The Thirty-Second Kenneth J. Hodson Lecture on Criminal Law

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THE THIRTY-SECOND KENNETH J. HODSON LECTURE ON CRIMINAL LAW*

WHERE MOUSSAOUI MEETS HAMDI1

FRANK W. DUNHAM, JR.2

Martin Niemoeller, a World War I German U-Boat captain and then a Lutheran pastor and philosopher, when asked by a student referring to the Holocaust, "How could it happen?" responded:

First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the trade unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me.3

Niemoeller forcefully points out our human inclination, no matter our sense of justice in ordinary times, to rationalize injustice to others situated differently from us as beyond our control, or worse, deserved, and to sit silently in the face of it only to later have it visit our own

doorstep. The phenomenon of rationalization is more prevalent in times of stress. Humankind, often prompted to act selflessly and with great courage on such occasions, such as the New York City fire and police personnel following 9/11, have also been known to act selfishly and hysterically when personal security is threatened.

This combination of human tendencies, rationalizing injustice and acting hysterically when personal security is threatened, is, not surprisingly, manifested when we act as a group through government. After all, our democratic government is nothing other than a reflection and extension of the will and mood of the people. Throughout our history, reacting to the stress from fear for our national security and personal safety, our government has taken actions which are unjust and irrational-actions the majority may have accepted at the time, but which we came later to decry in retrospect when the exigency had passed. For those concerned about incursions upon our civil liberties by governmental actions in the wake of 9/11, they should understand that the current reaction to the perceived crisis is nothing novel. They should be encouraged by the fact that historically there has been a self-corrective process when the crises passed. They should also be cautioned by the fact that the current crisis may never end and that things could get a lot worse instead of being self-corrected.

Very early in our history, and closely following the passage of the Bill of Rights, our second President, John Adams, sided with the English in a war against France. It is important to note that at that time, there were no immigration laws, and therefore no such things as "illegal aliens." We had living among us many folks who still considered themselves citizens of France.

Fearing pro-French sentiment in the Republican northeast where the population consisted of many French nationals, the federalists in Congress enacted the Alien and Sedition Acts of 1798.4 The Alien Friends Act allowed the detention and deportation of any alien deemed dangerous to the country without due process of law, that is, without notice of charges, presentation of evidence, a right to be heard, or

judicial review.5 Congress did this notwithstanding the Fifth Amendment to our Constitution, which states that "[n]o person shall . . . be deprived of . . . liberty . . . without due process of law."6

The Sedition Acts prohibited criticism of the President and the government, notwithstanding the First Amendment to our Constitution which states, "Congress shall make no law . . . abridging the freedom of speech."7 The Acts were vigorously enforced against the Republican opposition and vocal critics of the Adams administration. These Acts expired by their own terms on the last day of Adams administration and were not renewed.8

Self-correction arrived when the new president, Thomas Jefferson, recognizing the insanity of it all and the conflict with American core principles, pardoned all those convicted under the Acts, and Congress later repaid all the fines imposed.9 The Alien and Sedition Acts were never reviewed by a court, but the Supreme Court has said several times that these Acts have been deemed unconstitutional in the court of history.

But Jefferson was by no means perfect when it came to civil liberties. In this nation's most famous treason case brought by the Jefferson administration against Aaron Burr, Chief Justice John Marshall rejected President Jefferson's claims of national security.10 The government accused Burr of conspiring to start a war and sought the death penalty.11 In Burr's defense, he sought letters in Jefferson's possession.12 Jefferson refused a Court order to produce the letter, claiming "state secrets" privilege.13 Marshall would not allow Jefferson

to hang Burr while withholding information material to his defense, stating that "[i]f the President refuses to disclose [information material to the defense], the courts have no choice but to halt the prosecution."14

During the Civil War, President Abraham Lincoln engaged in probably the greatest civil liberty infringements in our history. He suspended the writ of habeas corpus eight times in various locations within the United States and twice throughout the whole country. The privilege to petition a court for a writ of habeas corpus to seek relief from illegal executive detention is at the heart of a case I will be discussing with you and is perhaps our most important freedom.

