High School: Lesson 1

Lesson Topic/Focus: The Constitution has hidden flexibility as unforeseen events make it necessary to react to national crises.

Lesson Essential Question: How are basic principles of government changed in and affected by a time of national crisis (Civil War)?

Estimated duration of lesson: 2 days (based upon a 60 min. block)

Academic Expectations: 2.15 Students can accurately describe various forms of government and analyze issues that relate to the rights and responsibilities of citizens in a democracy.

Program of Studies: Understandings

Program of Studies: Skills and Concepts

Related Core Content for Assessment

SS-H-GC-U-3

Students will understand that the Constitution of the United States establishes a government of limited powers that are shared among different levels and branches. The provisions of the U.S. Constitution have allowed our government to change over time to meet the changing needs of our society.

SS-H-GC-S-5

Students will analyze and synthesize a variety of information from print and non-print sources (e.g., books, documents, articles, interviews, Internet, film, media) to research issues, perspectives and solutions to problems

SS-HS-1.2.2

Students will interpret the principles of limited government (e.g., rule of law, federalism, checks and balances, majority rule, protection of minority rights, separation of powers) and evaluate how these principles protect individual rights and promote the "common good.”

DOK 3

SS-H-GC-U-4

Students will understand that all citizens of the United States have certain rights and responsibilities as members of a democratic society.

SS-H-GC-S-3

Students will investigate the rights of individuals (e.g., Freedom of Information Act, free speech, civic responsibilities in solving global issues) to explain how those rights can sometimes be in conflict with the responsibility of the government to protect the "common good" (e.g., homeland security issues, environmental regulations, censorship, search and seizure), the rights of others (e.g., slander, libel), and civic responsibilities (e.g., personal belief/responsibility versus civic responsibility)

SS-HS-1.3.2

Students will explain how the rights of an individual (e.g., Freedom of information Act, privacy) may, at times, be in conflict with the responsibility of the government to protect the "common good" (e.g., homeland security issues, environmental regulations, censorship, search and seizure).

DOK 2

Learning Targets:

Students Will Know……

Students will be able to…..

Roles of Legislative, Executive, and Judicial Branches of government.
Conflict between two houses of congress.
Civil liberties may be suspended in order to protect Common Good of nation as a whole.
Writ of Habeas Corpus
Ex parte Milligan

Compare the role of each branch of government played during the Civil War.
Explain why Lincoln felt the need to suspend the writ of habeas corpus during the Civil War.
Explain the ideologies of Northern and Southern Congressmen on the eve of the civil War.
Explain how Radical Republican controlled Congress, and economic situation of the U.S. throughout the war.
Compare example from the Civil War when civil liberties may have been suspended with conflicts of later times and today.

Lesson Summary

Students will read and discuss how the U.S. government has handled suspending habeas corpus in the past and in current cases.

Students will predict the short and long term goals of protecting the rights of the accused with respect to protecting the nation as a whole.

Students will list and explain the positive and negative reactions to when the government bends or redefines the Constitution with the help of the Supreme Court to defend its citizens in the name of national security.

Instructional Set/Bell Ringer

Ask students to make a list of the reasons why it would be acceptable for the government to bend the rules of the Constitution to protect them or their family.

Transition

Teacher will ask the students if they know the meaning of habeas corpus. Teacher will give them the literal translation, and ask them to consider what this means in reference to habeas corpus and its application I U.S. law.

Lesson Assessment

Have students write either a newspaper story detailing Lincoln’s actions, or a letter to the editor expressing their opinion on these actions.

Learning Experience

Students will read the definition of habeas corpus, the court case Ex Parte Milligan and two essays (refer to the resources at the end of the lesson) discussing various versions of how the U.S. has or is currently handling habeas corpus. Students will need either hard copies of the speeches (provided below) or if they are in a lab setting, information where the speeches can be found (provided). They can also look for additional resources if they are in a lab setting.

Groups of three students will list and discuss broad goals that President Lincoln called for in these suspensions of habeas corpus. Groups will then assess the decisions made by President George W. Bush following the terrorist attacks of 9/11/2001 and determine similarities and differences between his and Lincoln’s actions as President. Students will each summarize one of the three essays for the group. Students will also discuss what barriers would slow or stop these suspensions and list them.

Groups will then predict what future possible situations could bring about another suspension of habeas corpus.

Role play could include a student being falsely accused and the class could be divided up into prosecutors and defense attorneys. A judge and jury complete with newspaper or other media might be used to demonstrate the learning from this activity.

Lesson Wrap Up

Analysis of Lincoln’s actions—fair or not? Why? How would similar actions be viewed by the media of today?

Additional Lesson Activity Notes

http://www.lectlaw.com/def/h001.htm
Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he 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. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.

