Chapter 1 Silence Cicero and His "Political Question" Counterpart "The Laws Fall Silent" Cicero set forth what would eventually become one of the best-­known legal principles concerning the role of courts during wartime. Two thousand years ago he wrote, " Silent enim leges inter arma ," which I should like to translate as "When the cannons roar, the laws fall silent." When the senator wrote those words, he was responding to civil strife that had erupted in Rome, where armed gangs had taken control of the streets. They were never punished, for their leaders had been elected to public office. Still, we see the point of Cicero''s remark: When the security of the state is threatened, do not expect the laws to apply. To what extent has that principle governed the actions of American courts? Consider the principle in the context of the American Civil War. At the very outset, President Lincoln suspended the writ of habeas corpus. That ancient writ traditionally allows anyone in detention to challenge the lawfulness of his confinement by getting word to a judge that he is being held, in his view, without legal authority.

And the judge can then tell the jailer, the local sheriff, say, to "bring me the body." Questioning both the jailer and the prisoner, the judge can discover the legal basis, or the lack thereof, for the prisoner''s detention. It would be difficult to point to a more important legal protection against arbitrary imprisonment. President Lincoln''s suspension of the writ in effect allowed his military to arrest civilians arbitrarily, without court review. He had seen firsthand a pressing need for such an extraordinary measure. On the way to his inauguration, he had been forced to sneak through Baltimore under cover of night in order to avoid a pro-­secession mob, while transferring from one train station to another. Lincoln knew that Union troops from the West and the North would have to negotiate the same station transfer on their way south. And he feared the effect this might have on their ability to travel, on the city of Baltimore itself, and on the State of Maryland, which itself stood on the brink of secession.

By suspending the writ, Lincoln intended to allow Northern troops to arrest disloyal Baltimore citizens. And that is just what they did. Early on the morning of May 25, 1861, on the orders of General William H. Keim, they arrested John Merryman, who had been a ringleader in anti-­Northern riots that spring, and held him at Fort McHenry, a nearby post under the command of General George Cadwalader. Merryman immediately asked a nearby federal court to issue a writ of habeas corpus. And the court''s judge, Supreme Court Chief Justice Roger Taney, sitting as a local circuit judge, agreed to do so. At first glance, Lincoln''s actions to stop judges like Taney from issuing the writ might seem constitutional, for the Constitution authorizes suspension of the writ of habeas corpus "when in cases of rebellion or invasion the public safety may require it." But this grant of authority appears in Article I, which deals with Congress''s powers, not in Article II, which addresses the powers of the President.

Hence, Taney concluded, the President, by acting without congressional authority, had violated the Constitution. President Lincoln''s reaction to the court''s decision is well known. He did not release John Merryman. Neither did he appeal the ruling, as he might have done. Rather, he defended his right to take decisive unilateral action. A few weeks after Merryman''s arrest, he asked Congress, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" A week later Attorney General Edward Bates presented Congress with a report justifying Lincoln''s decision to suspend the writ of habeas corpus. Still, the same day as the Bates report, Merryman was released on bail, and Lincoln did not prosecute him. And two years later Congress itself suspended the writ of habeas corpus, thereby curing the constitutional defect.

The controversy about the President''s powers fizzled out without any definite resolution. Merryman''s detention, however, is but one of many examples of how President Lincoln suspended or sidestepped constitutional protections of civil liberty in the name of national security. He also authorized his generals to censor the press, to prevent citizens from speaking vociferously against the war (accusing the President of "malfeasance," for example), to arrest suspected supporters of the enemy, and, often, to hold prisoners without trial irrespective of whether ordinary courts where they might have been tried were open and functioning. The generals exercising this authority did so by general order; they did not need to prove that, say, hostilities required their actions. In this way, they imprisoned about thirteen thousand citizens during the war. Secretary of State William H. Seward once told a British minister, I can touch a bell on my right hand and order the imprisonment of a citizen of Ohio; I can touch a bell again and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much? This attitude reflects that of many American presidents during wartime.

During World War I, the Wilson administration successfully prosecuted distributors of leaflets urging resistance to the draft. It barred leftist magazines from using the mails. And it jailed Eugene V. Debs, the leader of the American Socialist Party (who subsequently received nearly one million votes in the presidential election of 1920 while incarcerated). During World War II, President Roosevelt ordered the internment of more than seventy thousand Americans of Japanese origin, an action that the Supreme Court upheld. Roosevelt''s attorney general, Francis Biddle, once said that "[t]he Constitution has not greatly bothered any wartime President." During war, the executive and legislative branches typically believe that the foreign threat--­not the preservation of civil liberties--­is the paramount concern. And at times throughout American history, the judiciary has agreed.

While the Civil War raged, with the exception of Merryman , the courts did not meaningfully interfere with presidential or legislative decisions. Once the Civil War was over, however, the Court was in a position to take a different view, and in 1866 it heard the case of Ex parte Milligan . Two years earlier, just before the war''s conclusion, a Northern general stationed with his troops in Indiana had arrested Lambdin P. Milligan and four other civilians. The general charged them with conspiring to foment an insurrection designed to help the South. He set up a special military tribunal, which tried the accused, convicted them, and passed a sentence of death. The defendants asked an ordinary federal court to hear their claim that the army could not try American citizens in a special military court, at least not when conditions in the area were peaceful and ordinary civil courts were open. The case eventually reached the Supreme Court.

Urging the Court to deny the defendants'' claim, the government''s lawyer took a page from Cicero and argued that "[t]he officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. As necessity makes his will the law, he only can define and declare it." The government maintained that the Constitution''s provisions protecting basic human rights are "peace provisions . and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law. " The Court unanimously rejected this claim. All its members agreed that the Constitution''s protections applied and that Milligan must be released. A minority of the justices added an explanation to the effect that Congress had not enacted legislation permitting military trials for civilians, implying that the result might have been different under such circumstances. The majority, however, held that the Constitution did not permit military trials of American civilians in places where, and at times when, ordinary civil courts were open, whether or not Congress enacted laws authorizing such proceedings.

Milligan , then, represents something of a retreat on the part of the Court from the absolutism of Cicero, and a willingness to enforce constitutional protections in the face of a claim by the executive that the laws should be silent "amidst arms." Still, it bears emphasizing that the case was decided only after the war had ended and relative normalcy had returned. We should not be surprised to find a different judicial attitude in later cases decided in the heat of battle, such as the World War II case of Korematsu . If Milligan signaled to the executive branch that there were limits to what the Court would permit in the name of wartime necessity, it was something less than a full or permanent flight from Cicero. "The Political Thicket" The doctrine of the "political question" is more specific and better developed than Cicero''s maxim as crisis jurisprudence, but as applied to questions of national security, it is nonetheless in the sam.