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Dec 21, 2005 5:10 am

Precedents and Presidents

Here come the analogies between President Bush's authorization of domestic spying and President Lincoln's suspension of habeas corpus during the Civil War. (Via Civil War Memory.) The analogy has been considered before, of course, but I expect to hear it more in the coming days.

Presumably a defender of President Bush's illicit extension of executive power would argue thusly: Lincoln did it first, and he's a great president who saved the Union. He understood that law in wartime was different from law in peacetime. President Bush understands that too. Ergo, if this President plays a little fast and loose with the law, history will still judge him to be a great President, because he is defending the security of the country against all enemies. His critics are simply the liberal equivalent of Civil-War Copperheads. And so on.

The soundness of such arguments really depends on the validity of two separate arguments. The first is the argument that the two cases at hand really are parallel. If they are, then the second question is whether the actions of each President were justified. One can't argue for President Bush's action by simple appeal to President Lincoln, on the grounds that Lincoln could do no wrong. Precedent can be of some use in determining what is right and wrong, but it cannot be the only consideration. Some of the blogs I read have pointed out that the President is not a king. Their point is that presidents do not have the unchecked power of a king, but it could also be pointed out that leaders in a democratic society do not have the same untrammeled claim on the past that kings do. At least, that's what Thomas Paine, that inveterate critic of executive power, argued in The Rights of Man,

Every age and generation must be as free to act for itself in all cases as the age and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow. The Parliament or the people of 1688, or of any other period, had no more right to dispose of the people of the present day, or to bind or to control them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind or control those who are to live a hundred or a thousand years hence. Every generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead, that are to be accommodated.

This is not to say that the past is of no use to the present generation, but you don't have to agree with Paine entirely to be suspicious of appeals to the authority of the past, simply because it is The Past.

As to whether or not the two cases are precisely parallel, I'm not sure. As The Mahablog points out, whatever one thinks about Lincoln's suspension of habeas corpus, he did it in public view instead of behind closed doors. On the other hand, it's a discomfiting fact that Lincoln's arguments in favor of his civil rights policy sounded broadly similar to the ones that President Bush might make. In the past few days I just happened to be reading the portion of James McPherson's Battle Cry of Freedom that deals with this issue. According to Lincoln, says McPherson,

the whole country was a war zone and military arrests in areas far from the fighting front were justified. Civil courts were"utterly incompetent" to deal with such a massive threat to the nation's life. This was precisely the contingency that framers of the Constitution foresaw when they authorized suspension of the writ of habeas corpus in cases of rebellion or invasion. With a homely but effective metaphor, Lincoln affirmed that he could no more believe that the necessary curtailment of civil liberties in wartime would establish precedents fatal to liberty in peacetime"than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life." (p. 598-599)

One could defend Lincoln's argument from hasty equations with Bush's argument by pointing out two crucial facts. First, Lincoln emphasized the temporary nature of his policies, whereas I think you will search in vain to find President Bush and his supporters excusing his policy by describing it as temporary. You will find President Bush saying that these are anomalous times that call for special methods, that we are fighting a new war. But you will be hard pressed to find any clear statement about when--if ever--these anomalous times will end. The"war on terror," unlike Lincoln's war for the restoration of the Union, still has no clearly articulated ending. Second, Lincoln seemed to recognize that what he was doing was decidedly unpleasant, and something which clearly indicated that the nation was in a period of sickness rather than health. President Bush, on the other hand, sounds as though he thinks that the leaks about the NSA program are more shameful and unsavory than the program itself. As Tim Burke says, it would at least be nice to see some Lincolnian"gravity and weariness" on the faces of this administration's boosters, some hint of the"haunted conscience" that clearly plagued Lincoln every minute he was in the White House.

But however we might try to extenuate Lincoln's remarks, it's hard not to admit that there are at least some similarities here. Both presidents clearly believed that the Constitution gave them the power to identify a threat to the nation's security and then curtail civil rights as a way of curtailing that threat. Both thought that extraordinary times called for extraordinary measures. But for that reason, one of the things that is most enervating about the President's rhetoric is the constant reminder that we live in a new world, that this is a new war, that we need different thinking to meet a threat unlike any we have ever faced before.

Yet if we really are in a different age, where is the truly"different thinking"? For all the talk about a new war, which supposedly makes everything different, the President's strategies and rationales turn out to be old hat. Gathering executive power in order to gather intelligence and act with speed and awesome force: it's nothing that every war president there ever was has not already thought of. We do need some truly different thinking, because in so many ways we are still in the grips of the ages: still believing that coercion can bring us liberty, still believing that war can bring us peace, still believing that shocking and awing our enemies will make them release the stranglehold of fear they have on us, still believing that forcing ourselves to retch will eventually make the body politic well. And we still believe that we, alone among all the generations that preceded us, are the first to have discovered that these paradoxical beliefs are actually true, despite all the evidence to the contrary that our predecessors have provided us.