The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91 (1969). Because the habeas process delays the finality of a criminal case, however, the Supreme Court in recent years has attempted to police the writ to ensure that the costs of the process do not exceed its manifest benefits. In McCleskey the Court raised barriers against successive and abusive petitions. The Court raised these barriers based on significant concerns about delay, cost, prejudice to the prosecution, frustration of the sovereign power of the States, and the "heavy burden" federal collateral litigation places on "scarce federal judicial resources," a burden that "threatens the capacity of the system to resolve primary disputes." McCleskey, 499 U.S. at 467.

The Court observed that"[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.' " McCleskey, 499 U.S. at 496 (quoting Brown v. Allen, 344 U.S. 443, 512 (1952) (opinion of Frankfurter, J.))

The predominant inquiry on habeas is a legal one: whether the "petitioner's custody simpliciter" is valid as measured by the Constitution. Coleman v. Thompson, 501 U.S. 722, 730 (1991). The purpose of the great writ is not to relitigate state trials.

Dismissal of habeas petition under the "total exhaustion" rule of Rose v. Lundy, 455 U.S. 509, 520 (1982) (each claim raised by petitioner must be exhausted before district court may reach the merits of any claim in habeas petition).

Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir. 1988); see also Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (introduction of extraneous prior bad acts evidence during deliberations constitutes error of constitutional proportions), cert. denied, 114 S.Ct. 1294 (1994). However, a petitioner is entitled to habeas relief only if it can be established that the constitutional error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 & n.9 (1993). Whether the constitutional error was harmless is not a factual determination entitled to the statutory presumption of correctness under 28 U.S.C. S 2254(d). Dickson, 849 F.2d at 405; Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987).

In a habeas corpus proceeding, a federal court generally "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2553-54 (1991). This doctrine applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements. Id. at 2254; see also Sochor v. Florida, 504 U.S. 527, 119 L. Ed. 2d 326, 337 (1992). Thus, the independent state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision. Harris v. Reed, 489 U.S. 255, 264 n.10 (1988).

Habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice. O'Neal v. McAninch, 115 S. Ct. 992, 994-95 (1995). It is the responsibility of the court, once it concludes there was error, to determine whether the error affected the judgment. If the court is left in grave doubt, the conviction cannot stand. Id.

On a petition for a writ of habeas corpus, the standard of review for a claim of prosecutorial misconduct, like the standard of review for a claim of judicial misconduct, is " 'the narrow one of due process, and not the broad exercise of supervisory power.' " Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). "The relevant question is whether the prosecutor['s] comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Id. (quoting Donnelly, 416 U.S. at 643).

A federal court has no supervisory authority over criminal proceedings in state courts. The only standards we can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not "of sufficient gravity to warrant the conclusion that fundamental fairness has been denied." Id. at 1572. See Gayle v. Scully, 779 F.2d at 807 (trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process); Daye, 712 F.2d at 1572 (trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, "approached but did not cross the line that permits [a ruling] that the Constitution has been violated").

The fact that a jury instruction is inadequate by Federal Court direct appeal standards does not mean a petitioner who relies on such an inadequacy will be entitled to habeas relief from a state court conviction. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In habeas proceedings challenging state court convictions, relief is available only for constitutional violations.

Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Cupp v. Naughten, 414 U.S. at 147 (constitutionality determined not by focusing on ailing instruction "in artificial isolation" but by considering effect of instruction "in the context of the overall charge."). See also Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (recognizing that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law" and, therefore, a habeas petitioner whose claim of error involves the failure to give a particular instruction bears an "especially heavy" burden).

Shackling, except in extreme forms, is susceptible to harmless error analysis. Castillo v. Stainer, 997 F.2d at 669. In a habeas case dealing with a state court sentence, the question is whether the shackling "had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993)). If we are in "grave doubt" whether the error affected the verdict, the error is not harmless. O'Neal v. McAninch, 115 S. Ct. 992, 994 (1995).

The risk of doubt, however, is on the state. Id. at 996 (rejecting language in Brecht v. Abrahamson which places on defendant burden of showing prejudice). See Castillo v. Stainer, 983 F.2d at 149 (finding shackling at trial harmless error because defendant only wore waist chain that could not be seen by jury).

U.S. Supreme Court

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=71&invol=2
EX PARTE MILLIGAN, 71 U.S. 2 (1866)
71 U.S. 2 (Wall.)
EX PARTE MILLIGAN.
December Term, 1866

[71 U.S. 2, 4] THIS case came before the court upon a certificate of division from the judges of the Circuit Court for Indiana, on a petition for discharge from unlawful imprisonment.

The case was thus:

An act of Congress-the Judiciary Act of 1789,1 section 14-enacts that the Circuit Courts of the United States

'Shall have power to issue writs of habeas corpus. And that either of the justices of the Supreme Court, as well as judges of the District Court, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided,' &c.

Another act-that of March 3d, 1863,2 'relating to habeas corpus, and regulating judicial proceedings in certain cases'-an act passed in the midst of the Rebellion-makes various provisions in regard to the subject of it.

The first section authorizes the suspension, during the Rebellion, of the writ of habeas corpus, throughout the United States, by the President.

