Bush is NOT Lincoln

[LuckyTheDog]

And the "War in Terror" is not the Civil War.

The Civil War was a special case and should not be seen as a precedent justifying the radical expansion of executive power in times like these.

The way I see it, the Constitution was, for all intents and purposes, suspended during the Civil War. The states of the Confederacy had withdrawn from it. And, in the North, the president made many of its provisions null and void by executive fiat. The reason was because our still-young republic was tearing itself apart. That wasn’t a war against a foreign power or a struggle against an alien ideology. It was a war for the unity of the nation that we were fighting among ourselves.

Lincoln and his administration decided to preserve the union first and worry about reestablishing real Constitutional government later. And, in the 19th century, a time when republican government wasn’t yet well established on the world stage, it probably was the only course of action that would have worked.

We were darned lucky, however, that the Constitution survived that conflict. And short of another bloody civil war, I can’t imagine a scenario in which such actions would ever be justified again.

[The Velveteen Ocelot]

1. And the Supreme Court said

that even Lincoln couldn't suspend habeas corpus. Of course, the problem with Ex Parte Milligan is that it says the president can't suspend habeas corpus, but under some circumstances Congress can, under Article I, sec. 9 of the Constitution. So that's where they're trying to go with this latest ploy.

I'm not sure how far they can go, though, since some of the justices in Hamdi v. Rumsfeld said habeas corpus could apply to non-citizens: Although the Court's holding was limited to "citizen-detainees," the O'Connor plurality (O'Connor, Rehnquist, Kennedy, and Breyer) relies on the Geneva Convention and states that habeas corpus should be available to an "alleged enemy combatant."

[LuckyTheDog]

2. Also, there is the "ex post facto" thing

Congress cannot pass a law making Bush's actions retroactively legal. So, if he violated our treaty obligations, he should be subject to impeachment.

[The Velveteen Ocelot]

3. Not sure if that's true, constitutionally.

Ex post facto laws are those that attempt to retroactively criminalize conduct that wasn't a crime at the time it was committed. However, although laws are presumed to be prospective, and retroactivity is disfavored, I don't think that simply conferring immunity on someone after the fact is necessarily unconstitutional. It would totally piss me off, though.

[LuckyTheDog]

4. Hmmm....

The term most typically used to refer to a law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. But I'd think that it also would apply to a law that lets the president off the hook by retroactively declaring something (such as warrant-less wiretapping or torture) to be legal.

Also, one might argue that retroactively allowing torture would, in effect, change the legal status of "enemy combatants" after the fact.

Are there any Constitutional scholars out there who could weigh in?


Here are a couple definitions I found:


An ex post facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action.

http://www.lectlaw.com/def/e086.htm

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Ex post facto laws retroactively change the rules of evidence in a criminal case, retroactively alter the definition of a crime, retroactively increase the punishment for a criminal act, or punish conduct that was legal when committed. They are prohibited by Article I, Section 10, Clause 1, of the U.S. Constitution. An ex post facto law is considered a hallmark of tyranny because it deprives people of a sense of what behavior will or will not be punished and allows for random punishment at the whim of those in power.

http://www.answers.com/topic/ex-post-facto-law

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