Ex Parte Milligan
I freely admit that I don’t live the kind of lifestyle that gives me much time to research these things on my own, but I’m wondering why I’m just now hearing about the Ex Parte Milligan decision from 1866. As described in the following excerpt of a sometimes brilliant, sometimes dreadful article by Chris Floyd below, it’s a Supreme Court decision that is extremely relevant to the course of our national debate over the last few years. It’s also a clear, bold, and stunning rebuke by the Court of the notion that presidents have unrestrained powers during a time of war, that they can readily suspend civil liberties, etc, etc, etc. It was written just after the Civil War–a conflict that certainly provided more compelling rexcuses to suspend civil liberties than anything in our current ‘War on Terror’ has provided. It was written by a Lincoln appointee on a court that had a majority of Lincoln appointees. Can you imagine Bush’s cronies having the personal integrity to do something like that? I can’t.
To understand more fully the nature of the atrocity inflicted on Jose Padilla - and the whole penumbra of constitutional and moral issues raised by Bush’s liberty-gutting “unitary executive” dictatorship - we must go back precisely 140 years, to December 1866, when the Supreme Court rendered its formal opinion in the case Ex Parte Milligan. It was a decisive ruling against a government that had far overreached its powers, stripping away essential liberties in the name of national security. The justice who authored the unanimous majority opinion was a Republican, an old friend and political crony of the president who had appointed him. Even so, his ruling struck hard at the abuses set in train by his patron. He stood upon the law, he stood upon the Constitution, even in the aftermath of a shattering blow that had killed more than 600,000 Americans and almost destroyed the nation itself.
This is what the Court decided: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.”
The author was Justice David Davis, an Illinois lawyer appointed by Abraham Lincoln after helping run the campaign that gave his old colleague the presidency in the fateful 1860 election. (Davis was also, by a strange quirk of history, the second cousin of George W. Bush’s great-grandfather.) By the time the Court issued its ruling, Lincoln was dead, but the after-effects of his ever-expanding suspension of civil liberties during wartime were still roiling through the courts, and through America’s fractured society. The Milligan ruling was, in the words of legal scholar John P. Frank, “one of the truly great documents of the American Constitution,” a “bulwark” for civil liberties, expansive and exacting in the constitutional protections it spelled out.
The ruling acknowledged that there are times when the writ of habeas corpus may have to be suspended, in an area where hostilities are directly taking place - but even this power, they noted, was highly circumscribed and specifically delegated to Congress, not the president. Lincoln exceeded this authority on numerous occasions, increasing the scope of his powers until the entire Union was essentially under martial law, and anyone arbitrarily deemed guilty of never-defined “disloyal practices” could be arrested or silenced - in the latter case by having their newspaper shut down, for instance. (Lincoln would sometimes - but not always - seek ex post facto Congressional authorization for these acts.) Some parts of the Union that the Lincoln administration thought particularly disloyal were officially put under martial law - like southern Indiana, where anti-war agitator Lambdin Milligan and four others were accused of a plot to free Confederate prisoners, and were summarily tried and sentenced to death by a military tribunal.
It was this case that the Court - five members of which were Lincoln appointees - overturned in such a decided fashion. The ruling is plain: constitutional protections not only apply “equally in war and peace” but also - in a dramatic extension of this legal shield - to “all classes of men, at all times, and under all circumstances.” No emergency - not even open civil war - warrants their suspension. Even in wartime, the president’s powers, though expanded, are still restrained: “he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws.”
All of this - and much more of the ruling besides - is directly applicable to the transparently illicit and unconstitutional regime set up by the Bush administration to prosecute its self-declared “War on Terror.” Indefinite detention, torture, military tribunals, the arbitrary creation of novel legal categories such as “unlawful enemy combatant,” warrantless surveillance, extrajudicial killings, kidnapping and rendition of uncharged captives, secret prisons - in short, the entire apparatus whose machinations led to the destruction of Jose Padilla’s mind - is completely without basis in law, as the US Supreme Court ruled 140 years ago.
In fact, the current Court drew heavily on Milligan in another case involving an American citizen imprisoned in the “War on Terror” (after being captured on the battlefield, unlike Padilla, who was grabbed while walking through the Chicago airport): Hamdi vs. Rumsfeld. It was this 2004 ruling that sent the Bush administration back to Congress for rubberstamp approval of a bill that turned out to be not a limitation of the presidential dictatorship, but its vast expansion, including the permanent loss of habeas corpus rights even by Terror War captives who had not engaged in hostilities against the United States. (Indeed, as administration officials have explicitly stated, these strictures could also apply to people who had unwittingly aided an accused terrorist organization in some fashion.) Many legal experts agree that the deliberately vague language of this new bill - the now-infamous “Military Commissions Act” - includes American citizens among those who can be arbitrarily designated as “unlawful enemy combatants” and held forever without charge or trial at the pleasure of the “unitary executive.”
The MCA was regarded by many as the final guttering-out of the Republic’s ancient flame. It wholeheartedly accepted the principle of the “unitary executive” and Bush’s claim of “inherent powers” which allow him to disregard any part of any law that he doesn’t like - despite the fact that such ghostly powers do not exist in the Constitution, as the Milligan ruling clearly stated. By codifying the principle of presidential dictatorship into “law” - now understood merely as the ratification of the executive’s arbitrary decisions - the MCA transformed the fundamental nature of the American state. As noted above, all liberties are now at the mercy of the executive. The abuses of power that this principle has led to are already enormous; the potential for further abuses under this new-style state is virtually without limit.
But suddenly, in the Republic’s darkest hour, came a ray of light: against all odds - and a vast GOP vote-fixing operation that shaved off at least three or four million likely Democratic votes, as Greg Palast has documented - the American people ousted Bush’s willing executioners of liberty from their stranglehold on Congress. Hopes long quelled by years of unanswered outrages sprang back to life: Surely now will come a day of reckoning. Now will come a restoration. Now the great double helix of law and power will be stitched back together again.
But will it?
