a citizen’s journal by Thomas Nephew

Lincoln v. Bush

Posted by Thomas Nephew on April 3rd, 2006

A couple of months ago, Jim Henley took note of a conservative commentator using Lincoln’s Civil War actions as cover for Bush’s warrantless surveillance. Andrew McCarthy:

[Eavesdropping] was critical in the Civil War, when, by definition, it was done domestically — and without the slightest suggestion that federal courts should be involved.

In his post, Henley counted such arguments among the costs of Lincoln’s Civil War record — and suggested that those costs were another part of the cost of slavery itself, the “woe due to those by whom the offense came”:

Lincoln really did engage in high-handed, constitutionally dubious acts and got away with them. And because he got away with them, excuse-makers for Executive Branch martinets have used the “Lincoln did it!” defense ever since.Lincoln’s domestic security actions during the Civil War represent a cost we continue to pay, today. For that reason there will be critics of government power who judge him harshly, and with reason.

Image hosting by PhotobucketHow do Lincoln’s actions and justifications for those actions compare to Bush’s?

McCarthy notwithstanding, the question of domestic technical eavesdropping was probably not much of an issue at the time simply because the Fourth Amendment (against unreasonable search or seizure) was considered to be only applicable to physical searches until well in to the 20th century.

Moreover, even had there been 19th century versions of FISA and Katz v. United States — two of the main legal pillars protecting domestic electronic communications today — “domestic” would not have been quite the right word for telegraph communications between Richmond and its generals. Had the Fourth Amendment immediately protected telegraph communications, communications within the Confederacy would have probably (and I would say rightly) considered “enemy” rather than “citizen” communications, judging by the 1863 Supreme Court Prize Cases rulings. If Lincoln could blockade the ports and seize the ships of enemies in the face of obvious war (and prior to the declaration of war), it’s hard to see why he could not wiretap their telegraph lines as well.

Lincoln was chiefly criticized for canceling habeas corpus — the right to dispute one’s arrest before a judge. Lincoln initially ordered the suspension in connection with protecting railway access to Washington, D.C., but subsequently allowed and encouraged the same suspensions to speed the arrest of draft resistors and anti-draft agitators.

In a famous June 1863 letter to “Erastus Corning and Others,” Lincoln addressed his critics on the occasion of the controversial and questionable arrest of Congressman Vallandigham, a Democrat vehemently opposed to further prosecution of the war. The letter is best known for the memorable question, “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?” But there were more than folksy soundbites in what was a deeply considered, prepared communication to the nation.

Lincoln’s principal goal was neither to justify nor disavow the Vallandigham arrest in particular, but to assert that the Constitution’s own formal guarantee of habeas corpus — embedded in Article I, Section 9 — permits a president to broadly suspend that writ in cases of rebellion or invasion:

I concede that the class of arrests complained of, can be constitutional only when, in cases of Rebellion or Invasion, the public Safety may require them; and I insist that in such cases, they are constitutional wherever the public safety does require them—as well in places to which they may prevent the rebellion extending as in those where it may be already prevailing—as well where they may restrain mischievous interference with the raising and supplying of armies, to suppress the rebellion, as where the rebellion may actually be—as well where they may restrain the enticing men out of the army, as where they would prevent mutiny in the army—equally constitutional at all places where they will conduce to the public Safety, as against the dangers of Rebellion or Invasion.

The letter was more than just a prompt, effective public defense of Lincoln’s wartime administration. In further sad contrast to our current president’s pronouncements, it did quite as much to limit a future president’s powers as it did to assert them:

If I be wrong on this question of constitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them—in other words, that the constitution is not in it’s application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one. (emphases added)

As Benjamin Kleinerman points out in his excellent essay “Lincoln’s Example: Executive Power and the Survival of Constitutionalism,”

Lincoln did more than merely take those actions necessary for the preservation of the Constitution; he also publicly announced his reasons behind the constitutionally questionable actions he took. … Lincoln attempted to avert the danger, suggested by the medicine metaphor, that the public will become ’addicts’ of executive power, by trying to teach the public that his questionable actions were acceptable only within the limits imposed by the Constitution’s preservation.

Beyond arguing his case publicly, Lincoln saw to it that his argument — all of it — became well known. In Team of Rivals, Doris Kearns Goodwin writes: “Lincoln took every step to ensure that his words would shape public opinion. Printed in a great variety of formats, the letter eventually reached an astonishing 10 million people in their homes and workplaces, on isolated farms and in the cities.”

