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The most stringent curb that ever legislation imposed on tyranny.

Thus wrote Thomas Babington Macaulay, commenting on the importance of habeas corpus in his first volume of History of England, in 1848. That makes sense. After all, freedom of speech, press, petition, religion and assembly are meaningless if the government is able to lock up someone and throw away the key. And all of those wonderful ideas about a fair and timely trial are meaningless if the government is not compelled to "produce the body" in court.

That may be obvious to most of us, but apparently when one becomes recognized as a "constitutional expert," all rules are off. This was demonstrated on November 5, 2007 when Professor Daniel A. Farber was given an opportunity to comment on Pakistan President General Pervez Musharraf's justification of the imposition of emergency powers in his country. Musharraf had referred to Lincoln's similar actions during our War between the States and Farber was commenting on National Public Radio's All Things Considered. Farber's defense of Lincoln included the following statement:

(Lincoln's) most controversial action was suspending habeas corpus at the outset of the war. While the Constitution does not speak directly to this point, many legal scholars think only Congress could suspend habeas.

This was a shocking statement for anybody familiar with the Constitution, but even more shocking coming from a Professor of Law at the University of California at Berkeley and the author of Lincoln's Constitution. I brought the following to the attention of NPR management through its ombudsman, Lisa Shepard, December 6, 2007, and when I received no response, to the 17 board members of NPR:

The phrase, due process of law, is referenced in both Amendment 5 and Amendment 14 of the Constitution.

Habeas corpus is generally considered to be associated with due process. Many believe it is the keystone to due process since without it, the other parts of due process (right to speedy trial, presumption of innocence, et cetera) are meaningless if the executive authority has the power to arbitrarily seize a person and incarcerate him or her (see Brown v. Vasquez and Jacob Hornberger).

Article I, Section 9 of the Constitution specifically states:

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.

I further commented in that letter to the NPR Board members,

Lincoln supporters will rush to claim that his suspension of habeas corpus was consistent with the Constitution because the South was "in rebellion." They miss the point. Suspension of habeas corpus is NEVER within the authority of the executive branch of the federal government. Article I was intended to describe the powers and responsibilities of the legislative branch. Article II, on the other hand, describes powers and responsibilities of the executive branch. This is no minor technicality, but the essence of the Constitution which is based upon five themes (see Introduction by Garry Wills to The Federalist Papers) — (1) Federalism, (2) Checks and Balances, (3) Separated Powers, (4) Pluralism, and (5) Representation.

The theme of separated powers applies to the question of suspension of habeas corpus by the executive branch.

The effect of Professor Farber's comment was to presume that "experts" were divided on the question of the legitimacy of the executive suspending habeas corpus, thus justifying Lincoln's actions. In doing so, he was rationalizing the suspension of what Thomas Babington Macaulay believed was the most fundamental individual right and the most severe constraint on tyranny.

NPR's actions (or lack of action, to be more precise) superficially appear to be unexplainable. We are led then to speculate about the motives, first of Professor Farber and then NPR management and its directors. Certainly ignorance must be discarded in all cases. One can suspect that Professor Farber's enthusiasm for Lincoln at least temporarily overwhelmed his love of the truth. We are all human, and that could easily have been excused with a quick retraction. NPR, however, consciously chose to avoid that path, and has demonstrated, once again, that the initial infraction is often minor by comparison with the magnitude of the cover-up.

Why would NPR become complicit when getting to the source of the truth was so easy? One could suspect that the culprit is culture. NPR is a child of Big Government. According to Wikipedia it was "created in 1970, following congressional passage of the Public Broadcasting Act of 1967, signed into law by President Lyndon Johnson." Today only 2% of NPR's funding comes from governmental sources. However, while the umbilical cord with Big Government has been severed, the DNA remains. Culturally NPR is overawed with the credentials of "experts," and it finds it difficult to independently search for the truth. Perpetuating the myth that Lincoln did no wrong is essential to maintaining the respectability of Big Government. When a certifiable bad guy like Musharraf questions the Lincoln myth, he must be countered at all cost, even the truth.

Perhaps this explains Professor Farber's bizarre comments on the Constitution, and NPR's unquestioning acceptance of them on All Things Considered, but once Farber had "misspoken" and been detected, why circle the wagons around his indefensible statement? Never underestimate the power of culture. There still was hope that by stonewalling an ordinary listener, this issue would go away quietly.

This incident reminds us that we must be eternally vigilant, not just of our liberties, but of the information we receive from sources that we believe are respectable. The best that could be observed of Professor Farber and NPR in this matter is that NPR has been used as a propaganda transmission belt. The incident teaches us the importance of critical thinking exercised by well-informed individuals.

May 3, 2008

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