Ex Parte Milligan at 150: The Constitution & Military ...

Ex Parte Milligan at 150: The Constitution & Military Commissions in American Wars on Terror

Friday, September 23 & Saturday September 24, 2016

Marriott Hotel & Conference Center 201 Broadway Ave. Normal, IL 61761

In the summer of 1866, US Supreme Court Justice David Davis retired to his home here in Bloomington, Illinois to write the majority opinion in Ex parte Milligan, a controversial case that developed out of the Civil War and the Lincoln Administration's use of military commissions to try civilians. Contrary to his friend Lincoln's position, Davis famously held that trial by military commissions was only acceptable where there was a real war and where civilian courts were impaired. Milligan was apprehended in Indiana, where the courts were open and where according to Davis at least, there was no war.

To the satisfaction of the Democrats at the time and civil libertarians since, Davis went on to hold that the administration had violated Milligan's rights under Article III, Section 2, as well as the 4th, 5th, and 6th Amendments to the Constitution. Davis concluded that, "the Constitution of the United States is a law for the 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." In a concurring opinion of Justice Salmon P. Chase argued that the military commissions might be set up by Congress under its Article I war powers.

Despite Davis's soaring rhetoric, the decision has remained controversial. Radical Republicans who believed such a precedent would inhibit the ability of the Army to protect Black freedom in the South responded by stripping the Supreme Court of appellate jurisdiction over military commissions. And while cited in a few cases arising out of WWII and a stray case in the 1950's, the case has largely languished in obscurity, in part because it is not entirely clear what the decision really means.

Since 9/11 however, ex parte Milligan and the issues surrounding it have assumed renewed centrality in our national debates. The administration of George W. Bush exercised and defended sweeping executive discretion in prosecuting the war on terror, including the use of military commissions, an assertion seemingly counter to both Davis's majority opinion as well as the more circumspect concurring opinion. But despite four Supreme Court decisions, Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008), the law in this area remains unsettled. The continuing salience of ex parte Milligan has been underlined again. On October 22, 2014, it and related decisions aired again in a Guantanamo-related case heard in the US Court of Appeals for the DC Circuit, which some expert observers believe will soon head to the Supreme Court.

Friday, September 23rd 2016 8:30 ? 10:00 Panel Presentation ? 1.5 Hours

Brooks Simpson, Chair Douglas William Lind, Panelist A. James Fuller, Panelist Stephen Towne, Panelist Dan Rigney, Panelist Christopher Phillips, Panelist

Panelist, A. James Fuller, "Was there a civil war in Civil War Indiana?: Rebellion on the Northern Home Front and the Context of the Milligan Case" Abstract: What if there was actually a rebellion in Indiana during the Civil War? Would such a situation change the way that scholars understand Ex Parte Milligan? Historians continue to debate the true nature of the Copperhead networks of which Milligan and his co-defendants were a part. Recent research has revealed that the secret societies

of dissenters planned an uprising in the late summer of 1864 that would have threatened the state government and the Union war effort.

? Brief review of the historical literature from the Klement Thesis of the Cold War to the Towne Rebuttal of the War on Terror

? The political situation in Indiana ? Copperhead dissent and plans for action ? The Union authorities move against the Copperhead leaders This paper concludes that while Indiana was not in a state of rebellion in 1864, political and military leaders sincerely believed that the Copperheads were about to strike and they moved preemptively to thwart such an attack.

Panelist, Stephen Towne Abstract: During the American Civil War, civil and military leaders in the Midwest and in Washington, D.C. confronted the issue of how to bring to justice persons arrested for conspiring against the federal government. Since the beginning of the war, efforts to bring conspirators to trial in federal civil courts faltered. Political and military leaders in the region debated the use of military or civil courts. The failure to bring the Camp Chase, Ohio conspirators arrested in 1863 quickly to trial in federal civil court prompted the decision by Washington leaders to use a military commission to try the Indiana conspirators at a time when President Abraham Lincoln and Republican politicians in the Midwest believed they would lose the fall 1864 elections. The Indianapolis military commission trials' revelations created a sensation just in time to aid Republican electoral fortunes. Military commanders subsequently chose not to employ military commissions to try conspirators in other states, or to use a federal civil court, or not to try conspirators at all, highlighting the partisan nature of the decision to try the Indiana conspirators by a military tribunal.

