Crisis and Command: A History of Executive Power from George Washington to George W. Bush

by John Yoo

  While the Proclamation had a broad scope, it also recognized the limits of presidential power. It only touched those areas, the Southern states, where slaves helped the enemy. It did not reach into the institution of slavery in the loyal states. Emancipation would no longer be a justifiable war measure once the fighting ceased, and it could even be frustrated by the other branches while war continued. Congress might use its own constitutional powers to establish a different regime -- a reasonable concern with Democratic successes in the 1862 midterm elections -- and allow the states to restore slavery once the war ended.

  Lincoln understood that to ensure slavery's permanent end, the states would have to adopt a constitutional amendment making emancipation permanent. Toward the end of the war, he pressed for adoption of a complete prohibition of slavery in what eventually became the Thirteenth Amendment. Ratification made the link between emancipation and democratic rule clear. In June 1864, Congress rejected the amendment, which would be the first since the changes to the Electoral College after the Jefferson-Burr deadlock in 1800.

  After resounding Republican victories in the November elections, Lincoln called upon the same lame-duck Congress to ratify the Thirteenth Amendment. "It is the voice of the people now, for the first time, heard upon the question." In a time of "great national crisis," Lincoln said "unanimity of action" was needed, and that required "some deference to the will of the majority, simply because it is the will of the majority."48 Congress promptly agreed to ratify the amendment even before the new Republican majorities took over.

  Lincoln's great political achievement was to meld the original purpose of the war with the new goal of ending slavery. Emancipation of the slaves and restoration of the Union both drew upon Lincoln's belief, expressed in his First Inaugural Address, that the Constitution enshrined a democratic process in which the fundamental decisions were up to the people, as expressed in the ballot box. He tied together the concepts of popular sovereignty and liberty in the Gettysburg Address, reconciling the political structure of the Constitution with the values of the Declaration of Independence.49

  Lincoln justified the carnage of the battle with the prospect of preserving the "new nation," created by "our fathers," that was "conceived in Liberty, and dedicated to the proposition that all men are created equal." The equality of all men, of course, was not an explicit goal of the Union as established in the Constitution, but instead was recognized by the Declaration. Lincoln called on "us the living" to dedicate themselves "to the great task remaining before us," to ensure "that this nation, under God, shall have a new birth of freedom," and "that government of the people, by the people, for the people, shall not perish from the earth."50 Restoring the Union now stood for two propositions: the working of popular democracy and freedom and equality for all men. Emancipation may have been a policy justified by military necessity, but it became an end of the war as well as a means.

  Lincoln's words at Gettysburg illustrated, as perhaps nothing else could, the President's control over national strategy in wartime. When the war began, Lincoln established the limited goal of restoring the Union, and Congress agreed in the Crittenden-Johnson resolutions, which declared that the goal of the war was preservation of the Union, while leaving alone the "established institutions" of slavery in the existing states. Initial military strategy focused on blockading the Confederacy in the East while dividing it in the West through capture of the Mississippi. This "Anaconda" strategy would slowly strangle the South until it came back to its senses and returned to the Union.51

  By the middle of 1862, stiff Southern resistance had convinced Lincoln that only unconditional surrender could end the war. National goals became both restoration of the Union and, after the Emancipation Proclamation, freedom for all. Strategy shifted to the destruction of Confederate armies in the field and the end of the government in Richmond. Lincoln's declaration that the war sought a new birth of freedom, he believed, would encourage "the army to strike more vigorous blows" by setting an example of the administration "strik[ing] at the heart of the rebellion."52

  Lincoln rejected Southern peace feelers that only sought a restoration of the Union without emancipation. In response to one Southern effort to open negotiations, which Lincoln suspected were false anyway, the President sent emissaries with instructions that negotiations could only begin after the South accepted the Union and the permanent abandonment of slavery. This "surprise" term went beyond the Emancipation Proclamation, which was limited only to Confederate territory in wartime, and even Lincoln's understanding of the powers of Congress.53 Jefferson Davis spurned the Northern representatives with the words that "we are not fighting for slavery. We are fighting for Independence -- and that, or extermination, we will have."54 Describing the exchanges later, Lincoln wrote that "between him and us the issue is distinct, simple, and inflexible. It is an issue which can only be tried by war, and decided by victory."55Lincoln's control over the conduct of the war had transformed the political goals of the conflict into Union and Liberty, and made the means no longer limited war, but a drive for total victory.

