That's not a fair appreciation of what happened.
"Scholars still debate whether Lincoln had the authority to invoke the Constitutional provision suspending Habeas Corpus during the early days of the war. I will not wade into the muddy waters of that debate. I am more interested in talking about what Lincoln did after March of 1863--for that is when Congress gave Lincoln legislative authority to suspend the writ. From that point forward, Lincoln faced no constitutional obstacles. He could arrest whomever he chose, without courts interfering with Writs of Habeas Corpus. What did Lincoln do at this point? Did he attempt to stifle political debate, by imprisoning his opponents? In short, did he trample on the civil liberties the Writ of Habeas Corpus was meant to protect?
A recent historical study, entitled The Fate of Liberty, says "no." The author, Mark Neely, combed through the musty boxes of arrest records from the Civil War "to find out who was arrested when the Writ of Habeas Corpus was suspended and why." Neely concludes that, throughout the war, Lincoln was guided by a "steady desire to avoid political abuse under the Habeas-Corpus policy."
According to the best estimates, about 38,000 civilians were arrested by the military during the Civil War. Who were they? Almost all fell within a few categories: "draft dodgers, suspected deserters, defrauders of the government, swindlers of recruits, ex-Confederate soldiers, and smugglers." And strikingly, most of these were Confederate citizens, caught behind Northern lines. The numbers show that very few civilians were taken from their homes and arrested. And of those few arrests, only a handful were colored by political considerations.
Indeed, Lincoln issued his most sweeping proclamation suspending Habeas Corpus not to silence political dissent, but to stop judicial interference in the draft. Early in the war, patriotic zeal was so strong that volunteers flooded into the Army. But as the war dragged on, public enthusiasm ebbed. Eventually, the government was reduced to instituting a draft. Conscription was rather unpopular, to say the least. If any of you remember the burning of draft cards during the Vietnam War, imagine that unrest multiplied several times over in the New York City Draft Riots in 1863. The problem was especially bad in Pennsylvania. Coal miners attacked men thought to be "in sympathy with the draft." State and federal courts added to the problem. They were churning out Writs of Habeas Corpus, freeing soldiers as soon as they were drafted. Lincoln observed that "[T]he course pursued by certain judges is defeating the draft."
Lincoln's response was to suspend the Writ throughout the North in any case that involved military arrest of deserters or draft dodgers. And for good measure, he threw in prisoners of war, spies, and those giving assistance to the enemy--say, by smuggling goods to the Confederate government. But his focus was always on military necessity. Lincoln never tried to suppress political dissent. He understood that a democracy only grows stronger by allowing people to voice their opposition to the government, even in the midst of war. He understood that the strength of the Union lay not only in force of arms, but in the liberties that were guaranteed by the open, and sometimes heated, exchange of ideas. And as one historian has put it, "[T]he opposition press in the North was vibrant, vigorous, and often vicious....
The President was not out to trample on the First Amendment. He was not out to crush his political opposition. He suspended the writ of Habeas Corpus in response to perceived military threats to the Union. After he, and later Congress, removed that Constitutional safeguard, the Lincoln Administration did not use its power selfishly or arbitrarily. It arrested only those people who actively supported the Confederate war machine--people like Merryman, who recruited troops to march south. And when people walked this fine line between political dissent and treason, as Vallandigham did, Lincoln tried to err on the side of free speech."
--Justice Sandra Day O'Connor
http://www.gettysburg.edu/academics/cwi/Lincoln_Fellowship/o'connor'96.htm
Walt
[The link goes to a PDF file - http://caselaw.lp.findlaw.com/data2/circs/2nd/032235p.pdf]
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2003
(Argued: November 17, 2003 Decided: December 18, 2003)
Docket Nos. 03-2235 (L); 03-2438 (Con.)
JOSE PADILLA, Donna R. Newman, as Next Friend of Jose Padilla,
Petitioner-Appellee-Cross-Appellant,
-v-
DONALD RUMSFELD,
Respondent-Appellant-Cross-Appellee.