10:00 ? 10:15

Break

10:15 ? 11:15

Panel Presentation Continued? 1.0 Hour

11:15 ?1:30

Lunch Break

OR

Illinois Center for Civic Education

"We the People" Plenary ? No CLE Credit Offered

1:30 ? 3:00

Panel Presentation "Ex Parte Milligan's Landmark Precedence and Civil

Liberties - 1.5 Hours

Stewart Winger, Chair

Jennifer Weber, Panelist

Jonathan White, Panelist

Itai Sneh, Panelist

Panelist, Jonathan White Outline: Introduction: Ex parte Milligan is a landmark legal precedent, but not in the way that most cases serve as precedents. The Court's approach---one of deference to the executive branch during wartime and rebuke after the

emergency has passed---set the tone for how the Supreme Court would approach civil liberties issues in later American wars.

I. Other Important Civil Liberties during the Civil War a. Ex parte Merryman (1861) b. Ex parte Vallandigham (1864) c. The Fishing Creek Confederacy (1864) d. The Charleston Riot (1864) II. Ex parte Milligan (1866) a. The arrest and trial of Milligan b. The Supreme Court's rebuke in historical context

III. World War 2 Cases a. The Nazi Saboteurs (Ex parte Quirin, 1942) b. Japanese Internment 1. Korematsu (1942) 2. Hirabayashi (1944) 3. Ex parte Endo (1944)

Conclusion: Mark Neely's assessment that Milligan has been irrelevant has been partially true. As a legal precedent, the the case has not had much effect on subsequent jurisprudence, but as a precedent for Supreme Court decision-making, the Court's approach in Milligan has been followed by subsequent Supreme Courts.

Panelist, Itai Sneh, "Civic Liberties under Attack Since 9/11: Misconduct under the Bush Administration" Abstract: Since 9/11, during the George W. Bush presidency, American laws changed, with the impact lasting over a decade by now. Arguably, the 2001 USA Patriot Act and the 2006 Military Commission Act are the most important example. In addition, the 2006 Military Commissions Act allowed evidence obtained by torture to be presented in courts without reference to its origin. This legislation denied the rights of non-US citizen detainees to habeas corpus defenses such as an appearance in front of a judge. It also contained provisions that prevented prisoners from challenging the basis of their detention. Practically, these bills gave U.S. authorities the power to ignore humanitarian law embodied in the Geneva Conventions and in the Convention against Torture.[i]

In addition, foreign policy is crucial for the United States, as evidenced in the 2003 Iraqi War, initiated by the George W. Bush administration, coupled with the convergence of domestic politics and international relations in the United States, and the consequences of American actions at home and abroad. As attested by the 2014 Congressional report,[ii] since 9/11 American public discourse evolved from a prohibition of torture at home and abroad--stated in 1970s' congressional laws as a "consistent pattern of gross violations of internationally recognized human rights" and in the 1998 Foreign Affairs and Restructuring Act --into its partial normative and practical endorsement. The social and political culture in the United States is more tolerant toward torture. The post 9/11 "New Normal" has meant that America faces repeated and acute national security threats at home and abroad. Debates on the definitions and the application of torture since 9/11 include the treatment of prisoners captured during the wars in Afghanistan and Iraq. Prominent politicians such as former Vice President Richard Cheney and legal advocates like Alan Dershowitz support torture to effectively wage the "war on terrorism." Such people justify it to extract operational information that is a "ticking bomb."

