Balkinization: Habeas Corpus in Wartime

Comments:

Halliday's book on Habeas Corpus is similarly enlightening.

# posted by

Gerard: Her definitive history establishes that the notion that American citizens can be detained for a lengthy period without a criminal charge or a suspension of the writ was invented in the 20th century and is totally at odds with the Framers' view...Applying the original meaning of the Suspension Clause would mean that the unidentified man currently being held as an ISIS suspect must be charged with a crime...

How do you and Tyler figure?

The writ of habeas corpus is simply an order by a court for the executive to demonstrate the legal and jurisdictional basis for holding a prisoner.

The Suspension Clause sets out the conditions under which Congress may suspend the writ. It does not address the proper legal and jurisdictional bases for holding a prisoner.

The military can legally detain a wartime enemy - regardless of the enemy's nationality - for the duration of the war. During the Revolution, the Continental Army and the various patriot militias detained captured Tory militiamen who were citizens of the new United States. During the Civil War, the Union Army detained captured Confederate soldiers who were still citizens under the Constitution. The Suspension Clause nowhere states otherwise.

# posted by

Bart DePalma : 11:05 PM

"Where the Government accuses a citizen of waging war
against it, our constitutional tradition has been to prosecute
him in federal court for treason or some other crime.
Where the exigencies of war prevent that, the Constitution's
Suspension Clause, Art. I, ß9, cl. 2, allows Congress
to relax the usual protections temporarily. Absent suspension,
however, the Executiveís assertion of military
exigency has not been thought sufficient to permit detention
without charge. No one contends that the congressional Authorization for Use of Military Force, on which
the Government relies to justify its actions here, is an
implementation of the Suspension Clause." Scalia, Hamdi

# posted by

Mista Whiskas : 10:05 AM

Mr. W:

Not even the late, great Nino Scalia is correct in every case.

Temporary wartime detention and criminal prosecution are two fundamentally different processes employed for different reasons.

Wartime detention of the enemy is a prophylactic security measure. Treason prosecution is meant to punish individual wrongdoing.

Going back to the Revolution and the Civil War, the United States generally declined to criminally prosecute the citizens it detained as prisoners of war in order to encourage post war reconciliation.

# posted by

Bart DePalma : 10:15 AM

The Revolution is neither here nor there as there were no federal courts available.

As to the Civil War, SCOTUS actually held as Scalia points-see Merryman (and Lincoln, responding to the decision frankly admitted the law of habeas had been violated, his defense was "Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?"). Later during the War Congress invoked suspension.

"Temporary wartime detention and criminal prosecution are two fundamentally different processes employed for different reasons."

Who cares? I mean, who cares that values the liberty of a citizen? The citizen who is being held by his government, no larger usurpation of his liberty could exist, without any cause given is what is conveniently forgot by our resident 'libertarian.' Let's give Bart a more apt label, Executive Absolutarian or Militarian.

# posted by

Mista Whiskas : 10:29 AM

Mr. W:

In Ex Parte Merryman, the Court held that POTUS cannot suspend habeas corpus or grant that authority to the military and the military could not arrest and try the civilian Merryman for treason. This case does not apply to temporarily detaining US citizens as enemy prisoners of war.

The citizen who is being held by his government, no larger usurpation of his liberty could exist, without any cause given is what is conveniently forgot by our resident 'libertarian.'

Once again, a writ of habeas corpus is a judicial review of the legality of executive detention of a person. No one is arguing that the writ does not apply to American members of ISIS or the AUMF authorizing war has suspended the writ.

The question is whether the military has the power to temporarily detain American members of ISIS as prisoners of war for the duration of the war without criminally prosecuting them in a civilian court.

The answer is pretty clearly yes. We have been doing so since the creation of the Republic.

Even libertarians recognize that a citizen can waive his right to liberty by going to war or committing crimes against the people of the United States.

# posted by

Bart DePalma : 10:53 AM

Bart,

So Scalia was wrong in Hamdi?

# posted by

Gerard N. Magliocca : 11:19 AM

Gerard N. Magliocca said... Bart, So Scalia was wrong in Hamdi?

The following Scalia historical observation is demonstrably wrong for the reasons I noted above:

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.

Criminal prosecution for treason or some other crime is actually the rare exception rather than the rule.

# posted by

Bart DePalma : 11:29 AM

Especially treason. I believe the modern trend is to interpret the act in question as a voluntary renunciation of citizenship, rather than to prosecute for treason. Though efforts to formalize this have failed.

