fort mchenry

Recently, I came across a little known case that I wanted to call to your attention. It involves the ancient writ of habeas corpus, which was first recognized in 1215 in the Magna Carta, but existed long before that. In Alabama, the writ of habeas corpus has been codified in Section 15-21-1 et. seq. Code of Alabama (1975). It did not need to be codified by our legislature as it is what Thomas Jefferson referred to as a “Natural Right”– a right given to us by God and God alone and not the government, which pre-existed the formation of any government.

Generally, a writ of habeas corpus means that any person who has been imprisoned by any arm of the government is entitled to file such a writ with the proper court, either a state circuit court or United States District Court and demand to be brought before the judge and have his jailors explain to the judge under what legal right they are holding the prisoner.

I am going to read you the pertinent parts of the Petition for a writ of habeas corpus to a United States Court Judge all but ignored by the media:

“To the Hon. Judge William B. Traxler, Jr., Chief United States Circuit Judge for the Circuit of Maryland: The petition of Abdullah Haddam Mohammed, of Baltimore County and State of Maryland, respectfully shows, that being at home, in his own domicile, he was, about the hour of two o’clock a. m., on the 25th day of May, aroused from his bed by an armed force pretending to act under military orders from some person to your petitioner unknown. That he was by said armed force, deprived of his liberty by being taken into custody, and removed from his said home to Fort McHenry, near to the City of Baltimore, and in the district aforesaid, and where your petitioner now is in close custody. That he has been so imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law and in violation of the Constitution and laws of the United States, of which he is a citizen. That since his arrest, he has been informed, that some order, purporting to come from one General Keim, of Pennsylvania, to this petitioner unknown, directing the arrest of the captain of some company in Baltimore County, of which company the petitioner never was and is not captain, was the pretended ground of his arrest, and is the sole ground, as he believes, on which he is now detained. That the person now so detaining him at said fort is Brigadier General George Cadwalader, the military commander of said post, professing to act in the premises under or by color of the authority of the United States. Your petitioner, therefore, prays that the writ of habeas corpus may issue, to be directed to the said George Cadwalader, commanding him to produce your petitioner before you, judge as aforesaid, with the cause, if any, for his arrest and detention, to the end that your petitioner be discharged and restored to liberty, and as in duty.

S/Abdullah Haddam Mohammed. Fort McHenry, 25th May.

Judge Taxler issued the following order the next day and attempted to have it served by two United States Marshals on the commander of Fort McHenry, who of course was the person holding Mr. Mohammed, who I suppose was a suspected terrorist:

“District of Maryland, to wit: The United States of America, to General George Cadwalader, Greetings: You are hereby commanded to be and appear before the Judge William B. Traxler, Jr., Chief United States Circuit Judge for the Circuit of Maryland at the United States courtroom, in the United States Courthouse, in the City of Baltimore, on Monday, the 27th day of May, at eleven o’clock in the morning, and that you have with you the body of Abdullah Haddam Mohammed, of Baltimore County, and now in your custody, and that you certify and make known the day and cause of the captor and detention of the said Abdullah Haddam Mohammed, and that you then and there, do, submit to, and receive whatsoever the said United States Circuit Judge shall determine upon concerning you on this behalf, according to law, and have you then and there this writ.”

Witness, Judge William B. Traxler, Jr., Chief United States Circuit Judge for the Circuit of Maryland & Thomas Spicer, Clerk. Issued 26th May.

The two United States Marshals were turned back at the gate of the fort and refused to accept lawful service of a United States Circuit Judge.

I want to read you just a portion of the Judge Taxler’s opinion and order:

“A copy of the warrant or order under which the prisoner was arrested was demanded by his counsel and refused: and it is not alleged in the return, that any specific act, constituting any offence against the laws of the United States, has been charged against him upon oath, but he appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts which, in the judgment of the military officer, constituted these crimes. Having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the president to suspend it.”

