A single paragraph in Harper’s Weekly on November 9, 1861 said this:
On 23d the President instructed the Marshal for the District of Columbia not to serve writs on the Provost Marshal, but return them to the Court with the explanation that the President has, for the present, suspended the privilege of the writ of habeas corpus in cases relating to the military for reasons of public necessity.
Today, the New York Times reports on a related action taken by the president.
…the administration is moving swiftly to take advantage of an amendment to the military bill that President Bush signed into law last Friday. The amendment strips federal courts from hearing habeas corpus petitions from Guantanamo detainees…Mr. Graham, along with Senators Carl Levin, Democrat of Michigan, and Jon Kyl, Republican of Arizona, sponsored the amendment to the Defense Act eliminating habeas corpus jurisdiction in federal courts.
It was President Lincoln who in 1861 denied a Maryland resident the right to appear before a court of law to protest his abduction by military officers in the middle of the night and imprisonment in Fort McHenry. No less than the Chief Justice of the Supreme Court, Roger B. Taney, declared Lincoln’s action illegal and unconstitutional, declaring that only Congress had the power to suspend the writ of habeas corpus.
Taney, in his opinion upholding the right of John Merryman to appear before the court, and overturning Lincoln’s action, reminds us that,
From the earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge or conviction, or for a civil debt. In the former case it was always in his power to demand of the court of king’s bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner, with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided for in Magna Charta (if indeed it is not more ancient), that the statute of Car. II. was enacted, but to cut off the abuses by which the government’s lust of power, and the servile subtlety of the crown lawyers, had impaired so fundamental a privilege.’
American law does not allow imprisonment for debt and we don’t have crown lawyers (though congressional lawyers often exhibit the same ‘servile subtlety’) but in the founding documents of our nation we embraced the right to have “the body of the prisoner brought” before a court of law in order to review the circumstances of arrest and imprisonment and to be judged whether those actions were reasonable, right, and lawful.
In spite of Taney’s ruling, between 1861 and 1863 over 10,000 citizens, including so-called “copperheads” or “peace Democrats” who opposed Lincoln’s policies, and others accused of being southern sympathizers, spies or traitors, were arrested without recourse to judicial review. In 1870, Ulysses Grant also suspended habea corpus in South Carolina to squash the KKK.
In 2004 the Supreme Court visited the ancient writ once again, in Hamdi v. Rumsfeld. Justice O’Connor wrote for the majority opinion that affirmed the right of Hamdi, an American arrested by the military in Afghanistan and held first in Guantanamo and then in the U.S, to have the circumstances of his arrest and imprisonment reviewed in a court of law. She said:
Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance.
Only in the rarest of circumstances has Congress seen fit to suspend the writ… [in 1863 and 1871]… At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law…. All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention.
…it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.
This is what O’Connor said about what Hamdi faces without a review of his case:
If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.
The Graham-Levin Amendment and its suspension of habeas corpus for “enemy combatants” held in Guantanamo prisons, unlike Lincoln’s suspension of habeas corpus in 1861, is authorized by Congress and therefore “constitutional.” Unlike Grant’s suspension of the right in South Carolina, the civil rights of Americans harassed, threatened, and murdered by the KKK are not at risk by imprisoned “enemy combatants”.
But a Congress largely perceived to be in thrall to a despotically inclined President, his secretive cabinet, and his secretive troops of appointees and assistants has now suspended the right of habeas corpus for persons not clearly identified, and without verified cause, held on American-governed territory but not accessible to anyone but the military, for the duration of a war that may have no end.