Two following sections limited the authority in certain respects. [71 U.S. 2, 5] The second section required that lists of all persons, being citizens of States in which the administration of the laws had continued unimpaired in the Federal courts, who were then held, or might thereafter be held, as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished by the Secretary of State and Secretary of War to the judges of the Circuit and District Courts. These lists were to contain the names of all persons, residing within their respective jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in attendance upon any of these courts should terminate its session without proceeding by indictment or otherwise against any prisoner named in the list, that the judge of the court should forth-with make an order that such prisoner, desiring a discharge, should be brought before him or the court to be discharged, on entering into recognizance, if required, to keep the peace and for good behavior, or to appear, as the court might direct, to be further dealt with according to law. Every officer of the United States having custody of such prisoners was required to obey and execute the judge's order, under penalty, for refusal or delay, of fine and imprisonment.

The third section enacts, in case lists of persons other than prisoners of war then held in confinement, or thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned, on the terms and conditions prescribed in the second section.

This act made it the duty of the District Attorney of the United States to attend examinations on petitions for discharge.

By proclamation,3 dated the 15th September following [71 U.S. 2, 6] the President reciting this statute suspended the privilege of the writ in the cases where, by his authority, military, naval, and civil officers of the United States 'hold persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy, . . . or belonging to the land or naval force of the United States, or otherwise amenable to military law, or the rules and articles of war, or the rules or regulations prescribed for the military or naval services, by authority of the President, or for resisting a draft, or for any other offence against the military or naval service.'

With both these statutes and this proclamation in force, Lamdin P. Milligan, a citizen of the United States, and a resident and citizen of the State of Indiana, was arrested on the 5th day of October, 1864, at his home in the said State, by the order of Brevet Major-General Hovey, military commandant of the District of Indiana, and by the same authority confined in a military prison, at or near Indianapolis, the capital of the State. On the 21st day of the same month, he was placed on trial before a 'military commission,' convened at Indianapolis, by order of the said General, upon the following charges; preferred by Major Burnett, Judge Advocate of the Northwestern Military Department, namely:

'Conspiracy against the Government of the United States;'
'Affording aid and comfort to rebels against the authority of the United States;'
'Inciting insurrection;'
'Disloyal practices;' and
'Violation of the laws of war.'

Under each of these charges there were various specifications. The substance of them was, joining and aiding, at different times, between October, 1863, and August, 1864, a secret society known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and duly constituted authorities of the United States; holding communication with the enemy; conspiring to seize munitions of war stored in the arsenals; to liberate [71 U.S. 2, 7] prisoners of war, &c.; resisting the draft, &c.; . . . 'at a period of war and armed rebellion against the authority of the United States, at or near Indianapolis, [and various other places specified] in Indiana, a State within the military lines of the army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy.' These were amplified and stated with various circumstances.

An objection by him to the authority of the commission to try him being overruled, Milligan was found guilty on all the charges, and sentenced to suffer death by hanging; and this sentence, having been approved, he was ordered to be executed on Friday, the 19th of May, 1865.

On the 10th of that same May, 1865, Milligan filed his petition in the Circuit Court of the United States for the District of Indiana, by which, or by the documents appended to which as exhibits, the above facts appeared. These exhibits consisted of the order for the commission; the charges and specifications; the findings and sentence of the court, with a statement of the fact that the sentence was approved by the President of the United States, who directed that it should 'be carried into execution without delay;' all 'by order of the Secretary of War.'

The petition set forth the additional fact, that while the petitioner was held and detained, as already mentioned, in military custody (and more than twenty days after his arrest), a grand jury of the Circuit Court of the United States for the District of Indiana was convened at Indianapolis, his said place of confinement, and duly empanelled, charged, and sworn for said district, held its sittings, and finally adjourned without having found any bill of indictment, or made any presentment whatever against him. That at no time had he been in the military service of the United States, or in any way connected with the land or naval force, or the militia in actual service; nor within the limits of any State whose citizens were engaged in rebellion against the United States, at any time during the war; but during all the time aforesaid, and for twenty years last past, he had been an [71 U.S. 2, 8] inhabitant, resident, and citizen of Indiana. And so, that it had been 'wholly out of his power to have acquired belligerent rights, or to have placed himself in such relation to the government as to have enabled him to violate the laws of war.'

The record, in stating who appeared in the Circuit Court, ran thus:

'Be it remembered, that on the 10th day of May, A.D. 1865, in the court aforesaid, before the judges aforesaid, comes Jonathan W. Gorden, Esq., of counsel for said Milligan, and files here, in open court, the petition of said Milligan, to be discharged.' . . . 'At the same time comes John Hanna, Esquire, the attorney prosecuting the pleas of the United States in this behalf. And thereupon, by agreement, this application is submitted to the court, and day is given, &c.'

The prayer of the petition was that under the already mentioned act of Congress of March 3d, 1863, the petitioner might be brought before the court, and either turned over to the proper civil tribunal to be proceeded with according to the law of the land, or discharged from custody altogether.