Merryman was being tried for exercising his 1st amendment rights by printing opinions Lincoln didn't like. Quite a bit different from engaging in actual warfare against the US.

# posted by

Brett : 11:56 AM

Brett, as is often the case, you're mixed up:

Following the Maryland legislature's April 29 directive that Maryland not be used as a passage for troops attacking the South, Governor Hicks allegedly ordered the state militia to demolish several state railroad bridges (at Bush River and Gunpowder River). Militia Lieutenant John Merryman was arrested on May 25 by order of Brigadier General William High Keim of the United States Volunteers, for his role in destroying the bridges. Merryman was charged with treason and being a commissioned lieutenant in an organization intending armed hostility toward the government.

https://en.wikipedia.org/wiki/Ex_parte_Merryman

# posted by

Mista Whiskas : 12:11 PM

"In Ex Parte Merryman, the Court held that POTUS cannot suspend habeas corpus or grant that authority to the military and the military could not arrest and try the civilian Merryman for treason. This case does not apply to temporarily detaining US citizens as enemy prisoners of war."

Merryman was taken into custody by the military and held in a military fort because, during a time of war, they found him to be involved "armed hostility against the Government; with being in communication with the rebels, and with various acts of treason." This is the same situation this alleged ISIS fellow finds himself; labeling one a case about arresting and trying (the whole point of Merryman is that they wouldn't try him, they were just holding him) for treason and one a case of enemies of war is jiggery pokery.

Scalia covers the constitutional tradition extensively in Section II of his opinion, I'll leave it to those who wish to compare his evidence to Bart's conclusory statements.

More importantly for the textualists here, in section III of the opinion Scalia covers how the text and public understanding of the Great Writ at the Founding shows Bart's view is wrong.

"Even libertarians recognize that a citizen can waive his right to liberty by going to war or committing crimes against the people of the United States."

Irrelevant. The issue is, can the Executive, unchecked, alone determine that someone falls into that class and thus detain them forever (as long as hostilities can be said to be continuing, which in a War on Terror will be forever)? Bart, the Executive Absolutarian, says yes. I think these Scalia quotes addresse what our Founders would think of that: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." and "The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal."

# posted by

Mista Whiskas : 12:22 PM

Yeah, looks like I had him mixed up with other people Lincoln violated the constitutional rights of.

At my advancing age I should probably start checking this stuff before hitting "publish".

# posted by

Brett : 12:57 PM

Mr. W:

1) In his prayer for a writ, Merryman was challenging his martial law arrest and trial for treason. This criminal prosecution was the situation under which the Court considered the prayer and the Court did not examine the authority of the military to detain prisoners of war.

2) The Scalia dissent cites a handful of examples where the executive in the UK or US decided to criminally prosecute a citizen for treason for warring against his country. What Scalia leaves out are the tens of thousands of citizens detained by the militaries of both nations as POWs and never criminally prosecuted as traitors. Once again, for political and practical reasons, criminal prosecution of enemy citizens detained at prisoners of war for treason during a revolution or civil war is rare.

# posted by

Bart DePalma : 1:10 PM

What's rare is SPAM being correct on history (and just about everything else). [Note: I used "correct" instead of "right" because SPAM's every position is to the "right," which as the late George Carlin has pointed out is generally wrong.]

# posted by

Shag from Brookline : 1:54 PM

I would read the book though it's pretty pricey & it's not available in my local free libraries. Maybe, the blog should offer a contest and give out a free book of some sort.

Anyway, I thought the idea regarding the common law is that it offers some flexibility, so habeas can factor in modern developments in that respect to some degree. Of course, we are left with the basic rule and importance of liberty, so holding the executive to its proof here generally very well might be reasonable.

As to Hamdi, I found Souter's concurrence the best opinion all things considered. Scalia finding a way to keep Padilla in prison when his vote mattered more made me somewhat less impressed with his opinion though it was appreciated. As to results, "originalist" has a range of possible results and some very well will be "liberal" in nature.

# posted by

Joe : 2:57 PM

To follow up on Joe's comment on common law, that's "judge made law," and had changed over time. Here's a link:

https://www.lawteacher.net/free-law-essays/common-law/common-law-is-case-law-made-by-judges-law-essays.php

"Common law is case law made by judges"

Also, here's a fairly recent student Note at:

https://www.ukessays.com/essays/law/common-laws-as-judge-made-law-law-essay.php

"Common Laws As Judge Made Law Law"

And common law development was not limited to appellate courts, frequently being made by a single justice/judge. Common law evolved.