The case, then, is simply this: a military officer, residing in Pennsylvania, issued an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears. Under this order, his house is entered in the night, he is seized as a prisoner and conveyed to Fort McHenry, and there kept in close confinement; and when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a Judge of the United States Circuit Court for the Circuit of Maryland, in order that he may examine into the legality of the imprisonment, the answer of the officer, is that he is authorized by the President to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.

As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the President claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by an Act of Congress.

Even if the privilege of the writ of habeas corpus were suspended by Act of Congress, and a party not subject to the rules and articles of war were afterwards arrested and imprisoned by regular judicial process, he could not be detained in prison or brought to trial before a military tribunal, for the article in the amendments to the constitution immediately following the one above referred to (that is, Article Six) provides, that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.”

The only power, therefore, which the President possesses, where the “life, liberty or property” of a private citizen is concerned, is the power and duty prescribed in the third section of the Second Article, which requires “that he shall take care that the laws shall be faithfully executed.” He is not authorized to execute them himself, or through agents or officers either civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the government to which that duty is assigned by the Constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm; but in exercising this power he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments. With such provisions in the Constitution, expressed in language too clear to be misunderstood by anyone, I can see no ground whatever for supposing that the President, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law.

Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for self defense in times of tumult and danger. The government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the Constitution, and neither of its branches–executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted; for Article Ten of the amendments to the Constitution, in express terms, provides that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”

Indeed, the security against imprisonment by executive authority, provided for in Article Five of the amendments to the Constitution, which I have before quoted, is nothing more than a copy of a like provision in the English Constitution, which had been firmly established before the Declaration of Independence. Blackstone states it in the following words: “To make imprisonment lawful, it must be either by process of law from the courts of judicature, or by warrant from some legal officer having authority to commit to prison.” 1 Bl. Comm. 137.

Mr. Justice Story, speaking, in his Commentaries, of the habeas corpus clause in the constitution, says:

“It is obvious that cases of a peculiar emergency may arise, which may justify, nay, even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused, in bad times, to the worst of purposes. Hitherto, no suspension of the writ has ever been authorized by congress, since the establishment of the Constitution. It would seem, as the power is given to congress to suspend the writ of habeas corpus, in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body.” 3 Story, Comm. Const. s 1336.

But the documents before me show, that the military authority in this case have gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws and substituted a military government in its place, to be administered and executed by military officers.

Our Constitution provides, as I have before said, that “no person shall be deprived of life, liberty or property, without due process of law.” It declares that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It provides that the party accused shall be entitled to a speedy trial in a court of justice.

These great and fundamental laws, which Congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

In such a case, my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome.

[The Judge’s Opinion and Order was never appealed to the United States Supreme Court by the U.S. government, thus it is the law of the land.]

I would like to tell you that this madness happened under our current President, Barrack Obama. No friends and lovers of Liberty, I— as a Jeffersonian Constitutionalist, am ashamed to tell you that this flagrant violation of our Constitution took place not under a Democrat president not even under Bush the Second, but under our very own Republican President, a probable war criminal, Abraham Lincoln.

The above event did not happened in May of 2003 or during the last decade’s “War on Terror”, and did not happen to Abdullah Haddam Mohammed.   It happened to John Merryman, who the federal government thought might be a “southern sympathizer” but was never charged or convicted of any offense. He was later Secretary of State of Maryland. The only portions of the opinion I changed were Merryman’s name and the judge’s name. The case is ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) for those of you who would like to read it all. The Judge was of course United States Supreme Court Chief Justice and Maryland Circuit Court Judge Roger B. Taney.

Maybe most shockingly, the historian for the U.S. Marshal’s Service wrote in a book released in 1989 that President Lincoln attempted to have the 84 year old Chief Justice arrested after Justice Taney issued this opinion. See: The Lawmen: United States Marshals and their Deputies, 1789–1989, Frederick S. Calhoun, (Smithsonian Institute, Washington, D.C. 1989). See also: Ex parte Merryman and Debates on Civil Liberties During the Civil War, Bruce A. Ragsdale, Federal Judicial History Office (2007) .