At the hearing of the petition in the Circuit Court, the opinions of the judges were opposed upon the following questions:

On the facts stated in the petition and exhibits, ought a writ of habeas corpus to be issued according to the prayer of said petitioner?
On the facts stated in the petition and exhibits, ought the said Milligan to be discharged from custody as in said petition prayed?
Whether, upon the facts stated in the petition and exhibits, the military commission had jurisdiction legally to try and sentence said Milligan in manner and form, as in said petition and exhibit is stated?

And these questions were certified to this court under the provisions of the act of Congress of April 29th, 1802,4 an act [71 U.S. 2, 9] which provides 'that whenever any question shall occur before a Circuit Court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified under the seal of the court to the Supreme Court, at their next session to be held thereafter; and shall by the said court be finally decided: and the decision of the Supreme Court and their order in the premises shall be remitted to the Circuit Court, and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits.'

The three several questions above mentioned were argued at the last term. And along with them an additional question raised in this court, namely:

A question of jurisdiction, as-1. Whether the Circuit Court had jurisdiction to hear the case there presented?-2. Whether the case sent up here by certificate of division was so sent up in conformity with the intention of the act of 1802? in other words, whether this court had jurisdiction of the questions raised by the certificate?

Mr. J. E. McDonald, Mr. J. S. Black, Mr. J. H. Garfield, and Mr. David Dudley Field, for the petitioner. Mr. McDonald opening the case fully, and stating and examining the preliminary proceedings.

Mr. Speed, A. G., Mr. Stanbery, and Mr. B. F. Butler, special counsel of the United States, contra. Mr. Stanbery confining himself to the question of jurisdiction under the act of 1802.

ON THE SIDE OF THE UNITED STATES.

Civil Liberties Versus the Patriot Act

http://www.billofrights.com/civil_liberties_versus_the_patriot.htm
Civil Liberties Versus the Patriot Act: Protection or Freedom?
A Look at Various Viewpoints of the Patriot Act and Its Influence on Civil Liberties in the United States
Published February 15, 2006 by Angela Morrissey

James Taylor - Gerrards Cross, Bucks, UK © stock.xchng

Did you know? The Patriot Act was passed only 45 days after the 9/11 attacks, with virtually no debate whatsoever.

Takeaways

Opponents of the Patriot Act feel that it is a compromise of basic civil liberties.
Is the country safer with or without the Patriot Act?
It is the responsibility of all citizens to educate themselves on the Patriot Act and their rights.

While all Americans were horrified over the incidents on September 11, 2001 many debates have been sparked in regard to the Patriot Act and the infringement of civil liberties as a result. The United States have seen many disputes over civil liberties for more than two centuries, and many people believe the Patriot Act is an encroachment on the basic rights and freedoms promised to us since the founding of this country. Meanwhile, others feel that the Patriot Act is necessary in protecting the country against future acts of terrorism. Regardless of personal opinion, most people do agree that some civil liberties have been suspended or nullified. Therefore, the main debate revolves around this question: is the protection of our freedom or the protection of the country against terrorism the more important factor?

One of the main topics of dispute in the civil liberties versus the Patriot Act debate is individual privacy. Under the articles of the Patriot Act (which stands for: Uniting and Strengthening by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) government investigators are able to freely gather personal and individual information when it is being collected for the purposes of a terrorist investigation. This not only concerns personal information of individual citizens but, for instance, in the case of investigating terrorism financing, can also be shifted to the business industry. While to some it may seem sensible to allow our government this right for the intentions of securing the nation, others feel that this is a direct infringement upon our civil liberties and that some corrupt government representative may exploit these new regulations in order to collect information for other excessive purposes.

Additionally, the Patriot Act provides much more flexibility for government investigators and officials for collecting information against suspected terrorists without their knowledge. Those who oppose the Patriot Act feels that this also encroaches on civil liberties, as it allows for searches without warrants and similar actions. Again, the fear is that dishonest workers and officers may use this power negligently, possibly severely infringing on the rights of perfectly innocent citizens. Most Citizens have heard stories of the detainees at Guantanamo Bay, being held without charge and being refused legal representation. To opponents of the Patriot Act this is illegal detention and makes a clear argument for them that enforces of the Act are not concerned with the rights and comforts of individuals.

Another provision of the Patriot Act makes it much less difficult to obtain information on individuals from third party entities. This means that government officials can access previously secure and protected information such as financial, medical, and purchase records. Civil liberties advocates claim that this kind of information gives the government too much power over the general public by allowing them to search private property and information with no system of review or control. Before the Patriot Act certain information was kept confidential and could not be accessed without a court order. Now it is possible for officials to claim a Patriot Act investigation and proceed without a great deal of question.

