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tv   Ex Parte Milligan Supreme Court Case  CSPAN  October 30, 2016 1:45pm-3:01pm EDT

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easily. and use our video clipping tool to create clips of your favorite debate moments to share on social media. desktop,g, on your phone or tablet for the presidential debates. >> in 1866, the u.s. supreme court ruled it unconstitutional to try civilians in military court while military courts are operating. the ex parte milligan case originated during the civil war when they put dissenting civilians on trial. the case has been cited frequently since september 11 when several military commission cases came before the supreme court. next, ohio state university professor michael les benedict delivers the history of ex parte milligan. this is part of a two day conference hosted by illinois state university.
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peter: i am going to use the lectern for just a minute. thank you very much. it has been my pleasure to know our speaker tonight for more years than probably either of us would like to admit. i first met les when he was one of the brightest young graduate students at the university of illinois, where we both were studying under harold heiman, one of the greats in the field of constitutional history and reconstruction. although les received his ba and masters degree at the university of illinois, where he was able to root for his beloved chicago cubs, he later deserted that by going to rice university when professor hyman moved, and received his phd at rice university, where unlike many people, he published not just one book out of his dissertation, but two.
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unfortunately one of his books that he published out of his dissertation arrived at perhaps an auspicious time, the impeachment of andrew johnson in 1973. you may know what else happened in 1973. les, as those of us who know him call him, has also been president of the society for historians of the gilded age, a distinguished lecturer for that organization, and a very important mover in that organization. but he has also been extremely active as author and publisher and speaker in demand all over the country. i recently saw him speaking to the texas humanities council.
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i am not sure how much advice they took from him, based on what i have heard, but at least it was a good talk, and he has published many books. he has taught all over the country, in fact all over the world. the university of sussex and elsewhere. i am happy to cut the short because i could talk for several minutes but i would prefer we listen to michael les benedict. [applause] michael: thank you for that lovely introduction, roger. as roger says, we go back a long time and i really cannot express the great affection which i developed for him as a young guy when we were both together.
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i want to thank the sponsors of this conference, of course stewart winger for organizing it. it has been a pleasure to be here. i want to thank those of you who participated, both as analysts and speakers and those in the audience, because one of the beauties of conferences like this is you learn things. one of the downsides, you have to insert what you learned in a paper a few weeks ago and disrupted and katie make it too long, and worry that you have not -- but it is a pleasure to be able to contribute some thoughts of my own to the case of ex parte milligan in american history. in the summer of 1866, bloomington's david davis, associate justice of the supreme court appointed by his longtime
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friend abraham lincoln, was hard at work in the study of his farmhouse at the site of his present mansion. he was writing the supreme court's opinion in the case ex parte milligan, which had been decided a few months earlier but announced without an opinion, which was promised for the following winter. he knew that it was the opportunity of a lifetime for a lawyer and judge, indeed for an american. during the civil war, davis had been dismayed at how the struggle challenged traditional and deeply felt commitment to civil liberty. freedom of speech and press, but most especially the principle that one could not be deprived of life, liberty, except by due process of law. there were two ways the lincoln
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administration had challenged traditional notions of due process. first, it suspended the privilege of the writ of habeas corpus. at first, there was conflict but eventually everywhere in the united states. second, it tried people for various offenses in military courts, voluntary commission, commission, rather than in the ordinary civil court. this was a punitive measure designed to punish people who have done something that had harmed the war effort. democrats have complained mightily about both of these policies. when you combine them with the seizure of billions of dollars in slave property promised by the emancipation proclamation, democrats charged that lincoln was destroying civil liberty and property in the united states,
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that he was in fact creating a despotism. but davis has no problem with the suspension of the privilege of the writ of habeas corpus once congress had passed a law regularizing it in 1863. that was the habeas corpus act of 1863 and required that the administration provide list of those held. if the prisoners were charged with some offense by the end of the following term of the federal district or circuit court where they were held, the prisoners had to be released. for davis and republicans, this was an appropriate limitation on civil liberties for the sake of the country. it took dangerous people out of circulation temporarily, but they would not suffer punishment or long-term imprisonment without a trial.