Recall what Justice Holmes said about the basis of common law.

# posted by

Shag from Brookline : 5:23 PM

"In his prayer for a writ, Merryman was challenging his martial law arrest and trial for treason. This criminal prosecution was the situation under which the Court considered the prayer"

Where do you get this idea?

"Habeas corpus. On the 26th May 1861, the following sworn petition was presented to the chief justice of the United States, on behalf of John Merryman, then in confinement in Fort McHenry:
'To the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States: The petition of John Merryman, of Baltimore county and state of Maryland, respectfully shows, that being at home, in his own domicile, he was, about the hour of two o'clock a.m., on the 25th day of May, A.D. 1861, aroused from his bed by an armed force pretending to act under military orders from some person to your petitioner unknown. That he was by said armed force, deprived of his liberty, by being taken into custody, and removed from his said home to Fort McHenry, near to the city of Baltimore, and in the district aforesaid, and where your petitioner now is in close custody. That he has been so imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law and in violation of the constitution and laws of the United States, of which, he is a citizen. That since his arrest, he has been informed, that some order, purporting to come from one General Keim, of Pennsylvania, to this petitioner unknown, directing the arrest of the captain of some company in Baltimore county, of which company the petitioner never was and is not captain, was the pretended ground of his arrest, and is the sole ground, as he believes, on which he is now detained. That the person now so detaining him at said fort is Brigadier-General George Cadwalader, the military commander of said post, professing to act in the premises under or by color of the authority of the United States. Your petitioner, therefore, prays that the writ of habeas corpus may issue, to be directed to the said George Cadwalader, commanding him to produce your petitioner before you, judge as aforesaid, with the cause, if any, for his arrest and detention, to the end that your petitioner be discharged and restored to liberty, and as in duty, &c. John Merryman. Fort McHenry, 25th May 1861.'"

Or, as described by Taney in his decision: "The case, then, is simply this: A military officer residing in Pennsylvania issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears. Under this order his house is entered in the night; he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement."

There is nothing in there about a 'trial' or 'prosecution.' As one would expect in a habeas case it's about his being *held*, in the words above "imprisoned without any process or color of law whatsoever and that none such is pretended by those who are thus detaining him."

# posted by

Mista Whiskas : 6:31 PM

BD: "In his prayer for a writ, Merryman was challenging his martial law arrest and trial for treason. This criminal prosecution was the situation under which the Court considered the prayer"

Mr. W: Where do you get this idea?

Court opinion:

1861, May 25 — John Merryman, of Baltimore county, Md., was arrested, charged with holding a commission–as lieutenant in a company avowing its purpose of armed hostility against the Government; with being in communication with the rebels, and with various acts of treason...

[H]e appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts, which, in the judgment of the military officer, constituted these crimes...

The case, then, is simply this: A military officer residing in Pennsylvania issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears. Under this order his house is entered in the night; he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement. And when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a Justice of the Supreme Court, in order that he may examine into the legality of the imprisonment, the answer of the officer is that he is authorized by the President to suspend the writ of habeas corpus at his discretion, and, in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.

The military does not criminally charge the enemy in order to detain him as a POW, even if the charges are vague and indefinite.

# posted by

Bart DePalma : 6:49 PM

"The military does not criminally charge the enemy in order to detain him as a POW, even if the charges are vague and indefinite."

So as I thought, you made it up. There was no 'prosecution' or 'trial' in the facts of this case. The facts are as recited: during war the military determined Merryman was involved in "armed hostility against the Government; with being in communication with the rebels, and with various acts of treason" and then captured and detained him "without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him." The court then went on to rule that this the military could not do to a citizen.

To quote Taney's decision: "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."

# posted by

Mista Whiskas : 7:20 PM

Mr. W:

A criminal prosecution begins when law enforcement and/or the prosecutor brings charges. Under martial law, as in this case, the prosecution began when the commanding general ordered the arrest of Merryman for treason.

I should not have posted prosecution and trial. Merryman filed his prayer for a writ before any trial. After the Court told Lincoln and the military they could not legally try Merryman, a federal prosecutor took over the case and indicted Merryman for treason. The judges who could hear a treason case, which interestingly included Taney, refused to take it to trial in wartime Maryland.

