“In the conduct of war,” wrote Alexander Hamilton in the Federalist Papers, No. 70, “the energy of the executive is the bulwark of the national security.” But can the energy of the executive also be the enemy of liberty? Senator Rand Paul (R-Ky.) apparently thinks so, and on March 6 he launched an old-fashioned filibuster to make the point. “I will speak as long as it takes, until the alarm is sounded from coast to coast,” Paul said. What had alarmed Paul was the Obama administration’s policy on drone strikes in the war on terror. Attorney General Eric Holder had written Paul that although ordinary law enforcement offered “the best means” for foiling terrorist threats, the president could in an “extraordinary circumstance” authorize the military to use lethal force, including drones, “within the territory of the United States.”
That sounded too open-ended to Paul, and he launched his talk-a-thon. “No American,” he said, “should be killed by a drone on American soil without first being charged with a crime” and “found to be guilty by a court.”
Paul’s underlying concern—a commander in chief who arrogates too much power—has bothered other congressmen during past American wars. One of the sharpest clashes over executive-military overreach happened during the Civil War, pitting prominent Democrats against Abraham Lincoln.
Because the Civil War was a rebellion, Lincoln exercised a power beyond that of ordinary war-making: the right to suspend the writ of habeas corpus. Article 1, Section 9 of the Constitution allows habeas corpus to be dispensed with during rebellions and invasions, and alleged rebels can be arrested and tried by military tribunals. Lincoln first suspended habeas corpus two weeks after the attack on Fort Sumter to discourage sabotage on the crucial railroad line connecting Washington, D.C., and Philadelphia. In September 1862, he suspended it nationwide, chiefly to allow the Union Army to arrest anyone interfering with recruitment.
Military trials could be officious and capricious, and Democrats successfully made an issue of them in the elections of 1862, picking up almost 30 seats in the House of Representatives, including Lincoln’s own district in Illinois. The Emancipation Proclamation, which went into effect on January 1, 1863, and a conscription act, which Lincoln signed in March, raised additional complaints about his war policies.
Clement Vallandigham, a former Democratic congressman from Ohio who had opposed the war from day one, brought public dissatisfaction to a head. On May 1 he gave a speech that called the war “wicked, cruel and unnecessary.” It was being fought “for the freedom of the blacks and the enslavement of the whites,” and would create “a monarchy upon the ruins of our free government.” For good measure, he called the president “King Lincoln.” General Ambrose Burnside had him arrested, and a military commission found him guilty of “weakening the power of the Government in its efforts to suppress an unlawful rebellion.” He was sentenced to military prison for the duration of the war.
Vallandigham’s ordeal transformed him into a martyr. Ohio Democrats wanted to run him for governor. Protest meetings were held in New York and New Jersey, with the approval of the states’ Democratic governors. Even some in Lincoln’s Cabinet thought Burnside had gone too far: Secretary of the Navy Gideon Welles wrote in his diary that Vallandigham’s arrest had been “an error.” On May 19 Lincoln, combining mercy with a touch of malicious humor, ordered Vallandigham exiled to the Confederacy, instead of being jailed. But he realized that he also needed to make some public statement.
He was given his opportunity by Erastus Corning, another Democratic politician. Corning, president of the New York Central Railroad and a congressman from upstate New York, sent Lincoln a set of resolutions adopted by a meeting of Albany Democrats. They declared their support of the Union and the war, but called Vallandigham’s arrest a “blow” to the Constitution, citing specifically the Fifth and Sixth Amendment guarantees of grand jury indictments and speedy and public jury trials. Lincoln, an old trial lawyer with a taste for constitutional reasoning, prepared a long and careful response, which he mailed on June 12 to Corning and to the New York Tribune, the nation’s leading Republican newspaper.
Lincoln praised the Albany Democrats for their patriotism in order to drive a wedge between them and Vallandigham. He dismissed their constitutional objections as irrelevant. Legal safeguards applied to “ordinary” crimes committed by “individuals” or “a few individuals acting in concert.” Now, however, the country was faced with “a clear, flagrant and gigantic case of rebellion.” The Constitution had foreseen such contingencies and provided for them in Article 1, Section 9.
Lincoln then turned to Vallandigham, and cast the Ohioan’s antiwar speech as blatant propaganda. No one would want to fight for white enslavement and King Lincoln. Therefore, Lincoln wrote, Vallandigham was trying “to prevent the raising of troops.” If he succeeded, how could the rebellion be suppressed? Lincoln hammered home the point with pathos. “Must I shoot a simpleminded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?”
Lincoln concluded his letter with humor, comparing rebellion to sickness and military tribunals to medicine. There was no need to worry that the remedy would outlast the disease. Would anyone “contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life”?
Lincoln had made his critics seem simultaneously well-intentioned, niggling and foolish. The letter, reissued as a pamphlet, sold 500,000 copies, and solidified support for the administration. Vallandigham’s failed run for the governorship showed how opinion had shifted. After being exiled to Richmond, he went to Bermuda, then Windsor, Ontario, just over the border from Detroit, where he ran his campaign. In the fall of 1863 a pro-Union Democrat crushed him.
But Vallandigham’s and Corning’s efforts had not been entirely in vain. They caused Lincoln to explain what the Army was doing, based on the Constitution, and to put a time limit on its actions—the duration of the war.
Rand Paul’s filibuster also got results, if not such dramatic ones. With the help of time-consuming questions from his colleagues, he spoke for almost 13 hours. With the far more important help of Twitter and YouTube, he became a social media sensation. The day after his oral marathon, Attorney General Holder sent him a two-line letter: “Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil? The answer is no.” Paul said he was “quite happy” with the response.
Lincoln, Vallandigham and Corning struggled over policies that were actually in place. Holder and Paul tussled over a hypothetical situation (though one suggested by realities: American drones have killed dozens of terrorists abroad, including several who were American citizens). In both the Civil War and the terror war, hostile politicians forced the administration to be more specific about what it was doing and why.
In both wars, however, once the controversies died down the president remained commander in chief, with enormous powers. Lincoln would wield his for almost two more years after his letter to Corning. Two presidents have been waging the war on terror for more than 12 years. Congress and partisan rivals can block and check an energetic wartime executive, but it is very hard to rein him in.
Originally published in the August 2013 issue of American History. To subscribe, click here.
