War Powers - continued starting with Civil war

The Civil War has obvious parallels to our current "War on Terror"(Newspeak anyone??) especially when we look at Supreme court rulings based on Lincoln's blockade of the Confederacy and suspension of Habeas Corpus. Lincoln issued these proclamations while congress was in recess and when they returned he said this about his actions. "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." (Irons, 70) Congress then performed that common dereliction of duty in giving Lincolns proclamations retroactive sanction.

Lincolns blockade stated that any ships from neutral countries trading with the Confederacy could be seized. The issue brought before the court in the Prize cases was whether or not the president had the right to issue the blockade under international law. A larger issue was how did a civil war, began as an domestic insurrection, fit into the constitutional delegation of war powers? (Irons, 72) The issue of the blockade centered on this question: were the Union and Confederacy independent nations and belligerents in an actual war?? Justice Grier wrote in the majority opinion that this was the case and that Lincoln had the right to enforce the blockade, even though a blockade is an act of war that only congress can enact.

In making this ruling, Grier forfeited the duty of the court to apply the constitution to the other two branches of government and any disputes or transgressions that might occur. Grier's statement that the issue of the blockade was "...a question to be decided by him ,(Lincoln) and this Court must be governed by the decisions and acts of the political department of Government" exempted this type of executive action from judicial scrutiny. (Irons, 74) The dissenters argued that the court hadn't done its duty to "say what the law is" and that "no subsequent ratification could make them (unconstitutional executive proclamations) valid". (Irons, 75)

The suspension of habeas came about because union soldiers heard that there were plots to blow up trains carry war supplies through Maryland (a slave state still in the Union). The order ""..allowed Union officers to arrest and detain without trial anyone suspect of threatening "public safety."" (Irons, 75) The Constitution put the ability to suspend habeas to protect public safety in the event of rebellion or invasion in the hands of Congress. A confederate supporter named Merryman was arrested and his lawyer petitioned the Supreme Court Justice Taney to apply habeas to the case. He allowed Merryman to remain in military custody but asserted that Lincolns suspension of habeas was unconstitutional, and that arbitrary arrests meant we lived under a military government.

Lincoln replied with the same justification that Jefferson used: following the law too strictly could lead to our destruction. When he said that "...some single law (habeas), made in such extreme tenderness of the citizens liberty that practically it relieves more of the guilty that of the innocent..." he expressed his disdain for habeas and the concept of protection from executive abuse it embodies. (Irons, 80) Sound familiar?? Maybe the Patriot act, enemy combatants, and Guantanamo Bay ring a bell.

The Milligan case centered on the trial before a military commission of suspects in a plot to set Confederate POW's free. Milligan and three others were sentenced to death, and this sentence was signed by Lincolns successor, Andrew Johnson. The Case was appealed to the Supreme court with the argument that military tribunals had no jurisdiction in Indiana because it was not in danger of invasion, martial law had not been imposed, and federal courts were still functioning. The Court, now headed by Salmon Chase, questioned the legal authority of military tribunals. The unanimous decision to release Milligan from military custody was written by Davis and stated that Milligan had not received his basic constitutional protections.

In case it is not obvious, I will spell out the similarities between these Civil War incidents and contemporary ones.
1. Granting of emergency powers to the executive by congress without debate.
2. Executive taking unconstitutional action.
3. Subversion of civil liberties and suspicion of civilians as traitors.
4. The use of military tribunals.