* * *
II. Power to Detain
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A. Introduction
The District Court concluded, and the government maintains here, that the indefinite detention of Padilla was a proper exercise of the President’s power as Commander-in-Chief. The power to detain Padilla is said to derive from the President’s authority, settled by Ex parte Quirin, 317 U.S. 1 (1942), to detain enemy combatants in wartime - authority that is argued to encompass the detention of United States citizens seized on United States soil. This power, the court below reasoned, may be exercised without a formal declaration of war by Congress and “even if Congressional authorization were deemed necessary, the Joint Resolution, passed by both houses of Congress, . . . engages the President’s full powers as Commander in Chief.” Padilla I, 233 F. Supp. 2d at 590. Specifically, the District Court found that the Joint Resolution acted as express congressional authorization under 18 U.S.C. § 4001(a), which prohibits the detention of American citizens absent such authorization. Id. at 598-99. In addition, the government claims that 10 U.S.C. § 956(5), a statute that allows the military to use authorized funds for certain detentions, grants authority to detain American citizens.
These alternative arguments require us to examine the scope of the President’s inherent power and, if this is found insufficient to support Padilla’s detention, whether Congress has authorized such detentions of American citizens. We reemphasize, however, that our review is limited to the case of an American citizen arrested in the United States, not on a foreign battlefield or while actively engaged in armed conflict against the United States. As the Fourth Circuit recently - and accurately - noted in Hamdi v. Rumsfeld, “[t]o compare this battlefield capture [of Hamdi] to the domestic arrest in Padilla v. Rumsfeld is to compare apples and oranges.” 337 F.3d 335, 344 (4th Cir. 2003) (“Hamdi IV”) (Wilkinson, J., concurring).
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B. The Youngstown Analysis
Our review of the exercise by the President of war powers in the domestic sphere starts with the template the Supreme Court constructed in Youngstown, 343 U.S. at 635-38 (Jackson, J., concurring). Youngstown involved the validity of President Truman’s efforts during the Korean War to seize the country’s steel mills on the eve of a nationwide strike by steelworkers. Id. at 582-85. Writing for the majority, Justice Black explained that the President’s power “must stem either from an act of Congress or from the Constitution itself.” Id. at 585. The Court held that the seizure could not be justified as a function of the President’s Commander-in-Chief powers and that it had not been authorized by Congress. Id. at 587-88. Justice Jackson’s concurrence, which provides the framework for reviewing the validity of executive action, posits three categories for evaluating the exercise of emergency powers by the President. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981); Hamdi v. Rumsfeld, 296 F. 3d 278, 281 (4th Cir. 2002) (“Hamdi II”).
First, when the President acts pursuant to an express or implied authorization from Congress, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring). This category is exemplified by the power exercised by the President in Quirin and in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Second, when the President acts in the absence of either a congressional grant or denial of authority, “he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Youngstown, 343 U.S. at 637. Finally, the third category includes those situations where the President takes measures incompatible with the
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express or implied will of Congress. In such cases, “his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. The “[c]ourts can sustain exclusive presidential control [in this situation] only by disabling the Congress from acting upon the subject.” Id. at 637-38.
Here, we find that the President lacks inherent constitutional authority as Commander-in- Chief to detain American citizens on American soil outside a zone of combat. We also conclude that the Non-Detention Act serves as an explicit congressional “denial of authority” within the meaning of Youngstown, thus placing us in Youngstown’s third category. Finally, we conclude that because the Joint Resolution does not authorize the President to detain American citizens seized on American soil, we remain within Youngstown’s third category.
i. Inherent Power
The government contends that the President has the inherent authority to detain those who take up arms against this country pursuant to Article II, Section 2, of the Constitution, which makes him the Commander-in-Chief, and that the exercise of these powers domestically does not require congressional authorization. Moreover, the argument goes, it was settled by Quirin that the military’s authority to detain enemy combatants in wartime applies to American citizens as well as to foreign combatants. There the Supreme Court explained that “universal agreement and practice” under “the law of war” holds that “[l]awful combatants are subject to capture and detention as prisoners of war by opposing military forces” and “[u]nlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” 317 U.S. at 30-31.
