Comparing Bush's decision to engage in torture with Lincoln's Emancipation Proclamation is the kind of argument one would expect Alice to encounter in Wonderland. The fact that it is promoted by a clean-shaven and soft-spoken young man instead of a Mad Hatter doesn't make it any less nonsensical.
Yoo's argument rests on two equally false claims.
- Lincoln also exercised extraordinary powers under similar circumstances.
- The situation Bush faced was unprecedented.
Even if you ignore the inherent contradiction in these mutually exclusive arguments, the answer to that claim is still the same.
Balderdash. Balderdash and hogwash.
Listening to Yoo's ludicrous defense of his torture memos, it's important to recall Orwell's astute observation that "those who control the past control the future." The only way Yoo and his "client" were able to put lipstick on this pig of an idea that torture was acceptable was by completely misrepresenting historical facts.
Consider the Emancipation Proclamation. If you think that was a single document, you would be mistaken. It's actually two documents. That critical fact cannot be overlooked if you want to understand how Lincoln used this exercise of his legitimate constitutional authority to address a mind-boggling challenge.
The challenge confronting Lincoln was this:
How do you assert untested powers to enforce integrity of the Union in ways that will not later be challenged as unconstitutional?
First, you define the Union. The United States, also known as "the Union," is nothing more than the practical result of member states accepting the constitution as a common legal framework. You can't be a part of the Union unless you accept the constitution as the law of the land.
Next, you have to gain the voluntary participation of all parties.
The Confederacy had determined the constitution allowed them to leave the Union. Lincoln understood the only way the Union could function as a practical matter would be for the states in rebellion to voluntarily return. The problem could not be solved on the battlefield, you still had to settle it in court. Otherwise you could win all the battles and lose the war.
Contrary to John Yoo's glib characterization, Lincoln did not have legal advisors in the Department of Justice write memos detailing options and precedents for him to follow. Lincoln arrived at his solution based on his own experience as a lawyer. It's testimony to Lincoln's legal skill that he crafted a masterful legal strategy to meet his immediate needs without sacrificing future legitimacy. It's testimony to his political skill that he picked a time frame of 100 days, with a milestone coinciding with the New Year.
Lincoln could have issued his proclamation at any time. However, he knew he had to wait until the Union had a battlefield victory before he could dictate the terms for ending the conflict. The battle at Antietam Creek provided the opportunity he needed. Calling Antietam a "victory" for the North was a stretch. You would have less argument calling it a draw. But it was enough to give Lincoln at least the appearance of a victory to issue his first Proclamation on September 22, 1862. This doesn't get much coverage in American history classes, thus allowing people like Yoo to play fast and loose with the facts so they can justify nonsensical arguments.
The 1862 proclamation is important because that is where Lincoln establishes his authority as president and commander-in-chief. He explicitly states why the war was being waged
the war will be prosecuted for the object of practically restoring the constitutional relation between the United States, and each of the States, and the people thereof, in which States that relation is, or may be, suspended or disturbed.
He is crystal clear why he is at war. It's got nothing to do with the institution of slavery. Slavery is a key issue, but it is not his issue. His issue is restoring the previous constitutional relationship. Period. Unlike Bush, who sought every opportunity to expand his power, Lincoln explicitly relinquished his authority on the matter of slavery.
That it is my purpose, upon the next meeting of Congress to again recommend the adoption of a practical measure tendering pecuniary aid to the free acceptance or rejection of all slave States, so called, the people whereof may not then be in rebellion against the United States and which States may then have voluntarily adopted, or thereafter may voluntarily adopt, immediate or gradual abolishment of slavery within their respective limits; and that the effort to colonize persons of African descent, with their consent, upon this continent, or elsewhere, with the previously obtained consent of the Governments existing there, will be continued.
As far as he is concerned, it is a matter that Congress will decide. He viewed his role as limited to making recommendations. However, it is critical to understand that the only people who could legitimately have that discussion were representatives of the various states who
may not then be in rebellion against the United States
In short, whatever they wanted to do was fine, as long as everyone agreed a single constitutional relationship bound everyone together in a single union. Everything else is gravy. That's the carrot. Now comes the stick.