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as republicans said, temporary arrest was precautionary, it was not punitive. trials by military commission was something else. they were punitive and could lead to long jail terms and even death sentences. davis, along with many republicans, thought this could not be done without due process of law. that is what the fifth amendment to the constitution demanded and what other provisions of the constitution, especially in the bill of rights, guaranteed. the fifth amendment reads that no person shall be held to answer for capital or otherwise infamous crime unless on presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law. yet military commissions were an ordinary part of military
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administration in times of war. commanders had a responsibility to protect the troops, keep order where their troops were stationed, and the authority to punish enemy combatant who violated the rules of war especially as guerrillas or spying and engaging in espionage out of uniform. and thousands of people were tried by military commissions during the civil war. nearly all the trials occurred in the border states and in the south. that is, in active theaters of war. and the accused ranged from confederate guerrillas to saboteurs and spies, whose actions clearly did violate the laws of war, too outspoken confederate sympathizers in areas that were still contested, to cheating peddlers and prostitutes and thieves hanging
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around military camp's. davis had no problem with these military trials. but the legal justification for the smaller number of trials in the northern states were not so clear. men were tried for discouraging enrollment in the armed forces. fomenting resistance to the draft, and encouraging desertion. those were clearly the kinds of acts that military commissions punish according to the international laws or. -- laws of war. but what about an offender like the famous clement elva landy, who gave public speeches and disaffected areas of the midwest, where the majority of
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the people were really critical of the war. he gave public speeches that are bitterly attacking the administration, and saying the war was both wrong and hopeless. what about people arrested on the order that one of the innumerable marshals for even less significant criticisms of the war, and criticisms of the infringement of civil liberty that were saying all around them. that punishable interferes with the war effort. could those are arrestees be tried by military commission? lincoln's war department decided that the requirement of the habeas corpus act -- if nothing else, if those sorts of people were arrested and held and unable to get out of jail with a writ of habeas corpus, i could only be held on the habeas corpus act of 1863 for a limited amount of time.
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if the government did not bring an indictment to them, bring them a trial in front of a civil court they would be released. lincoln's war department decided the requirements of the habeas corpus act did not apply to people who were brought to trial by military commission. the administration argued that those trials substituted for the indictments that the government was supposed to bring in the civil court. those convicted in such military courts were not entitled to release at the and of the terms of the circuit court, local court, that filed their arrest. in other words, the governor the governments, could evade the 1863 law by holding military trials. democrats denied, and many whigs
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as well denied on this civil liberties issue. they denied that the war justified the suspension of protections of civil liberty specified in the constitution. republicans argued that the constitution did justify these kinds of suspension, and the issue was debated in congress, and newspapers, and pamphlets, in stump seats. democrats made it the central issue of the elections of 1863 and 1864. they made the trial of clement l landing a desperate of the landing -- which he answered just as forcefully, all of which were published and put before the people before the election of 1864. the milligan trial was part of
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this debate, designed to prove to the public that the danger was real, and that therefore the military trials were justified. and as we know, it worked. lincoln won the election of 1864 largely on that issue, convincing the american people there were real copperheads who put the war effort at risk.
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he later told his brother-in-law that he had been afraid if things went on as they had, civil liberty would, as he wrote his brother-in-law, would be all gone. it was not only davis was worried. many republicans had begun to worry as well. in march, 1865 they try to pass an amendment, an appropriations bill to ban trials by military commission altogether. the leader, the congressman who moved the proposal in the house of representatives was the ultra radical republican from maryland, henry winter davis. that was david davis' cousin. his proposal passed the house. the house of representatives voted to end all military commissions on a bill moved by
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david davis' cousin, a radical republican. it lost in the senate when republican senators said, how can you reverse the very decision that the americans decided, that the people decided in the election of 1864? it was pleading guilty to the democratic charge, and suggested that lincoln should have lost the election. but once the war was over, davis determined to insert the supreme court into this great debate and he determined to do so on the side of those who wanted to uphold constitutional liberties in the time of crisis. and he had the perfect case -- well, almost perfect case. a prominent indiana democrat named landon milligan and others had tried to organize critics of the lincoln administration to defend themselves against despotism, and i think you here today how seriously those people took the threat of despotism.