Finally, since the designation of an enemy combatant bears the closest imaginable connection to
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the President’s constitutional responsibilities, principles of judicial deference are said by the government to assume heightened significance.
We agree that great deference is afforded the President’s exercise of his authority as Commander-in-Chief. See Dep’t of the Navy v. Egan, 484 U.S. 518, 530 (1988). We also agree that whether a state of armed conflict exists against an enemy to which the laws of war apply is a political question for the President, not the courts. See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (“Certainly it is not the function of the Judiciary to entertain private litigation - even by a citizen - which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.”); The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862). Because we have no authority to do so, we do not address the government’s underlying assumption that an undeclared war exists between al Qaeda and the United States. We have no quarrel with the former chief of the Justice Department’s Criminal Division, who said:
For [al Qaeda] chose not to violate the law but to attack the law and its institutions directly. Their proclaimed goal, however unrealistic, was to destroy the United States. They used powerful weapons of destructive force and openly declared their willingness to employ even more powerful weapons of mass destruction if they could lay hold of them. They were as serious a threat to the national security of the United States as one could envision.
Michael Chertoff, Law, Loyalty, and Terror: Our Legal Response to the Post-9-11 World, Wkly. Standard, Dec. 1, 2003, at 15.
However, it is a different proposition entirely to argue that the President even in times of grave national security threats or war, whether declared or undeclared, can lay claim to any of the powers, express or implied, allocated to Congress. The deference due to the Executive in its
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exercise of its war powers therefore only starts the inquiry; it does not end it. Where the exercise of Commander-in-Chief powers, no matter how well intentioned, is challenged on the ground that it collides with the powers assigned by the Constitution to Congress, a fundamental role exists for the courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). To be sure, when Congress and the President act together in the conduct of war, “it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.” Hirabayashi v. United States, 320 U.S. 81, 93 (1943). But when the Executive acts, even in the conduct of war, in the face of apparent congressional disapproval, challenges to his authority must be examined and resolved by the Article III courts. See Youngstown, 343 U.S. at 638 (Jackson, J., concurring).
These separation of powers concerns are heightened when the Commander-in-Chief’s powers are exercised in the domestic sphere. The Supreme Court has long counseled that while the Executive should be “indulge[d] the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society,” he enjoys “no such indulgence” when “it is turned inward.” Youngstown, 343 U.S. at 645 (Jackson, J., concurring). This is because “the federal power over external affairs [is] in origin and essential character different from that over internal affairs,” and “congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” Curtiss-Wright, 299 U.S. at 319, 320. But, “Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.” Youngstown, 343 U.S. at 644 (Jackson, J., concurring). Thus, we do not concern ourselves with the Executive’s inherent
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wartime power, generally, to detain enemy combatants on the battlefield. Rather, we are called on to decide whether the Constitution gives the President the power to detain an American citizen seized in this country until the war with al Qaeda ends.
The government contends that the Constitution authorizes the President to detain Padilla as an enemy combatant as an exercise of inherent executive authority. Padilla contends that, in the absence of express congressional authorization, the President, by his June 9 Order denominating Padilla an enemy combatant, has engaged in the “lawmaking” function entrusted by the Constitution to Congress in violation of the separation of powers. In response, no argument is made that the Constitution expressly grants the President the power to name United States citizens as enemy combatants and order their detention. Rather, the government contends that the Commander-in-Chief Clause implicitly grants the President the power to detain enemy combatants domestically during times of national security crises such as the current conflict with al Qaeda. U.S. Const. art. II, § 2.
