Assuming the conclusion, the conclusion is thus proven.
as Farber points out in Lincoln's Constitution (pg 190-191), the court would have utterly lacked jurisdiction to hear a habeas petition
What Farber actually said, page 191, is "Arguably, a valid suspension of the writ does eliminate the courts very power to proceed. This was apparently Congress's veiw in the Habeas Corups Act, which confirmed the suspension." ... "Thus, a plausible argument can be made that during a suspension, the executive not only has a valid legal defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or releae the prisoner." Page 192 "Still, allowing the president to ignore an adverse ruling about the validity of the suspension is undoubtedly dangerous." ... "If this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful. It is fruitless to argue for a general power of executive nullification. Lincoln himself did not even offer this defense, and history speaks strongly against it. Instead, we are thrown back on the necesiry defense that he did in fact offer."
"Arguably... a plausible argument can be made... if this jurisdictional analysis is rejected, however, we should concent that Lincoln's action was unlawful."
[cr] After Congress retrospectively approved Lincoln's actions, Taney's pique in Ex parte Merryman became a moot point.
Congress R-E-F-U-S-E-D to approve Lincoln's action of delegating to the military, the power to suspend the privilege of the writ of habeas corpus. Congress R-E-F-U-S-E-D to retrospectively approve Lincoln's claim to authority to suspend the privilege of the writ of habeas corpus. The Lincoln administration tried to get such approval via Senate Resolution SR-1. It was crushed in the Senate.
When Congress did authorize suspension of the privilege of the writ in 1863, it added many conditions that had to be complied with.
The second section required that lists of all persons, being citizens of states in which the administration of the laws had continued unimpaired in the Federal courts, who were then held or might thereafter be held as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished to the judges of the Circuit and District Courts. The lists transmitted to the judges were to contain the names of all persons, residing within their respective jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in attendance upon any of these courts should terminate its session without proceeding by indictment or otherwise against any prisoner named in the list, that the judge of the court should forthwith make an order that such prisoner desiring a discharge, should be brought before him or the court to be discharged, on entering into recognizance, if required, to keep the peace and for good behavior, or to appear, as the court might direct, to be further dealt with according to law. Every officer of the United States having custody of such prisoners was required to obey and execute the judge's order, under penalty, for refusal or delay, of fine and imprisonment.
The third section provided, in case lists of persons other than prisoners of war then held in confinement, or thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned, on the terms and conditions prescribed in the second section.
[cr] Farber writes (pg 162), "Although it is usually said that the Supreme Court never ruled on the legality of Lincoln's habeas suspension, Moyer [v Peabody] was the next best thing to a direct holding on the point, though delivered years after the fact. In the spring and summer of 1861, the area of isurrection might be said to include Maryland. If so, under Moyer, Lincoln clearly would have been empowered to use deadly force to suppress insurrection. It is hard to quarrel with [Oliver Wendell] Holmes's conclusion that the power to detain dangerous individuals goes along with the power to use deadly military force against them."
In Ex Parte Milligan, during a suspension, the Supreme Court wrote, "The first question, therefore-Ought the writ to issue?-must be answered in the affirmative."
Moyer involved a miners strike.
The area of insurrection might be said to include Maine, however absurd that may be, and authorize Lincoln so authorize Scott to suspend the privilege of the writ in Maine. At the time of Merryman's arrest, there was not even any significant civil disturbance. While it might be said that there was some insurrection going on at the time of Merryman's arrest in Maryland, such claim cannot pass the laugh test.
It is hard to apply Holme's argument to Merryman. He was at home, sleeping in his bed, in the middle of the night. There was no legal power to used deadly force against Merryman. Nobody had the legal power to enter his abode and shoot him dead in his bed. No power to detain flowed from any nonexistent power to use deadly force.
You misunderstand the Habeas Corpus Act of 1863, and intentionally misrepresent it. Historian Phillip Shaw Paludan, writing about the 1863 Act:
"Conscription was clearly on their minds as lawmakers wrote the Habeas Corpus law (1862-1863). The Militia Act of 17 July 1862 had been followed quickly by an executive proclamation that suspended the writ to allow arrest of anyone running from or interferring with the draft provisions of the law. Conservative state judges had been accepting writs to protect men from such suspension and from confiscation of propoerty as the Union Army moved south. These suits often charged federal officials with violation of state trespass, false arrest, or libel laws.
"The Habeas Corpus Act gave immunity to federal officials acting under presidential suspension and allowed cases to be removed from state to federal courts when defendent soldiers faced state accusations. It was an important provision for the future. At the conclusion of the war, thousands of suits would be launched in the defeated Southern states suing Union soldiers and officials for allegedly unlawful seizure, destrcution of propoerty, or deprivation of liberty. The law would protect victorious Unionists form rebel vengeance."
What Paludan indicates here, and as I stated in the now-deleted 4000+ post thread, was that it took Congress some time to reach the final legislation. Your interpretation of the terms of the Habeas Corpus Act are wrong.
Section 1 of the Act empowered the President to suspend (the privilege of the the writ of) habeas corpus for so long as "said rebellion continue." It orders judges and courts to suspend habeas proceedings for any person held under the Presidnet's authority, "whenever and whereever.". That is a key point you ignore - those already held fall under the provisions.
Sections 2 and 3 amplify Section 1. Those who have been detained who are not prisoners of war ("state or political prisoners") can still be detained. The Sec. of State and Sec. of War were to provide lists of names of those detained. If they had not already been indicted, they could be released upon oath and/or bail, and failure to take the oath or post the bail meant that they continue to reside in custody. The effect was to release the minor offenders.
Section 4 again refers to the entire ACW, not just "from this time forward." It begins with the clause, "That any order of the President, or under his authority, made at anytime during the existence of the present rebellion ..." The thrust of the legislation was to recognize and ratify the President's actions until congress could make its political decision.
In part, that is true. More important, however, is the principle behind the majority decision. The background was that during the miner's strike, the executive of the state suspended habeas in the county where the mine was located because of the miners' insurrection and the inability of the local authorities to control the situation. The governor called out the National Guard to enforce the law. The miners' union boss was arrested and held without trial, until the situation was resolved. The union boss claimed he was held without due process.
Oliver Wendell Holmes, Jr., wrote the majority opinion. Holmes was a Union Civil War vet, who had been several times wounded in battle. Holmes wrote, "That means that [the executive] shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace." This constitutional principle, as applied to ACW, would have allowed Lincoln similar latitude. Wherever insurrection or rebellion existed, including those areas of the country not purporting to have seceded, such as Maryland or Missouri, the President was empowered to take those actions he thought necessary to protect the public safety and to preserve constitutional law and republican government.
Of course, in Ex parte Milligan, the Court upheld the Habeas Corpus Act, but limited its application to the "locality of actual war."