War Powers in Action: The American Civil War

1. War Powers in Action: The American Civil War Artemus Ward Department of Political Science Northern Illinois University Bill of Rights Institute Indianapolis, IN September 23, 2010

2. Introduction • The Civil War provided the first occasion for the U.S. Supreme Court to weigh in on the question of war powers. • For the first time the Court answered the questions of when war exists, when the president can act, and the extent of presidential powers in times of war. • In the end, though the Court did not answer these questions definitively for all time, their decisions laid the foundation for future cases involving war powers.

3. Southern Secession • As soon as word reached Charleston, South Carolina, that the “black Republican” Abraham Lincoln had been elected President, the legislature summoned a state convention, which met on December 20, 1860, and formally dissolved the connection between South Carolina and the other states comprising the United States of America. • This action was soon imitated by other southern states. Mississippi seceded on January 9, 1861, Florida on January 10, Alabama on January 11, Georgia on January 19, Louisiana on January 26 and Texas on February 1. • These states ultimately joined together to form the Confederate States of America (CSA). They held a convention in Montgomery, Alabama, on February 8, where their representatives drew up a constitution and established a provisional government. Closely resembling the U.S. Constitution, the Confederate document contained notable differences, including the recognition of the independent and sovereign character of each state. The following day Jefferson Davis was elected provisional President of the CSA. • There were some formal attempts to avoid war. A peace convention was undertaken to save the Union, and delegates from northern, southern and border states met behind closed doors in Washington on February 4, 1861, with former President John Tyler presiding. But they failed to work out an acceptable agreement. • Another attempt to prevent secession came on February 28, when Congress considered a joint resolution to amend the Constitution to guarantee slavery in the states where it already existed. Despite its intensely controversial provision, the amendment passed the House, 133 to 65, and the Senate, 24 to 12, but the states failed to ratify it.

4. Abraham Lincoln’s inauguration on the steps of the U.S. Capitol with the dome undergoing reconstruction. March 4, 1861

5. War Begins • As President, Lincoln wanted to hold the Union together and avert war. But he had no choice but to enforce the law, and that duty included maintaining federal property within the seceded states. His decision to provision Fort Sumter in Charleston harbor prompted the Confederates to attack the fort and force its surrender on April 12. And thus began the Civil War. • Once fighting broke out, four states of the upper South joined the original seven states of the lower South and seceded from the Union: Virginia on April 17, Arkansas on May 6, Tennessee on May 7 and North Carolina on May 20. • Four other slave states—Delaware, Maryland, Kentucky and Missouri—remained loyal to the Union, despite strong sentiment for the Confederacy in sections of those states and determined efforts to provoke secession. • Lincoln unilaterally took a number of steps to suppress “treacherous” behavior, believing “that the nation must be able to protect itself in war against utterances which actually cause insubordination.” • With Congress out of session, he expanded the military, authorized the purchase of armament and suspended the writ of habeas corpus in Florida and Maryland. • Can the president unilaterally suspend habeas corpus? • Can U.S. citizen’s be denied due process rights?

6. Habeas Corpus • Art. I, Sec. 9 of the Constitution says, “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.” • Who is protected by habeas corpus? U.S. citizens? Persons in the U.S.? Person’s held by the U.S. government? • Art. I outlines legislative, not executive power. Therefore, is this a limitation on legislative power? • Can the executive unilaterally suspend habeas corpus?

7. Ex parte Merryman (1861) • In April 1861 Lincoln unilaterally and secretly suspended the writ of habeas corpus in Maryland. Among the pro-Confederates in the Maryland militia was Lieutenant John Merryman. He had recruited and trained soldiers for the Confederate army and was involved in cutting telegraph wires and burning railroad bridges. On May 25, Merryman was arrested and charged with treason. • Merryman's lawyers appealed to the United States Circuit Court for the District of Maryland. At this time, Supreme Court Justices sat as circuit judges while the Supreme Court was not in session. Merryman's complaint was heard by Chief Justice Roger Taney. • Taney promptly issued a writ of habeas corpus for Merryman and held that the President cannot suspend habeas corpus: “These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.” • Lincoln, citing Andrew Jackson before him, disregarded the ruling. Lincoln also got an opinion supporting his suspension from Attorney General Bates. It formed the basis for Lincoln's July 4, 1861 speech to Congress in which he rhetorically asked "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Lincoln subsequently expanded the zone within which the writ was suspended.

