Presidents Jackson, Lincoln, Clinton, Bush, Obama, and the Writ of Habeas Corpus

President Obama has repeatedly asserted that he considers President Lincoln his role model, in terms of governance. There are parallels between the Lincoln and Obama administrations.

First, President Lincoln entered office during a period of conflict because, seven states had already seceded from the Union by the time Lincoln entered office on 4 March 1861. Likewise President Obama entered into office in the midst of conflicts in Iraq and Afghanistan involving United States armed forces.

Second, during the early days of the Civil War President Lincoln unilaterally and without consulting Congress suspended the right of Habeas Corpus. A similar situation now confronts President Obama because the Bush administration’s policies regarding the right of detainees suspected of terrorism or being enemy combatants with regard to applications for writs of habeas corpus, has placed the new Obama administration in the unenviable position of restoring the right of such suspects to petition for writs of Habeas Corpus. A process the Obama administration began on 21 January 2009 with an executive order.

Despite this order the right to petition for writs of Habeas Corpus has not officially been restored by executive order to the prisoners detained at Bagram Theater Internment Facility.

The question that I have been pondering is how quickly the Obama Administration will bring the executive branch into conformity with the stance assumed by the judicial system as elucidated in the following decisions of the Supreme Court of the United States:

1. Rumsfeld v.Padilla, 542 U.S. 426, 124 S. Ct. 2711; 159 L. Ed. 2d 513; 2004 U.S. LEXIS 4759; 72 U.S.L.W. 4584 (2004);
2. Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686; 159 L. Ed. 2d 548; 2004 U.S. LEXIS 4760; 72 U.S.L.W. 4596 (2004);
3. Hamdi v .Rumsfled, 542 U.S. 507, 124 S. Ct. 2633; 159 L. Ed. 2d 578; 2004 U.S. LEXIS 4761; 72 U.S.L.W. 4607 (2004)
4. Hamdan v .Rumsfled, 548 U.S. 567, 126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006 U.S. LEXIS 5185 (2006);
5. Boumediene v. Bush, 553 U.S. ___; 128 S. Ct. 2229; 2008 WL 2369628; 2008 U.S. LEXIS 4887 (2008).

Or will the Obama Administration follow choose to follow the reasoning that President Andrew Jackson articulated after hearing of the decision of the Supreme Court in Worcester v. Georgia 31 U.S. (6 Pet.) 515, 8 L.Ed. 483, (1832. President Jackson responded to the decision of the Court saying the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate. The idea that a decision of the Court could be "still born" was next articulated by President Lincoln in his administrations response to Chief Justice Taney's circuit court opinion in Ex Parte Merryman, 17 F. Cas. 144, (1861). It was not until 1866 that the suspension of the Writ of Habeas Corpus was rescinded. I would argue that the Bush administration adopted a similar stance relying on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, enacted by the Clinton Administration in the aftermath of the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing. A case could be made that AEDPA provided the heart of the position taken by the Bush Administration taken regarding the right of detainees to petition or writs of Habeas Corpus