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if they were unarmed, if they had no organization, how would they resist if their fears came true and the lincoln administration would infringe so many other rights, interfered with the election of 1864 in order to control a unit they have lost. so they organized, they wanted to organize these people. these people, by the way, or sometimes violently resisting. people trying to catch draft rogers, -- dodgers, assaulting marshals who were trying to an role people in the draft. individually, where resisting in various ways. mulligan and his confederates wanted to organize them in case there was a final confrontation. they persuaded the landy and to become the titular leader of
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what they called sons of liberty. confederate agents in canada decided to use the protein organization to free confederate prisoners of war being held in the north and launched an uprising in the union army's rear. milligan and his associates excepted the confederate agent'' money and it appears their advice. they were arrested, tried by that military commission at a propitious time for abraham lincoln, the fall of 1864, and milligan was sentenced to death. davis made out about milligan's guilt, but why not try them in front of a jury in an ordinary federal court question mark they were unlikely to get off, which was one of the things that would get them off. this was a guy that was going to be convicted if you tried him in a civil case.
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davis personally made sure that the death sentence was not carried out so that milligan could petition for writ of habeas corpus. the petition went to the circuit court on which he himself joined another judge to hear the petition. then davis arranged with that judge to disagree on whether, answering the petition was legitimate and whether milligan should be released. if two judges disagreed on circuit, according to the law in 1864 and 1865, the disagreement automatically went up to the supreme court. so this was a case davis had arranged because he wanted to test this question and have the court contribute to the debate. everyone knew it was a great case.
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the court assigned seven days for oral argument. the foremost democratic constitutional lawyers in the country appeared for milligan. they added a young republican congressman who had expressed reservations about military commissions and that fight in the house of representatives, future president james garfield. davis arranged for his wife, sarah, to sit in the ladies gallery and she reflected his excitement when she wrote their son is considered the most important case ever brought before the supreme court. milligan's lawyers made great oral arguments. they described the anglo-american heritage of liberty. they stressed the founding fathers suspicions of executive power. garfield echoed those arguments but also argued that the military trial was inconsistent with the provisions of the habeas corpus act which he had helped to pass.
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the arguments on behalf of the government did not come close. two matching these great legal for rations. attorney general james speed was way out of his depth. he brought in the bombastic radical republican general benjamin butler to help. that made sense, he thought, because butler had been the military commander in new orleans where butler had exercised military authority to the fullest. surely a good lawyer like butler had figure out why he was authorized to do it. butler had figured that out, and he gave that argument to the supreme court. he did it in the bombastic, stump speech style that worked
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for him when he was litigating in front of juries. his argument was that in wartime, the laws of war justified military, that justified military commissions who preceded the constitution. in times of war, the law of necessity trumped civil and constitutional rule. it was an argument guaranteed to alienate a court. but especially davis, davis, like lincoln had been awhig. they prided themselves on respect for the judiciary and they blasted the democrats for pandering -- they pointed to andrew jackson's -- like the one protecting cherokee indians from the state of georgia's playing
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-- claim he could take over their land. it is not true but it was rumored that jackson had said john marshall has given his opinion on that cherokee subject. let him enforce it, and he might as well have said, because the court was able to enforce it. when they were young whigs, both davis and lincoln had observed the great debate in congress from 1842 to 1844. andrew jackson, as military commander in new orleans in 1814, had pronounced martial law and had instituted military commissions to prosecute people who he thought were dangerous. he banished people from the town and one of the victims petitioned the local federal judge in 1814 for writ of habeas corpus. he was being held. the local judge issued the
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petition, he simply brought the guide to court to make the decision. jackson arrested the judge. and banished him from the city. when it was all over the judge came back and demanded the jackson answer for his actions. jackson refused to come. the judge instituted a contempt of court fine of $1200. to his credit, andrew jackson paid it but in 1842 he asked congress to reimburse him for what he had paid. all of the democrats in congress favored giving him the money because he had done nothing wrong. they all argued that in a crisis like occurred in new orleans, the law of necessity justified andrew jackson even putting a judge in jail. every whig said jackson was wrong and to reimburse him for
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that fine would manifest in the most obvious way disrespect for judiciary. that is when davis and lincoln were young whigs. the primary protection of constitutional right lay in the courts and late in the people's respect for the law. that was davis' background and unlike begin who modified his view, davis still. butler's argument supporting everything that was wrong. lincoln's argument was taken to its logical conclusion. so in april 1865, the justices agreed unanimously that the military trial was unconstitutional and that milligan had to be released.
