the same conclusion that Taney had in Ex Parte Milligan: “The government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.”

Lincoln never denied that he had stretched his presidential power. “These measures,” he declared, “whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them.”

But some individuals adamantly believed that in presenting Congress with a fait accompli, Lincoln had exceeded his authority. And like George W. Bush today, Lincoln faced a Supreme Court review over the constitutionality of his wartime actions. In 1863 the Supreme Court reviewed the validity of the initial war measures, the legal nature of the conflict and Lincoln’s assumption of war power. The Court issued a decision in the Prize Cases in March 1863, though the acts the decision reviewed had taken place in 1861. Before the high court was a question concerning one particular action: the seizure of vessels for violating the blockade, the legality of which had been challenged since it was set up by presidential proclamation without a congressional declaration of war. Of course, this seemingly particularized question had vast implications; the blockade was only one of the emergency measures Lincoln took, by his own authority, in the “80 days.” It was a crucial question; were the Supreme Court to declare the act of setting up the blockade invalid, “[i]t would end the war, and how it would leave us with neutral powers, it is fearful to contemplate!” lawyer Richard Henry Dana Jr. wrote to Charles Francis Adams at the time the case was being deliberated.

In 1863, unlike in 2006, the Court’s decision swung in favor of presidential power— just barely. In a 5-4 decision, the three Lincoln appointees then on the Court joined the majority in upholding Lincoln’s decisions. Not surprisingly, the Lincoln administration met this narrow victory with great relief. The Court held that a civil war does not legally originate because it is declared by Congress; rather, it is the duty of the president, once the “party in rebellion” breaks allegiance, “organizes armies, and commences hostilities,” to resist force with force, and to meet the war as he finds it “without waiting for Congress to baptize it with a name.”

Naturally, the narrow victory only fueled the continuing dissent. Clement Laird Vallandigham, the best-known antiwar Copperhead of the era, was perhaps President Lincoln’s sharpest critic. He charged Lincoln with the “wicked and hazardous experiment” of calling the people to arms without counsel and authority of Congress; with suspending the writ of habeas corpus; and with “coolly” coming before the Congress and pleading that he was only “preserving and protecting” the Constitution. Vallandigham berated the president for demanding and expecting the thanks of Congress and the country for his “usurpations of power.” He was arrested by Maj. Gen. Ambrose E. Burnside after speaking at a Democratic mass meeting at Mount Vernon, Ohio, on March 21, 1863. After being escorted to Kemper Barracks, the military prison in Cincinnati, he was tried by a military commission, found guilty and sentenced to imprisonment for the duration of the war.

After being denied a writ of habeas corpus, the still-defiant Copperhead applied for a writ of certiorari to bring the proceedings of the military commission for review before the Supreme Court. In the opinion Ex Parte Vallandigham, his application was denied on the grounds that the Supreme Court had no jurisdiction over a military tribunal.

Of course, when the Court addressed the issue in Ex Parte Milligan after the war was over, it held that the writ of habeas corpus could only be suspended by Congress, and even then only in a situation where the civil courts were not operating. Even the charge of fomenting an armed uprising in a time of civil war was not deemed to be justification for usurping Congress’ right.

In 1942 the Supreme Court decided Ex Parte Quirin, a case in which prisoners detained for trial by military commission appealed a denial of their motions for writ of habeas corpus. The Supreme Court held that “military tribunals…are not courts in the sense of the Judiciary Article [of the Constitution].” Rather, they are the military’s administrative bodies to determine the guilt of declared enemies and pass judgment. Ex Parte Quirin has since become the foundation for the current argument that the government has the right to hold “enemy combatants”—even Americans—indefinitely, without evidence, charge or trial.

Today we are once again a nation at war— though the laws of war are different. After Osama Bin Laden and al-Qaida admitted to masterminding the horror that was September 11, hundreds of suspected al-Qaida and Taliban associates, not U.S. citizens, were arrested and detained at Guantanamo Bay as enemy combatants. President Bush proposed the use of military tribunals to try those individuals charged with terrorism. Such commissions do not enforce national laws, but rather a body of international law that has evolved over the centuries.

During the Civil War, Lincoln also declared martial law and authorized such forums to try dissidents because military tribunals had the capacity to act quickly; to gather intelligence through interrogation; and to prevent confidential information from becoming public. The Union Army conducted at least 4,300 trials of U.S. citizens by military commission, which reflected the disorder of the time. Lincoln answered his critics with a reasoned constitutional argument. A national crisis existed, and in the interest of self-preservation, he had to act. At the same time he realized Congress had the ultimate responsibility to pass judgment on the measures he had taken.

The Hamdan decision rests technically on narrow grounds, and Congress has given its seal of approval to most of the president’s subsequent proposals, as suggested by four of the Supreme Court justices. It may be time for another conclave in Geneva to create new protocols for a new kind of war. For this is indeed a new kind of war. The ever-shrinking global village in which we all live exacerbates the issues Lincoln faced nearly a century and a half ago. During the Civil War, Lincoln was concerned about the war’s implications with Britain and France. Today Americans are even more acutely aware of how the United States is perceived not only by its allies but by the entire world, especially in matters of human rights, freedom and prudent use of power.

It is clear that the argument over Lincoln and civil liberties was as robust in his own time as in ours and deserves an equally careful reexamination by modern historians. The fact that Lincoln survived the firestorm over civil liberties that afflicted his administration with his reputation for statesmanship intact may be the most powerful argument for his judicious application of executive authority during a national emergency. Indeed, it may be the closest thing to a lesson we can extract from Lincoln’s exercises of extra-executive power. But the words of historian Mark E. Neely are both prescient and relevant here; he wrote more than 15 years ago: “If a situation were to arise again in the United States when the writ of habeas corpus were suspended, the government would probably be as ill-prepared to define the legal situation as it was in 1861. The clearest lesson is that there is no clear lesson in the Civil War—no neat precedents, no ground rules, no map. War and its effect on civil liberties remain a frightening unknown.”

Lincoln emerged from the controversy of expanded presidential powers and the subsequent judicial review as a powerful statesman whose dedication to preserving the Union is legendary. Now, as we again travel the often troubling, never clear road of extrapresidential power, walking the fine line between the preservation of civil liberties and the protection of a nation in the midst of conflict, Lincoln’s actions during the Civil War provide us with a richly textured background for contemplating this complex issue.


For additional reading, see Mark E. Neely’s Fate of Liberty: Civil Liberties in Wartime, Brian McGinty’s Lincoln and the Court, and James F. Simon’s Lincoln and Chief Justice Taney.

Originally published in the June 2007 issue of Civil War Times. To subscribe, click here.