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The First Time Habeas Corpus Was Suspended

For all those who have an overly-romanticized portrait of Abraham Lincoln, this is rather interesting. You may remember the massive outrage about the Military Commissions Act a couple years back that stripped alleged enemy combatants of their right to trial. Turns out its not the first time its happened in the U.S. In 1861, on this very date, Abraham Lincoln suspended habeas corpus for all Confederate soldiers:

Whereas, It has become necessary to call into service, not only volunteers, but also portions of the militia of the States by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure, and from giving aid and comfort in various ways to the insurrection. Now, therefore, be it ordered, that during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.

Second: That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prisons, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the City of Washington, this Twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-seventh.

ABRAHAM LINCOLN. By the President.

Not too much really changes I suppose. If anything, though this should chasten the sort of liberal outrage that erroneously seems to think that our present militarism is some sort of departure from a previous standard of goodness.

7 Comments

  1. However these are different matters. Abraham Lincoln suspended habeas corpus for rebels, in accordance with the Constitution:

    “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

    The Supreme Court already determined in some cases that detainees do have the right of the Writ. The Military Commissions Act would not hold muster if it comes into the Supreme Court.

    The MCA gives the President authority to define “unlawful enemy combatant” with no oversight. It does not define the term otherwise.

    Monday, April 27, 2009 at 12:48 pm | Permalink
  2. Hill wrote:

    That aspect of the Constitution is already intellectually incoherent, and merely represents the first whiff of this sort of anti-democratic tendency. It should be obvious that the idea of it “being required by public safety” can mean virtually anything. Saying that it wouldn’t hold muster if it comes to the Supreme Court also doesn’t really mean anything.

    I think Halden’s point, which is exactly right, is that in the Civil War, and specifically Abraham Lincoln, we can see the historical origins of the “shock doctrine” politics that are now essentially the norm for how major shifts in our laws take place.

    Monday, April 27, 2009 at 1:42 pm | Permalink
  3. roger flyer wrote:

    @ Haledn “Not too much really changes I suppose. If anything, though this should chasten the sort of liberal outrage that erroneously seems to think that our present militarism is some sort of departure from a previous standard of goodness…”

    Hey Hey grasshoppers! Now you are learning….

    Monday, April 27, 2009 at 4:00 pm | Permalink
  4. Hill wrote:

    Recommended reading:

    http://www.amazon.com/Emancipating-Slaves-Enslaving-Free-Men/dp/0812693124

    Monday, April 27, 2009 at 4:55 pm | Permalink
  5. Doug Harink wrote:

    Halden, maybe you should change “corups” to “corpus”…

    And then maybe roger flyer would change “Haledn” to “Halden”…

    Or…

    Monday, April 27, 2009 at 8:04 pm | Permalink
  6. Arild Doerge wrote:

    The fact that Lincoln claims the South to be “rebels and insurgents” is wrong from the start. The South had every right Constitutionally to secede (10th Amendment, to say the least) there was no rebellion or threat to public safety, the southern states simply were exercising their rights. Before the Civil war several New England states considered seceding and no one dared question their right to do so. It should also be clear from Lincoln’s other writings that he didn’t care in the least about the institution of slavery or African-Americans. Lincoln saw an opportunity to grab more power for the federal government, just like Bush after 9-11. Lincoln wanted nothing more than to increase his own power to rule, he was a tyrant and was truly rebelling against the Constitution.

    Tuesday, April 28, 2009 at 6:01 pm | Permalink
  7. roger flyer wrote:

    Rghti, Duog

    Monday, May 11, 2009 at 9:27 am | Permalink

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