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they agreed on the decision but not the reasoning. the chief justice and three colleagues said they would write up there dissension separately because davis had done so much to get the case for the court. chase naturally assigned the opinion to him. he wanted to do more than established a binding precedent on the court. he wanted to show how to demonstrate the government's power in times of great crisis. he wanted to save civil liberty with an eloquent, unanswerable argument. he wanted to address the people as well as the lawyers. he wanted to write an opinion for the age, and he grew -- drew upon the great orations in the argument and the arguments of reverend e johnson.
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he tried to pursue military commission saying it did not have jurisdiction over the lincoln assassin. of course he failed, but his argument was published all over and it was quite a great argument. as i said, davis was not much concerned with the military trials. he was concerned with the trial of a citizen of indiana for 20 years past, and never in the military or naval service, arrested at his home in a state not under immediate threat from confederate troops. it was the perfect case. after a long and technical consideration of jurisdiction to counteract what he thought was going to be the basis for the minority reservations, he turned to the main question. no greater question has ever been considered by this court, nor one that more nearly
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concerns the rights of the people. the decision does not depend on argument or judicial precedent. all of those precedents nearly illustrated the deeper history, the extent of the struggle to preserve liberty and to relieve those in civil life from military trial. the founders of our government were familiar with the history of that struggle and procured in a written constitution every right which the people had rested from power during a contest of ages. by that constitution and the laws authorized by it, this question was the eternal. the constitution of the united states is a law for rulers and people equally in war and peace, and covers with the shield of
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its protection all classes of men at all the time and under all circumstances. davis lambasted the idea that butler had articulated so aggressively in his oral argument. no doctrine involving more pernicious consequences was ever invented by the wit of man, then that any of the constitution's provisions can be suspended during any of the great exigencies of government. if butler's argument is correct, davis wrote, republican government is a failure and there is an end to liberty regulated by law. davis pointed to the law congress had passed limiting time detainees could be held before being indicted or
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released, and pointed out that milligan situation fit squarely in the terms about law. but he would not rely on so limited a reason for releasing him. the problem was not only that the trial was inconsistent with the statute, it denied the specific protections of liberty so carefully incorporated into the constitution. such a power could be exercised only when ordinary law had collapsed, when the word no court to administer it. hence, he developed a specific rule that should govern this case. he articulated how to apply it, specifically martial law can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction.
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and it must be confined to the locality of actual war. there have been no justification for a military trial in indiana. far from the actual theater of the battle where the courts were open and have never been closed. if milligan committed the crimes, let him be crying -- tried "by an established court and an impartial jury." the supreme court had put americans' general commitment to due process and civil liberty, a commitment articulated in what you might call constitutional politics, the debates i have just described or rendered in the united states during the civil war. and the supreme court had put the general commitment so often articulated in constitutional politics, squarely into constitutional law where it would not only influence public debate but held precedential authority in the court.
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to davis' survive -- surprise, chase and his colleagues did not dissent on the jurisdictional question. they dismissed the issue with hardly a word. instead, they criticize the opinion for precluding not only the commission that convicted milligan that have been approved by the president without judicial authority, but from precluding congress to authorize military commissions anywhere the court was open. they went too far. the constitution gave congress the power to declare war and this power necessarily extends to all legislation to the prosecution of war with vigor and success, chase wrote. we can act out that congress had power to provide for the organization of a military commission to try the conspirators.