Many opponents of the Patriot Act simply feel that it is a compromise of the basic liberties afforded to every citizen under our Constitution. Civil liberties advocates are hoping to convince legislators and citizens to enforce the "sunset clause" which only allowed for enforcement under the Patriot Act until 2005. Presently, in February of 2006, legislators have provided for continuances of the Patriot Act until a final decision can be reached. Currently, the extension lasts until March of 2006 while legislators contest the validity and appropriateness of individual articles. While the United States is a democracy, and is supposed to be governed by the people, many opponents of the Patriot Act feel that the average citizen is not fully informed, or even misinformed, about the implications of this attack on their civil liberties. They feel that this misinformation has caused the country to become blind to the actual repercussions they might see if the Patriot Act is allowed to be reinforced.

Is the country safer with or without the Patriot Act? In consideration of civil liberties, are we more at risk by allowing our government to access our personal information and search our private properties without limitation? Giving up civil liberties and freedoms in the name of protection for our country is a fierce topic in current events. This very heated debate will, no doubt, continue for a very long time in keeping with the pattern of continual disputes over the infringement of personal rights. Aside from personal opinion, it is an important responsibility of all citizens to be fully informed and educate themselves on the topics at hand.

Abraham Lincoln and Civil Liberties in Wartime

by The Honorable Frank J. Williams
Heritage Lecture #834
http://www.heritage.org/Research/NationalSecurity/hl834.cfm
May 5, 2004

This month, several individuals detained as "enemy combatants" will make their appeals for freedom to the highest court in the land. Perhaps now, more than any other time in recent memory, the eyes of the world are intensely focused on the United States Supreme Court. In making their decisions, they must walk a fine line between protecting the civil liberties we all hold so dear and guarding the safety of our country's citizens. These nine Justices, with their decisions in these cases, will shape the course of history and, no doubt, further fuel debate surrounding the indefinite detention of "enemy combatants" and the use of military tribunals.

Military tribunals hold a significant place in American history, and they have always spawned public debate. During the American Civil War, Abraham Lincoln declared martial law and authorized such forums to try terrorists because military tribunals had the capacity to act quickly, to gather intelligence through interrogation, and to prevent confidential life-saving information from becoming public.

In 1942, the United States Supreme Court decided Ex parte Quirin,1 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]."2 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 of President George W. Bush's claim that the government has the right to hold "enemy combatants"--even Americans--indefinitely, without evidence, charge or trial. I never thought, as a veteran, lawyer, and now a judge, that I would be living through a situation where the issue of homeland security--not to be confused with that new Cabinet department--and civil liberties would once again be in conflict as it was during the Civil War.

A Nation at War

As we were during Lincoln's era, we are once again a nation at war, and the laws of war are different. I know that this is a difficult concept to grasp, because most people today are not used to thinking in terms of wartime and peacetime. But in reality, the laws of war are different.

Think about this: We lost 620,000 people over the four years of the Civil War. We could lose that many people in one day if we realized a chemical or biological attack at the hands of terrorists.

The horror of, and after, September 11, 2001, has again raised tensions between and dialog about American security and personal liberty. As Lyndon B. Johnson said on January 20, 1965, while taking the presidential oath, "We can never again stand aside, prideful in isolation. Terrific dangers and troubles that we once called `foreign' now constantly live among us."3

Today, I hope to provoke not only thought, but also comments and questions from you regarding those issues that President Lincoln confronted in the area of civil liberties and those facing our current Commander in Chief.
Abraham Lincoln: The Verdict of History

During Lincoln's presidency, he was criticized for taking what were considered "extra-constitutional measures." But in the end, the verdict of history is that Lincoln's use of power did not constitute abuse since every survey of historians ranks Lincoln as number one among the great presidents.4

Far harsher would have been his denunciation if the whole American experiment of a democratic Union had failed--as seemed possible given the circumstances. If such a disaster occurred, what benefit would have been gained by adhering to a fallen Constitution? It was a classic example of the age-old conflict in a democracy: how to balance individual rights with security for a nation.

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 [Lincoln] did.... It would not be easy to state what Lincoln conceived to be the limit of his powers."5

In the 80 days that elapsed between Abraham Lincoln's April 1861 call for troops--the beginning of the Civil War--and the official convening of Congress in special session on July 4, 1861, Lincoln performed a whole series of important acts by sheer assumption of presidential power. Lincoln, without congressional approval, called forth the militia to "suppress said combinations,"6 which he ordered "to disperse and retire peacefully" to their homes.7 He increased the size of the Army and Navy, expended funds for the purchase of weapons, instituted a blockade--an act of war--and suspended the precious writ of habeas corpus, all without congressional approval.

Lincoln termed these actions not the declaration of "civil war," but rather the suppression of rebellion.8 We all know that only Congress 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 has been placed in the President's hands.9

For example, at this very moment, our country is involved in a war with Iraq. The war has not been formally declared. Where Lincoln used the term "suppression of rebellion," President Bush has couched this effort as a movement to liberate Iraq's people from their dictator and to prevent acts of terrorism against Americans and the citizens of other countries.

Suspending Habeas Corpus

Lincoln suspended the writ of habeas corpus, a procedural method by which one who is imprisoned can be immediately released if his imprisonment is found not to conform to law. With suspension of the writ, this immediate judicial review of detention becomes unavailable. This suspension triggered the most heated and serious constitutional disputes of the Lincoln Administration.

