The On Going War: Battle Between Security & Civil Liberities
By Braxton Evans
History has a way of repeating itself, is a well known phrase that applies to many areas and aspects of the American experience as a whole and individually. This phrase is especially true in the area of our continuing political and legal debate in regards to the limits of Presidential power during armed conflicts involving American troops here at home and abroad. Presidents, Lincoln, FDR, Truman and Bush to name a few, have sometimes found that in that in the prosecution of a war, or an armed conflict it is vital to suspend, or restrict certain civil liberties and to bypass certain process in order to achieve success in the war effort. Presidents are authorized to exercise certain “War powers”, by Art. II, sec. 2 of the Constitution, but the debate over how for these powers extend and whether or not Presidents’ executive orders have exerted extra-Constitutional power are live controversies. This conflict over what authority the President has to curtail certain, rights and civil liberties during times of armed conflict, in the use of his war powers have been raging since the end of the Civil war.
The Supreme Court case of Ex Parte Milligan, 71 U.S. 2 (1866) was the first major challenge of a President’s use of war powers. The case which, was resolved after the Civil war had ended, involved a citizen of Indiana, Milligan, who was detained by the Union forces on suspicion that he was aiding the Confederacy. Milligan’s habeas corpus rights were revoked and he was tried and convicted by a military commission instead of a civilian court. The Constitution states in Art. I, sec. 9, cl. 2, “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.” Although, the court held that President Lincoln’s suspension of the writ was valid because he acted with congressional approval, the court invalidated the order that American citizens, detained in America, could be tried by military commission. The check came long after the Civil war had ceased and it is believed and at the point of the decision that Mr. Milligan had already been executed by the Union army. Still, the decision established the willingness of the judiciary to act to curtail, what they considered extra Constitutional use of the President’s War powers.
The next significant would not occur until 80 years later, under FDR’s administration. Ex Parte Quirin, 317 U.S. 1, (1942), this time however, the court upheld the President’s use of war powers, to try and convict German spies, during WWII, by a military commission. The decision again came after the government had already executed the spies, and appears to limit habeas corpus and rights to American courts to American citizens. The court continued to defer to the President’s desire to try “enemy aliens” in military courts without the privilege of habeas corpus in Johnson v. Eisnentrager, 339 U.s. 763 (1950). President Truman however was rebuffed two years later by the court, when he attempted to seize the American steel industry in order to stop a worker strike that he feared would hurt the Korean war effort abroad in Youngstown Sheet Co. v. Sawyer, 343 U.S. 579 (1952). The court held that when President Truman acted without the support of congress on the auspices of his war powers to seize the steel companies that he over stepped his powers and infringed on congress’s Constitutional authority. In this case Justice Jackson wrote his well cited concurrence of the triparite levels of authority that a President may act in accordance with his war powers. These two cases in the 50s have been the dominant president in which cases have been argued and decided by the Rehquist and Roberts courts.
The majorities with which these cases were decided contrast heavily within recent cases in which the court seems split in the favor of a contrasted holding to Eisentrager. Rasul v. Bush, 542 U.S. 466 (2004), Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Boumediene v. Bush, 553 U.S. _ (2008) are all recent cases in which the Supreme court is narrowly deciding to return habeas corpus rights to Guantanamo Bay detainees in a seeming backlash to Eisentragger. Those decisions however appear to be unstable as relates to the future of whether or not the President will have lattitude to decide how to deal with enemy combatants detained at Guantanamo.