Least anyone bring up the cases of the German spies/saboteurs who were arrested during World War II, tried by military commissions, and then executed, they all had their Petitions for Writs of Habeas Corpus heard before the proper United States Courts and their arguments were fully aired in a public forum. All except one–Hans Haupt, a U.S. citizen–were foreign born; presumptively members of the 3rd Reich were accorded the basic rights guaranteed under our Constitution. They were not hustled off to a secret prison; they were not blindfolded and flown to a friendly, authoritarian nation such as Hosni Mubarak’s Egypt or some other “friendly” country for questioning. It was all done in public. But even the way theses case were handled turned the stomach of one of our greatest legal scholars and Justices, Antoine Scalia, who stated: “these cases were not this court’s finest hour” as, in part, the prisoners were executed even before the formal written opinion was released by the U.S. Supreme Court.   See: Ex parte Quirin, 317 U.S. 1, at 17 (1942). See also: Yaser Esam Hamdi And Esam Fouad Hamdi, As Next Friend Of Yasser Esam Hamdi, Petitioners v. Donald H. Rumsfeld Secretary Of Defense, et al., 542 U.S. 507 (2004).

So it appears that learning the law in a log cabin by candlelight is not really the best way to do it. You miss all that little stuff about civil rights, the Constitution and due process, a public trial, and habeas corpus.

You see, would-be tyrants come along all the time, whether they be Abraham Lincoln, Woodrow Wilson, Bush II, or Barrack Hussein Obama.

Whenever you allow your Constitutional rights—your Natural Rights to be trampled, these would be tyrants just become more embolden.

We know that those who forget the lessons of history are doomed to repeat them. We also know that government which governs best—governs least.

Thomas Jefferson, James Madison, Benjamin Franklin, and George Washington would be ASHAMED of us if they could see us lining up like meek lambs at the airport waiting to be sexually molested by Janet Napolitano’s thugs. This is frighteningly reminiscent of law abiding Jews lining up at the train depot to be shipped off to Buchenwald to be tortured, experimented upon, and murdered. President Jefferson would vomit if they knew our children’s nude photographs were being taken by airport scanners that George Orwell could have never conceived of in his novel 1984.

Friends, make no mistake, the right to travel, even by airplane, is a Constitutional right, a Natural Right given to us by God, and cannot be lost or taken away by the Patriot Act, George W. Bush, or Janet Napolitano’s thugs. [See: Paul v. Virginia, 75 U.S. 168 (1869); Kent v. Dulles, 357 U.S. 116 (1958) “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.”].

The number one duty of the Federal Government is to preserve, protect and defend the liberties of our people. How do you think they are doing?

Our Constitution was inspired by God and regarded as golden chains to bind down the would-be tyrants of the future who might seek to enslave us. Fellow citizens, Gulliver has broken the chains of gold and is running amok in our blessed land. He needs to be bound once again by the golden chains of our Constitution.

All I can say, in closing, is to ask you to pray for our Republic. Remember we are a Republic not a Democracy—democracy is what you see at Zuccotti Park in New York, we are a Republic, or are supposed to be one, if we can keep it.

The Roman Senate and its citizens thought, in 49 B.C. that their Republic would last forever—500 or so years was pretty good. But freedom seldom ends with a bang but usually with a whimper. Julius Caesar, assassinated on the day of my birth—the Ides of March—promised security in exchange for the loss of a little liberty. But a new Julius Caesar is crossing the Rubicon. He does not have a name, he is the nameless faces of the thousands of so-called public servants who swear an oath to “protect the Constitution from all threats, foreign and domestic” but do nothing but collect a paycheck and/or trample upon our rights.   Unless this new Caesar is turned back, we will cease to be a Republic and continue down the road to an Empire. We will be destined, as Ronald Reagan said, to be thrown upon the great ash heap of history, along with all of the other failed, corrupt, civilizations. And we will have done it to ourselves. As Shakespeare penned it in, Julius Caesar:

“The fault, dear Brutus, is not in our stars, But in ourselves.”

Joseph S. Johnston

Joseph S. Johnston is the retired 13th Circuit Judge for the State of Alabama and a certified firearms instructor.

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