In April 1861, a dissatisfied Marylander named John Merryman dissented from the course being chartered by Lincoln. He expressed this dissent in both word and deed. He spoke out vigorously against the Union and in favor of the South and recruited a company of soldiers for the Confederate Army. Thus, he not only exercised his constitutional right to disagree with what the government was doing, but engaged in raising an armed group to attack and attempt to destroy the government.

On May 25, Merryman was arrested by the military and lodged in Fort McHenry, Baltimore, for various alleged acts of treason. His counsel sought a writ of habeas corpus from Chief Justice Roger B. Taney, alleging that Merryman was being illegally held at Fort McHenry. Taney issued a writ to fort commander George Cadwalader directing him to produce Merryman before the Court the next day at 11:00 a.m. Cadwalader respectfully refused on the ground that President Lincoln had authorized the suspension of the writ of habeas corpus.

Taney immediately issued an attachment for Cadwalader for contempt. The marshal could not enter the fort to serve the attachment, so the old justice, recognizing the impossibility of enforcing his order, settled back and produced the now-famous opinion, Ex parte Merryman.10 The Chief Justice vigorously defended the power of Congress alone to suspend the writ of habeas corpus.

Keep in mind that the Constitution permits the suspension of the writ in "cases of rebellion and when the public safety" requires it. But it is unclear who has the power, Congress or the President.

Taney relied on the fact that the right to suspend the writ was in Article I, section 9 of the Constitution, the section describing congressional duties. Dean of Lincoln historians Richard Nelson Current believes that it was put in this article because the Committee on Style could find no other place for it.

Taney failed to acknowledge that a rebellion was in progress and that the fate of the nation was, in fact, at stake. Taney missed the crucial point made in the draft of Lincoln's report to Congress on July 4:

[T]he whole of the laws which I was sworn to [execute] were being resisted...in nearly one-third of the states. Must I have allowed them to finally fail of execution?... Are all the laws but one [the right to habeas corpus] to go unexecuted, and the government itself...go to pieces, lest that one be violated?11

Two years later, Congress resolved the ambiguity in the Constitution and permitted the President the right to suspend the writ while the rebellion continued.12 Imagine the reaction of our fellow American citizens today if an anti-war demonstrator was treated as Merryman was in 1861 or if the writ of habeas corpus was suspended.

The Emancipation Proclamation

What about the Emancipation Proclamation? Nothing in the Constitution authorized the Congress or the President to confiscate property without compensation. The Emancipation Proclamation declared slaves in the states still in rebellion to be free. By the time of the final Emancipation Proclamation on January 1, 1863, Lincoln had concluded his act to be a war measure taken by the Commander in Chief to weaken the enemy:

Now, therefore, I, Abraham Lincoln, President of the United States by virtue of the power in me vested as Commander-in-Chief of the Army and Navy of the United States, in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do...Order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be free.13

The Proclamation may have had all "the moral grandeur of a bill of lading," as historian Richard Hofstader later charged,14 but everyone could understand the basic legal argument for the validity of Lincoln's action. To a critic, James Conkling, the President wrote:

You dislike the Emancipation Proclamation, and perhaps would have it retracted. You say it is unconstitutional. I think differently. I think the Constitution invests its Commander-in-Chief with the law of war. The most that can be said--if so much--is that slaves are property. Is there--has there ever been--any question that by the law of war, property, both of friends and enemies, may be taken when needed? And is it not needed whenever taking it helps us, or hurts the enemy?15

In his 1991 Pulitzer prize-winning book, The Fate of Liberty, historian Mark E. Neely, Jr., closes by admitting:

If a situation were to arise again in the United States when the writ of habeas corpus were suspended, 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 remains a frightening unknown.16

Neely's point is well-taken today. Since September 11, 2001, many scholars and citizens have questioned how President Bush's actions and reactions to the problems of national security and war will affect his legacy and civil liberties.

Many parallels can be drawn from Lincoln's experience with that facing President Bush, though it is yet too soon to know what legacy he will leave to history. Even though Lincoln improvised on civil liberties during the Civil War, he ultimately preserved the American system itself--especially by permitting elections in 1862 and 1864. While "it is encouraging to know that this nation has endured such troubles before and survived them,"17 measures regarded as severe in Lincoln's time seem mild when compared to those of Osama bin Laden or Saddam Hussein.

Dealing with "Enemy Combatants"

After Osama bin Laden and his forces of al-Qaeda admitted to masterminding the horror that was September 11, hundreds of suspected al-Qaeda associates were arrested and detained in Guantanamo Bay, Cuba, as "enemy combatants." Soon after September 11, President Bush proposed the use of military tribunals to try those individuals charged with terrorism.

Such commissions do not enforce national laws, but a body of international law that has evolved over the centuries. Known as the law of war, one of its fundamental axioms is that combatants cannot target civilians.