This was a criminal prosecution from beginning to end. Merryman was not detained as a POW.

# posted by

Bart DePalma : 8:58 PM

This comment has been removed by the author.

# posted by

Mista Whiskas : 9:12 PM

You're getting hung up on the word 'arrest' used in the opinions, which is clearly not technically so.

This was no criminal arrest or prosecution, only a militarily induced detainment. This was during war time, a military officer just determined that Merryman was involved in "armed hostility against the Government" and went and detained him at a military base. There was no 'prosecution' or 'trial,' just detainment upon the determination, solely by a military commander, that Merryman was enemy. It's exactly what is described in the current case at issue. And the Court, no Progressives, said, of such a fact pattern, ""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."

# posted by

Mista Whiskas : 9:14 PM

Let's further examine what you're talking about.

We are at war with X. The military determines that citizen Brett B. is involved in hostility against the government in communication with X. They capture and detain Brett B and hold him indefinitely. He petitions for a writ of habeas corpus to challenge the grounds of his detention.

Are you really arguing that if the military calls his capture and detainment an 'arrest' then Merryman is triggered and they must obey the Great Writ, but if they call it a capture of a 'prisoner of war' they can hold him indefinitely and the Great Writ should be denied? This is absurd.

# posted by

Mista Whiskas : 9:23 PM

Mr. W:

Where is this coming from?

Americans have a constitutional right to judicial habeas corpus review of their government detention, unless Congress properly suspends the writ pursuant to the Constitution’s Suspension Clause. No one is arguing otherwise.

The issue concerning the alleged American ISIS member is whether the military if legally holding him as a prisoner of war. In the habeas review, the military must show we are at war with ISIS and the American is part of ISIS. It sounds like the military is still making the latter determination.

The Merryman opinion does not apply to the ISIS case. Neither POTUS or the military is attempting to suspend the writ, nor is the military engaging in an illegal criminal prosecution of the alleged American ISIS for treason, and the Merryman Court was reviewing an illegal military prosecution for the crime of treason:

And yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the District Attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the District of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if, indeed, he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without having a hearing even before himself, to close custody in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.

# posted by

Bart DePalma : 11:17 PM

SPAM continues to attempt to backfill his errors after being exposed by Mr. W over and over again but to no avail. SPAM's "Yada, Yada, Yada" reflects his lack of legal skills. SPAM might get away with this in the rural CO police courts in which he practices - presumably part-time based upon his extensive "Yada, Yada, Yada" comments at this Blog - but based upon past threads where SPAM has been handed his own derriere over and over again, SPAM persists with irrelevant "Yada, Yada, Yada." What a maroon.

# posted by

Shag from Brookline : 6:28 AM

"the Merryman Court was reviewing an illegal military prosecution for the crime of treason"

No. Once again, there was no prosecution. There wasn't even an 'arrest' ("he has been so imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law"). This was a case of military detainment of a citizen during wartime, it's directly on point with the case we're discussing.

# posted by

Mista Whiskas : 8:54 AM

Mr. W:

Criminal proecutions do not require due process to be criminal prosecutions. Governments accusing people of crimes and then imprisoning them or worse without any farethewell was SOP for most of human history. Due process is what our Constitution requires to make criminal prosecutions fair.

Merryman is indeed a case of the military detaining an American citizen during wartime. However, the basis for that detention makes all the legal difference in a habeas corpus review. The military appears to have had evidence Merryman had participated in an attack against the USA on behalf of the CSA, enough for a federal prosecutor to later obtain a criminal indictment. For the reasons noted in the Court opinion, the military had no authority to conduct a criminal prosecution of Merryman for treason. However, they likely had enough evidence to detain Merryman as a POW for the duration of the Civil War.

# posted by

Bart DePalma : 9:30 AM

SPAM continues his "Yada, Yada, Yada":

"The military appears to have had evidence .... However, they likely had enough evidence ...."

Sheer conjecture. That corner SPAM has backed himself into is getting tighter and tighter. SPAM has once again been CHECKMATED.

# posted by

Shag from Brookline : 10:02 AM

Shag:

Grow up and look up the post opinion history of the case. Google is your friend.

# posted by

Bart DePalma : 10:31 AM

You're confusing several things. It's not that the military engaged in a prosecution of Merryman without 'due process,' it's that it engaged in no prosecution at all, or as the court says plainly he was detained "without any process...whatsoever."

