Civil Liberties: Is History Going to Approve of Military Trials for Civilians?

On August 4, 2002, the Sunday New York Times carried a front-page article, "After Sept. 11, a Legal Battle on the Limits of Civil Liberty." This rather lengthy piece revealed that President Bush has already generated some debate, albeit so far rather muted, concerning his proposed policies to combat terrorism. These include holding illegal immigrants without revealing their names or providing them access to counsel, a threat to try enemy prisoners before secret military courts with sentences, including the death penalty, not subject to any judicial review, and the indefinite detention of American citizens, Jose Padilla and Yaser Hamdi in navy brigs on the grounds that they are enemy combatants. If the history of the Civil War is any guide, however, while the public tends to rally around the president during a time of crisis, there is often a negative backlash against perceived excesses once the crisis is over.

This was certainly the case with the administration of Abraham Lincoln, which suspended the writ of habeas corpus and tried hundreds of civilians before military commissions. Even during the course of the Civil War opponents were highly critical of Lincoln's actions. One high profile case involved editor and former Ohio Democratic Congressman and gubernatorial candidate Clement Vallandigham, who was convicted of violating General Order #38, which prohibited criticism of the government. When a military court convicted Vallandigham, however, Lincoln cleverly banished him to the Confederacy so as not to have a martyred prisoner on his hands.

Lincoln's law partner, who believed that Lincoln was an atheist, once said when asked about Lincoln's religious views, "The less said the better." Historians have tended to treat Lincoln's policies about civil liberties in the same manner, finding it difficult to justify the president's actions in this area, although it is true that Mark Neely in his Pulitzer Prize winning study The Fate of Liberty (1991) has softened this traditional image. Neely argues that those who were tried by military courts or imprisoned under the suspension of the writ of habeas corpus, were often people who lived in the border state areas and who conducted guerrilla war or encouraged soldiers to evade the draft or desert. If one undertakes such hostile activities in the midst of civil war then the government is bound to take action against them. Neely found that military trials were rarely used simply to stifle dissent.

While Lincoln's own record in this area has been much debated, another equally famous military trial occurred after his death, the trial of eight conspirators allegedly involved with John Wilkes Booth in the president's murder. Booth avoided a military trial when he was killed in Garrett's barn but his co-conspirators were not so fortunate. Some of the accused were clearly involved with Booth either in his attempt first to capture and then kill the president and thus garnered less historical sympathy even though a military court tried them. However, two alleged conspirators, Mrs. Mary Surratt and Dr. Samuel Mudd, have remained controversial figures from their trials in 1865 to the present day.

Both individuals were seen as key players in the conspiracy. The government charged that Mary Surratt kept the boardinghouse where the plotters met and her son, John, was one of Booth's closest confidantes. Mudd set Booth's broken ankle on April 15 and since the assassin had previously visited him the authorities had a hard time believing that Mudd did not recognize Booth because he was disguised. However, most writers on the assassination have portrayed Surratt and Mudd as the innocent victims of bloodthirsty, military justice. In fact, Democratic Congressman and lawyer David M. DeWitt titled his pioneering study of the assassination, The Judicial Murder of Mary Surratt (1895).

This view was reinforced by two events. One was the 1866 Supreme Court decision Ex parte Milligan. Lambdin Milligan had been tried, convicted and sentenced to death by a Military Commission but on appeal the court ruled that military courts could not try civilians if the civil courts were open and functioning as they had been in Indiana throughout the war. Since the civil courts had also been operating in Washington, D.C., this ruling indirectly called into question the legality of the trials of the Lincoln assassination conspirators. The other event was the trial of John Surratt before a civil jury in 1867. When that jury could not reach an agreement about his guilt, based on testimony similar to that which had convicted his mother, it was easy to accuse the military court of executing an innocent women on flimsy evidence.

For well over a hundred years this negative view of military justice remained the orthodox view.

Interestingly, however, even before September 11, assassination scholar Edward Steers, Jr., in two books--His Name Is Still Mudd (1997) and Blood on the Moon (2001)--argued that a recently discovered confession by one of the executed conspirators, George Atzerodt, showed that Surratt and Mudd had both been involved with Booth in the plot to capture Lincoln, if not so clearly in the murder. Steers also argues that under the theory of joint venture, if one engages with others in a plot to kidnap, a crime with a high probability of harm to the victim, and the victim is murdered, then all involved in the scheme are guilty of murder.

Steers further claims that Ex parte Milligan was of much more limited application than is often recognized. Attorney General James Speed advised Andrew Johnson that since Lincoln was the commander in chief that a military trial was legal, and in 1868 Judge Thomas Boynton denied a writ of habeas corpus to free Mudd from his imprisonment in the Dry Tortugas, again ruling the military trial had been justified and that Milligan had no bearing on the case.

Another Supreme Court decision that Steers cites is Ex parte Quirin. This case involved eight World War II saboteurs, one of whom was an American citizen, who were secretly tried before a military court in Washington, D.C., with six of the defendants being executed. In the Quirin case the court ruled that the trial was legal and again noted that Milligan did not apply.

Interestingly, the Quirin case has been cited as precedent for some of the proposed actions of the Bush administration. However, as this brief essay suggests, President Bush and Attorney General Ashcroft might be well served to look at the historical record before proceeding further. Indeed, courts have already begun to react to some of the Bush policies. Among other judicial decisions, U.S. District Judge Robert Doumar ruled that American citizen Yasser Hamdi, who fought with the Taliban and was first held in Cuba before being transferred to the naval brig at Norfolk, must be given access to a lawyer. Another federal judge, Gladys Kessler, has ordered the government to make public the names of individuals detained after the September 11 attacks. These rulings are being appealed.

Based on a study of the Civil War, it is not unreasonable to assume that many similar cases will ultimately reach the Supreme Court for final determination. Thus, the war on terror may yet generate its own precedent-setting decisions. And as terrible as the attacks on the World Trade Center were, the 2500 people who lost their lives pale in comparison to the 620,000 plus Americans who died during the Civil War. If Abraham Lincoln, who is still overwhelmingly perceived by Americans to be our greatest president, could not escape criticism from the public as well as subsequent critique by historians, then George Bush should hardly be surprised when his record comes under similar scrutiny. President Bush may yet discover that while the Congress, the courts, and the public will acquiesce in the expansion of executive power during a crisis, once that perceived danger is past, curtailments of civil liberties are often viewed in a much more negative light. Even though vast numbers of people originally support an action this is no guarantee that a president will not ultimately be held to a much harsher account by the judgment of history.