8. Congress Responds • When Congress convened in special session on July 4, 1861, Lincoln sent them a message in which he defended his actions in suspending the writ of habeas corpus. Although he felt he had the right to expand his powers under the Constitution, he assured the members “that nothing has been done beyond the constitutional competency of Congress” and he expressed confidence that the legislature would “ratify” the extraordinary measures he had taken. • Rep. Clement Vallandigham (D-OH) carried on a prolonged and futile fight against Lincoln’s acts of “usurpation,” and introduced seven resolutions censuring the President for the suppression of freedom of speech and press, the suspension of the writ of habeas corpus and the establishment of a naval blockade, among others. But by voice vote the House quickly tabled the resolutions and they never came to a vote. • Led by Thaddeus Stevens (R-PA), the Republican-controlled Congress passed 66 bills, all but four of which related to supporting the war effort, in the one month they were in special session. For example, one of the bills authorized the secretary of the treasury, Salmon P. Chase, to borrow $250 million over the next 12 months to help finance the war. • But the Union Army initially lost a series of battles to the South. Eventually, they fought to a draw at Antietam in September 1862. Lincoln declared victory and issued a preliminary Emancipation Proclamation in which he would free all slaves as of January 1, 1863, in Confederate areas still in rebellion against the U.S. • Two days after he issued the preliminary proclamation he announced that at his discretion the writ of habeas corpus could be suspended anywhere in the United States. • Peace Democrats picked up congressional seats during the 1862 elections and increased their criticism of Lincoln. On the House floor they howled their opposition to this “imperial military despotism.” Vallandigham had failed to win reelection but continued to denounce Lincoln’s tyrannical rule in a fiery February 23, 1863 speech before he left his seat. • Thaddeus Stevens introduced a habeas corpus bill in the House, giving the President the authority, at his discretion, to suspend the writ for the duration of the war. It passed in March 1863. • No longer a member of Congress, Vallandigham gave a speech back in his home state of Ohio on May 1, 1863, in which he contended that the war could have been concluded by negotiation but that the administration needlessly prolonged the bloodshed in order to liberate blacks and enslave whites. Accused of advocating resistance to the Lincoln administration and expressing sympathy for the enemy, he was arrested, denied the privilege of habeas corpus, tried by a military commission and found guilty of disloyal opinions. He was sentenced to prison for the duration of the war. But Lincoln commuted his sentence and ordered Vallandigham escorted to the Confederacy. Clement Vallandigham

9. President Abraham Lincoln, between Maj. Allan Pinkerton of the Pinkerton National Detective Agency (Lincoln’s bodyguard) and Gen. John A. McClernand, visits the Union camp at Sharpsburg, Md., on Oct. 3, 1862, a few weeks after the Battle of Antietam. Lincoln was there to persuade Gen. George McClellan to take his army on the attack against Gen. Robert E. Lee.

10. The Prize Cases (1863) • Lincoln had not asked Congress to declare war on the Confederate States of America as he believed this would be tantamount to recognizing the Confederacy as a nation. Instead, Lincoln instituted a naval blockade which had interesting legal ramifications because nations do not blockade their own ports; rather they close them. By ordering a blockade, Lincoln essentially declared the Confederacy to be belligerents instead of insurrectionists. • The Confederate States were mostly agrarian, and almost all of their machined and manufactured goods were imported. At the beginning of the war there was only one significant steel mill and manufactory in the South, the Tredegar Iron Works in Richmond, Virginia. Moreover, the southern economy depended on the export of cotton, tobacco and other crops. • The blockade of the South resulted in the capture of dozens of American and foreign ships, both those attempting to run the highly efficient blockade and smuggle goods and munitions to the South as well as those attempting to smuggle exports from the South. • The commercial ship owners brought suit claiming that Lincoln did not have the authority to seize their ships without a formal declaration of war from Congress.

11. Justice Robert C. Grier Delivered the Opinion of the Court • “The right of prize and capture has its origin in the ‘just belli,’ [laws of war—international law governing war] and is governed and adjudged under the law of nations [international law in general]. To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city, territory.” • Writing for a 5-4 majority, Grier said that the parties do not have to be sovereign nations, one belligerent can claim sovereign right against the other. A civil war is never publicly proclaimed, it just evolves. • “The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.” • “Therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard.” • Though a bare majority, the decision expanded the power of the president to act in military conflicts without congressional approval. It also made clear that war could exist without a formal declaration.

