Crisis and Command: A History of Executive Power from George Washington to George W. Bush (33 page)

Bates's legal opinion launched a frontal assault on Taney's claim to judicial supremacy in
Merryman
. "To say that the departments of our government are coordinate, is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment." Independence required that no branch could compel another. No court could issue a writ requiring compliance by the President, just as no President could order a court how to decide a case. Bates's opinion ventured even further than Lincoln's view on
Dred Scott
, which he agreed to enforce at least as to the parties in the case. Bates's claim of the independent status of each branch implied that the President had no obligation to obey a court judgment even in that narrow case -- a position that the administration had to adopt because Lincoln had already ignored Taney's order releasing Merryman.

Bates questioned whether the courts had any competence to decide questions relating to the war. "[T]he whole subject-matter is political and not judicial. The insurrection itself is purely political. Its object is to destroy the political government of this nation and to establish another political government upon its ruins," the Attorney General reasoned. "And the President, as the chief civil magistrate of the nation, and the most active department of the Government, is eminently and exclusively political, in all his principal functions." A court, Bates concluded, had no authority to review these political decisions of the President. The Attorney General suggested that something like the modern political question doctrine applied to judicial review of the President's wartime decisions. Almost as an aside, Bates addressed the merits of the constitutional question. He observed that the Suspension Clause was vague and did not specify whether Congress alone, or the President too could suspend habeas. He argued that it was absurd to allow habeas to benefit enemies in wartime, as it would imply that the enemy could sue for damages when the Union destroyed their arms and munitions.

In September 1862, the President turned to more aggressive measures. Military rule had displaced civilian government in areas touched by the battlefield, in the border states where confederate irregulars conducted guerilla operations, and in recaptured territory. Martial law went unmentioned in the Constitution but had been used during the Revolution and the War of 1812, and had even been upheld by Chief Justice Taney in a case involving civil unrest in Rhode Island.
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Lincoln drew upon his Commander-in-Chief power to impose military rule in areas where fighting or occupation were ongoing.

In a September 24, 1862, proclamation, Lincoln extended military jurisdiction beyond the battlefield to those giving assistance to the enemy behind the lines. He ordered the military to detain anyone within the United States who gave aid or comfort to the rebels, and anyone who resisted the draft or discouraged volunteers from enlisting. Detainees would have no right to seek a writ of habeas corpus and would be tried by courts-martial or military commission, a form of military court used to try the enemy or civilians for violations of the laws of war and to administer justice in occupied territory.
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Under Lincoln's order, the jurisdiction of the military commissions extended to those suspected of assisting the rebellion or disrupting the war effort well behind the front lines.

Union officials primarily deployed these authorities in or near active hostilities to detain spies and saboteurs. A common use was to capture irregular Confederate forces that were killing Union soldiers and attacking supply trains in states such as Missouri, or to maintain order in recaptured territory such as New Orleans. Civilian processes of justice simply could not handle cases of widespread violence by guerillas and Confederate soldiers in the areas around the front lines. According to existing Union records, the army conducted 4,271 military commission trials during the Civil War. About 55 percent took place in Missouri, Kentucky, and Maryland, border states that saw significant disorder and unrest, with Missouri alone accounting for about 46 percent. Almost all of these cases involved guerrilla activity, horse-stealing, and bridge-burning.
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Lincoln ordered the use of military detention and trial in the North, not because it was under direct threat of attack, but because "agitators" were interfering with the North's war effort. Although recent historical work has shown that Union officials did not exercise these authorities as broadly against political activity as some have thought, they did detain and try newspaper editors and politicians who urged disloyalty or opposition to the administration's war measures.
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The most well-known case was that of Clement Vallandigham, a former member of Congress and Ohio Democrat who was seeking his party's nomination for governor on a peace platform. Union authorities arrested Vallandigham for a speech attacking the war as "wicked, cruel, and unnecessary" because it sought to abolish slavery rather than restore the Union. He made a particular point of attacking "King Lincoln" for depriving Northerners of their civil liberties. A military commission convicted Vallandigham and sentenced him to prison for the rest of the war, but Lincoln altered the sentence to banishment to the Confederacy.

Vallandigham's case became a cause celebre to Lincoln's opponents in the North, who accused him of wielding dictatorial powers ever since the start of the war. Unlike Merryman, the Ohio Democrat had refrained from any overtly hostile actions against the United States, other than using his right to free speech to criticize the administration's wartime policies. The Supreme Court refused to hear Vallandigham's petition for a writ of habeas corpus because a military commission was not a "court" over which it could exercise review.
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Its decision effectively removed the federal courts as a check on executive detention while hostilities were ongoing. As political protests erupted, Ohio Democrats nominated Vallandigham for governor on a platform of opposition to executive tyranny.

