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

by John Yoo

  Arresting civilians for crimes and detaining the enemy in war achieved different goals in different circumstances. "The former is directed at the small percentage of ordinary and continuous perpetration of crime," Lincoln argued, "while the latter is directed at sudden and extensive uprisings against the Government." During war, detention "is more for the preventive and less for the vindictive." He rejected the Democrats' argument that military detention could run only on the battlefield or in occupied territory. Lincoln interpreted the Constitution as allowing suspension of the writ "whenever the public safety" requires, not just in areas of actual combat. Lincoln remained conscious that political speech should not be suppressed. Vallandigham "was not arrested because he was damaging the political prospects of the administration, or the personal interests of the Commanding General, but because he was damaging the Army, upon the existence and vigor of which the life of the Nation depends." Lincoln closed by invoking Andrew Jackson, who, as military governor in New Orleans, arrested a newspaper editor and judge for endangering public order while the city was under threat of British invasion.66

  Even as Lee's armies marched north toward Pennsylvania, Ohio Democrats sent a letter to Lincoln criticizing his domestic security policies. They claimed that the President treated the Constitution as if it were different during war than peace, and that he had trampled on individual liberties. Lincoln defended his suspension of the writ on the ground that the Constitution did not specify which branch held the authority to suspend. He turned to the basic difference between crime and war. The nature of war required detentions without trial, which "have been for prevention, and not for punishment -- as injunctions to stay injury, as proceedings to keep the peace."

  Turning to the rhetorical offensive, Lincoln accused the Ohio Democrats of encouraging resistance to lawful authority by rejecting the legitimacy of military force to restore the Union. "Your own attitude, therefore, encourages desertion, resistance to the draft and the like," Lincoln claimed, "because it teaches those who incline to desert, and to escape the draft, to believe it is your purpose to protect them." Lincoln challenged the Ohio Democrats to agree that a military response to secession was valid, that they should not hinder the efficient operation of the army or navy, and that they should support the troops. They refused, but Lincoln had won the battle (but not the war) for public opinion. He had appealed to more than just military necessity, and he had carefully argued that his exercise of extraordinary powers remained within the Constitution.67

  Congress waited until March 1863 to approve the President's suspension of habeas corpus.68 Although some leading Republican and Democratic members of Congress had severe misgivings over the policy, some historians have read Congress's silence as implicit approval of Lincoln's actions. And indeed, the Habeas Corpus Act recognized Lincoln's suspension of the writ, immunized federal officers who detained prisoners, and left untouched executive policy on the detention of prisoners of war and the operations of military commissions.

  Others have argued that the Act rebuked Lincoln, because it required the military to provide the courts with lists of prisoners and to allow for their release if they were not indicted by a grand jury. As J. G. Randall has pointed out, these arguments ignore the fact that the Lincoln administration did not change its detention policies in any meaningful way. The military did not interpret the Act to apply to anyone triable by military commission or places where martial law held sway. Vallandigham himself, for example, would not have benefited from the Act. The Secretary of War or the military sometimes simply refused to provide complete lists of prisoners to the federal courts, and it appears that there was no measurable difference in the numbers of civilians arrested or released because of the Act.69 Randall estimates that the Lincoln administration detained approximately 13,500. Mark Neely puts the number at about 12,600, though the records are incomplete.

  Not until the end of the war did the other branches of government truly push back. In Ex parte Milligan, the Supreme Court took up the case of an Indiana Peace Democrat who had conspired to raid federal arsenals and prisoner-of-war camps. In December 1864, a military commission convicted Milligan and sentenced him to death, later commuted to life imprisonment.70 Milligan and his coconspirators filed for a writ of habeas corpus. In 1866, the Supreme Court overturned the military commission and ordered the release of Milligan.71 It held that he could not be tried by the military because he was not a resident of a Confederate state, not a prisoner of war, and never a member of the enemy's armed force. He had been captured in Indiana, where the normal civilian courts were open, and there was no showing of a military necessity to try him outside of that system. Only if Indiana had been under attack, and the normal judicial system closed, the Court found, could Milligan be subject to military courts.

  Four Justices concurred. They did not take issue with the majority's argument that the military commission lacked jurisdiction, but focused instead on the claim that Congress could have, if it had wanted to, authorized the use of military commissions. Since Congress had not authorized the use of military commissions, they agreed with the Court's outcome. Implicitly, five Justices of the Milligan majority rejected Lincoln's argument that military detention could extend to those well behind the front lines who aided the rebellion or sought to interfere with the war effort, and any claim that the Constitution did not operate during the Civil War. The Constitution, the majority declared, "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."