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it had chosen to rely on prosecution in the civil court instead, let that fact could not deprive congress of the right to do otherwise. davis was devastated at the tidal wave that greeted his opinion. the conservative republican new york times blasted the court for throwing its great weight of influence into the scale of those who had in. the constitutionality of everything that had been done to promote it. the editor called it the most dangerous opinion ever produced by the supreme court. it was called the new dread scott. respected legal commentators criticized davis and the majority for having gone beyond the facts of the case. they seemed eager, one of them admonished, to go beyond the record, to lay down principles on which they would decide other questions not now before them regarding the bravest and
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highest powers of congress. that is from the american law review which had just then established and became the leading journal in the country for decades. davis did not understand that in the time between the announcement of ex parte milligan in 1866 and the delivery of opinion on december 17, 1866, the context of the case had entirely changed. it was no longer a civil liberties case. it had become a federalist case. the question had become whether the federal government could project power in the south to protect the rights of freed people, southern loyalists, and even its own soldiers. president johnson had supervise the establishment of new state governments and the south and as far as he was concerned, the
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process of reconstruction was over. he issued a proclamation that peace existed throughout the south, civil government was reestablished, and the courts were open and on obstructed -- --unobstructed. he conceded that martial law could be composed on anarchy pipe territory but said clearly that martial law could not continue after the civil courts had been reestablished. the implication of his opinion was to preclude congress from establishing military law or commissions in the south, protections for the newly freed slaves, southern unionists, and northern troops stationed in the south would be in the hands of southern law enforcement officials and court. if a disgruntled southerner shot and killed a u.s. soldier, the only recourse would be prosecution in the state.
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maybe the perpetrator would be liable to, -- prosecution in the federal court. congress would be sure to make such an assault on crime but not until later. even that would require conviction by a southern jury, still all white. what a military commander could not do was arrest the perpetrator and try him before a military commission. of course congress was not going to allow this condition to continue and passed a new reconstruction act in 1867, made the johnson government conditions subordinate, and made the use of military commissions legal if necessary. congressional republicans insisted that it was legal, saying peace was not restored until southern states were restored to their initial place
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in the union and in congress. davis recognize that martial law was appropriate in an occupied territory, but what about those open courts? democrats moved heaven and earth to get a case before the supreme court, and republicans worked just as hard to present it. in the end, the publicans were able to reconstruct the southern states and restore them to the union before the court could hear a challenge. but the effect of milligan was tremendous. it was one of the reasons congress had to hurry the process. republicans did not dare risk and adverse court ruling. second, milligan presented the use of military commissions once the southern states were restored.
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violence wracked the southern states after they were restored to normal relations. congress passed laws trying to deal with that but they all had to be enforced with a federal court. critical as they were davis' opinion, republicans never dared rely on chase's dissent to authorize military trial of southerners. after some initial success in putting down the ku klux klan in 1872, the federal courts proved utterly ineffective in protecting the rights of african-americans and white republicans thereafter. milligan has been recognized as a great case, mostly for davis' eloquent dedication to constitutional liberty in times of crisis. it is still quoted to contrast davis' constitutionalism as opposed to lincoln's
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non-constitutionalism. it is also included in books on great essays. the heart of this decision is the heart of the difference between the united states of america and nazi germany and the soviet union. political scientists and lawyers have been more skeptical. the entries on military commissions did not even mention milligan. it focused instead on the rules developed on international law, and international law of war which davis had considered irrelevant. when the great pioneers of american political science, john burgess, declared in 1890 that chase's opinion was correct and
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if davis' opinion was ever subjected to the state of war, it would be necessarily discarded. on the eve of world war ii a lawyer called his opinion childish, to think it would prove a different precedent in times of crisis. to understand what has happened to milligan, one has to recognize a basic irony. milligan articulated a general principle that constitutional protection was not suspended by war, but the specific holding established a very rigid rule for a very particular circumstance. it specified that american citizens who are not themselves combatants, could not be tried by military commissions when regular courts were open and unobstructed. it did not apply to american indians tried for violating the
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rules of war in raids on settlers were in combat against american troops. it did not apply to the war that filipinos fought in the philippines because neither case, the filipinos or american indians involved american citizens. but as was natural in 1916 in 1920, congress authorized them to try crimes of war. after queries, the supreme court made the legislation of the boundaries of the milligan case clear. when german saboteurs were caught, it sustained their trial by military commission, they were not american citizens. in the case of the one who might be considered a citizen because of his parents, he had been under the orders and control of
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the foreign enemy. that trumped the fact that he might be considered a citizen. milligan applied only to american citizens who were not combatant, the supreme court ruled. and the nature of the offense that it violated the rules of war, seven tours had violated laws, that was much more important than the location of the trial or the fact that courts were open. the specific holding of milligan was interpreted rigidly. so was the at the mission -- admonition that it was binding legally in war and peace. the supreme court refrained from challenging roosevelt orders forcing the relocation of people of japanese descent to the west coast. the judges barely mentioned milligan at all and certainly not davis' exhortation that the constitution protects all class of men in war and peace.
