America's military tribunals through the ages.

The history behind current events.
Dec. 5 2001 3:44 PM

Uncivil Courts

America's military tribunals through the ages.

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Another injustice was that Army courts were used to prosecute common thieves or liquor traffickers—purposes far from those the Lincoln administration intended. Worse, defendants were charged with crimes incommensurate with their behavior. Some who had simply shown sympathy to the Confederacy were accused of treason, a clearly inapplicable charge according to Article III, Section 3 of the Constitution, which defines treason as an "overt act" of "levying war" against the United States or of "adhering to their enemies, giving them aid and comfort." Some were sentenced to hard labor or death, though none was ultimately executed.

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The most egregious violations of civilians' rights occurred in the North, where unreliable or ill-functioning civil courts could not be used as an excuse for resorting to military justice. One famous case involved Clement Vallandigham, an Ohio Democrat, former congressman, and leading "Copperhead," or Northern opponent of the war. A double victim, Vallandigham suffered from both the suspension of habeas corpus and the rough justice of military courts.

On May 1, 1863, Vallandigham delivered a fiery anti-war speech in Mount Vernon, Ohio, in which he attacked, among others, Gen. Ambrose Burnside, the military officer in charge of the region. A short-fused Burnside ordered Vallandigham's arrest. A few nights later, troops burst into Vallandigham's house in the wee hours and carried him away. Within days, an Army court sentenced him to jail for the rest of the war. Vallandigham petitioned a federal judge for a habeas corpus writ, but the judge noted that Lincoln had suspended the privilege. Vallandigham had in fact been trying to provoke just such a result, and he knew full well that Burnside was likely to come after him. He thus achieved his purposes: attaining martyrdom for himself and throwing Lincoln on the defensive.

The controversy deepened with the case of Lambdin Milligan, whom a military court in Indiana had sentenced to death for joining a pro-Confederate secret society called the Sons of Liberty. The Supreme Court, which in 1864 had declined to rule on Vallandigham's case, agreed in 1866 to hear Milligan's. In Ex Parte Milligan, Justice David Davis, delivering a majority opinion in Milligan's favor—which four justices joined and with which four others concurred in a separate opinion—strongly rebuked the government. Davis, who had been Lincoln's friend and campaign manager, held that military tribunals had no jurisdiction over civilians. Article III of the Constitution, he noted, mandates that courts be set up by Congress, and the Sixth Amendment guarantees the right to a jury trial.

Technically, the court didn't question Lincoln's suspension of habeas corpus since the Habeas Corpus Act passed by Congress in 1863 had removed the pressing constitutional questions surrounding that action. But it did order the lower court to give Milligan a writ for his freedom. More important, Davis' opinion included a passage about wartime encroachments on freedoms that became a touchstone for civil libertarians ever since:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchism or despotism.

Milligan didn't prevent presidents from sending civilians to Army courts. During Reconstruction, military justice was used to suppress insurrections and punish criminals. During World War II, too, the Roosevelt administration prosecuted eight Nazi spies under military law and executed six, with Attorney General Francis Biddle deriding Milligan as a "bad case." (The administration could have held the potential saboteurs as POWs and tried them later at the war crimes tribunals.) The Supreme Court upheld FDR's action, ruling in Ex Parte Quirin  that Milligan's example wasn't relevant because Milligan was not an "enemy belligerent." In essence, Quirin tried to broaden the class of those subject to military justice beyond U.S. soldiers to include hostile combatants as well—the key point on which the Bush administration today rests its case.

Nonetheless, for decades now it has been Milligan, not Quirin, thathas been considered a landmark, an eloquent articulation of the paramount need for protecting civil liberties in wartime. To be sure, presidents and attorneys general have had little use for Milligan and legally speaking, Quirin overturned, or at least modified, it. But students of history and constitutional law have consistently considered Milligan the better decision. And if Milligan hasn't deterred wartime politicians from using military justice against enemy soldiers—just as it doesn't seem apt to disturb the Bush administration's military tribunal plans today—it has seared in the record the idea that future generations will not look kindly on such actions.

David Greenberg, a professor of history and media studies at Rutgers and author of three books of political history, has written the "History Lesson" column since 1998.