My presentation themes include the evolving definitions in U.S. law given national security concerns; resulting torture by American agents and allies worldwide in Abu Gharib; in Guantanamo; in secret jails in Poland and in Romania; and those sent to countries such as Egypt and Syria through "extraordinary renditions;" and the application of torture by al Qaeda and other fundamentalist groups against Americans and local opponents.

3:00 ? 3:15

Break

3:15 ? 4:45

Plenary ? Lincoln, Civil Liberties and the Milligan Decision ? 1.5 Hours

Michael Les Benedict, Chair

Jennifer Weber, Panelist

Christopher Phillips, Panelist

A. James Fuller, Panelist

4:45 ? 6:30 Dinner Break

6:30 ? 7:30

Keynote Speaker: Michael Les Benedict ? 1.0 Hour

Saturday, September 24th 2016

9:00-11:45:

Panel Presentation ? 2.5 Hours

Chair: Meghan Leonard

Panelist, Luci Petlack

Panelist, John Moreland

Panelist, Roger Billings

Panelist, David Campmier

Panelist, Luci Petlack, Abstract: A discussion of the effects of military occupation and martial law on black communities during the Civil War (Baltimore, MD; New Orleans, LA; Cincinnati, OH). Martial law including military commissions resulted in a flowering a black civic life. White racists were not allowed to express their racism under Union military control! This involved restrictions on civil liberties (for white men) in order to create room for black civil liberties.

INTRODUCTION In the days after the first shots of the American Civil War fired on Fort Sumter, the split sentiments of Baltimore, Maryland's population came into question. Quickly dispelling the unrest by way of occupation, the Union Army created an effective template for taming dissenting populations used for the remainder of the war. While these methods of control limited white civil liberties, they simultaneously, though unintentionally, expanded those of African Americans. The Lincoln administration needed control over each of these cities in order to unite the North as much as it could behind the war effort or, in other words, to "consolidate Unionism." If Lincoln lost the state of Maryland to the Confederacy, he would be in the middle of enemy territory in Washington. Keeping the state's major city of Baltimore under control was therefore the Commander-in-Chief's first aim. New Orleans was the capital for western and southern trade, a necessity for Confederate success and therefore an important objective for Union troops. Once the city fell, Lincoln planned to use the region as a testing site for his reconstruction plan, providing a second impetus for holding the city under federal control. In Louisiana, Lincoln wanted to incorporate former slaves into American society and transform the state's economy to free labor. Cincinnati and Ohio were the gateway to the West and therefore a testing ground for the Republican ideal of free soil and free labor. Republican politicians hoped that without slavery, these western states and territories would prove the utility of a society based on free labor. The developing region also provided a place to cultivate new Republican (the party of Lincoln and antislavery) voters. Finally, Cincinnati was the capital of antiwar Democrats, "butternuts," who hindered war efforts in the West and caused distractions in Washington through their elected politicians. In squashing the antiwar movement, Lincoln ensured that the Union government and military could focus almost entirely on the war against the South and not on bickering within Union lines. This quashing of white civil liberties had the effect of creating a space for black civic life.

I. BALTIMORE, MARYLAND a. Black Life Pre-War i. Arrest records, property ownership, publishing rights, laws, anti-black violence/politics b. Arrival of Military Rule (1861) c. Black Life during Military Rule (1861-1865) i. Arrest records, property ownership, newspapers, schools d. Black Life Post-War (1866-) i. Property ownership, newspapers, schools

II. NEW ORLEANS, LOUISIANA a. Black Life Pre-War i. Arrest records, property ownership, publishing rights, laws, anti-black violence/politics b. Arrival of Military Rule (1862) c. Black Life during Military Rule (1862-1865)

ii. Arrest records, property ownership, newspapers, schools d. Black Life Post-War (1866-)

iii. Property ownership, newspapers, schools

III. CINCINNATI, OHIO a. Black Life Pre-War i. Arrest records, property ownership, publishing rights, laws, anti-black violence/politics b. Arrival of Military Rule (intermittent/ Republican Civic Leadership) c. Black Life during Military Rule (1863-1865) i. Arrest records, property ownership, newspapers, schools d. Black Life Post-War (1866-) i. Property ownership, newspapers, schools