Although Lincoln also took early and strictly speaking unauthorized military action after the fall of Fort Sumter, he promptly submitted all actions “pushing the Constitutional envelope,” so to speak (independently calling up militia and expanding the military, transferring funds, imposing a blockade) to Congressional approval, indeed, within the 90 days prescribed by a War Powers Act more than one hundred years later. As Daniel Farber comments in his book Lincoln’s Constitution:

Thus, even under a highly Congress-centered view of the war power, Lincoln acted appropriately. Indeed, given current laments about the ineffectiveness of the War Powers Resolution, it is somewhat ironic that Lincoln’s record of “compliance” with the resolution is better than that of the modern presidents at whom it was aimed.*

Summing up, Lincoln conducted his tests of emergency presidential powers publicly, acknowledged criticism of his actions publicly, rebutted those criticisms publicly, sought widespread knowledge and acceptance of his analysis rather than hiding it behind a cloak of secrecy, and submitted his actions to congressional approval as soon as possible.

Crucially, Lincoln also acknowledged distinct and very narrow limits on why a president could take such constitutional initiatives: if the survival of the Constitution itself demanded it. And despite the life and death struggle of “government of the people, by the people, for the people,” Lincoln made sure the people knew it.

Image hosting by PhotobucketBy contrast, the first thing to notice about Bush’s approach to governance is that it’s difficult, if not impossible, to find any limits whatsoever that he and his advisors acknowledge for his presidency. Perhaps the best known evidence is in the infamous August 1, 2002 Department of Justice Bybee memo discussing the administration’s legal stance on interrogation and torture:

In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President’s ultimate authority in these cases.Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President. … Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

(emphases added)

This is but one outgrowth of a wider “unitary executive” theory that was already being implemented by the Bush administration well before the 9/11 attacks — a trend most apparent in its growing use and abuse of “signing statements,” in which the president outlines reservations about a law he is signing into effect, and may in effect signal he will not enforce it or always abide by it.** Among the better known signing statements are those signaling less than full, unqualified support for enforcing the McCain anti-torture amendment or certain provisions of the Patriot Act.

In his 2005 article Rethinking Presidential Power — The Unitary Executive and the George W. Bush Presidency, Christopher Kelley describes one case showing just how pernicious the practice is. A law introduced by Senator Patrick Leahy and passed by Congress required the Bush administration to report “any instance in which the executive branch either refused to enforce a law or defend a statute it deemed unconstitutional” – e.g., signing statements. But even in Bush’s signing statement for this legislation, he stated:

The executive branch shall construe section 530D of title 28, and related provisions in section 202 of the Act, in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.(link added)

Further, the Bush administration routinely relies on secrecy to hide even more constitutionally problematic actions (e.g., rendition, warrantless surveillance, torture) from view. While that’s understandable in a way, given the revolting nature of many of those secrets, the point here is that it is also a conscious decision not to engage in constitutional rule, but in unilateral rule. “Secrecy in the Bush Administration,” a minority staff report for the House Committee on Government Reform, has found that

…the average number of original decisions to classify information increased 50% over the average for the previous five years. [...]

In over 100 instances in which Rep. Waxman attempted to conduct oversight on important issues, the Bush Administration ignored requests for information, refused to provide information, or provided incomplete and inadequate responses. In addition, where the Administration provided responses, whether complete or incomplete, they were usually substantially delayed, commonly missing the deadlines for responding by several months or more. [...]

Through legislative changes, implementing regulations, and administrative practices, the Administration has undermined the laws that make the federal government more transparent to its citizens, including the Freedom of Information Act, the Presidential Records Act, and the Federal Advisory Committee Act. At the same time, the Administration has expanded the reach of the laws authorizing the Administration to classify documents and to act without public or congressional oversight. Individually, some of the changes implemented by the Bush Administration may have limited impact. Taken together, however, the Administration’s actions represent an unparalleled assault on the principle of open and accountable government.

To forestall one argument, many of these tactics were in full swing well before 9/11, most notoriously in the case of Cheney’s 2001 Energy Task Force, where the struggle to obtain information about who participated in this task force and what was said was stonewalled at every turn — and was eventually ended by a complacent, compliant Supreme Court. Of course, many post-9/11 secrets were also kept mainly to avoid political embarrassment; for example, the Bush administration worked long and hard to keep the Presidential Daily Brief warning of Al Qaeda attacks in America out of the hands of the 9/11 Commission.