However, if 100 days in the future (January 1, 1863) a state is still in rebellion,
the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
In short, all you have to do to maintain your slaves is send representatives back to Congress sometime in the next 100 days. That is all it would take to maintain the institution of slavery in any Confederate state. How the problem was resolved going forward would then come through a legislated solution.
From a contractual point of view, what Lincoln is basically doing is saying:
- states in rebellion are in breach of contract
- you can repair this breach by returning representatives to the legislature
- you have until date certain to repair this breach
- if you do not meet these conditions, the union will no longer recognize certain property claims you are making
The last point is a logical extension of the following arugment: If you do not accept the constitution as the legal framework for the union, you do not get to exercise any rights you may enjoy under it. This includes any rights you may have as a slave owner under the Fugitive Slave Law of 1850. Notice, slaves in states that were not in rebellion, were not covered under this proclamation. If you had slaves in Maryland in 1862, this proclamation had no impact on you.
Up to this point, there is nothing extraordinary or unconstitutional about Lincoln's authority or how he exercises it. He is not promulgating any new laws. He is merely upholding the law as previously articulated by congress earlier that year (on March 13, 1862) as an Article of War.
All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due, and any officer who shall be found guilty by a court martial of violating this article shall be dismissed from the service.
That extended an earlier act of congress, titled, "An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate property of rebels, and for other purposes," approved on July 17, 1862.
That law said the Union could seize any property captured in war. This included slaves. However, slaves were treated different than other property. That act explicitly stated slaves:
shall be deemed captives of war, and shall be forever free of their servitude and not again held as slaves.
In keeping with the constitutional exercise of his powers, Lincoln also stated
And the executive will in due time recommend that all citizens of the United States who shall have remained loyal thereto throughout the rebellion, shall (upon the restoration of the constitutional relation between the United States, and their respective States, and people, if that relation shall have been suspended or disturbed) be compensated for all losses by acts of the United States, including the loss of slaves.
Again, all he is saying is we need to re-establish a functioning government invested with constitutional authority recognized by all parties. Anyone who accepts that minimum condition is guaranteed to have their rights respected. That includes compensation for any losses due to actions taken by the United States government.
The next step in this process came 100 days later, on January 1st. None of the Condfederate states sent duly elected representatives back to congress, so he issued the second Emancipation Proclamation on January 1, 1863.
Referring back to his first proclamation, he exercised his authority to declare specific states as actively engaged in rebellion against the United States because they had not met the terms laid out previously. His declaration is interesting to read:
Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth), and which excepted parts, are for the present, left precisely as if this proclamation were not issued.
What makes this interesting is the contrast with Bush's incessant desire to expand his authority. Lincoln explicitly carves out areas of Louisiana, West Virginia and Virginia from this proclamation. Slaveholders in New Orleans or Norfolk were not affected by this proclamation. Slaveholders in Maryland were not affected by this proclamation.
In addition to limiting his claim of authority to states in open rebellion, Lincoln also limited the claim that could be made on any freed slaves.
And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.
And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.
If former slaves wanted to join the armed services, they were welcome provided they were suitable for service. If they wanted to sit out the fight, they could do that, too. They were not pressed in to service. No special authority was asserted over these newly minted citizens.
In sum, comparing Bush's wanton and repeated abuse of the 2002 Authorization to Use Military Force to Lincoln's Emancipation Proclamation is completely at odds with the facts. When you look at what Lincoln did, there is no secret use of extrajudicial authority. There is no unilateral exercise of power. There is no unitary executive. There is no appeal to absolute authority. There is no moral, or religious argument made to justify the proclamation. There is no lofty goals of better tomorrows. No claims based on personal wrongs. All he wants is for people to return in good faith and use established institutions to craft a practical solution for a dispute over property rights.
The second canard, that they needed extraordinary powers because they faced an unprecedented threat, will be dealt with in a second installment. Suffice to say, Yoo's defense of Bush by ignoring Jefferson is nonsense, too.