The modern writ of habeas corpus is traced back to England and a case arising in 1627, called Darnell's Case, or the case of the five knights.15 The King of England at the time, Charles I, had detained five noblemen, throwing them into the castle's dungeon deep, for failing to support England's war against France and Spain. The men filed suit, asking to be brought to court for an explanation from the King for the detentions. The King refused, saying that the men were detained by the King's command-national security, so to speak, in jolly old England. The court denied relief, stating that it had no power to require the King to explain the basis for the detention.16 It must have been good to be King. The decision provoked widespread outrage, and the following year the Parliament responded by enacting the petition of right, often referred to as "the Great Writ," basically prohibiting imprisonment without formal charges.

The Great Writ was codified in the first Habeas Corpus Act of 1641, which required an explanation from the king for detentions.17 These rights were expanded by the Habeas Corpus Act of 1679, which required charges to be brought within a specific time period for anyone detained

for criminal acts.18 This tradition was incorporated into the U.S. Constitution, in Article I, Section 9, often referred to as the suspension clause, because it permits suspension of the right to petition for a writ of habeas corpus only in times of invasion or rebellion.19

Alexander Hamilton viewed the right to petition for a writ of habeas corpus as the bulwark of all freedoms because it required that all detentions be supported by law.20 Indeed, many felt that there was no need for a Bill of Rights, because the right to the Great Writ would protect all other rights from any tyrant who would seek to violate them.

So it was this most fundamental of all rights that Lincoln took it upon himself to suspend. Among the approximately 38,000 civilians who were arrested and held by the military without trial and without judicial review during the war were newspaper editors critical of Lincoln.21

That is not to say that there was no opposition to Lincoln's detentions. He acknowledged this criticism in his famous address to Congress on July 4, 1861,22 when, referring to his suspension of habeas corpus, he argued, "are all the laws but one to go unexecuted, and the Government itself to go to pieces, lest that one be violated?"23 Lincoln's case in point was Ex Parte Merryman.24 In that 1861 case, Chief Justice Roger Taney, sitting as a circuit court judge, questioned the President's assertion of executive power to suspend the writ of habeas corpus.25 A

southern sympathizer, Merryman was, however, also a civilian, a citizen,

and a resident of Maryland which had not seceded.26 The courts were open. Lincoln suspected Merryman of plotting to blow up the rail line between Baltimore and Washington, D.C. at a time when it was the only means of moving troops from the north to defend Washington.27

Situated in Virginia, just across the Potomac River, the Army of the Potomac threatened the capitol city. Lincoln had the military arrest and detain Merryman.28 He maintained that the suspension clause, which allows suspension only "when in Cases of Rebellion or Invasion the public Safety require it,"29 permitted him to suspend the writ, which Merryman attempted to use to gain his freedom. Certainly, a rebellion was at hand. But Chief Justice Taney held that since the suspension clause rests in Article I, the President's Article II powers did not include the power to suspend the writ.30 Taney concluded that only Congress, whose powers are enumerated in Article I, had that power.31

Rather than adhere to the ruling, Lincoln appealed it to the full Supreme Court. Before the Court could consider the matter, the issue became moot when Congress ratified Lincoln's action by authorizing suspension of the writ.32 Thus, debate over whether the President has the power to suspend the writ without the support of the Congress has never been answered by the Court. It is noteworthy that immediately after the Civil War, when that great conflict was still fresh in the national mind, but when its exigencies had passed, Congress passed the current habeas statute which sets forth the procedures for habeas proceedings that we still follow, or are supposed to follow, today.33 Because the habeas statute does not contain the Constitution's caveat for suspension of the privilege in times of rebellion or invasion, many believe its passage settled the...