Finally, and perhaps most damaging to any comparison with Lincoln’s constitutionalism, Bush not only engages in untrammeled extraconstitutional actions, and not only often keeps those actions secret, but actively lies…

Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution. — 4/20/2004

and lies…

First of all, any action that takes place by law enforcement requires a court order. In other words, the government can’t move on wiretaps or roving wiretaps without getting a court order. — 7/14/2004

and lies…

Law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone, a federal judge’s permission to track his calls, or a federal judge’s permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S. — 6/9/2005

…about what he’s doing.*** Far from “acting in good faith,” as Senator Arlen Specter has claimed, this president has actively misled Americans expecting that he will “preserve, protect and defend the Constitution of the United States” — to quote from the oaths of office he swore in 2001 and 2005.

Mentioning these lies are not some afterthought to Senator Russ Feingold’s S.398 censure resolution — they are crucial, damning, and irrefutable charges against this president. Constitutional faith has been broken between a president and the people of the United States, whether enough of them see it that way or not.

Having defended Lincoln’s grounds for his actions during the War of the Rebellion, it’s important to concede that military arrests were overused and abused during his presidency. But it’s far less important to defend all of Lincoln’s and his generals’ actions per se than to remind ourselves how his open, honest, and narrow necessity- and Constitution-based defense of those actions should guide Americans facing new challenges.

No Lincolnian doctrine of necessity can possibly apply to the current situation. A terrible attack took place five years ago. It killed a great many people, far too many. But it did not threaten the continuity of the nation or its Constitution the way the Civil War did. To answer both McCarthy and Henley: yes, Lincoln took critical and constitutionally questionable actions in the Civil War – but many of those actions were very arguably constitutional, and all were taken precisely because the survival of the Constitution really was at stake. The same is not true today — at least not via exterior threats. And if McCarthy is arguing that Americans in general are a threat on the order of Confederates of yesteryear, he should say so more plainly.

Future attacks like 9/11 or worse are a real concern. But many, many, many straightforward, constitutionally unproblematic steps remain to be taken before we can feel reasonably confident we have done all we can to minimize the likelihood of such attacks, and all we can to weather those that occur. Airport precautions should be reviewed and refined; ports, nuclear, and chemical plants should be made more secure; nuclear materials around the world should be inventoried and secured; public health preparations should be taken; continuity of national, state, and local governments should be assured; emergency preparedness plans should be drawn up, refined, funded, and practiced. And yes, well-targeted surveillance, within a careful framework of judicial and legal oversight, should continue.

When and if all normal preparations of this sort are taken, and there still remain valid concerns about the risks to the survival of the United States itself, then — and only then — should extraconstitutional means be considered by a president. As Kleinerman writes in an exchange about his article with AEI’s Joseph Knippenberg,

…the distinction between the ordinary and the extraordinary so essential to Lincoln’s justification of his actions no longer applies given the open-ended threat from asymmetric warfare.

We are nowhere close to requiring constitutionally questionable or illegal actions by a president in the last defense of a continuing Constitution. To pretend that we are, or to support such pretensions, is to place the self-regard and political ambitions of an amoral, secretive, and dishonest president above the obligations he has to that Constitution. To quote the final lines of Kleinerman’s essay:

The question becomes: are we, or can we become, a constitutional people attached enough to the rule of law so as to prevent the overextension of executive power? In other words, are we capable of insisting upon our Constitution even when presidents do not?

* p. 142.
** Partisan defenders of the Bush administration will rightly point out that the “unitary executive” theory was implemented and defended by other presidents including Jimmy Carter and Bill Clinton well before George W. Bush’s presidency. However, compared to this administration, their use of such extraconstitutional mechanisms as “signing statements” was sporadic and limited. Kelley counts 76 signing statements by all presidents before Carter, 322 for all presidents before George W. Bush — and 435 in Bush’s first term alone (p. 31).
*** In order, the statements were made on 4/20/2004 — Protecting the Homeland Q and A, Buffalo, New York; 7/14/2004 — President’s Remarks at Ask President Bush Event, Mid-States Aluminum Corporation, Fond Du Lac, Wisconsin; and 6/9/2005 — President Discusses Patriot Act, Ohio State Highway Patrol Academy, Columbus, Ohio. Constitutionally significant lies by Bush and his administration have not been limited to warrantless surveillance. Most recently, Murray Waas has reported that Bush knew that he and his administration might well be making false statements about Iraq procuring aluminum tubes suitable for nuclear weapons development.

NOTES: Kelley article via Barbara O’Brien (“Mahablog”: The Unitary Executive, Part I: Signing Statements). Kleinerman article via Joseph Knippenberg (AEI): Lessons from Lincoln and Lincoln and Bush (at “No Left Turns”), both via e-mail from Brett Marston. Waas link via Dan Froomkin,


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