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 Posted: Sat Sep 11th, 2010 10:08 pm
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Texas Defender
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Barlow-

  First of all, burning a Koran (Assuming that it is your Koran) is not an illegal act. Therefore, you can't have your freedom taken away for doing so. What would be an illegal act would be if any president presumed to suspend the writ of habeus corpus, because he does not have the legal authority to do so. Only the Congress has that authority.

  The writ of habeus corpus establishes a person's right to appear before a judge before he can be imprisoned. When the writ is issued, the government  must bring the prisoner to a court where a judge can determine if the prisoner can be held legally or not.

  Overriding the writ is mentioned in the Constitution in Article 1, Section 9. Article 1 details the powers given to the Congress. It says that Congress cannot suspend the writ :"Unless when in cases of rebellion or invasion the public safety may require it." Nowhere in the Constitution is this authority granted to the president or anyone else in the executive branch.

  In April of 1861, Mr. Lincoln was concerned that the capitol might be isolated if Maryland and Virginia seceded. On April 27th, a week after the Baltimore riots, Lincoln suspended the writ of habeus corpus along the route from Philadelphia to Washington DC. He gave military officials the authority to arrest anyone in the area who might threaten public safety (At least, that was the excuse).

  Mr. Lincoln's action granting himself the authority to suspend the writ (Which was further delegated to military officials) was completely illegal. He tried to justify this action in a speech to the Congress on July 4, 1861 when he said that only he could act fast enough to keep the government from: "Going to pieces."

  The most famous case resulting from this action in 1861 involved a resident of Maryland, John Merryman. He was arrested, and a writ of habeus corpus was granted by Chief Justice Roger Taney (The case was known as "ex parte Merryman.")The military refused to comply. When a marshal attempted to serve a writ of attachment to summons military officials, they refused to honor it.  As a result, Taney could do nothing, and Merryman was held for almost two months before being released.

  The suspension of habeus corpus was expanded in 1862 to be nationwide (24 Sep62). This allowed government officials, down to the local level to arrest anyone that they deemed to be, or even suspected of being, disloyal. Even saying anything at all negative about the government or any officials got many arrested. It has been estimated that between 10000 and 15000 people were thus arrested. Very few of them ever posed any danger to the: "Public safety."

  Since the legislative branch of the government would not join the judicial branch in opposing these illegal actions, the executive branch went unchecked. Thus these illegal actions continued until March of 1863, when the Congress passed the Habeus Corpus Act, thereby legalizing the suspension of the writ.

Habeas Corpus in the Civil War

Last edited on Sat Sep 11th, 2010 11:58 pm by Texas Defender

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