  While Milligan is cited today as a ringing endorsement of civil liberties in wartime, it was heavily criticized at the time and sparked a remarkable political response. Congress's authority was not presented in the Milligan case, but the majority's desire to reach it, and to answer it in such broad terms, plunged the Court into the maelstrom of Reconstruction politics. Milligan suggested that any continuation of military occupation in the South was unconstitutional, and signaled that Republicans would have to count the judiciary among their opponents. "In the conflict of principle thus evoked, the States which sustained the cause of the Union will recognize an old foe with a new face," wrote the New York Times. "The Supreme Court, we regret to find, throws the great weight of its influence into the scale of those who assailed the Union and step after step impugned the constitutionality of nearly everything that was done to uphold it."72 Comparing Milligan to Dred Scott, Harper's Weekly declared that "the decision is not a judicial opinion; it is a political act." The New York Herald raised the idea of reforming the Court: "[A] reconstruction of the Supreme Court, adapted to the paramount decisions of the war, looms up into bold relief, on a question of vital importance."73

  Congress was determined to prevent the Court from ending Reconstruction prematurely. Radical Republicans were already at war with President Johnson, who wanted a quick readmission of the Southern states into the Union. Johnson vetoed bills to deepen Reconstruction policies, citing in part that continued occupation of the South violated Milligan. Colonel William McCardle, a Vicksburg newspaper editor held in military detention for virulent denunciation of Union authorities, challenged the constitutionality of Reconstruction. In 1868, to forestall McCardle's challenge, Congress enacted legislation eliminating the Court's jurisdiction to hear appeals from military courts in the South.74 Only after Johnson's acquittal on impeachment charges, and Grant's election to the Presidency, did the Court announce in 1869 that it accepted the reduction of its jurisdiction and would not reach the merits of the McCardle petition. Thus, Milligan became the motivating factor that led to the only clear example of congressional jurisdiction-stripping in the Court's history.75Milligan may be remembered as the Court's resistance to Lincoln's wartime measures, but it also embroiled the Court in national politics of the highest order, and ultimately it led to a severe counterstroke against judicial review.

  While Lincoln claimed extraordinary authority over civil liberties during the Civ
il War, he exercised it in a restrained manner. After examining the records of detentions and military trials, Neely concludes that more were detained than was commonly thought, but that most came from border states near the scene of fighting or were citizens of the Confederacy. Only a small number of the overall figures could be considered political prisoners.76 While hostilities were ongoing, no branch of government opposed Lincoln's internal security program. His administration cooperated at times with Congress's suspension of the writ, but at times it continued to follow military policy. Even in its decision after the war, the Supreme Court did not reverse President Lincoln's suspension of habeas corpus or the extension of martial law to the areas under occupation or threat of attack. Its decision left unclear whether its demands for the protection of citizens detained beyond the battlefield would apply to those actively associated with the enemy.

  Historians and political scientists have long criticized Lincoln for going too far in limiting civil liberties, but no one doubts that he did so with the best of intentions, in unprecedented circumstances. Americans were fighting Americans and the mobilization of the home front held the key to victory. It is easy today, with the benefit of hindsight, to argue that Lincoln went too far.77 But it is also impossible to know, either at the time or even now, whether his policies kept the North committed and prevented Southern successes behind the lines. Lincoln's approach to civil liberties may well have been an indispensable part of his overall strategy to win the Civil War, though one that came with a high price.

  RECONSTRUCTION

  THE CIVIL WAR'S hybrid nature as a rebellion on American territory and as a traditional war colored a third major arena of presidential action -- Reconstruction. If the Confederacy were considered an enemy nation, the laws of war permitted the occupation of recaptured territory. But if the states had never left the Union, as Lincoln had argued from the beginning, they could have claimed an immediate restoration of their authority. They could again pass their own laws and run their own courts and police. If the defeated states were automatically restored to the Union, they could exercise their rights in the federal government, including the election of Senators and Representatives. In the unprecedented circumstances of the Civil War, there were no rules for the readmission of rebellious states to the Union or how much authority the national government could exercise in occupied territory.78

  Lincoln did not hesitate to take the initiative in setting occupation and Reconstruction policy. He believed that the Constitution concentrated in the Commander-in-Chief the rights of a nation at war, and one aspect of the nation's powers under the laws of war was the right to occupy captured territory. The conflict's nature as an insurrection gave him even greater powers. The key feature of the laws of war is to retain as much of the normal civilian governmental structure as is consistent with military necessity. An occupying military may take measures to prevent attacks on its soldiers, but it generally cannot change civil or criminal laws wholesale, and it generally leaves civilian government and its officials in place.79 But since the United States was waging war to restore its authority over rebellious authority, occupation of Southern territory inevitably involved change not just of local officials, but of the institutions of government.