12. Justice Samuel Nelson Dissenting • “No civil war existed between this Government and the States in insurrection till recognized by the Act of Congress 13th July, 1861.” • “The President does not possess the power under the Constitution to declare war or recognize its existence within the meaning of the law of nations…this power belongs exclusively to Congress.” • Nelson said that the blockade was illegal and all vessels and property seized prior to the congressional declaration of war should be restored.

13. Lincoln and Troops at Antietam (1862).President Lincoln visits Gen. George B. McClellan and his staff near Sharpsburg, Md. ,on Oct. 3,1862, a few weeks after the Battle of Antietam. Lincoln was there to try to persuade McClellan to move his troops and attack Gen. Robert E. Lee's army. But McClellan declined to attack and was dismissed as commander of the Army of the Potomac a few days later.

14. Ex Parte Milligan (1866) • Milligan was an attorney living in southern Indiana. He was a confederate sympathizer (a Copperhead) and made speeches and organized against the war. He was arrested by the military, found guilty by a military tribunal, and was sentenced to be hanged. • Meanwhile, the war ended but President Andrew Johnson sustained the sentence. Milligan filed for a writ of habeas corpus in federal court claiming that he should not have been tried by the military and that the President did not have the authority to suspend habeas corpus. Lambdin P. Milligan

15. Justice David Davis Delivered the Opinion of the Court • Writing for a unanimous Court, Davis held that the writ of habeas corpus had not been suspended by Congress and therefore Milligan must be set free or tried in a civilian court. • Davis explained that the “law and usages of war can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. Indiana was under federal authority ad no usage of war could sanction a military trial there for any offense whatever of a citizen in civil life, in nowise connected with military service. He should have been presented to the grand jury of the circuit court.” • “It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.”

16. Chief Justice Salmon P. Chase Concurring • Chief Justice Chase writing for four justices held: “We think Congress had power, though not exercised, to authorize the military commission which was held in Indiana.” • In the end, the Court was split 5-4 over the question of whether congress can suspend habeas corpus when civilian courts function. • 5 justices said that neither the president nor congress acting separately or together could suspend habeas corpus where civilian courts functioned. • 4 justices said that the even though they didn’t use it, Congress has the power to suspend habeas corpus and use military tribunals. • The justices chose not reach the question of whether the president can unilaterally suspend habeas corpus when civilian courts are NOT functioning.

17. The Chase Court (1869) – the first photograph taken of the justices of the Supreme Court. By Matthew Brady.(L-R): Stephen J. Field, Samuel Miller, Nathan Clifford, Samuel Nelson, Salmon P. Chase, Robert C. Grier, Noah Swayne, and David Davis.

18. Ex parte McCardle (1869) • After the Civil War, the Radical Republican Congress essentially placed the South under military rule. McCardle was a journalist and former confederate soldier who urged opposition to this situation. He was arrested in Mississippi by the military, placed in a military jail, and tried in a military court for publishing “incendiary and libelous articles.” McCardle claimed that as a civilian, and not a member of any militia, he was being held illegally and petitioned for a writ of habeas corpus in the U.S. Circuit Court of the Southern District of Mississippi. The judge sent him back into custody, finding the military actions legal under the 1867 Reconstruction Act. He appealed to the Supreme Court under the Habeas Corpus Act of 1867, which granted appellate jurisdiction to the Supreme Court to review denial of habeas petitions. • As the Court was deciding the matter, Congress passed a new law in 1868—under Article III’s Exceptions Clause—removing the Court’s jurisdiction over the case. • The Court held 8-0 that they no longer had jurisdiction: “Without jurisdiction the court cannot proceed at all in any case.” • But Chase pointed out that the 1868 statute repealing jurisdiction "does not affect the jurisdiction which was previously exercised” implying that congress may have only foreclosed one way to bring a habeas challenge—and McCardle only asked for the writ under the 1867 Act. • Indeed, three months later Chase held in Ex parte Yerger (1869) that the Court could still hear habeas cases through its appellate jurisdiction under the Judiciary Act of 1789. • Furthermore, the post 9/11 War on Terrorism cases suggest that habeas claims may always be available regardless of congressional action.

19. Conclusion • The Civil War brought about the first occasion for the Supreme Court to weigh in war powers claims. • Overall, the rulings were mixed. On the one hand the President’s authority was strengthened by The Prize Cases (1863). On the other hand the habeas cases suggested that the President’s authority had limits—particularly when U.S. citizens were involved.