Wednesday, December 26, 2007

Why Constructive Criticism Does Not Bother Me

My last article, Why I Harp On The Constitution, drew both positive and negative comments. Most of the negative comments I received were in regards to the quote from Abraham Lincoln that I used to support my defense of the Constitution. I was told that Lincoln was not a good example to use when defending the Constitution.

Some people react negatively to criticism, even constructive criticism. Seeing as how I am relatively new in this fight to preserve our Constitution and our liberties, I am willing to take all the help I can get in the search for facts and information.

Therefore I began searching for some data on Lincoln on the internet. One of the things I learned was that during the Civil War he suspended habeas corpus. I came across the following web page ( and while reading it I looked up Ex Parte Milligan. What I found was quite interesting as it applies to certain legislation that has been passed recently in the War On Terror. I will try to comprise into a short version of what I found in reading the Court ruling.

First off though a little refresher history, if you go back and read the Constitution, Article 3, Section 1 only states that,

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

There is no mention of how the court is to be established. That changed with the Judiciary Act of 1799, which laid out the entire judiciary system. You can read the entire legislation at, if you wish, but there is one section, section 14 that is of importance to this article. Section 14 states,

" And be it further enacted, That all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.——Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify."

Before I go any further I want to make it clear that I am not a legal scholar. I am just a guy who so far in life has gotten by with just a high school education. So when I read things I have to take them at their literal meaning. I am not familiar with legal innuendos or the specific terminology used by those who practice law for a living.

I would love for someone to correct me if I am wrong on this, but the way I understand the following, "Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." is that if you are in custody under the authority of the United States, or if you are committed to stand trial, or if you are to be brought into court to testify, a writ of habeas corpus will be extended to you. Again, if my understanding of this is wrong, I would love to have the actual meaning of it explained to me.

Getting back to Ex Parte Milligan, in October of 1864, a U.S. citizen, Lamdin P. Milligan, was arrested at his home in Indiana and confined to a military prison and placed on trial before a military commission. Military Commission, doesn't that term sound familiar? That really piqued my interest so I continued to read.

Mr. Milligan was charged with 1) Conspiracy against the Government of the United States, 2) Affording aid and comfort to rebels against the authority of the United States 3) Inciting insurrection 4) Disloyal practices and 5)Violation of the laws of war.'

According to the list of charges there were various specifications, but again one of them sounded strikingly familiar, " a period of war and armed rebellion against the authority of the United States, at or near Indianapolis, [and various other places specified] in Indiana, a State within the military lines of the army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy."

Milligan appealed, questioning the authority of the military commission. In the presentment of his appeal, it was stated that, "The prayer of the petition was that under the already mentioned act of Congress of March 3d, 1863, the petitioner might be brought before the court, and either turned over to the proper civil tribunal to be proceeded with according to the law of the land, or discharged from custody altogether."

During the course of the appeal there was disagreement between the judges of the Circuit Court and therefore, I had to read this four times to understand it, "And these questions were certified to this court under the provisions of the act of Congress of April 29th, 1802,4 an act [71 U.S. 2, 9] which provides 'that whenever any question shall occur before a Circuit Court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified under the seal of the court to the Supreme Court, at their next session to be held thereafter; and shall by the said court be finally decided: and the decision of the Supreme Court and their order in the premises shall be remitted to the Circuit Court, and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits."

What it means is that whenever the Circuit Court is unable to come to a decision upon a case, the points of disagreement of that case shall be submitted to the Supreme Court for a final decision.

At the heart of the appeal there was the question as to whether the military commission had the jurisdiction to hear the case, or should the case have been heard by a civil court?

According to the petition, "A military commission derives its powers and authority wholly from martial law; and by that law and by military authority only are its proceedings to be judged or reviewed." Dynes v. Hoover, 20 Howard, and that, "Martial law is the will of the commanding officer of an armed force, or of a geographical military department, expressed in time of war within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his military chief, or supreme executive ruler." Hansard's Parliamentary Debates, 3d series, vol. 95, p. 80.

There was much argument over the jurisdiction of the military commission and it was brought to the courts attention that President Lincoln had issued the following statement,
'That during the existing insurrection, and as a necessary [71 U.S. 2, 16] means for suppressing the same, all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to rebels, against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts martial or military commission. 'Second. That the writ of habeas corpus is suspended in respect to all persons arrested, or who now, or hereafter during the Rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement, by any military authority, or by the sentence of any court martial or military commission.'

The petitioners summed it all up with this one simple statement, "It is a question of the rights of the citizen in time of war. Is it true, that the moment a declaration of war is made, the executive department of this government, without an act of Congress, becomes absolute master of our liberties and our lives? Are we, then, subject to martial rule, administered by the President upon his own sense of the exigency, with nobody to control him, and with every magistrate and every authority in the land subject to his will alone? These are the considerations which give to the case its greatest significance."