The military, during wartime, determined Merryman was engaged in hostility against it and detained him. They made no prosecution, charge, warrant at all ('without any process...whatsoever').

Taney uses the words 'arrest' and such as a metaphor in his *condemnation* of what the military did here, as most who find fault with indefinite detainment by the military sans a check by the judiciary (which is exactly what habeas corpus is about) do: if we allow the military to just detain a citizen without any judicial check we essentially have given them the power to act as prosecutor, judge, jury and executioner, so to speak. But aside from metaphor, as a matter of fact, there *was no prosecution, no charge here.* The court is clear about that over and over, there is only detainment with no judicial check on the reason, and that's exactly what habeas is for, both in this case and the directly analogous case GM is talking about.

# posted by

Mista Whiskas : 10:42 AM

Mr. W:

Of what do you think a criminal prosecution consists?

If the Army charged you with treason, arrested you and tossed you in the brig of a local fort, what do you think they are doing other than prosecuting you for treason?

As quoted from the opinion, the Supreme Court correctly understood these facts to mean the Army commander "assumes to himself the judicial power in the District of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if, indeed, he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without having a hearing even before himself, to close custody in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him."

Are you seriously arguing that these facts were evidence the Army was holding Merryman as a prisoner of war for the duration of the Civil War?

If you do not believe that the Army was holding Merryman as a POW and was not criminally prosecuting him, what pray tell were they doing?

# posted by

Bart DePalma : 11:00 AM

It's quite clear that Google is not SPAM's friend as he blathers defensively to get out of that corner SPAM's trapped in.

# posted by

Shag from Brookline : 11:04 AM

Not that SPAM in his 11:00 AM comment twice references "these facts" but fails to state where "these facts" come from. From Merryman?

# posted by

Shag from Brookline : 11:35 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 1:17 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 1:41 PM

Shag:

Here is what five minutes of Google search provides.

We know the allegations of the post-habeas Merryman indictment:

The indictment alleged that in cooperation with 500 armed men Merryman had "most wickedly, maliciously, and traitorously" waged war on the United States. He was charged with destroying six railroad bridges and the telegraph lines along the tracks, all with the intent to impede the passage of troops and obstruct vital military communications. Thirteen witness to the actions were listed. Seven other men were indicted along with Merryman.

However, beyond the number of witnesses, there is no discussion of the evidence supporting the indictment.

Wikipedia citing Brian McGinty, The Body of John Merryman, pp. 154-55 (Harvard University Press 2011).

The evidence which convinced a grand jury to indict Merryman for treason should be sufficient to allow the military to justify holding Merryman as a POW at a habeas corpus hearing.

# posted by

Bart DePalma : 1:44 PM

Bart has backed himself into a corner made of a metaphor. When Taney says the military officer that ordered Merryman taken and detained "assumes to himself the judicial power" that is in the part of the decision where he's explaining why he's ruling against that officer, he's invoking the oft used-and very astute- argument that when a military officer detains a citizen without any judicial check then they are acting as judge, jury, etc., and that that is now allowed in our Constitutional system. He's not saying the officer set up a little courtroom, amassed and introduced evidence, performed an adjudication, or any such process, we know he's not because in the part of the decision where he discusses the facts of the case he mentions, and you cannot point to, any process at all other than the mere fact of detainment under military orders. Indeed, *that's the problem,* and it's the problem in any such habeas case. When the military decides to snatch up some citizen and detain him and refuse that the judiciary review that detainment the military has become the judge, jury and punisher of the citizenry and that cannot be allowed.

"The evidence which convinced a grand jury to indict Merryman for treason should be sufficient to allow the military to justify holding Merryman as a POW at a habeas corpus hearing."

Bart, do you not get that what Merryman was about was that the military was *refusing* habeas review? They were holding Merryman without any charge or process of any court, Merryman himself invoked the writ in order to have the judiciary review his detainment, the military was resisting that review. That's also what the case GM is talking about is about.

# posted by

Mista Whiskas : 2:50 PM

The later events are just irrelevant to the issue. The military captured and detained Merryman, and that was it, there was no charge he could contest, he was just being detained on the order of the military. He sued that the military have to submit to a court to defend that detainment. The court, in answer, said the military could not just hold him absent charges. The fact that after the military lost it *then* followed the correct process is neither here nor there, in their earlier detainment of a citizen without review they were found by the court to be in the wrong. Likewise the courts should so find in the case GM is talking about where the facts are analogous.