CONCLUSION This presentation also provides a corollary to historian Eric Foner's idea of an "American irony," which claims that white liberty has expanded at the expense of non-white males. Few historians have grappled with this formulation ? that is, if white male liberty contracts, does it expand for others. This notion has gone unanswered because of the very few moments in our country's past that provide an opportunity to test such a question. The military occupation of these three cities for a few short years, however, illuminates one of these few moments answering that question with a resounding yes. In the wake of limiting dissent against the Union war effort, African American civil liberties expanded at the cost of white freedom.

Panelist, John Moreland: "David Davis Jurist and Civil Libertarian" Abstract: This presentation will briefly explore the life of Supreme Court Justice David Davis, thus providing the back-story to Ex parte Milligan, in which Davis wrote the majority opinion. Historians have traditionally focused on his close relationship with Abraham Lincoln on the Illinois 8th Judicial Circuit and his brilliant management of Lincoln's 1860 nomination campaign. This presentation, however, will concentrate on Davis's increasing concern over civil liberties issues during the Civil War and his subsequent interventions on behalf of those who faced such violations.

INTRODUCTION During a war replete with civil liberties issues, the military trial of Lamdin P. Milligan and his co-conspirators in the fall of 1864 was a particularly prominent civil liberties case. Judge David Davis intervened on behalf of many Peace Democrats, or Copperheads, who had been arrested and tried before military commissions for voicing their discontent with the Lincoln administration. A fundamental understanding of David Davis's maturation as a civil libertarian during the Civil War is therefore necessary to fully appreciate the legal landscape that brought Milligan to trial in the winter of 1864. Thus we can begin to understand the political environment in which Davis decided the Milligan case.

I. Early life A. Born on a slave-holding plantation in Maryland B. Law School

II. Early legal & political career A. Moved to Illinois to practice law B. Illinois Representative C. Member of 1847 Constitutional Convention

III. Judicial career A. Circuit Judge B. Supreme Court Justice

IV. Intervention in civil liberties cases during the Civil War A. Wilber F. Storey and the Chicago Times B. Indianapolis Grand Jury instructions C. Charleston, Illinois riots

CONCLUSION After directly intervening in free speech, habeas corpus, and military commission cases while on the Supreme Court, Davis would soon have another opportunity to place his imprimatur for the defense of civil law over military law. Alongside eight other justices, in the winter of 1865, he would hear arguments in Ex parte Milligan that sowed the seeds for one of the greatest defenses of American civil liberties.

Panelist, Roger Billings: "The Salmon P. Chase Concurring Opinion in ex parte Milligan" Abstract: Examining the possibility of Chase's concurring opinion as an opportunity to examine his beliefs about Constitutional law in juxtaposition to Lincoln's. Maybe Chase gained respect for Lincoln's mind when he was no longer his rival. But I am also looking into the lawyers' briefs in Milligan and how they influenced Chase. Finally, I will see how Chase's more lenient view of military courts has held up since Milligan.

INTRODUCTION Ex parte Milligan was decided in the first year of reconstruction when tension was already developing between President Johnson and Congress. Justice Davis and Chief Justice Chase's opinions contributed to the tension. The decision was considered of great importance at the time, but soon it was almost forgotten, prompting historian Mark Neely to declare it "irrelevant." Today its importance is more and more recognized.

A. The petitioners in Milligan were represented by extraordinary lawyers of the time: Joseph McDonald, James A. Garfield, Jeremiah Sullivan Black, and David Dudley Field. Lawyers who argued for the government were Benjamin Butler, Henry Stanbery and Attorney General James Speed.

