Differences and Similarities
Recalling that the Constitution allows for the suspension of habeas corpus when "Cases of Rebellion or Invasion the public Safety may require it," let’s consider some of the differences and similarities between the actions of Presidents Bush and Lincoln.
- Presidents Bush and Lincoln both acted to suspend habeas corpus under the powers granted to them as Commander in Chief of the U.S. Military during a time of war.
- President Lincoln acted in the face of an armed rebellion within the United States – the U.S. Civil War. President Bush’s action was a response to the Global War on Terrorism, considered to have been triggered by the Sept. 11, 2001 terrorist attacks in New York City and the Pentagon. Both presidents, however, could cite "Invasion" or the much broader term "public Safety" as constitutional triggers for their actions.
- President Lincoln suspended habeas corpus unilaterally, while President Bush’s suspension of habeas corpus was approved by Congress through the Military Commissions Act.
- President Lincoln's action suspended the habeas corpus rights of U.S. citizens. The Military Commissions Act of 2006, signed by President Bush, stipulates that the right of habeas corpus should be denied only to aliens "detained by the United States."
- Both suspensions of habeas corpus applied only to persons held in military prisons and tried before military courts. The habeas corpus rights of persons tried in civilian courts were not affected.
Certainly the suspension -- even if temporary or limited -- of any right or freedom granted by the U.S. Constitution is a momentous act that should be carried out in only in the face of dire and unanticipated of circumstances. Circumstances like civil wars and terrorist attacks are certainly both dire and unanticipated. But whether one or both, or neither warranted the suspension of the right of writs of habeas corpus remains open for debate.