In a June 12, 1863, public letter to New York Democrats, Lincoln responded that his administration had properly held Vallandigham because the Constitution recognized that military rule was appropriate "when, in cases of rebellion or invasion, the public safety may require." "Under cover of 'liberty of speech,' 'liberty of the press,' and 'habeas corpus,'" Lincoln claimed, the Confederacy "hoped to keep on foot among us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause in a thousand ways." Enemies were not just those who took up arms against the Union, but those who attempted to prevent the mobilization of its men and industry. Words could be just as deadly as bullets. "He who dissuades one man from volunteering, or induces one soldier to desert, weakens the Union cause as much as he who kills a Union soldier in battle." In one of his memorable turns of phrase, Lincoln asked: "Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?"
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Arresting civilians for crimes and detaining the enemy in war achieved different goals in different circumstances. "The former is directed at the small percentage of ordinary and continuous perpetration of crime," Lincoln argued, "while the latter is directed at sudden and extensive uprisings against the Government." During war, detention "is more for the preventive and less for the vindictive." He rejected the Democrats' argument that military detention could run only on the battlefield or in occupied territory. Lincoln interpreted the Constitution as allowing suspension of the writ "whenever the public safety" requires, not just in areas of actual combat. Lincoln remained conscious that political speech should not be suppressed. Vallandigham "was not arrested because he was damaging the political prospects of the administration, or the personal interests of the Commanding General, but because he was damaging the Army, upon the existence and vigor of which the life of the Nation depends." Lincoln closed by invoking Andrew Jackson, who, as military governor in New Orleans, arrested a newspaper editor and judge for endangering public order while the city was under threat of British invasion.
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Even as Lee's armies marched north toward Pennsylvania, Ohio Democrats sent a letter to Lincoln criticizing his domestic security policies. They claimed that the President treated the Constitution as if it were different during war than peace, and that he had trampled on individual liberties. Lincoln defended his suspension of the writ on the ground that the Constitution did not specify which branch held the authority to suspend. He turned to the basic difference between crime and war. The nature of war required detentions without trial, which "have been for
prevention
, and not for
punishment
-- as injunctions to stay injury, as proceedings to keep the peace."

Turning to the rhetorical offensive, Lincoln accused the Ohio Democrats of encouraging resistance to lawful authority by rejecting the legitimacy of military force to restore the Union. "Your own attitude, therefore, encourages desertion, resistance to the draft and the like," Lincoln claimed, "because it teaches those who incline to desert, and to escape the draft, to believe it is your purpose to protect them." Lincoln challenged the Ohio Democrats to agree that a military response to secession was valid, that they should not hinder the efficient operation of the army or navy, and that they should support the troops. They refused, but Lincoln had won the battle (but not the war) for public opinion. He had appealed to more than just military necessity, and he had carefully argued that his exercise of extraordinary powers remained within the Constitution.
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Congress waited until March 1863 to approve the President's suspension of habeas corpus.
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Although some leading Republican and Democratic members of Congress had severe misgivings over the policy, some historians have read Congress's silence as implicit approval of Lincoln's actions. And indeed, the Habeas Corpus Act recognized Lincoln's suspension of the writ, immunized federal officers who detained prisoners, and left untouched executive policy on the detention of prisoners of war and the operations of military commissions.

Others have argued that the Act rebuked Lincoln, because it required the military to provide the courts with lists of prisoners and to allow for their release if they were not indicted by a grand jury. As J. G. Randall has pointed out, these arguments ignore the fact that the Lincoln administration did not change its detention policies in any meaningful way. The military did not interpret the Act to apply to anyone triable by military commission or places where martial law held sway. Vallandigham himself, for example, would not have benefited from the Act. The Secretary of War or the military sometimes simply refused to provide complete lists of prisoners to the federal courts, and it appears that there was no measurable difference in the numbers of civilians arrested or released because of the Act.
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Randall estimates that the Lincoln administration detained approximately 13,500. Mark Neely puts the number at about 12,600, though the records are incomplete.

Not until the end of the war did the other branches of government truly push back. In
Ex parte Milligan
, the Supreme Court took up the case of an Indiana Peace Democrat who had conspired to raid federal arsenals and prisoner-of-war camps. In December 1864, a military commission convicted Milligan and sentenced him to death, later commuted to life imprisonment.
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Milligan and his coconspirators filed for a writ of habeas corpus. In 1866, the Supreme Court overturned the military commission and ordered the release of Milligan.
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It held that he could not be tried by the military because he was not a resident of a Confederate state, not a prisoner of war, and never a member of the enemy's armed force. He had been captured in Indiana, where the normal civilian courts were open, and there was no showing of a military necessity to try him outside of that system. Only if Indiana had been under attack, and the normal judicial system closed, the Court found, could Milligan be subject to military courts.

Four Justices concurred. They did not take issue with the majority's argument that the military commission lacked jurisdiction, but focused instead on the claim that Congress could have, if it had wanted to, authorized the use of military commissions. Since Congress had not authorized the use of military commissions, they agreed with the Court's outcome. Implicitly, five Justices of the
Milligan
majority rejected Lincoln's argument that military detention could extend to those well behind the front lines who aided the rebellion or sought to interfere with the war effort, and any claim that the Constitution did not operate during the Civil War. The Constitution, the majority declared, "is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."

While
Milligan
is cited today as a ringing endorsement of civil liberties in wartime, it was heavily criticized at the time and sparked a remarkable political response. Congress's authority was not presented in the
Milligan
case, but the majority's desire to reach it, and to answer it in such broad terms, plunged the Court into the maelstrom of Reconstruction politics.
Milligan
suggested that any continuation of military occupation in the South was unconstitutional, and signaled that Republicans would have to count the judiciary among their opponents. "In the conflict of principle thus evoked, the States which sustained the cause of the Union will recognize an old foe with a new face," wrote the
New York Times
. "The Supreme Court, we regret to find, throws the great weight of its influence into the scale of those who assailed the Union and step after step impugned the constitutionality of nearly everything that was done to uphold it."
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Comparing
Milligan
to
Dred Scott, Harper's Weekly
declared that "the decision is not a judicial opinion; it is a political act." The
New York Herald
raised the idea of reforming the Court: "[A] reconstruction of the Supreme Court, adapted to the paramount decisions of the war, looms up into bold relief, on a question of vital importance."
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