As an initial matter, we note that in its explicit vesting of powers in Articles I and II, the Constitution circumscribes and defines the respective functions of the political branches. INS v. Chadha, 462 U.S. 919, 946 (1983) (“The very structure of the Articles delegating and separating powers under Arts. I, II, and III exemplifies the concept of separation of powers . . . .”). The Constitution gives Congress the full legislative powers of government and at the same time, gives the President full executive authority and responsibility to “take care” that the laws enacted are faithfully executed. U.S. Const. art I, § 1, art. II, §§ 1, 3; Loving v. United States, 517 U.S. 748, 758 (1996) (“[T]he lawmaking function belongs to Congress . . . and may not be conveyed to another branch or entity”); Field v. Clark, 143 U.S. 649, 692 (1892). Thus, while the President
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has the obligation to enforce laws passed by Congress, he does not have the power to legislate. The propriety of a given branch’s conduct does not turn on the labeling of activity as “legislative” or “executive.” See Mistretta v. United States, 488 U.S. 361, 393 (1989).
Legislative action depends “not on form but upon whether [it] contain[s] matter which is properly to be regarded as legislative in its character and effect.” Chadha, 462 U.S. at 952 (internal quotation marks omitted). Thus, we must look to whether the exercise of power in question has been “subject to the carefully crafted restraints spelled out in the Constitution,” id. at 959, to ensure that authority is exercised only by the branch to which it has been allocated. See Youngstown, 343 U.S. at 587-88.
The Constitution entrusts the ability to define and punish offenses against the law of nations to the Congress, not the Executive. U.S. Const. art. II, § 8, cl. 10; United States v. Arjona, 120 U.S. 479, 483 (1887). Padilla contends that the June 9 Order mandating his detention as an “enemy combatant” was not the result of congressional action defining the category of “enemy combatant.” He also argues that there has been no other legislative articulation of what constitutes an “enemy combatant,” what circumstances trigger the designation, or when it ends. As in Youngstown, Padilla maintains that “[t]he President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President.” Youngstown, 343 U.S. at 588.
The Constitution envisions grave national emergencies and contemplates significant domestic abridgements of individual liberties during such times. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159-60 (1963). Here, the Executive lays claim to the inherent emergency
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powers necessary to effect such abridgements, but we agree with Padilla that the Constitution lodges these powers with Congress, not the President. See Youngstown, 343 U.S. at 649-50 (Jackson, J., concurring).
First, the Constitution explicitly provides for the suspension of the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. This power, however, lies only with Congress. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807). Further, determinations about the scope of the writ are for Congress. Lonchar v. Thomas, 517 U.S. 314, 323 (1996).
Moreover, the Third Amendment’s prohibition on the quartering of troops during times of peace reflected the Framers’ deep-seated beliefs about the sanctity of the home and the need to prevent military intrusion into civilian life.font color="blue">23 See, e.g., Laird v. Tatum, 408 U.S. 1, 15 (1972); Katz v. United States, 389 U.S. 347, 350 n.5 (1967). At the same time they understood that in times of war - of serious national crisis - military concerns prevailed and such intrusions could occur. But significantly, decisions as to the nature and scope of these intrusions were to be made “in a manner to be prescribed by law.” U.S. Const. amend. III. The only valid process for making “law” under the Constitution is, of course, via bicameral passage and presentment to the President, whose possible veto is subject to congressional override, provided in Article I, Section 7. See Chadha, 462 U.S. at 946-51.
The Constitution’s explicit grant of the powers authorized in the Offenses Clause, the
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Suspension Clause, and the Third Amendment, to Congress is a powerful indication that, absent express congressional authorization, the President’s Commander-in-Chief powers do not support Padilla’s confinement. See id. at 946. The level of specificity with which the Framers allocated these domestic powers to Congress and the lack of any even near-equivalent grant of authority in Article II’s catalogue of executive powers compels us to decline to read any such power into the Commander-in-Chief Clause. In sum, while Congress - otherwise acting consistently with the Constitution - may have the power to authorize the detention of United States citizens under the circumstances of Padilla’s case, the President, acting alone, does not.font color="blue">24 See Youngstown, 343 U.S. at 631-32 (Douglas, J., concurring).
