A Comparison and Contrast of the Suspension of the Writ of Habeas Corpus by Presidents Abraham Lincoln & George W. Bush

Authors

Clayton Barnes, Lincoln Memorial UniversityFollow

Abstract

During their presidencies, Abraham Lincoln and George W. Bush both suspended the writ of habeas corpus; while these two situations appear to be similar, the facts surrounding each president’s suspension are vastly different. As I will later discuss in detail, President Lincoln was faced with an imminent rebellion near our nation’s capital that threatened the existence of the United States, had it been successful. On the other hand, President Bush called for the detention of enemy combatants on foreign soil where there was no immediate danger posed to the United States becuase a substantial amount of time had passed since the terrorist attacks on our country. Furthermore, President Lincoln was forced to act alone, as the events causing his suspension of the writ of habeas corpus arose while Congress was not in session, and would not be in session for the next several months. President Bush found himself in a much different situation, in that respect, as he had a congress currently in session, yet he still decided to take executive action without approaching legislators to suspend the writ of habeas corpus in compliance with the constitution. In both situations, the Supreme Court has ruled that access to the writ of habeas corpus is a fundamental right, and suspension of such by a president is in violation of the United States Constitution. Abraham Lincoln’s suspension of habeas corpus during the Civil War presented issues similar to those presented by the Guantanamo detainee cases. Presidents Lincoln and Bush both unconstitutionally suspended habeas corpus during a time of war because the writ of habeas corpus is a fundamental right and suspension is a power granted only to congress. Although the suspension appears to be unconstitutional, President Lincoln was justified in suspending the writ of habeas corpus due to provisions in Article II of the United States Constitution.

Recommended Citation

Clayton Barnes, A Comparison and Contrast of the Suspension of the Writ of Habeas Corpus by Presidents Abraham Lincoln & George W. Bush, 8 Lincoln Mem’l U. L. Rev. 316 (2020).
Available at: https://digitalcommons.lmunet.edu/lmulrev/vol8/iss1/6