At this point the question is does the Shrubbery think he can win with the Supremes.

* Lincoln at least inarguably had a rebellion on his hands. Bush apparently wants to argue that a couple dozen people constitute an “invasion”; most people outside the administration, of any political stripe, consider that a real stretch, or worse.

* I still see ex parte Milligan cited with fair frequency on the blawgs I read. I am not a lawyer, and I tend to read the more approachable law blogs (Balkinization, VoteLaw, SCOTUSblog and John Dean’s blog on Findlaw), but I’d have to guess that that decision either still stands or else is still a major influence in habeas reasoning. For more definitive info, you’ll need a lawyer.

* Lincoln was by reputation a better-than-decent lawyer before he became president. It would surprise me more if he did not have reservations about suspending habeas.

While Lincoln made those claims, in his private papers it was clear that as a lawyer he felt he had overstepped his authority.

This is interesting as it is the exact opposite of the Civil-War-era claims that Lincoln did not have the authority to suspend the writ of habeas corpus. The argument then was that, since the statement “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” appears in Article I, and since Article I defines Congress and its powers, one must infer that *only* Congress can suspend the writ.

Lincoln’s response was that
1) The Constitution does not expressly state who is empowered to suspend the writ, although it is clear that it *can* be suspened (when in Cases of Rebellion or Invasion the public Safety requires it).

2) If the writ needed to be suspended while Congress was in recess, that suspension could not wait for Congress to assemble. And,

3) He did it because he thought it was necessary, but when Congress convened, he expressly asked them to declare his action illegal if they found it to be so. (They did not.)

I am curious as to the basis for the modern argument that Congress can not suspend the writ.

Is the argument that, at present, there is no rebellion or invasion that demands suspending the writ?

While one of the three felt the Shrubbery could declare people “enemy combatants”, all three agreed that Congress has no power to suspend the writ of habeas corpus.

I have no idea how you can say that the government can hold people indefinitely in a military prison, while simultaneously saying that you can’t suspend the Great Writ, but logic is not a winger strong suit.

Marty Lederman of Balkinization has two  posts of explanation and analysis.