When I hear it said that a new world was born on 9/11, and then hear that claim used to defend a continuation of the patterns of violence and coercion that predated that day by millennia, I'm reminded of what Dr. Martin Luther King, Jr., said in response to Black Power activists impressed by Frantz Fanon's exhortations to"turn over a new leaf" and"set afoot a new man" by taking up arms in anticolonial struggle:

These are brave and challenging words: I am happy that young black men and women are quoting them. But the problem is that Fanon and those who quote his words are seeking"to work out new concepts" and"set afoot a new man" with a willingness to imitate old copies of violence. Is there not a basic contradiction here? ... Humanity is waiting for something other than blind imitation of the past. If we want truly to advance a step further, if we want to turn over a new leaf and really set a new man afoot, we must begin to turn mankind away from the long and desolate night of violence. (Testament of Hope, p. 596-597)

I don't profess to know exactly how we might turn over such a truly new leaf, but at least we might start by declaring our intent to abide by our own rules, even in wartime. For it is that determination, rather than the decision to suspend the law for the sake of security, that would constitute truly"different" thinking.

(Cross-posted at Mode for Caleb.)

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Thomas Martin Sobottke - 1/1/2006

Equating Lincoln's extra-constituional actions during the American Civil War with those of George Bush is a false comparison.

I think the record will show that Lincoln understood that much of what moved him to go beyond the Constitution during the Civil War had to do with direct threats to the very existance of the United States as a viable government.

In the 1860's, millions of Americans had proclaimed their intent to destroy that government. Hundreds of thousands had taken the field to destroy that government via direct conventional military action. Eleven states had declared themselves to be in open rebellion to the laws and sovereignty of the United States.

Today, I do not see an internal, domestic, threat to the United States government's very existance as an entity. I fail to see a threat of the magnitude of that provided by the Confederate States of America within the United States.

What we have now is a threat to the basic safety and security of our citizens and the physical infrastructure of our nation by various terrorist groups, largely originating but no longer limited to the Middle East. Unlike the 1860's, support for the United States and its government remains strong in all of the states.

I'd bet the ranch that at least 99.9% of American citizens remain loyal to the United States and opposed to El Quaida. This American is.

The record, as pointed out here, will also show that President Lincoln was acutely aware of the exceptional nature of what he was doing regarding habeus corpus. He went to the Congress to gain approval for what he had done, in recognition of the balance of powers.

Our current chief executive, and his vice presidential sidekick have made clear that the President's inherent powers under Article II of the Constitution as Commander-In-Chief give him unlimited, and unrestrained power in relation to the people, and the other two branches of the Federal government. He openly admits he broke a law that he is Constitutionally pledged to uphold. He is resistant toward obtaining either Congressional or Judicial approval for what he has already done, and what he continues to do.

When there is no longer a check on the power of the executive, then I submit our Republic is a mere fiction. The Framers understood the dangers of a concentration of executive power.

So did Abraham Lincoln. In response to a request that he once again shut down the Chicago Times in 1863, since it advocated for a Southern victory and was decidedly disloyal to the government and Copperhead, he replied:

"I fear you do not fully comprehend the danger of abridging the liberties of the people. Nothing but the very sternest necessity can ever justify it. A government had better go to the very extreme of toleration, than do do aught that could be construed into an interference with, or to jeopardize in any degree, the common rights of its citizens."

The right to be left alone, has often been stated to be one of the most cherished portions of the birthright of all American citizens. Really, it is a core value of citizens in any really free society. It is embodied in the Fourth Amendment to the United States Constitution. It would be supposed by most Americans today, that that portion of the Constituion remains. Has it been repealed altogether?

But now it might be said that the terrorists might blow up the coutnry with a nuclear device. We need to throw out the Bill of Rights. But we have lived under every bit as serious a threat for over 50 years now in regard to the Soviet Union and other nuclear powers. That threat remains. And we survived nicely even though the Supreme Court of the United States told President Nixon in 1972 that he could not engage in similar domestic spying. How did we ever survive it?

And George W. Bush has Presidential powers, and is at the center of such military, political, economic, and intellgence power that Lincoln could only dream of in his often fitful slumbers. Possessing all of these unmatched powers, President Bush has even been unable to follow the Federal Intelligence Surveillance Act. What is missed in this law is that while it limits the President by requiring judicial review of domestic wiretap and spying, it grants him broad authority to engage in this activity when approved.