Historically, military commissions during wartime began as traveling courts when there was a need to impose quick punishment. Military tribunals, rather than the normal justice system, were used not only during the Civil War, but also during the Revolutionary War, Mexican War, and both World Wars.

During the Civil War, the Union Army conducted at least 4,271 trials 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.

He found the right of self-preservation in Article II, section 1 of the Constitution, whereby the chief executive is required "to preserve, protect and defend" it, and in section 3, that he "take care that the laws be faithfully executed." All of the laws which were required to be "faithfully executed" were being resisted and "failed of execution" in nearly one-third of the states.

Clement Laird Vallandigham, the best-known anti-war Copperhead18 of the Civil War, 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 and demanding and expecting the thanks of Congress and the country for his "usurpations of power."19

Vallandigham was speaking at a Democratic mass meeting at Mt. Vernon, Ohio, when he was arrested by Major General Ambrose E. Burnside. He was escorted to Kemper Barracks, the military prison in Cincinnati, and tried by a military commission. He was found guilty and sentenced to imprisonment for the duration of the war.20

After being denied a writ of habeas corpus, he applied for a writ of certiorari to bring the proceedings of the military commission for review before the Supreme Court of the United States. In the opinion Ex parte Vallandigham,21 his application was denied on the grounds that the Supreme Court had no jurisdiction over a military tribunal.22

Of course, when the Court addressed the issue five years later in Ex parte Milligan,23 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--not even if the charge was fomenting an armed uprising in a time of civil war. The Supreme Court, in Ex parte Quirin, distinguishes Milligan by saying the defendants in Quirin were in the German military but Milligan was a civilian.

The arrest, military trial, conviction, and sentence of Vallandigham aroused excitement throughout the country. Orator after orator expressed outrage against the allegedly arbitrary action of the Administration in suppressing the liberty of speech and of the press, the right of trial by jury, the law of evidence and the right of habeas corpus, and, in general, its assertion of the supremacy of military over civil law.

Rationale for Military Tribunals

Like Lincoln's critics during the Civil War, many today have expressed their concern about the modern use of military tribunals.24 Today, the issue of whether or not military tribunals should exist is simply one layer of this complex debate.

Terrorists are not members of an organized command structure with someone responsible for their actions; they do not wear a military uniform so that the other side can spare civilians without fear of counterattacks by disguised fighters; they do not carry arms openly; and there is no respect for the laws of war.

In order for the Geneva Conventions to apply, the detainees must be members of an adversary state's armed forces or part of an identifiable militia group that abides by the laws of war. Al-Qaeda members do not wear identifying insignia, nor do they abide by the laws of war. Similarly, our soldiers are facing renegade fighters in Iraq--who wear no uniform and drive non-military vehicles.

To address some of the confusion, the Pentagon issued regulations to govern tribunals. Under Military Commission Order No. 1, issued in March 2002, the Secretary of Defense was vested with the power to "issue orders from time to time appointing one or more military commissions to try individuals subject to the President's Military Order and appointing any other personnel necessary to facilitate such trials."25

The military commissions established under President Bush will be composed of military personnel sitting as trier of both fact and law. Some of you may be aware that I have been chosen to be one of four individuals who will sit on a military Review Panel for military commissions. I cannot talk about any pending cases, nor can I discuss the possible outcomes of matters that have been heard. I can tell you that my responsibilities on this Review Panel will be much the same as my responsibilities as a Justice on the Supreme Court. In fact, the only instruction I have been given thus far is to be fair and impartial. I take comfort in that instruction as that is the only way I know how to judge.

During military commission hearings, any evidence may be admitted as long as, according to a reasonable person, it will have probative value. The defendant is entitled to a presumption of innocence and must be convicted beyond a reasonable doubt. However, only two-thirds of the panel is needed to convict. The Department of Defense and the President may review the sentence.

Despite efforts to clearly regulate the parameters of these tribunals, criticism has remained. A New York Times editorial issued after the establishment of these regulations noted that, despite the fact that the idea of military tribunals for suspected terrorists is less troubling than it was at inception, "there is still no practical or legal justification for having the tribunals. The United States has a criminal justice system that is a model for the rest of the world. There is no reason to scrap it in these cases."26

This criticism, however, is refuted by the government. With over 90 million cases in our justice system each year, it is clear that the federal courts are ill-equipped to efficiently adjudicate terrorism cases--unique issues like witness and jury security and preservation of intelligence have caused and will cause even more extraordinary delay.

When Lincoln was President, all of the defendants in the military commissions were American citizens. The main difference between these defendants was their allegiance and origin--North or South. That fact most distinguishes today's debate from Lincoln's civil liberty dilemma, since most of the modern prospective defendants are non-citizens.

Presently, about 600 detainees are being held in Guantanamo Bay, Cuba. Most are captives of the Afghan war; some are from Iraq. Shortly, military tribunals will be held there as well. The defendants in today's military commissions are being held as "enemy combatants." According to William J. Haynes II, General Counsel of the Department of Defense, "an enemy combatant is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict."27

Lawful and Unlawful Combatants

"Enemy combatant" is a general category that subsumes two subcategories: lawful and unlawful combatants.28 "Lawful combatants," according to Haynes, "receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention."29

The government takes the position that, as unlawful combatants, members of al-Qaeda therefore do not receive protections of the Geneva Convention. Notwithstanding, almost all protections of the Geneva accords are given the detainees.

