Myth of presidents' power to wage war, suspend habeas corpus

Part two of two

Part one appeared in the May 22 issue of The Lakeville Journal.

Myth No. 2: “The president as commander in chief has the power to suspend or deny habeas corpus� (that is, the right to seek review by a court of law). Not so. It is true that Article 1, Section 9, of the U.S. Constitution states that “the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.�

President Lincoln detained suspected confederate activists and insurgents, and initially denied them habeas corpus, during the Civil War. President Roosevelt notoriously interned Japanese Americans during World War II. Significantly, neither Lincoln nor Roosevelt thought to torture the detainees. Nevertheless, history and the law have not given these two great presidents high marks for these detentions or for the denial of habeas corpus.

In the case of Ex parte Merryman (1861), for example, the U.S. Supreme Court, on Circuit, addressed head-on the question: Can the president suspend the writ of habeas corpus? The short answer was, no.

In that case, a citizen of Baltimore had been arrested by a military police officer acting on the grounds that President Lincoln had suspended the writ. The court held, and Chief Justice Taney wrote, that the petitioner was entitled to be set free on the grounds that “the president, under the Constitution, cannot suspend the privilege of the writ of habeas corpus.�

This can be done, the court said, only by Congress, since the provision for habeas corpus appears in Article I of the Constitution, which deals with Congress, and in a list of limitations on Congress, and not in Article II, which deals with the executive power of the president.

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Admittedly, modern conditions of potential terrorist use of weapons of mass destruction (although perhaps hardly comparable to the nuclear risks faced by America during the “Cold War� with the Soviet Union) do place new stresses on the interpretation or determination of rights safeguarded by the U.S. Constitution. The point is, however, that those interpretations and determinations of rights are not to be made by the president alone, using some imagined “unitary� executive power, but rather, at the very least, in open and honest consultation and action in concert with the legislative and judicial branches of government.

As we know, and as the framers fully appreciated and intended, the privilege of the writ of habeas corpus found its way into U.S. constitutional law from the English law, which in turn originated in the Magna Carta of 1215. Its meaning was understood to be the meaning provided by the English courts, and imported into America.

In the mid-17th century, when the king of England tried to lock away Protestant dissenters deemed “enemies of the crown� (the “illegal enemy combatants� of their day) and sequestered them offshore on the Channel Islands, the English courts ruled against the king: The privilege of the writ of habeas corpus extended to anywhere in the empire and to any place on earth if controlled by the crown.

This legal history makes a mockery of the advice of Bush administration lawyers that if detainees are held overseas, at Abu Graib, Guantánamo or secret “black sites� established by the CIA, they somehow escape the reach of habeas corpus. This is simply not so, and the assertion has absolutely no support under English law or under U.S. constitutional jurisprudence. That Bush ideologues, or anyone with legal training, could make such an assertion, and expect Americans to swallow it, simply boggles the mind.

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What we have to hope, starting on Election Day in November 2008, is that the American people will have the wisdom to select a president to replace Bush who has the moral fiber, the intelligence and the understanding of constitutional law to “faithfully execute the office of president of the United States, and preserve, protect and defend the Constitution of the United States.�

Sharon resident Anthony Piel is a former director and legal counsel of the World Health Organization.