  CIVIL LIBERTIES IN WARTIME

  THE UNIQUE NATURE of the Civil War forced the Lincoln administration to reduce civil liberties in favor of greater internal security. Unlike a war against a foreign nation, the rebellion was fought against other Americans, and events in Maryland and Missouri showed that parts of Union territory would have to be placed under military rule. The common heritage of the North and South increased the likelihood of irregular guerilla fighting, espionage, and sabotage. Southerners could operate easily behind Union lines and find supporters of their cause. Significant political dissent from Democrats and anti-war opponents worried the administration, which tried to walk a fine line between respecting free speech and the political process and preventing the disloyal from undermining the war effort. Congress did not give its immediate approval to all of Lincoln's actions; it did not enact any law regarding habeas corpus until 1863.

  Lincoln initially gave Secretary of State Seward the job of operating an internal security service responsible for detaining those suspected of aiding the Confederacy. His special agents either arrested suspects themselves or asked the military or local police to do so at strategic points in cities, ports, and transportation hubs. Seward even had newspaper editors and state politicians suspected of disloyalty thrown in detention and had the mails opened to search for espionage.56 Seward boasted to a foreign diplomat that he could "ring a little bell" and have anyone in the country arrested.

  Lincoln's domestic policies on detention logically followed those applied to combat. More than 400,000 prisoners were captured in the war by both sides. Under Lincoln's theory that the Southern states were still part of the Union, all of the members of the Confederacy were still American citizens. In war, however, the United States used force to kill and capture Confederate soldiers, destroy Confederate property, and impose martial law on occupied Confederate territory. Prisoners had no right to a jury trial, and Confederate civilians had neither a right to sue for damages for destroyed property nor a right to immediately govern themselves. Occupied Confederate states would have no right to send Senators and Representatives to Congress once Union control had returned.

  The normal process of law could not handle the unique nature of the rebellion. Confederate leaders, for example, were being detained not because they were guilty of a crime, but because their release would pose a future threat to the safety of the country. What if federal authorities, Lincoln wrote in a letter published in June 1863, could have arrested the military leaders of the Confederacy, such as Generals Breckinridge, Lee, and Johnston, at the start of the war? "Unquestionably, if we had seized and held them, the insurgent cause would be much weaker," Lincoln argued. "But no one of them had then committed any crime defined in the law. Every one of them, if arrested, would have been discharged on habeas corpus were the writ allowed to operate."57 Suspension of the writ made clear that captured Confederates could not seek the benefit
s of the very civilian legal system that they sought to overthrow.

  Lincoln's July 4, 1861, message to the special session of Congress mounted a powerful defense of his suspension of the writ. He argued that his presidential duty called upon him to protect the Constitution first before the decisions of the Supreme Court. "The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States." Saving the Union from a mortal threat, Lincoln suggested, could justify a violation of the Constitution and the laws, and certainly a single provision of them. "Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated?" In a famous passage, Lincoln asked, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" He suggested that painstaking attention to the habeas corpus provision would come at the expense of his ultimate constitutional duty -- saving the Union. "Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?"58

  Lincoln performed some acrobatics to pull back from a constitutional conflict. It was obvious that the nation indeed was confronted with "rebellion or invasion." Written in the passive voice, the Constitution's habeas corpus provision did not specify which branch had the right to suspend it. Lincoln quickly returned to the need for prompt executive action to address the crisis. "As the provision was plainly made for a dangerous emergency," he wrote, "it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together." A rebellion might even prevent Congress from meeting.

  In an opinion issued the next day, Attorney General Edward Bates agreed that the President's duty to execute the laws and uphold the Constitution required him to suppress the rebellion, using the most effective means available. If the rebels sent an army, the President had the discretion to respond with an army. "If they employ spies and emissaries, to gather information, to forward rebellion, he may find it both prudent and humane to arrest and imprison them," Bates wrote. A President must have the ability to suspend habeas in case of an emergency that required him to call out the military, the vagueness of the Suspension Clause notwithstanding. In times of emergency, "the President must, of necessity, be the sole judge, both of the exigency which requires him to act, and of the manner in which it is most prudent for him to employ the powers entrusted to him."59

  Bates's legal opinion launched a frontal assault on Taney's claim to judicial supremacy in Merryman. "To say that the departments of our government are coordinate, is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment." Independence required that no branch could compel another. No court could issue a writ requiring compliance by the President, just as no President could order a court how to decide a case. Bates's opinion ventured even further than Lincoln's view on Dred Scott, which he agreed to enforce at least as to the parties in the case. Bates's claim of the independent status of each branch implied that the President had no obligation to obey a court judgment even in that narrow case -- a position that the administration had to adopt because Lincoln had already ignored Taney's order releasing Merryman.

