NOT A SUICIDE PACT:

First a definition: The Latin phrase habeas corpus means "you have the body." The privilege of the writ of habeas corpus refers to a common-law tradition that establishes a person's right to appear before a judge before being imprisoned. When a judge issues the writ, he commands a government official to bring a prisoner before the court so he can assess the legality of the prisoner's detention. When the privilege of the writ is suspended, the prisoner is denied the right to secure such a writ and therefore can be held without trial indefinitely. Habeas corpus is the only common-law tradition enshrined in the Constitution, which also explicitly defines when it can be overridden. Article I, Section 9 of the Constitution says, "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."

Several times during the war, Lincoln or his Cabinet officers issued orders suspending the writ. The first came early in his presidency. Lincoln had been in office for barely a month when Confederate troops attacked the federal garrison at Fort Sumter in April 1861, starting the Civil War. One of his immediate concerns was how to keep an unobstructed route between Washington, D.C., and the North. He worried that if Maryland joined Virginia and seceded from the Union, the nation's capital would be stranded amid hostile states. On April 19, 20,000 Confederate sympathizers in Baltimore tried to stop Union troops from traveling from one train station to another en route to Washington, causing a riot. So on April 27 Lincoln suspended the habeas corpus privilege on points along the Philadelphia-Washington route. That meant Union generals could arrest and detain without trial anyone in the area who threatened "public safety."

Controversy followed. The most explosive incident centered on John Merryman, a Marylander arrested for insurrectionary activities. Summarily jailed, Merryman petitioned for a habeas corpus writ, which Chief Justice Roger Taney granted. But the commanding officer at Fort McHenry, where Merryman was held, refused to release the prisoner, citing Lincoln's edict. With the army loyal to Lincoln, Taney couldn't enforce his order and railed against the president while Merryman stewed in jail for seven more weeks. After being freed, he was never tried.

The Merryman case and others like it ignited a debate over Lincoln's actions. Democrats argued they were unconstitutional. Taney noted that Article 1 of the Constitution, where habeas corpus is discussed, deals exclusively with congressional powers, meaning that Congress alone can authorize the privilege's suspension. Although correct, Taney's argument framed the debate around a legalistic and secondary issue, that of congressional versus presidential power. It skirted the question of whether the situation warranted a suspension of habeas corpus at all. Thus when in March 1863 Congress passed the Habeas Corpus Act, effectively endorsing Lincoln's actions, civil libertarians were stripped of their main argument. (Taney also criticized Merryman's detention, noting that civilians aren't subject to military justice--an issue I'll get to next week.)

Where Democrats marshaled constitutional arguments against Lincoln's order, Republicans replied that in an emergency, only the president could act fast enough to protect the public safety. Lincoln himself took this line in a famous July 4, 1861, speech to Congress. He also, more memorably, used a pragmatic argument. "Are all the laws but one to go unexecuted," he chided his critics, "and the government itself go to pieces, lest that one be violated?" The phrase has been quoted ever since and even provided the title of a recent apologia by Chief Justice William Rehnquist for wartime suppression of freedoms.

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