  When territory in Tennessee and Louisiana fell under Northern control in 1862, Lincoln appointed military governors to establish occupation governments. As military governor of Tennessee, Andrew Johnson appointed the Secretary of State, Comptroller General, and Attorney General, as well as Nashville's mayor and city council. Elections were not held, and Tennessee did not exercise the political rights of a state within the federal system. In New Orleans, General Benjamin Butler delivered justice by military commissions, which included executing a man who had torn down the Union flag, and ran the city by decree, such as the infamous "Women's Order," which declared that any woman who showed disrespect to a Union soldier would be considered "as a woman of the town plying her avocation."80

  Military commanders ordered arrests without warrant or criminal trial; the seizure of land and property for military use; the closure of banks, churches, and businesses; and the suppression of newspapers or political meetings deemed to be disloyal.81 Military courts were established that enforced law and order among civilians, without effective appeal to federal courts -- an arrangement upheld by the Supreme Court after the war, as was the whole system of occupation government.82 The basic rule of occupation government was the will of the military commander, checked only by his superior officers and ultimately the President. As the Supreme Court observed when it reached cases challenging military government, the occupation was "a military duty, to be performed by the President as commander-in-chief, and instructed as such with the direction of the military force by which the occupation was held."83

  Congress never played a successful role in the operation of the military governments. In 1862, out of discontent with Lincoln's reversal of General Hunter's emancipation order, it considered legislation to treat the Southern states as territories subject to its regulation, but Congress eventually chose to accept Lincoln's policies and put the legislation aside.84 On the question of the readmission of recaptured states, however, it held a critical constitutional power -- that of judging whether to seat members of Congress. Congress, not Lincoln, would control whether any reconstituted Southern state could send Senators and Representatives.

  As the war wore on, Radical Republicans in Congress were determined to set a high bar before restoring rebel states to the Union. Lincoln wanted an easier path to peace. His initial promise of returning the "Union as it was" suggested that he would be open to allowing states to return with slavery intact, and for a time, he pursued a similar policy in the loyal border states. Congressional leaders wanted a greater role in Reconstruction and a more radical reshaping of Southern society which included the abolition of slavery. Congress refused to seat representatives sent by Louisiana, but at the same time identified no clear path in the war's first years on the readmission of the states of the Confederacy.

  Lincoln seized the initiative in his 1863 annual message, delivered less than a month after the Gettysburg Address. He rejected the idea that a Confederate state would be entitled to automatic readmission to the Union upon occupation. "An attempt to guaranty and protect a revived State government, constructed in whole, or in preponderant part, from the very element against whose hostility and violence it is to be protected," Lincoln observed, "is simply absurd."85 While setting the terms of political debate, the President paid careful attention to constitutional details.

  Lincoln based his right to set the terms for Reconstruction on his plenary power to grant pardons, and the Constitution's provision guaranteeing to every state a "republican form of government." He proposed a plan that required at least 10 percent of a state's voters in the 1860 election to take an oath of loyalty and obedience to the Emancipation Proclamation and Congress's laws against slavery. Lincoln excluded from chances of a pardon all ranking Confederate civilian and military officials, any federal Congressmen or officers who joined the rebellion, or any who had not treated black soldiers as prisoners of war. When a former Confederate state reached the 10 percent requirement, it would be permitted to form a government. In exchange, the reconstructed states would retain their pre-war names, boundaries, constitutions, and laws, so long as they accepted the end of slavery. While Lincoln set out the first plan for Reconstruction, he recognized that only Congress could decide whether to seat the elected Congressmen of the reconstructed states.86

  Lincoln's plan set relatively easy terms because he wanted to get Louisiana back into the Union as quickly as possible. He hoped Louisiana's example would weaken the resolve of other Southern states and end the war. Republican Congressmen, however, worried that allowing the Southern states to return too soon would lead to the oppression of the black freedmen. They drafted an alternative, the Wade-Davis Bill, which required a state to write a new constitution ending slavery and providing protections to the former
slaves.87 Only those who took an oath of past and future loyalty -- known as the "ironclad" oath -- could elect delegates to the constitutional convention, and it required 50 percent, rather than Lincoln's 10 percent, of the 1860 voters to take the oath before the state could elect a government. Confederate officeholders and members of the Confederate armed forces could not vote. The bill gave federal officials and judges authority to override state laws that attempted to continue involuntary servitude. Reconstruction under Congress's plan would take longer and require the federal government to play a far more intrusive role in state politics.

  As casualties increased in the summer of 1864, Republicans in Congress believed that more, rather than fewer, radical measures were needed. The Wade-Davis Bill passed by healthy majorities. Though he had taken the position that the veto should not be used over policy disagreements, Lincoln resorted to a pocket veto in July 1864 to reject the Wade-Davis Bill. Because Congress had submitted the bill at the end of its session, Lincoln's veto gave Congress no chance to override. Lincoln considered Wade-Davis to be at odds with his theory of the Civil War by treating the Confederate states as if they had left the Union during the rebellion. Wade-Davis, he wrote in an unusual veto message, would have set aside the new constitutions that had been adopted by Arkansas and Louisiana. Nor could Congress ban slavery in the states without a constitutional amendment. When Republican Senator Zachariah Chandler of Michigan responded, at the signing of the other bills passed during the congressional session, that Lincoln had already banned slavery, the President answered: "I conceive that I may in an emergency do things on military grounds which cannot be done constitutionally by Congress."88 Above all, Lincoln sought flexibility in Reconstruction policy. He was willing to accept the restoration of any state that met Wade-Davis's standards, but he also kept his own approach, which allowed Southern states to reassume their political rights under more lenient standards.