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Politics increasingly have drawn us all into a kaleidoscope of support, counter-support, dogma, ideology -- but ultimately, one of paradoxes that should always remind us that it is still a kaleidoscope, not a telescope.  Politics obscures more than it reveals.

We Democrats lionize Andrew Jackson, the midwife of the populist spirit of the Democratic party, despite the fact that Jackson is almost certainly the archetype for an American tyrant; unbound by courts - but also powerful banking interests; dismissive of ruling elites, but wed to a racial elitism that exclude large swaths of differently pigmented people from the white poor and middle class he championed; steadfast and unswerving, but also paranoid and vindictive.  His opponents said as much of him nearly two centuries ago and any honest reading of his history would have to say that they were more right than they were wrong.  

Not a day goes by when the cherished letters F, D, and R aren't reverently spoken of as a sort of progressive amulet -- the prototype for what most would say they want in an American President.  Yet - it was that same FDR... not a Bush, not an Obama, not even a Wilson or a Nixon who perpetrated the greatest crime against American civil liberties in our nation's history.  If that doesn't constitute a paradox, then it should probably be noted that it was actually the progressive nightmare, Ronald Reagan, who issued the national apology to the 140,000 Japanese internees that resulted from EO 9066, and later EO 9102.

It was, though, Abraham Lincoln who perhaps blazed the trail of extraordinary government powers -- Adams, of course, tried -- but it was Lincoln who "succeeded" in enshrining the limitations of habeas corpus, the theory of the unitary executive and extraordinary powers in the name of public safety, and the like.

Subjectively, of course - we can draw distinctions between the GWOT, a Civil War, a bloody foreign revolution, and a localized conflict.  However, it should be noted -- Mr. Turley and Mr. Greenwald -- we are still applying a subjective analysis to excuse one or more but not one or the other.  We are not applying a checklist of position papers and ideological theory.  We are recognizing the world, governments, and the people who serve in them as flawed people, negotiating flawed systems, often with flawed means, towards sometimes even flawed ends.

But back to Mr. Lincoln...

In April of 1863 (roughly a month before Congress would legislatively bless Lincoln's unitary executive suspension of habeas corpus), General Ambrose Burnside issued General Order 38.

"Peace Democrat" -- or copperhead, if you like (or Ron Paul before pre-incarnate, if you consider it closely) Clement Vallindigham was taken into custody after a rally opposing the Order.  After much wrangling -- including a rather naked political horsetrade attempt via the Birchard letter, Vallandigham was exiled to the south... where he almost immediately secured passage to Bermuda, and then Canada, and continued an Ohio gubernatorial bid from abroad.  The Supreme Court in ex parte Vallandigham enshrined both the arrest without warrant, punishment without trial, and lack of recourse for Vallandigham.... who would sneak back into the US, but be largely ignored by the administration thereafter, which actually serves to undercut the need to arrest him to begin with.

In short, the episode -- as were plenty of others in dealing matters of the copperheads -- a rather murky stew of constitutional breaches and civil liberty end-arounds.

In one of his many finest hours, though -- it is Lincoln's response to the outcry; a perfectly justified and quite correct outcry on principled and dogmatic grounds -- that is worth reading.

As Vallandigham sat in limbo, a group of NY Democrats gathered to express their outrage.  Lincoln responded in the relatively famous Corning letter--

It's the sort of stuff that probably turns the libertarians stomach, but it's also the sort of stuff that probably preserved the Union:

Their sympathizers pervaded all departments of the government, and nearly all communities of the people. From this material, under cover of "Liberty of speech'' "Liberty of the press'' and "Habeas corpus'' they hoped to keep on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause in a thousand ways. They knew that in times such as they were inaugerating, by the constitution itself, the "Habeas corpus'' might be suspended; but they also knew they had friends who would make a question as to who was to suspend it; meanwhile their spies and others might remain at large to help on their cause. Or if, as has happened, the executive should suspend the writ, without ruinous waste of time, instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised in regard to this, which might be, at least, of some service to the insurgent cause. It needed no very keen perception to discover this part of the enemies' programme, so soon as by open hostilities their machinery was fairly put in motion. Yet, thoroughly imbued with a reverence for the guarranteed rights of individuals, I was slow to adopt the strong measures, which by degrees I have been forced to regard as being within the exceptions of the constitution, and as indispensable to the public Safety. Nothing is better known to history than that courts of justice are utterly incompetent to such cases. Civil courts are organized chiefly for trials of individuals, or, at most, a few individuals acting in concert; and this in quiet times, and on charges of crimes well defined in the law. Even in times of peace, bands of horse-thieves and robbers frequently grow too numerous and powerful for the ordinary courts of justice. But what comparison, in numbers, have such bands ever borne to the insurgent sympathizers even in many of the loyal states? Again, a jury too frequently have at least one member, more ready to hang the panel than to hang the traitor. And yet again, he who dissuades one man from volunteering, or induces one soldier to desert, weakens the Union cause as much as he who kills a union soldier in battle

In effect, Lincoln is dispensing with principle and dispensing with dogma because he must.  

