[cr dishonest quote of Farber ends with] 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 release the prisoner."
Farber does not call it a refutation, but, after finding the necessity defense untenable, presents this jurisdictional argument more as a last ditch "Hail Mary."
Farber wrote, "Arguably, a valid suspension of the writ does eliminate the court's very power to proceed. ... a plausible argument can be made that during a [nc - valid, let us not slickly edit the word out] suspension, the executive not only has a valid defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or release the prisoner ... the strongest argument against the jurisdictional view of suspension isthat in practice it would leave the executive as the sole judge of whether the writ was validly suspended ... 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 necessity defense that he did in fact offer."
And Farber admits that some of Lincolns actions may have been questionable by a strict reading of the Consitution.
But the demands of the times made the actions necessary.
Still beating a dead horse.
Jeff Davis never came under criticism for 'stretching 'his powers?