From Abraham Lincoln to Donald Trump, The Suspension of Habeas Corpus Is Not Acceptable in a Free Country

There has been some controversy swirling around online, especially among left-wing circles, after Homeland Security Advisor and Deputy Chief of Staff Stephen Miller suggested that the federal government was “actively looking at” utilizing the Constitution’s Article I Section 9 Clause 2, which states, “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.” As I have written previously, the Donald Trump administration suspending habeas corpus is not only a blatant violation of the Constitution, but it is opening the gates to American citizens being detained for speaking out against the government, even if it just starts with deportations of illegal immigrants and legal residents. The president only wants to invoke this clause because the federal courts are standing in his way and challenging his ability to respond to the “illegal immigrant invasion,” but checks and balances are what helps keep tyranny at bay. If the executive branch bypasses that aspect of American government, we have a real problem on our hands (since the executive branch has grown astronomically more powerful than what the founders intended, the judicial branch has also expanded in power to limit the actions of the president).

Habeas corpus, which has been an important part of British and American common law dating back as far as the Magna Carta of 1215, has only been suspended four times in American history, and the three times where it was done with the authorization from Congress include: during Reconstruction when the Ku Klux Klan took over eleven counties in South Carolina, during an insurrection in two provinces in the Philippines in 1905, and in Hawaii during the Pearl Harbor bombings of World War II. Since the suspension of this constitutional provision is listed as an Article I limitation on Congress, the president is not permitted to do this on his or her own authority, but yet, that is precisely what Abraham Lincoln did during the American Civil War (and what the Trump administration is considering officially making his policy).

On April 27, 1861, President Lincoln ordered (through General Winfield Scott) that habeas corpus be suspended to ensure that transportation and supply lines were not threatened in Maryland, and the first person to be denied this right was state legislator John Merryman, who after impeding Union troops’ ability to move between Baltimore and Washington had his attorney unsuccessfully file federal charges to challenge the detainment (Merryman had also been arrested without a warrant). The Supreme Court under Chief Justice Roger Taney ruled (in Ex parte Merryman) that Merryman needed to be released and that only Congress could suspend habeas corpus, but Lincoln refused and completely ignored the Court.

Then, on September 24, 1862, Lincoln built on the precedent that he had set and suspended habeas corpus across the entire United States and declared that any American citizen determined to be rebelling against the country would be arrested and held in jail with only the possibility of a military tribunal (how can you be determined to be in rebellion without a jury trial?). Clearly, Lincoln believed that violating certain parts of the Constitution (including declaring martial law in the border states of Maryland, Kentucky, and Missouri to prevent them from seceding, the forced closures of newspaper offices, and the arrests of journalists and editors) was necessary to hold the nation together and defeat the Confederate troops, and under martial law declarations, it is estimated that more than 13,000 civilians (not soldiers) were arrested. In 1863, Congress passed the Habeas Corpus Indemnity Act, which delegated authority to the president to continue on his campaign to destroy civil liberties, but for two years, he was acting outside of his constitutional powers. Because of his unconstitutional and human rights-violating tactics during the Civil War, Abraham Lincoln was a tyrant, and yet many celebrate him as one of the best presidents in American history.

Even though Congress allowed for the suspension of habeas corpus afterwards, it is still an egregious policy to arrest and detain individuals without a trial and probable cause of a crime simply because allowing freedom is an inconvenience and detrimental to an agenda. You either have a God-given right to not be imprisoned indefinitely, or the government grants you the privilege to sometimes not be held against your will (are our rights natural or granted by governments?). People will often fall back on the “necessity” wording in the Constitution and argue that Lincoln had absolutely no choice because the South was in rebellion (even though these states separated voluntarily and were not attempting to seize territory in the North, and they were invaded by Lincoln’s army in order to be forced back into the Union). However, even Lincoln himself questioned whether he had the authority to go as far as he did and arrest anyone he wanted without a trial. Publicly, he ultimately settled on the view that it was necessary on a temporary basis, and he argued that it would not be a long-lasting occurrence that would be repeated by other presidents.

Yet, here we are debating about whether President Trump can suspend habeas corpus to deport illegal immigrants and bypass the judicial branch to achieve his goals more easily (a goal that is certainly less urgent than the entire United States being involved in a large-scale overt war). If Lincoln could arrest people without a trial for opposing his government, what is to say that Trump or any future president could not do the same thing? All it would take is for the right crisis or false flag event to occur, and as a result, the government might try to justify arresting people for protesting or typing social media posts and then send them to a dark dungeon in any corner of the world (including El Salvador) to never be heard from again. You would have absolutely no ability to challenge your detention or speak to a lawyer. This is the type of environment that President Trump would like to establish, and it is not acceptable in a supposedly free country.

The ability to arbitrarily declare emergencies and rally citizens around a war effort is the reason why the Constitution mentions habeas corpus as a limitation to Congress and does not reference it at all as a power of the president, but in our twisted authoritarian twenty-first century brains, the president has the power to do anything that Congress does. Until we educate ourselves and wake up to the realities of executive abuse, Americans may be tricked into allowing future presidents to suspend habeas corpus (and other rights). Even if you are the most ardent of Trump supporters, I urge you to critically think about what it means to allow the president to have this much power. If it starts with illegal immigrants, do not be naïve to think that it will end there. And to President Trump, I urge you to do what is right and refrain from invoking this clause.

Thank you for reading, and please check out my book, The Global Bully, and website.