In defending our Union, President Lincoln saw himself as a successor to the founders of this nation. Both they and he would have never contemplated a Presidency that was so imperial in nature.

Lets get our historical apples and oranges sorted out here properly. The real comparison is with the Nixon Administration of the 1970's. It is not a pretty sight to those concerned about civil liberities, the rule of law, and the Constitution of the United States.

Thomas Martin Sobottke

chris l pettit - 12/23/2005

I know how much you all just love that thing called international law that actually governs states and individuals...since in most Americans eyes the only thing that exists is US Constitutional law. Guess far as I know (as a professor of international law) any international treaties (including the UN Charter) that have been ratified are OFFICIALLY PART OF US LAW. Just so you get must take those international obligations into consideration...meaning, if the conflict is illegal internationally (which it has been established to be outside of the feeble minds of ideological robots in the US), it is also illegal under US law. Whether there is some ideological misinterpretation of the Constitution that somehow allows a contradictory position is issues of international law, specifically treaty obligations, the Vienna Law of Treaties is specific in the fact that international obligations trump national constitutional arguments due to the fact that the issue at hand is of an international scope, not involving the specific interests of one state. Therefore, there is a significant difference (although not necessarily from a human rights standpoint, all three instances blatantly violate customary law governing conflict and the protection of innocents and civilians, but ignorant US scholars willfully turn a blind ideological eye to customary law of all sorts, even though all law is customary and has been since the beginning of time...just because someone learned how to write does not give it any more or less legitimacy) between the actions of Lincoln and Roosevelt, and those of Bush...and that is speaking in the twisted sense of international legal positivism. There is simply no argument that can withstand critical analysis that can be provided to defend Bush in this matter...unless one is willing to admit total disregard for international law (which means all law in general, since law must be universal to be law...otherwise it is simply rules imposed by a power majority, ie positivism...not law at all).


Greg James Robinson - 12/22/2005

I am concededly not familiar with the constitutional subtleties of how governments may legally and/or constitutionally run roughshod over the rights of citizens. It seems, though, that Bush's action of bypassing even the rather Star Chamberish court set up to rule on surveillance indicates an abiding indifference to any limits on raw presidential power. Worse, by now discussion of the actual limits of presidential power in wartime (or the equivalent?) seems academic. There is an overriding appearance of skullduggery that trumps legal niceties (one might say the same of the government's current attempts to eliminate judicial review of José Padilla, whom the White House has managed to hold for years without any charge, by trying him now on charges). I am reminded of the case of Watergate and Richard Nixon's claim of "Executive Privilege". Although presented as a defense of the institution and prerogatives of the presidency, Nixon's actions were in fact devoted to concealing his illicit activities. (I also can't help but think of Philander Knox's remark to President Theodore Roosevelt, when TR tried to justify retrospectively his various arbitrary actions in pushing through the Panama Canal, "Oh Mr. President, do not let so great an achievement suffer from any taint of legality.")

Barry DeCicco - 12/21/2005

The other obvious thing is that, in both cases, Lincoln and FDR were operating in a state of declared war, against another state, or a clear block of (US) states.

If Bush is justified in claims that he has sweeping presidential wartime powers, then it looks like the US constitution has been partially suspended for the duration of a war which Cheney said wouldnt' end in our lifetimes. The extent of the suspension to be determined at the will of the president, and not communicated to the rest of the US until such time as the president wills it.

Hiram Hover - 12/21/2005

Mr. Lederer – I had in mind that the administration’s arguments have related to: 1) FISA; 2) the joint resolution; and 3) presidential powers under Article II. But my point was historical, not numerical—so if an edit from “numerous” and “all” to “both” would satisfy you, please accept it with my compliments.

Caleb McDaniel - 12/21/2005

I also doubt that Bush is likely to get Congressional endorsement now, although I wonder whether Greg is right that in the days after September 11, he would have had little difficulty getting such endorsement, or at least part of what he wanted.