# posted by

Mista Whiskas : 2:54 PM

To review, Taney in his decision didn't say to the military 'you're in the wrong because you did a prosecution and adjudication on your own of this guy for treason and only the courts can do that.' He didn't say that because he clearly and repeatedly sets out that no process whatsoever was carried out at all re Merryman's capture and detainment. What he said was that when or if the military captures a citizen and then detains them, bringing no charge and allowing no judicial review of the detainment, then the military is essentially acting as the judge and jury and punisher of a citizen and that our Constitution and laws will and can not allow. Otherwise we bless Bart's religion of Executive Absolutarian, and that kind of tyranny is exactly what the Great Writ and our Constitution set out to disallow.

# posted by

Mista Whiskas : 2:58 PM

At 10:31 AM, SPAM responds to me:

"Grow up and look up the post opinion history of the case. Google is your friend.."

What is the impact, relevancy of "post opinion history" of Merryman on the decision in that case?

In SPAM's 11:00 AM response to Mr. W, SPAM states:

"If the Army charged you with treason, arrested you and tossed you in the brig of a local fort, what do you think they are doing other than prosecuting you for treason?"

In that same comment SPAM later (twice) refers to "these facts" which in context posits facts applying to Mr. W.

SPAM in his 1:44 PM response to me sets forth his Google search, presumably revealing the "post opinion history" of Merryman. Again, how does this impact, how is this relevant to the Merryman case? Was this "post opinion history" before the Court? {Rhetorical question!] To know what Heller (5-4, 2008) really, really means, do we resort to "post opinion history"? [Again, rhetorical question.] Did the Court revise Merryman as a result of the "post opinion history"? [This may also be a rhetorical question.[

# posted by

Shag from Brookline : 3:23 PM

Mr. W:

For one final time...

1) The writ of habeas corpus is simply a judicial review of the legality of a government detention of a person. The authority for detention during a war is set out by the law of war and Congressional statute.

2) NO ONE is arguing that the military can suspend habeas corpus.

3) NO ONE is arguing the military can criminally prosecute American citizens for treason.

4) NO ONE is arguing the military criminal prosecution of Merryman for treason included due process.

You have gone down a rabbit hole seeking to score some sort of semantic win. Whatever. You win whatever irrelevant point you are attempting to score.

I am making two points:

1) Pursuant to the law of war, an American citizens who join a wartime enemy may be lawfully detained by the military as a POW for the duration of the war without being charged with a criminal offense. Scalia was wrong in Hamdi.

2) Ex parte Merryman is not applicable to such a case because that Court did not rule on whether the military could detain Merryman as a POW without criminally prosecuting him for treason. The military in that case sought to do just the opposite.

Am I making myself clear?

# posted by

Bart DePalma : 4:42 PM

Regarding Merryman, my concern is not the power of the judge to hold an executive official to proof on the authority to hold "the body" here. Habeas has a broad scope there and is not limited to arrests. For instance, holding people in an asylum. The authority here was used to protect blacks held as slaves on home soil.

My concern is the alleged unconstitutional usage of suspension by Lincoln. The clause specifically cites the situation at hand. Then, it is a matter of if the legislature had to suspend. But, they were out of session and the limits of the time made it impractical to say only Congress could do it. Thus, Lincoln did various things including blockading shipping before Congress came back in the summer.

This is less an issue today. The placement of the clause in Art. 1 doesn't do it for me. There are a few prohibitions there in Art. 1, sec. 9 that has application to the President too. My understanding also is there might be a technical problem with the ruling too but I put that aside.

# posted by

Joe : 6:18 PM

Reference was made earlier regarding First Amendment violations.

There were very well excesses there but the state of the law then was narrower as to protected materials, especially in wartime. A range of things now covered nation-wide, including sexual related material, was not then.

# posted by

Joe : 6:23 PM

Scalia was wrong in Heller (5-4, 2008).

SPAM's response to Mr. W:

"You have gone down a rabbit hole seeking to score some sort of semantic win. Whatever. You win whatever irrelevant point you are attempting to score."

is SPAM's attempt at a weaselly concession to once again having Mr. W serve SPAM his own derriere. Bon appetit.

Should we divert the discussion to whether Congress declared war with respect to the case Gerard discusses in the opening paragraph of his post?

# posted by

Shag from Brookline : 7:47 PM