History - and I think most of us, probably judge him correct.  At minimum, Congress would judge him correct a month later -- legislatively granting him that which he already claimed as his purview, and the Supreme Court would further validate it in 1864.  Today, it is hardly up for debate.

But - at that moment in time, at the moment a man --- an avowed political opponent, no less --- had been arrested without warrant, held without trial, and justice meted out by fiat... where would the P4VLbots stand?  Where would Turley and Greenwald?  Where would YOU?

It's perfectly fine to say with Vallandigham, Corning, and the like -- I'm not entirely sure I wouldn't as well.  It's only with the benefit of hindsight that one can really laud Lincoln for this action.  

However, it's Lincoln's reasoning that would have allowed me to support Lincoln in spite of of his blessing for General Order 38, not because of it.

Oddly echoing the complaints about the assassination of al-Awlaki -- Lincoln continues....

Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feeling, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration of a contemptable government, too weak to arrest and punish him if he shall desert. I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.

As Lincoln explains in his letter to this group of Democrats, no less than the then-still revered as the soul of the Democratic party, Andrew Jackson recognized extraordinary circumstances do not lend themselves to principle...

After the battle of New-Orleans, and while the fact that the treaty of peace had been concluded, was well known in the city, but before official knowledge of it had arrived, Gen. Jackson still maintained martial, or military law. Now, that it could be said the war was over, the clamor against martial law, which had existed from the first, grew more furious. Among other things a Mr. Louiallier published a denunciatory newspaper article. Gen. Jackson arrested him. A lawyer by the name of Morel procured the U.S. Judge Hall to order a writ of Habeas Corpus to release Mr. Louiallier. Gen. Jackson arrested both the lawyer and the judge. A Mr. Hollander ventured to say of some part of the matter that "it was a dirty trick.'' Gen. Jackson arrested him. When the officer undertook to serve the writ of Habeas Corpus, Gen. Jackson took it from him, and sent him away with a copy. Holding the judge in custody a few days, the general sent him beyond the limits of his encampment, and set him at liberty, with an order to remain till the ratification of peace should be regularly announced, or until the British should have left the Southern coast.

As any historian can tell you -- in fact, the battle of New Orleans occurred after the War of 1812 had technically ended... and yet, there was Jackson, the populist man of the people -- arresting not just an 'agitator', but even the judge who issued the writ to free him.

As Lincoln said -- the principle of habeas corpus and civil liberties survived.   As he predicted, it would survive him.  As he surely would tell us if he were here today, it survived George W Bush, and it will survive Barack Obama, and it will survive the NDAA.

Lincoln would not damn Turley or Greenwald anymore than he did Corning, I think -- but I believe he would argue that a President is faced with often contradictory purpose.  A President is on one hand, charged with defending and protecting the constitution -- a piece of paper that spells out our national principles.  Yet, he is also charged with the defense of a nation of living and breathing people.  

When those two ends cannot be met through reconcilable means -- whither the principle?  

I do not live in fear of terrorism, though I reside in a large urban center, near an inviting target, and have family in another.  I am not comfortable with the specific language of Secs. 1021 and 1022 of the NDAA.  I do not 'credit' Obama for signing a bill that passed with more than veto-proof majorities.

However, just as Lincoln would be influenced and informed -- but not ruled absolutely by theoretical principle, I do understand that a President deals in reality.  The reality is that terrorism by its current incarnation seeks to use our beloved principles against us - to slip through the cracks of our liberties for its own ends and advantages, just as the copperheads sought to use those same freedoms to end a conflict that they opposed.

There are no easy answers here -- there weren't for Lincoln, or for Roosevelt, or for Jackson, or even Adams, either.  There weren't for Bush and there aren't for Obama, and as much as he may like to claim there are on the campaign trail -- there wouldn't be for a President Paul, either.

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Comment Preferences

  •  Tip Jar (3+ / 0-)

    Full Disclosure: I am an unpaid shill for every paranoid delusion that lurks under your bed - but more than willing to cash any checks sent my way

    by zonk on Tue Jan 03, 2012 at 03:21:38 PM PST

  •  Thanks for the great read! (1+ / 0-)
    Recommended by:
    Cartoon Peril

    I do think Obama believes he faces the same challenge as Lincoln -- preserving the union -- and that he has taken a similar response:

    Lincoln is dispensing with principle and dispensing with dogma because he must.

    Of course, he's getting beaten up by both sides about it, and that shouldn't be surprising. The forces dividing us are transnational corporations supported by the five corporations that own most of the media. Their weapons are fear and hate, so we have no informed electorate, no democracy. The Bill of Rights is gone as well.