B. Justice Davis's opinion ---was widely anticipated ---contained an analysis of legal history pertinent to the decision ---contained an analysis of habeas corpus that agreed with Justice Taney's opinion in Ex parte Merriman ---reflected Davis's belief that Lincoln had been opposed to military commissions in free states. ---was released during the battle between the radicals and President Johnson over reconstruction

C. Chief Justice Chase's concurring opinion ---was originally going to be a dissent ---reflected Lincoln's view that Congress had power to promulgate a law that would permit military commissions to be used to try civilians in time of war ---interpreted the Habeas Corpus Act of 1863 as requiring trial of civilians by civil courts if they were operating in the regular exercise of their functions ---wrote his opinion with intent to mitigate conflict between the President and Congress

CONCLUSION Milligan might have been differently decided during the Civil War. The Supreme Court declined to state the Milligan rule on similar facts in the Vallandigham case in 1864. A decision during the War might have approved the Lincoln assassination conspirators' trial by a military commission. As it happened only the life of John Surratt, a conspirator who was captured in Europe after the War, was probably spared as a result of Milligan. The case was largely ignored until World War II. Today it is experiencing a revival.

Panelist, David Campmier: "Robert Cobb Kennedy, the Just War Tradition and the Lieber Code in Military Tribunals" Abstract: Robert Cobb Kennedy was a Confederate Army officer and Confederate Secret Service operative who was tried and convicted before a military court and executed for espionage, arson, and sabotage. Specifically, Kennedy was tried before a military commission, a court composed of military officers who played the roles of judge, jury, prosecution,

and, at times, defense and tried the accused based on the laws of war. During the American Civil War, in response to the vast legal complexities of fighting a civil war, the Lincoln Administration, and the Union War Department tasked Prussian-American professor of law Francis Lieber to write the official laws of war which the Union expected its officers, soldiers, and their Confederate counterparts to heed. The Lincoln Administration stated that they would try both Union and Confederate soldiers and civilians for breaking the laws of war, as arranged in the Lieber Code. This case illustrates the use of the Just War tradition and the Lieber Code within the military tribunal system to deal with Confederate guerrilla warfare and "terrorist attacks" before the ex Parte Milligan ruling in 1866.

INTRODUCTION Robert Cobb Kennedy's case and trial by a military commission are significant for understanding the interplay between philosophical and moral principles and actual application of Just War and the Lieber Code because those issues are deeply contested during the war and at trial. The Lieber Code included concepts of lawful combatants, legal warfare, supreme emergency, and military necessity. Military commissions applied and transmitted the Union's position on these concepts. Kennedy's case granted the Union a platform to reiterate its argument that the Confederacy was an illegal belligerent and that it had no right to execute military operations that Kennedy participated in on Union civilians. Further, by punishing irregular Confederate forces for attacks on Northern civilians, the likes of which Kennedy participated in, the Union argued any Confederate asymmetrical retaliation anywhere was unlawful.

I. Kennedy's trial by military commission, a. The commissions themselves were realist tools to empower and justify the Union's attempts to constrain the threat of guerilla warfare and the chaos it inspired. b. At the same time, interest in Just War principles allowed opponents to mount resistance to these legal tools.

II. At the most intellectual level, Kennedy's commission was proving ground where differences and connection (or lack thereof) between Jus ad Bellum and Jus in Bello concerns were debated. a. Kennedy and Counsel for the defense Stoughton operated under the assumption that the two themes were distinct, that even if Kennedy was fighting for an unjust cause he could still fight justly and not be held liable for his actions. b. Prosecutor Bolles operated under an entirely different set of assumptions; the two strains of the tradition were connected, that anyone fighting for an unjust cause was unjust combatants. c. The Union in principle followed the later supposition and in some specific cases, when dealing with POWs followed the former.

III. Throughout the trial, Kennedy, Stoughton, and Bolles argued over combatant status and the protections that it afforded. a. Kennedy and Stoughton claimed that Kennedy was a legal combatant, merely a lost POW. b. Bolles maintained that according to the evidence, of which there was enough for the military commission, Kennedy was spy and guerilla and thus had no such protections. c. The verdict, it seemed hinged on these distinctions.