  Bates questioned whether the courts had any competence to decide questions relating to the war. "[T]he whole subject-matter is political and not judicial. The insurrection itself is purely political. Its object is to destroy the political government of this nation and to establish another political government upon its ruins," the Attorney General reasoned. "And the President, as the chief civil magistrate of the nation, and the most active department of the Government, is eminently and exclusively political, in all his principal functions." A court, Bates concluded, had no authority to review these political decisions of the President. The Attorney General suggested that something like the modern political question doctrine applied to judicial review of the President's wartime decisions. Almost as an aside, Bates addressed the merits of the constitutional question. He observed that the Suspension Clause was vague and did not specify whether Congress alone, or the President too could suspend habeas. He argued that it was absurd to allow habeas to benefit enemies in wartime, as it would imply that the enemy could sue for damages when the Union destroyed their arms and munitions.

  In September 1862, the President turned to more aggressive measures. Military rule had displaced civilian government in areas touched by the battlefield, in the border states where confederate irregulars conducted guerilla operations, and in recaptured territory. Martial law went unmentioned in the Constitution but had been used during the Revolution and the War of 1812, and had even been upheld by Chief Justice Taney in a case involving civil unrest in Rhode Island.60 Lincoln drew upon his Commander-in-Chief power to impose military rule in areas where fighting or occupation were ongoing.

  In a September 24, 1862, proclamation, Lincoln extended military jurisdiction beyond the battlefield to those giving assistance to the enemy behind the lines. He ordered the military to detain anyone within the United States who gave aid or comfort to the rebels, and anyone who resisted the draft or discouraged volunteers from enlisting. Detainees would have no right to seek a writ of habeas corpus and would be tried by courts-martial or military commission, a form of military court used to try the enemy or civilians for violations of the laws of war and to administer justice in occupied territory.61 Under Lincoln's order, the jurisdiction of the military commissions extended to those suspected of assisting the rebellion or disrupting the war effort well behind the front lines.

  Union officials primarily deployed these authorities in or near active hostilities to detain spies and saboteurs. A common use was to capture irregular Confederate forces that were killing Union soldiers and attacking supply trains in states such as Missouri, or to maintain order in recaptured territory such as New Orleans. Civilian processes of justice simply could not handle cases of widespread violence by guerillas and Confederate soldiers in the areas around the front lines. According to existing Union records, the army conducted 4,271 military commission trials during the Civil War. About 55 percent took place in Missouri, Kentucky, and Maryland, border states that saw significant disorder and unrest, with Missouri alone accounting for about 46 percent. Almost all of these cases involved guerrilla activity, horse-stealing, and bridge-burning.62

  Lincoln ordered the use of military detention and trial in the North, not because it was under direct threat of attack, but because "agitators" were interfering with the North's war effort. Although recent historical work has shown that Union officials did not exercise these authorities as broadly against political activity as some have thought, they did detain and try newspaper editors and politicians who urged disloyalty or opposition to the administration's war measures.63 The most well-known case was that of Clement Vallandigham, a former member of Congress and Ohio Democrat who was seeking his party's nomination for governor on a peace platform. Union authorities arrested Vallandigham for a speech attacking the war as "wicked, cruel, and unnecessary" because it sought to abolish slavery rather than restore the Union. He made a particular point of attacking "King Lincoln" for depriving Northerners of their civil liberties. A military commission convicted Vallandigham and sentenced him to prison for the rest of the war, but Lincoln altered the sentence to banishment to the Confederacy.

  Vallandigham's case became a cause celebre to Lincoln's opponents in the North, who accused him of wielding dictatorial powers ever since the start of the war. Unlike Merryman, the Ohio Democrat had refrained from any overtly hostile actions against the United States, other than using his right to free speech to criticize the administration's war
time policies. The Supreme Court refused to hear Vallandigham's petition for a writ of habeas corpus because a military commission was not a "court" over which it could exercise review.64 Its decision effectively removed the federal courts as a check on executive detention while hostilities were ongoing. As political protests erupted, Ohio Democrats nominated Vallandigham for governor on a platform of opposition to executive tyranny.

  In a June 12, 1863, public letter to New York Democrats, Lincoln responded that his administration had properly held Vallandigham because the Constitution recognized that military rule was appropriate "when, in cases of rebellion or invasion, the public safety may require." "Under cover of 'liberty of speech,' 'liberty of the press,' and 'habeas corpus,'" Lincoln claimed, the Confederacy "hoped to keep on foot among us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause in a thousand ways." Enemies were not just those who took up arms against the Union, but those who attempted to prevent the mobilization of its men and industry. Words could be just as deadly as bullets. "He who dissuades one man from volunteering, or induces one soldier to desert, weakens the Union cause as much as he who kills a Union soldier in battle." In one of his memorable turns of phrase, Lincoln asked: "Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?"65