    It looks bleak until Occupy raises its beautiful head. But is it too late? How ominous is the danger from terrorism? Does it really trump civil liberties, or is it the Power of Nightmares? Still?


    Thanks again for the informative, thoughtful diary, zonk.

    "Let each unique song be sung and the spell of differentiation be broken" - Winter Rabbit

    by cotterperson on Tue Jan 03, 2012 at 04:37:04 PM PST

    •  Terrorism is always with us, in one form or (1+ / 0-)
      Recommended by:

      another.  We've had for example the Red Scare in 1918 through 1921, that was used to create numerous inroads on civil liberties.  In fact, a terrorist who wishes to destabilize a state may well be aided by a state's overreaction to a threat.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Tue Jan 03, 2012 at 04:57:18 PM PST

      [ Parent ]

      •  Sure - (1+ / 0-)
        Recommended by:

        But  again, that's the whole point... we're always in the midst of some upheaval that draws a reaction which doesn't square with principle.

        Sometimes we  -- or rather, we and the government -- get it right, sometimes we get it wrong.

        I think that our current situation is open for debate - but what I get from Greenwald/Paul/etc isn't debate - it's dogma.  You can't really debate dogma.

        Full Disclosure: I am an unpaid shill for every paranoid delusion that lurks under your bed - but more than willing to cash any checks sent my way

        by zonk on Tue Jan 03, 2012 at 06:03:37 PM PST

        [ Parent ]

    •  That's the discussion I wish we could have (1+ / 0-)
      Recommended by:

      My opposition to the AUMF, and Patriot Act wasn't absolute ~10 years ago -- what I did oppose was the rash and reckless manner in which they were approached.

      I think we had an administration running scared, a public that they certainly tried to scare, and a congress unwilling to fulfill its duties to have a debate.

      I mean - forget the mushroom cloud stuff - we should have had a real debate about neocon theory of 'flowering democracies'... No one denies Saddam Hussein was a despot, but we should have had a debate about whether we could reasonably expect to just rid Iraq of him and everything to be peachy from there.

      Full Disclosure: I am an unpaid shill for every paranoid delusion that lurks under your bed - but more than willing to cash any checks sent my way

      by zonk on Tue Jan 03, 2012 at 06:08:44 PM PST

      [ Parent ]

  •  Our situation is much different from the Civil War (1+ / 0-)
    Recommended by:

    This was an actual overt war against the United States that was waged both by armies in the field but also by guerrilla movements and treachery of all kinds.  What is appropriate then is not likely ever to be repeated now.

    Our current situation, which is based on the unprecedented level of harm caused on 9/11, still has its precedents.  There have always been scares about subversion, anarchists, Bolsheviks, etc.  Some of these were genuine, for example President McKinley was shot and killed by an anarchist.  And we saw the WallStreet Bombing in 1920, which killed 38 people and injured 400 more.  A good list is here.  Other "threats" were exaggerated.  

    But none of these, until now (with the exception of the Vallindingham/Copperheads and the Japanese internment cases) has been  thought to justify suspension of the writ of habeas corpus.  In terms of the Japanese internment decision, that has been so reviled, I think no court would ever rely on it ever again.

    So, the current idea, that military rule can take the place of civilian courts, when there is no actual state of armed rebellion, is quite novel and potentially very dangerous.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Tue Jan 03, 2012 at 04:52:28 PM PST

    •  I would say two things in response -- (1+ / 0-)
      Recommended by:

      First, that military rule isn't taking the place of civilian courts -- at least, not wholesale.   Civilian courts are still functioning and presumably, as we've already seen (take the WA MLK Day parade bomber, for example) they will still be used.

      I'm not entirely comfortable with the language of the NDAA, either -- but neither am I comfortable with the relative hyperbole accompanying it.  Even beyond that -- it's awfully hard to say the civilian courts were a beacon of justice to say... Sacco/Vanzetti.

      Second, and perhaps more importantly though - I think the argument against the NDAA requires one to wholly subvert oneself to the rule of principle.  That's been particularly true of the Stollers, Greenwalds, and Pauls (especially Paul) -- i.e., there is NO situation where such subversions of civil liberties are acceptable.  

      At the end of the day, that's my point and that was Lincoln's point... that we're bound by realities, not principle.  Greenwald, et al are not arguing that this situation doesn't meet the subjective criteria of an acceptable exception; they're arguing no such exception exists.  Or at minimum - I haven't read a single thing by Stoller, Greenwald, Turley, or Paul that indicates they'd have viewed Lincoln's suspension differently.

      Full Disclosure: I am an unpaid shill for every paranoid delusion that lurks under your bed - but more than willing to cash any checks sent my way

      by zonk on Tue Jan 03, 2012 at 06:00:12 PM PST

      [ Parent ]

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