Seth Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev. (forth. 2018–19) (manuscript at 4 n.12), https://ssrn.com/abstract=3213353:
The Constitution 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.” U.S. Const. art. I, § 9, cl. 2 (emphasis added). President Lincoln’s order, issued on April 27, 1861, only purported to give General Scott authority “to suspend the writ of habeas corpus.” See 6 Complete Works of Abraham Lincoln, 1860–1861, at 258, 258 (John G. Nicolay & John Hay eds., N.Y., The Lamb Publishing Co. new ed. 1894) (reproducing Lincoln’s order); Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 527 & n.116 (2016) (peer reviewed), http://ssrn.com/abstract=2646888. But in his July 4, 1861 message to Congress, Lincoln recharacterized his prior order as permitting suspension of the “privilege of the writ of habeas corpus.” 6 Complete Works, supra, at 297, 308–09 (emphasis omitted) (emphasis added). The difference between suspending the writ and suspending the privilege of the writ is night-and-day. See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130–31 (1866) (Davis, J., for a unanimous Court) (“The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.” (emphasis added)); see also, e.g., Ex parte Benedict, 3 F. Cas. 159, 174 (N.D.N.Y. 1862) (No. 1292) (Hall, J.) (“Such a suspension may prevent the prisoner’s discharge; but it leaves untouched the question of the illegality of his arrest, imprisonment, and deportation. If these are unlawful, the marshal and others engaged in these arrests are liable in damages in a civil prosecution; such damages to be assessed by a jury of the country.”). It is not particularly surprising that these distinctions are no longer understood, as this and much else relating to the Constitution’s original public meaning was forgotten even as early as Lincoln’s day, and, in regard to a few constitutional provisions and language, sometimes far earlier. But it is curious how few even notice there is a puzzle to be solved and a past to be explained. But see William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1853 n.255 (2008) (pointing out the same textual distinction regarding the “privilege” of the writ and the writ itself, but not resolving the distinction); but cf. Peter William Bautz, Lincoln’s Long Shadow: Recreating the Legal Debate over Habeas Corpus, 1861–1863 passim (Master’s Thesis, University of Virginia, Department of History, 2018), https://tinyurl.com/y96uy8ys (collecting some early authorities addressing the distinction).
My view is that suspension of the evidentiary privilege of the writ of habeas corpus precludes a court (or even an Executive Branch officer) from taking cognizance of a party’s pleading (or invoking) the writ (once granted to that party by that court or any other court of record) in subsequent contempt and enforcement proceedings (and, perhaps, in other collateral and ancillary proceedings). E.g., Merryman II (granting an order to serve an attachment for contempt where the defendant failed to produce the prisoner-plaintiff). Suspending the writ (as opposed to suspending the privilege of the writ) precludes a court from granting the writ, on the merits, in the first instance. E.g., Merryman I (i.e., an ex parte habeas order to produce a prisoner), or a Merryman III-like order (i.e., a habeas order to release a prisoner—albeit, of course, this did not actually happen in Merryman). When both the writ and/or the privilege of the writ are suspended, federal courts (having general federal question jurisdiction) will still have jurisdiction to determine if the suspension or suspensions themselves are constitutional—unless Congress has validly stripped the federal courts of jurisdiction to do so. The scope of Congress’s power to engage in such jurisdiction stripping is a complex subject, and one well beyond the scope of this Article. See generally Edward A. Hartnett, The Constitutional Puzzle of Habeas Corpus, 46 B.C. L. Rev. 251, 289 (2005). Recently, the Suspension Clause has received renewed interest and full-length treatment in books…but the meaning of the clause’s text…its actual words…they remain largely an undiscovered country. See generally, e.g., Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (2017). But see Baude, supra at 1853 n.255; but cf. Bautz, supra passim. I have put down some truly remarkable support for this position in another paper which this Response to Professor John Yoo is too small to contain. (I submitted a prior draft of this lengthy footnote as my abstract to the Tenth Annual Originalism Works-in-Progress Conference. See Tenth Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference, University of San Diego School of Law (last accessed July 27, 2018), http://www.sandiego.edu/events/law/detail.php?_focus=66934.)
Seth Barrett Tillman, What is the “Privilege” of the Writ of Habeas Corpus?, New Reform Club (July 27, 2018, 2:41 AM),