The Taney argument, as I understand it, is still controversial, but it does have at least prima facie plausibility. The fact that there were judges like Taney around in the border states during 1861 is also, perhaps, a key difference between the two cases. Mark Neely has shown that civilian arrests during the Civil War were disproportionately made in border states where Confederate sympathizers were numerous, and where even federal courts could not be trusted to find clearly disloyal agitators guilty. In these states, perhaps, the writ of habeas corpus really would have functioned like a get out of jail free card. While the debate over Lincoln's action tends to revolve around the question of presidential vs. congressional authority, we shouldn't forget how Lincoln's lack of trust in the third branch of government figured in here. In the Merryman case, for instance, you have the very man who said four years earlier that black men have no rights which the federal government is bound to respect ruling on the loyalty of a Confederate sympathizer. If President Bush's use of executive authority is based on a similar fear that the courts and Congress would not give him what he wanted if he asked, I'm not sure whether he has as good a case as Lincoln did that the courts would be unduly biased in favor of alleged terrorists to the same extent that some border-state Democrats and judges were prejudiced in favor of Southern agents. I don't point this out necessarily to justify Lincoln's policy; as I said, pointing out similarities and differences between Lincoln and Bush is at least partially a separate question from debates about the legitimacy and legality of their actions.

John H. Lederer - 12/21/2005

I have not seen the Bush administartion claim "numerous statutory and constitutional bases" for the executive order.

Rather I have seen the following statutory argument:

(1) FISA provides an exception from any of its provisions for actions authorized by statute

(2) The joint resolution authorizing the use of force is the equivalent of a statute (it directly says it is statutory authorization for purposes of the War Powers Act) and authorizes the President to wage war.

(3) Intercepting enemy communications is a normal and expected part of the waging of war.

Therefore the interceptions are legal under existing statutes.

The second argument is that the Constitution gives the president inherent authority to wiretap for purposes of national defense, and Congress may not limit that power. To my mind that is a wekaer argument, but it has the support of case law.

Have you heard any other statutory arguments advanced by the administration?

Have you heard any other constitutional arguments?

Ought we call one of each, "numerous"?

Caleb McDaniel - 12/21/2005

Greg, Lincoln did get the consent of Congress for his initial suspension of habeas corpus, which I agree is a crucial difference, but he obtained that consent retroactively in the summer of 1861. Not a few Congressmen on both sides of the aisle were unhappy about what he had done. It's interesting that even after that summer session, when debate in Congress showed that his actions were controversial, his subsequent suspensions of the writ were also made during months when Congress was not in session. That's not exactly going behind Congress's back, perhaps, but it is clear that Lincoln saw what he was doing as an expansion of executive power, and a justified one at that.

Part of what I wanted my post was to suggest, though, is that the debate over whether Bush should have gotten Congressional authorization first, while certainly an important debate, distracts us from the more central question of whether Bush (and Lincoln) are right that wartime suspensions of civil liberties are justified. If you're right that Congress would have given the approval had Bush asked for it, that doesn't necessarily make me feel more at ease. A lot of the outrage over this seems to be focused on the procedural question, and while I don't want to slight the importance of that question, I think the outrage ought to go farther still.

John H. Lederer - 12/21/2005

There is a civil war analogy. That would be the finding of Lee's Order 191 prior to the battle of Chancellorsville. Assuming that the order was wrapped so as to generate a reasonable expectation of privacy (not sure about that-- in some renditions it was used as a cigar wrapper, in others it and the cigars were in a closed addressed envelope), what authority did the federal employee, Sgt.. Bloss, have to unwrap and read the order without a warrant?

John H. Lederer - 12/21/2005

You are assuming that Bush operated illegally.

I don't think that a reasonable legal assumption.

Perhaps the best analysis I have seen is that of Prof. Kerr on the Volokh Conspiracy. He concludes that it probably is "constitutional but illegal" but sees it as a close question.

I disagree with him, except I also see it as a close question. My disagreement is largely because I see communications intelligence as a more integral part of war than does he.

Hiram Hover - 12/21/2005

Another similarity has to do not just with questions of infringing civil liberties, but of executive vs. Congressional powers. The Bush administration has, in the past few days, claimed numerous statutory and constitutional bases for this domestic spying, but all involve an assertion and expansion of the executive branch’s authority vis a vis the powers of Congress. Likewise, Lincoln claimed the authority as president to suspend the writ, even tho Taney’s decision in Merryman held that only Congress had the power to do so, as suspension is provided for in Article I of the Constitution.

One difference is that Congress finally did, in March 1863, pass the Habeas Corpus Act and provide Lincoln a statutory basis; I doubt Bush is likely to get such a Congressional endorsement of his domestic spying program.

Greg James Robinson - 12/21/2005

The analogy between Bush and Lincoln (or even Franklin Roosevelt) pales in light of hte fact that Budh acted illegally and without consent of Congress. Lincoln suspended Habeas Corpus at a time when Congress was not in session. FDR got appproval from Congress for Executive order 9066 in the form of a law putting teeth (i.e. legal force) into the Army's evacuation orders. Bush did not simply act in the absence of Congress, but behind the back of Congressional authority--which, as George Will point out, he could have surely had for the asking.

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