But what about those presently detained who are, in fact, American citizens? Many argue that there should be two standards of treatment depending on one's citizenship. Americans, it is argued, should be afforded all the protections of our democratic justice system--right to an attorney, right to a swift hearing, to name a couple. The non-citizens can be held according to the standards usually applied to wartime detainees.

Wars, including this war, are fought under well-understood rules, and they don't include providing Miranda warnings when capturing an enemy, nor employing the legal niceties of the Federal Rules of Criminal Procedure when trying them. There is only one standard of treatment for any person, American or foreign, being held as an unlawful combatant. Those individuals are not entitled to the legal rights that we have come to hold so dear. Neither are they entitled to protection under the Geneva Convention. This, my friends, is the reality of wartime.

This is a difficult maxim to fathom and represents the difficulty Americans and many across the seas have in understanding the different forums of law for trying civilians and those tried by the military. The laws of war are not the same as the laws we are used to in this democratic jurisprudence. They are the laws of war.

Cases Before the Supreme Court

On April 20, the United States Supreme Court considered the arguments made by two separate groups of detainees (Rasul v. Bush and Al Odah v. United States) challenging their indefinite detention as "enemy combatants" at Guantanamo Bay, Cuba. In response to the defendants' claims, the government argues that the courts do not have jurisdiction to hear these men's appeals. An article in The New York Times quotes the Bush Administration as saying "judicial review would place the federal courts in the unprecedented position of micromanaging the executive's handling of captured enemy combatants from a distant combat zone" and of "superintending the executive's conduct of an armed conflict."30

Yasser Esam Hamdi. On April 28, the Supreme Court will also consider the case of Yasser Esam Hamdi, an American-born suspected terrorist. Mr. Hamdi was fighting with the Taliban in Afghanistan in 2001 when his unit surrendered to the Northern Alliance, with which American forces were aligned. He has been held at a military brig in Charleston, South Carolina, for two years without being formally charged. Until December, Hamdi was not given access to an attorney.

The Federal Appeals Court in Virginia ruled that the government had submitted sufficient evidence to support Hamdi's seizure as an "enemy combatant" and that "enemy combatants" can be held indefinitely without access to legal counsel. Hamdi's appeal to the Supreme Court challenges the government's treatment of him as an "enemy combatant."

José Padilla. Together with Hamdi, the United States Supreme Court will hear the appeal of José Padilla, also a U.S. citizen, who has been held as an "enemy combatant" in the same Navy brig as Mr. Hamdi. Padilla was arrested in May 2002 after arriving at O'Hare International Airport in Chicago from Pakistan. He was initially held as a material witness on suspicion of involvement in a plot to detonate a "dirty bomb" in the United States, but he has never been formally charged.

In December 2003, the United States Court of Appeals for the Second Circuit, in New York, ruled that the government lacked the authority to hold Padilla in military custody. The Second Circuit determined that Padilla's case differed from Hamdi's because Padilla was seized on American soil rather than in a combat zone. Therefore, the Court ruled, Padilla could not be detained as an "enemy combatant." The United States Supreme Court granted the Solicitor General's motion to expedite consideration of the government's petition for a writ of certiorari.

Conclusion

It is clear that our nation is engaged in another conflict that may be as difficult as it is different from the Civil War. It is a war waged against us by an almost unknown and indiscernible enemy.

How do we account for President Lincoln's continuing reputation for leadership and as a supporter of democracy? Clearly, for the 16th President to have survived the Civil War and his use of war measures, he needed the support of a majority of Americans. This he received. No President can successfully conduct a war, with the actions that go with it, without the support of a large segment of the American people.

That Lincoln emerges from the perennial controversy that afflicted his Administration over civil liberties with a reputation for statesmanship may be the most powerful argument for his judicious application of executive authority during a national emergency. As historian Don E. Fehrenbacher has noted, "Although Lincoln, in a general sense, proved to be right, the history of the United States in the twentieth century suggests that he brushed aside too lightly the problem of the example that he might be setting for future presidents."31

Whether President Bush will emerge similarly unscathed--and we hope he will--is yet to be determined. While the full impact of Lincoln's legacy on President Bush is yet to be fully realized, the United States was and still is, in Lincoln's words, "the last best hope of earth" and the survival of democracy in the world.

Rhode Island Supreme Court Chief Justice Frank Williams was recently appointed to the review panel for appeals from the military commission to be held at Guantanamo Bay. A former Army infantry officer, he will be commissioned as a Major General. He also serves on the U.S. Abraham Lincoln Bicentennial Commission. The author is deeply grateful to his former law clerk, Andrea H. Krupp, Esquire, for her invaluable assistance in the preparation of this speech.