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despite that fact, milligan's main principle remained surprising -- the japanese relied on it" it. the historical government of the japanese relocation has been almost uniformly negative, that it violates basic rights is merely a unanimous conclusion. the court's inability to intervene was criticized. the main objection was to the blatant racism that precipitated the program, but every critic points to the supreme court's failure to stand up for the milligan's main, that war should not preclude civil liberties.
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a commander took over hawaii after pearl harbor, replacing civil courts with military. that was a decision that paralleled the milligan situation. the question was whether congress had authorized this action, implying clearly that the court agreed with chase that it could not -- it could have authorized the action. they decided congress had not authorized such trials in hawaii because america's long heritage of opposition to arbitrary military power, made it highly unlikely that congress would have done so. of course in that case, the court relied on an quoted ex parte milligan. that brings us to the war on
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terror. from the beginning, the bush administration insisted the court had unlimited power. it buttressed the claim by pointing to the resolution that congress had passed after the terrorist attack of september 11, 2001, which authorized the president to use "all necessary and required force" against those responsible. the bush administration said the president has inherent power to create a military commission, this gave the power that chase thought was necessary. milligan once again became relevant to constitutional law. milligan restored it to the three pages of quotation from ex parte milligan in the case. the court cited milligan when the justice from the war on terror cannot spend constitutional productions, that prisoners had a right to challenge whether they were the
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people described held. the court has nonetheless sustained congress'power to sustain commission, in effect endorsing chase'opinion rather than davis'. and despite the fairness outlined by the jeep a -- the geneva convention-- an american noncombatant system as davis characterized milligan has to be tried in a civil law -- unlawful combatants do not.
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critics of the milligan decision say this was proved largely irrelevant the issue of military trials for those held at guantanamo bay. and they can point to how the laws and prosecutions in federal court have impaired freedom of speech as in the sedition act cases during world war i, or the smith act prosecution of communists during the civil war. and of course, of the japanese relocation in world war ii. all of that is true. there is something we take for granted, as was mentioned in our discussion earlier today, when
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people suggest that maybe the decision is not been important or salient. in the 150 years since the decision of ex parte milligan, no american civilian has been tried by a military court within the united states for supposedly endangering american security. if americans thought that criticism of our petition in world war i harmed the war effort and should be suppressed, and thought membership in the communist party was subversive, they had to fast a law -- pass a law to punish it. and that had to be enforced in ordinary civil court. the inability of the government turned to military court makes it much easier -- i should say it makes it much harder for the federal government to enforce
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federal laws against local intransigence, and makes it much easier to resist. as a self jury reconstruction or the civil rights movement demonstrates. but that may be a price worth paying. thank you. [applause] >> excuse me, i think we are now to take questions? i will bring you the microphone. >> wonderful talk. historians aren't good at "what if's?" so i am tempted to ask, but what is lincoln had not been assassinated? would the ruling changed my help
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the politics that might've ensued after the war? michael: not only do we not like to do that, that is a tough what-if. lincoln was certainly not andrew johnson, and he certainly understood constitutional politics. to make arguments that would be persuasive to the public. he was going to be faced with this opinion. andrew johnson somehow found out about this decision. davis would have told him about this decision. i think that lincoln, a good lawyer, which andrew johnson was not -- he was not even a good
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tailor -- lincoln would have realized and seen the importance of convincing americans that the south had not issued the peace proclamation. he would've not evidenced that the south was restored and that the courts were operating unobstructed. to do so would have tied his hand. that would have been the most immediate consequence. he never would have done that. therefore the milliken decision, when it came down, would not have carried the implication that i can read, because it came after andrew johnson had issued that piece proclamation. that induction would not be there. we don't know how lincoln would have restored southern states. that is a real what-if. if one thing lincoln wanted to do, it is to keep a lot of authority in his own hands. that would continue to keep problems in congress over
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reconstruction. he certainly wasn't going to give up his authority to protect union soldiers in the south to the supreme court. and of course democrats still would have argued that the peace does exist. lincoln would have tried to restore some semblance of order, including civil courts down there. the argument that have been made, but lincoln would have been in a far better position to resist. yeah? >> [indiscernible] michael: he had the range for it, but had told milligan's lawyers -- the way he put it, and i think it's important how he voted -- the word is nearly over.
