Friday, September 2, 2016

America's Favorite Tyrant: Abraham Lincoln

What does tyranny look like?
Here's a letter to General Winfield Scott from Abraham Lincoln:
"To the Commanding General of the Arm of the United States
You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line, which now used between the City of Philadelphia and the City of Washington, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of Habeas Corpus for the public safety, you, personally or through the officer in command at the point where the resistance occurs, are authorized to suspend that writ.
April 27, 1861
A. Lincoln"
In case you read that and are waiting for the evidence of tyranny, here is the Constitution on this point:
"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."
That provision -- the sole constitutional provision authorizing suspension of habeas corpus -- is a clause of Article I of the Constitution. In Article I, the States created the Congress and endowed it with ALL legislative power of the federal government. The habeas provision, from section 9 of Article I, states the only instances in which suspension may occur, and provides clear limitation on the power to suspend the writ.
From that provision, we know only Congress can suspend the writ of habeas corpus.
Now, some two years after Lincoln began instructing his general officers and their staffs that they were empowered to suspend the Great Writ in particular circumstances described by Lincoln the Congress passed an Act authorizing Lincoln to suspend the Writ. The Habeas Corpus Suspension Act of 1863 also provided immunity to Lincoln and his officers from suits filed by those injured by his previous suspensions of the Writ.
That Congress ultimately authorized the suspension of the Writ in its 1863 Act tells you everything that you need to know to wade through the questions about whether Lincoln's order to General Scott (and his orders to other generals) constituted tyrannical acts.
Lincoln, as President, embodied the Executive Power of the United States. The executive power prosecutes wars authorized by Congress and enforces laws passed by Congress. Had CONGRESS passed legislation suspending the Writ, Lincoln's order would be consistent with the Constitution, and, in that sense, at least, not an anti-constitutional form of tyranny.
But to appreciate the "lots of harm, lots of foul" nature of Lincoln's actions, you have to understand what it is that the Writ of Habeas Corpus does.
While the Constitution deposits all legislative power in the Congress and all executive power in the President, it deposits all judicial power of the United States in the Judiciary, consisting of the Supreme Court and such lower courts as Congress should authorize.
The Writ of Habeas Corpus is, in fact, a court order. "Writ" is just another way of saying "Order." Habeas corpus, literally translated from Latin, means "present the body" or "you have the body." In the technical, legal sense, a Writ of Habeas Corpus is an Order of a Court directing a representative of the executive power of the government to appear in court, along with body (the person) whose rights or liberties are at stake. The Order has the EFFECT of requiring the executive branch of a government to appear before the judicial branch of a government, there to provide justification for detaining the person, or suppressing them in the exercise of their rights.
Suppose that troops under General Scott observed a man counting troop transport cars on the rail line from Philadelphia to Washington.
Or, suppose that they discovered a man conducting measurements suggestive of a plan to attack the line with explosives.
In all reasonable contexts, under our tradition of law, it would be required that the executive branch apply for search and arrest warrants to detain the suspect, and the panoply of constitutional protections for persons accused of crime would thereafter be available to the suspect.
Among the rights are many commonly recognized ones: the right to be free from wrongful arrest, search, and seizure; the right to representation by counsel; the right to trial by jury; and, the right to be free from cruel and unusual punishments.
Outside the context of a suspension of the Writ of Habeas Corpus, if the executive branch searched and seized without warrant, denied legal counsel to the accused, refused trial by jury, or imposed cruel and unusual punishments, a Petition by the injured person would ask the judiciary to issue a Writ of Habeas Corpus.
The Petition for a Writ of Habeas Corpus is the document filed by, or on behalf of, a person wrongfully detained or wrongfully restrained in the exercise of their rights.
Today, shrouded in mystery, most Americans, if they have any notion of Habeas Corpus at all, associate the petition for a writ of habeas corpus as a device used by convicted criminals to complain about their trials, convictions, and punishments after the fact, and typically by filing habeas actions in federal court after being prosecuted and convicted in State Courts. The mistake would be to conclude that the Petition for a Writ of Habeas Corpus and the Writ itself are just the clever tools of those who coddle criminals.
The Petition and the Writ are, first and foremost, the tools of those that love liberty and despise the deposit of too much power in the hands of the executive branch of a government. And, in fact, the Petition isn't just about seeking "post-conviction" relief for "criminals."
In 1992, for the second time in my young legal career, I drafted and filed a Petition for a Writ of Habeas Corpus. The brief version of the story shows the value of the Petition and the Writ.
In the run up to the 1992 Republican Convention in Houston, Texas, pro-life activists leading Operation Rescue organized a series of demonstrations and protests in Houston. The stated purpose of these events was to insure that the Republican Party retained the pro-life plank of its quadrennial presidential platform.
While in Houston, rescuers protested at local abortion businesses, including affiliates of America's abortion superstore, Planned Parenthood. A local judge, whose re-election had been supported financially by the law firm representing the abortion stores, issued an Order that limited the rights to freedom of speech within the vicinity of these abortion stores.
Seven pro-life leaders decided that they would challenge the power of the judge to deny their constitutional rights. They were Keith Tucci, Randall Terry, Patrick Mahoney, Wendy Wright, Flip Benham, Joe Slovenec, and Bob Jewitt. They entered the "forbidden zone" and prayed. By court order, they were arrested and held without bond to answer before the local judge.
Together with my late friend and colleague, Mark Troobnick, I researched and drafted a petition for a writ of habeas corpus. Our petition sought review, first in the Texas Court of Appeals and then in the Texas Supreme Court of the detention of the praying protesters. The Texas Supreme Court granted the writ. Under the Court's order, our protester clients were released pending their consideration of the merits of the arguments Mark and I had prepared that the local judge's order violated the right to freedom of speech.
Ultimately, after full briefing and argument, the Texas Supreme Court affirmed its provisional decision and overturned the speech restrictive injunction issued by the local court.
Now, suppose that Tucci, Terry, Mahoney, Wright, Benham, Slovenec, and Jewitt had organized a similar peaceful demonstration against Lincoln's war, with the purpose and effect of discouraging enlistment in the Union armies.
We know from history that Lincoln and his generals did not brook interference with enlistment or conscription. General Ambrose Burnside ordered the arrest and courts martial of a former Congressman, Clement Vallandigham, because of his public addresses about the War, and the effect of those addresses on military enrollment in Ohio and elsewhere.

In the context of that time, relief for Tucci & Company would be found, if at all, by Writ of Habeas Corpus. But remember, Lincoln had suspended habeas corpus, and did so without congressional approval for two years, and continued to do so with congressional authorization for two years more. So the victory in Texas would have been a doomed failure in the Lincoln's tyrannical Union.