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.
1942, the United States Supreme Court decided Ex parte Quirin, 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]." Rather, they are the military's
administrative bodies to determine the guilt of declared enemies,
and pass judgment.
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
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.
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."
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
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
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.
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."
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," which he ordered "to
disperse and retire peacefully" to their homes. 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. 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.
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
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.
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
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. The Chief Justice vigorously defended
the power of Congress alone to suspend the writ of habeas
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
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
years later, Congress resolved the ambiguity in the Constitution
and permitted the President the right to suspend the writ while the
rebellion continued. 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
The Emancipation Proclamation
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.
Proclamation may have had all "the moral grandeur of a bill of
lading," as historian Richard Hofstader later charged, 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?
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
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.
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," 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.
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
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.
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
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."
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.
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
application was denied on the grounds that the Supreme Court had no
jurisdiction over a military tribunal.
course, when the Court addressed the issue five years later in Ex
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.
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
Lincoln's critics during the Civil War, many today have expressed
their concern about the modern use of military tribunals. 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
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.
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
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
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."
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
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
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."
Lawful and Unlawful Combatants
"Enemy combatant" is a general category
that subsumes two subcategories: lawful and unlawful combatants. "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."
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.
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.
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
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."
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
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
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.
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.
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.
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.
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
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.