Thinking about the Great Liberator

Today’s New York Times story on the NSA surveillance program represents another epidemic of lawbreaking among the “current and former government officials” who are the sources of the Times story. According to the Times, “The current and former government officials who discussed the program were granted anonymity because it remains classified.”

As in its original story on the NSA surveillance program, the tone is ominous and the implication of illegality is present without any analysis:

What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.

Rather than discuss this story further, I thought I might revisit a story regarding Lincoln’s exercise of the commander-in-chief’s war powers during the Civil War. Lincoln’s primary aim as commander-in-chief was of course the preservation of the Union — the restoration of democracy and the rule of law among the seceding states. He meant to demonstrate that “among free men, there can be no successful appeal from the ballot to the bullet; and that those who take such appeal are sure to lose their case, and pay the cost.” Indeed, as Daniel Farber recalls in Lincoln’s Constitution, Lincoln originally called up the militia in the name of the rule of law because “the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed” by “combinations too powerful to be suppressed by the ordinary course of judicial proceedings.”

In subduing the Confederacy, Lincoln took his bearings by his constitutional duty to “preserve, protect and defend the Constitution.” Though this is the subject for another day, it should be noted that, given the Supreme Court’s handiwork in the Dred Scott case, he was not an advocate of judicial supremacy. As president and commander-in-chief, he suspended habeas corpus, used martial law, instituted military trials, and exercised power to the limits of his constitutional authority in a manner that illuminates the loose nature of those limits when confronted by necessity. Yet Lincoln preserved the rule of law and became the Great Liberator.

As Farber notes, “several Civil War actions taken under military authority impinged on freedom of speech.” Perhaps best known is the case of former Ohio Congressman Clement Vallandingham. As commanding general of the Department of Ohio, Ambrose Burnside prohibited “the habit of declaring sympathies for the enemy.” In the spring of 1863, Burnside had Vallandingham arrested for violating the order in a speech calling the war “wicked, cruel and unnecessary.” As Farber recounts, “he called upon his audience to [use the ballot box to] hurl ‘King Lincoln’ from his throne.” The echoes of Vallandingham in Senator Kennedy’s column this week are surely inadvertent. The Peace Democrats of 1863 nevertheless sound remarkably like today’s Peace Democrats.

In any event, the military commission found Vallandingham guilty of violating Burnside’s General Order No. 38 and ordered him confined until the war ended. The ensuing controversy elicited Lincoln’s famous letter to Erastus Corning defending the policy of military arrests in the name of public necessity. Lincoln ultimately resolved the controversy over Vallandingham’s conviction and confinement by banishing him to Confederate territory (from which he escaped to Canada).

From the case of Vallandingham, Farber moves on to consider the case of the New York World. The case of the World combines elements of last year’s presidential campaign in a way that gives it a surprisingly contemporary feel. As Farber tells it:

Two journalists forged an Associated Press story about a bogus presidential call for drafting four hundred thousand men. (As a signal of desperation by the president, this “news” was supposed to drive up the price of gold, allowing the two men to make a quick profit.) The World fell for the stunt and published the story. Suspecting a Confederate plot, Lincoln ordered the arrest of the editors and publishers, as well as the seizure of the premises. This put the newspaper out of business until the order was countermanded.

(Footnote omitted.) For some reason, the story comes to mind this morning. (This post closely follows Farber’s book at pages 170-173 and 176. For more, see Professor Michael Paulsen’s brilliant review of Farber’s book in the spring 2004 issue of the University of Chicago Law Review, Mark Neely’s Pulitzer Prize-winning The Fate of Liberty, and William Rehnquist’s All the Laws But One.)

JOHN adds: Thankfully, our enemies no longer control territory to which modern-day Dems could be sent, so the Vallandingham precedent isn’t practical. It’s a fun idea to contemplate, though. What do you suppose the Taliban would have made of Nancy Pelosi? Or of Patty Murray, when she volunteered to work in one of Osama’s day care facilities? And would exile among the teetotaling Talibans have been a fate worse than death for Ted Kennedy, or what? But if we had sent them John Kerry, I think it would have turned out like “The Ransom of Red Chief.”

UPDATE by JOHN: Michelle Malkin has much more on the Times’ latest leak. It sounds to me as though the data-mining project that is the subject of today’s story is something quite different from the much more limited surveillance that was described in the Times’ original stories. Both, I think, are good ideas. The data mining project is reminiscent of Able Danger, and it sounds exactly like the Echelon program that briefly stirred controversy during the Clinton administration. I think the NSA intercepts that are the subject of today’s article have been going on for years, if not decades.

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