In rendering their decisions the Supreme Court had many issues upon which to decide, but one of the most interesting statements they made was,

"Subsequently, military commissions are mentioned in four acts of Congress, but in none of them is any provision made for their organization, regulation, or jurisdiction, further than that it is declared that in time of war or rebellion, spies may be tried by a general court-martial or military commission; and that 'persons who are in the military service of [71 U.S. 2, 30] the United States, and subject to the Articles of War,' may also be tried by the same, for murder, and certain other infamous crimes.

These acts do not confer upon military commissions jurisdiction over any persons other than those in the military service and spies.

There being, then, no act of Congress for the establishment of the commission, it depended entirely upon the executive will for its creation and support. This brings up the true question now before the court: Has the President, in time of war, upon his own mere will and judgment, the power to bring before his military officers any person in the land, and subject him to trial and punishment, even to death? The proposition is stated in this form, because it really amounts to this.

If the President has this awful power, whence does he derive it? He can exercise no authority whatever but that which the Constitution of the country gives him. Our system knows no authority beyond or above the law. We may, therefore, dismiss from our minds every thought of the President's having any prerogative, as representative of the people, or as interpreter of the popular will. He is elected by the people to perform those functions, and those only, which the Constitution of his country, and the laws made pursuant to that Constitution, confer."

In continuing, the Court stated that,

"The plan of argument which I propose is, first to examine the text of the Constitution. That instrument, framed with the greatest deliberation, after thirteen years' experience of war and peace, should be accepted as the authentic and final expression of the public judgment, regarding that form and scope of government, and those guarantees of private rights, which legal science, political philosophy, and the experience of previous times had taught as the safest and most perfect. All attempts to explain it away, or to evade or pervert it, should be discountenanced and resisted. Beyond the line of such an argument, everything else ought, in strictness, to be superfluous. But, I shall endeavor to show, further, that the theory of our government, for which I am contending, [71 U.S. 2, 31] is the only one compatible with civil liberty; and, by what I may call an historical argument, that this theory is as old as the nation, and that even in the constitutional monarchies of England and France that notion of executive power, which would uphold military commissions, like the one against which I am speaking, has never been admitted.

What are the powers and attributes of the presidential office? They are written in the second article of the Constitution, and, so far as they relate to the present question, they are these: He is vested with the 'executive power;' he is 'commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States;' he is to 'take care that the laws be faithfully executed;' and he takes this oath: 'I do solemnly swear that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.' The 'executive power' mentioned in the Constitution is the executive power of the United States. The President is not clothed with the executive power of the States. He is not clothed with any executive power, except as he is specifically directed by some other part of the Constitution, or by an act of Congress.

He is to 'take care that the laws be faithfully executed.' He is to execute the laws by the means and in the manner which the laws themselves prescribe."

The Court went on to say,

"Much confusion of ideas has been produced by mistaking executive power for kingly power. Because in monarchial countries the kingly office includes the executive, it seems to have been sometimes inferred that, conversely, the executive carries with it the kingly prerogative. Our executive is in no sense a king, even for four years." .

Finally the Court states that,

"I submit, therefore, that upon the text of the original Constitution, as it stood when it was ratified, there is no color for the assumption that the President, without act of Congress, could create military commissions for the trial of persons not military, for any cause or under any circumstances whatever."

Therefore, according to the Supreme Court, at the time of Ex Parte Milligan, the President was not authorized to establish military commissions to try citizens who were not combatants because it was not authorized by Congress.

All that took place in 1866. It is now 2007 and the President of the United States now has that authority, having signed into law, Senate Bill 3930, or the Military Commissions Act. Section 2 of the Military Commissions Act states that "The authority to establish military commissions under chapter 47A of title 10, United States Code, as added by section 3(a), may not be construed to alter or limit the authority of the President under the Constitution of the United States and laws of the United States to establish military commissions for areas declared to be under martial law or in occupied territories should circumstances so require."

It would appear that our president, and all those who follow, now have the power to establish military tribunals to try those who they deem as enemy combatants, or a threat to them. I would like for you to read one last quote from the Courts ruling in Ex Parte Milligan.

"This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew-the history of the world told them-the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus.

It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character, wicked enough to counsel their fellow- citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible; and yet, the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested [71 U.S. 2, 126] in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so."

While it appears that the Supreme Court, as far back as 1866, ruled that the writ of habeas corpus could be suspended, it also ruled that "It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law."

Again, as I previously stated, I am not a legal scholar, but I can read English. I understand that our current legal system has the principle of precedence. That if a higher court has established a ruling, that it is to be held as binding unless overturned by a higher court. Since the Supreme Court is the highest court in the land, and they have ruled that even though habeas corpus can be denied, a citizen still has the right for a trial under common law, my question is this. Why has not the legality of the Military Commissions Act been contested as it obviously violates the spirit and intent of the Courts ruling in Ex Parte Milligan?

As I said earlier, I do not take constructive criticism negatively. If I did I would not have bothered to research Lincoln, and therefore would not have come across this fascinating case. Anyone who wishes to read it in its entirety can do so at

It is a fascination, although rather long and complicated, read.

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