* * *
The dissent also relies on The Prize Cases, which, like Milligan, arose out of the Civil War, to conclude that the President has the inherent constitutional authority to protect the nation when met with belligerency and to determine what degree of responsive force is necessary. We believe that neither the facts of The Prize Cases nor their holding support such a broad construction.
First, The Prize Cases dealt with the capture of enemy property - not the detention of persons. The Court had no occasion to address the strong constitutional arguments against deprivations of personal liberty, or the question of whether the President could infringe upon individual liberty rights through the exercise of his wartime powers outside a zone of combat. Second, the dissent would have us read The Prize Cases as resolving any question as to whether the President may detain Padilla as an enemy combatant without congressional authorization. The Court did not, however, rest its decision upholding the exercise of the
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President’s military authority solely on his constitutional powers without regard to congressional authorization. Rather, it noted that the President’s authority to “call[] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government” stemmed from “the Acts of Congress of February 28th, 1795, and 3d of March, 1807.” Id. at 668. In any event, Congress’s subsequent ratification of the President’s wartime orders mooted any questions of presidential authority. Id. at 670. Finally, the Court in The Prize Cases was not faced with the Non-Detention Act specifically limiting the President’s authority to detain American citizens absent express congressional authorization.
Based on the text of the Constitution and the cases interpreting it, we reject the government’s contention that the President has inherent constitutional power to detain Padilla under the circumstances presented here.font color="blue">27 Therefore, under Youngstown, we must now consider whether Congress has authorized such detentions.
[23] The full text of the Third Amendment states: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.
[24] The dissent misreads us to suggest that the President has no power to deal with imminent acts of belligerency on U.S. soil outside a zone of combat and absent express authorization from Congress. See infra at [57-58]. We make no such claim. As we have discussed, criminal mechanisms exist for dealing with such situations. We only hold that the President’s Commander-in-Chief powers do not encompass the detention of a United States citizen as an enemy combatant taken into custody on United States soil outside a zone of combat.
[27] The dissent expresses deep concerns that our holding means that the President lacks inherent authority to detain a terrorist in the face of imminent attack. The President’s authority to detain such a person is not an issue raised by this case. The dissent’s concerns overlook the fact that Padilla was detained by the military while a maximum security inmate at the MCC. Thus, issues concerning imminent danger simply do not arise in this case.
Still quoting that leftist hag Sandra Day O'Connor, eh Walt? Sorry, but she forfeited any credibility she ever had to comment on the constitution the day she started embracing UN rulings and fake concepts like "diversity" as a basis for her judgments in the place of sound legal reasoning. And if a fair appreciation of the habeas corpus issue is what you desire, I'll happily give you one. Instead of quoting jacobins like O'Connor, I prefer to quote the founding fathers and jurists of the period:
"The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government, in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding months." - Charles Pickney, announcing the proposal to limit the suspension of habeas corpus, Constitutional Convention, 1787
"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals." - Richard Henry Lee, Anti-Federalist #16, "Federal Farmer"
"In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good." - Robert Yates, delegate to the Constitutional Convetion, Anti-Federalist #9, "Brutus"
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also." - Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention
"In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ." - St. George Tucker, Commentaries, 1803
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide." - Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body." - Thomas Jefferson, Autobiography, 1821
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power" - William Rawle, "A View of the Constitution of the United States of America," 1826
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body." - Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833
"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted." - Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849
"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law." - Justice Roger B. Taney, Ex Parte Merryman, US Circuit Court of Appeals, 1861
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President. Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief." - Justice Benjamin R. Curtis, "Executive Power," 1862
This is the same babe who gave us McCain-Feingold and affirmative action for university admissions (but only for 20 years because any longer would be a violation of the Constitution). I think you would be well served in finding another source.