A national emergency is not sufficient reason for suspending the Great Writ.  Only *Invasion or rebellion* qualify as reasons for temporarily suspending such a basic human right.  I believe they also have to be “declared wars”.  We can have a state of emergency, without invasion or rebellion. 
   
  The Magana Carter, [Ch XXIX. Imprisonment, &c. contrary to Law.],  Bill of Rights, and the U.S. Constitution, never mention, “emergencies”.   Senator Arlen Specter, in his statement to Attorney General Gonzales, rightfully pointed out that the Great Writ of Habeas Corpus became law in the year 1215, when the Magna Carter was signed.  Amended in 1297, it is still the law in England, even though most of the Magna Carter was eliminated.  It was part of our American common law, as any cursory examination of American court records would demonstrate.  It is confirmed by the Judicial Act of 1789, the Bill of Rights, [Amendment IV], and confirmed again by the Constitution, in Art. 1.  As Sen. Specter pointed out, it is impossible to withdraw a right if that right doesn’t exist in the first place. 
   
  Article 1, Sec 9, Clause 2 of the Constitution falls under the prevue of the Legislative branch of government, I can understand how Congress could have the authority to suspend Habeas Corpus. Although Common law Habeas existed in the colonies, the Constitution seems to put the execution of that right in the hands of Congress, confirmed in 1807, by John Marshall in Ex Parte Bollman.   If the Constitution doesn't mention a right, then that right falls to the states - not the President. So if government isn't functioning, it seems to me that it would be a state, or D.C. that would have power to suspend habeas. [Frightening thought, I admit]  
   
   The North first sent troops to Carolina, not the other way around. I know Taney didn't settle the question. The facts about Taney are still debated more than his decision in Merryman.  The decision in Merryman was from the Circuit Court, Maryland District.  The Supreme Court is the final authority. Although Taney was a Chief Justice, he was only sitting on the Circuit Court bench, at Lincoln's request.  Lincoln though Taney would rule in his favor. However, several times between 1861 and 1863, Lincoln suspended Habeas Corpus, the courts consistently ruled against Lincoln, stating he had no authority for his actions. Lincoln continued to misuse his office.  By the time of an official "Act" in 1863, naturally the North really was threatened. So at that point, it is conceivable that a President's war power could be extended.  But Why?  Why not use Congress, which had that power by nature?   Nevertheless, anything that Taney ruled, even as Chief Justice, while sitting on the
 Circuit bench is subject to the Supreme Court rulings. But I’d suggest reading the wording of Merryman and Milligan. Milligan is a strange case.  Had Milligan already been hung by the time the court ruled? Did Lincoln really have Taney arrested for voting against him?  
   
  I’m unaware of any emergency, rebellion, or invasion today that would warrant suspension of the basic right to petition my government if I were imprisoned without charges or a trial. But then, the discussion of habeas corpus, Milligan, Merryman etc, is moot if, as our Attorney General states, the Great Writ never existed, or “just came from some statute”. 
   
  Langdon Hagen-Long 
   
  
[log in to unmask] wrote: 
  <<...
Milligan, however, does explicitly defend the constitutional
right of the Executive to suspend Habeus Corpus in time of
rebellion or national crisis. 

According to Justice Davis, who wrote the majority opinion in
Milligan, Lincoln acted appropriately and within his
constitutional mandate.

Taney's view of the issue depends upon an inference about the
intent of the founders from a silence in the text of the
Constitution. The Habeus Corpus clause appears in Article One
of the Constitution, which defines the powers of the
legislature. When the Constitution defines the powers of the
Executive, it is silent on the issue. Does that silence mean
that the power to suspend Habeus Corpus rests solely in the
legislature? Taney said yes. Davis, in Milligan, said no.

The war powers provisions, vested in the Executive, can easily
be extended to include suspension of Habeus Corpus. In the
case of Merryman, Lincoln needed to act with dispatch and
speed--or, as the founders would have said, he needed to act
with energy. Davis bases his opinion on the this feature of
the executive branch--that it is designed and intended to be
able to act with speed and energy in times of emergency.

All best,
Kevin


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