CONCLUSION Most significantly, Kennedy's commission was demonstrated the Union's rejection of unconventional warfare as a form of legitimate retaliation for Union military operations. Though typically reserved for combat, military necessity in this context extended into the laws of war and was equally important for describing how the Union used the laws of war and commissions to counter guerrillas. The principle of military necessity, described by the Just War tradition and enshrined in the laws of war, allowed the Union to wield military law and courts as a weapon to beat back guerrilla warfare. Kennedy's trial came down to this; though the Union usually treated Confederate soldiers as legal combatants for humanitarian and realist reasons, when Confederate soldiers resorted guerilla methods, these pretenses fell away; Kennedy personally experienced the change which led to his execution.

12:00-1:15: Lunch with Keynote: Johnathan Hafetz ? 1 Hour

"Ex Parte Milligan in the War on Terrorism: Testing the Constitutional Bedrock of a Criminal Trial." Summary: The Supreme Court's decision in Ex parte Milligan has long been recognized as a landmark ruling for solidifying the constitutional sanctity of the criminal trial, no matter how grave the offense, thereby securing both the rights of individuals and the supremacy of civilian authority over the military. This foundational ruling has, however, come under persistent attack since 9/11, as successive administrations have sought both to detain individuals suspected of terrorist acts or associations indefinitely without trial and to prosecute them in military commissions. These military detentions and prosecutions pose significant challenges to Milligan's legacy, while also illustrating Milligan's continued importance in the constitutional fabric.

1:30-3:00 Plenary: Milligan and GITMO ? 1.5 Hours Chair: Meghan Leonard, Associate Professor of Political Science, Illinois State University Panelist: Michael Les Benedict, Historian, the Ohio State University Panelist: Brooks Simpson, Historian, Arizona State University Panelist: Jonathan Hafetz, Professor, Seton Hall Law School Panelist: Itai Sneh, Associate Professor, John Jay College of Criminal Justice

Initial Question: What Place, if any, does the Davis opinion in Milligan Decision (or the alternatives set out by Chief Justice Chase or the Lincoln Administration) have in our current war on terror and its jurisprudence.

1. Do the Milligan principles apply only to citizens? Should they? 2. What influence do the Milligan decision appear to have on various proposals on the part of the

government and civil libertarians regarding the status and trial of GITMO detainees? 3. How do the Supreme Court's decisions regarding GITMO detainees treat the Milligan

opinions? Are those decisions consistent with the law and spirit of Milligan? Should they be more so? Is the Milligan opinion still good law?

Background and possible follow-up questions:

We move forward in history to World War II with ex parte Quirin (1942) Quirin is similar in a number of ways to Milligan, though the Court reaches a different conclusion.

1. How does the court distinguish these cases, and why do you think the WWII court was able to find a Constitutional basis for the use of Military commissions for the German saboteurs?

2. What does Milligan teach us about major decisions decided after a war has concluded, as opposed to during the heat of the war (as with ex parte Quirin, during WW II).

3. What happens to that frame of analysis in a protected, if not perpetual, conflict like the "war on terror?"

Interestingly, the Milligan decision has seen a bit of a reexamination during the War on Terror cases. Unlike during World War II, the Court has seemingly been less welcoming to the idea of military commissions. The Bush Administration argued that the best way to deal with enemy combatants captured during the war on terror was to use military commissions to try them at Guantanamo Bay in Cuba. In the first set of cases, Hamdi v. Rumsfeld and Rasul v. Bush in 2004, the Court said nothing of the constitutionality of these commissions, but was clear that both U.S. citizens and foreign nationals had the right to challenge their detention in federal courts.

1. In her majority opinion in Hamdi, Justice O'Connor discussed Milligan, and Quirin for that matter ? she argued the Authorization of the Use of Military Force was not enough to sustain military commissions, why?

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