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after the war is over, everyone is going to feel there has been enough killing. but i think i will keep them in prison for a while so that they don't keep --don't kill the government. that implies clearly, once the government was safe, he was going to let them go. and he was not going to allow the death penalty to be exercised. >> wonderful talk. just a question in the legacy of milligan post world war ii. kirin -- my understanding of milligan expressed the dominant tradition. you referenced duncan. you see citations in landmark cases that were not about military commissions, but about court-martial and the overexertion of military and
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civilian and over intrusion of civilian authority. before commissions and tablets were established, was the more marginal case. milligan, even if the holding had been eroded as reflective of the tradition have always been the dominant case of the two. michael: what i wanted to get across in the opinion is that it's ironic. what lawyers attend to are the issues being litigated. the cases being litigated are ones that lie outside the main issue of milligan. it makes lawyers think milligan is irrelevant. critics did complain -- not
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exactly clear to me why. casebooks do not have milligan in it. when people have violated the laws of war, and particularly when they have violated the laws of war, military commissions are appropriate. that reflects a country tradition to milligan which relies on the laws of war which categorize a number of situations in which military
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commissions are okay. and so for most lawyers, this was a case that would show when you could have military commissions. and of course now it is used in the war on terror issues because in fact the major point was that noncombatants don't get the part of the benefit of the milligan decision. it is the case that took lawyer's attention from milligan. milligan is so established that people do not even think about it. there is that gentleman over there. >> further questions? i'll throw one out. something we don't think about as much -- is the constitutional explanation for the emancipation proclamation, which for lincoln,
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invested with all the powers of commander-in-chief under the laws of war, including, forgetting about the fifth and management, when the state comes into possession of a slave, the state can emancipate slaves. doesn't milligan, in denying developments of international law, challenge the emancipation proclamation? michael: of course davis never mentions it. davis, for all of his eloquence, is not the world's best lawyer. did he consider it? you would think that a lawyer would look at some of that language and say gee, somebody
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that thinks that somebody could argue under what i just said that the president doesn't have the right to emancipate slaves. after all, depressing people of property without due process of law. any other good lawyer -- you have to remember his decision. the constitution applies with all of its productions where the courts are open. it doesn't apply in military war. there the laws of war to apply, including the right to hold military commissions, and i presume the right to emancipate the property of your opponent. remember that lincoln never
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claimed the right to abolish slavery. he moved heaven and earth to get an amendment to abolish slavery, because under the war part, all he could do was emancipate slaves. that would not stop slavery for continuing efforts. --from continuing afterwards. in spite of the talk we had today about the precedents that might be dangerous, he had a deep commitment to abiding to the formalities of law. he always gave arguments why his actions were constitutional. and they were not insubstantial masquerading arguments. they were real arguments that carried weight. and that is a part of the reason that people feel more comfortable with lincoln in this area. he did not just exercise the
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exercise despotic powers. he had to convince that what he was doing was constitutional. he could not do that. -- he could not get reelected if he did not do that. >> was there any any interaction between the ex parte milligan, was there any impact after? michael: i have to say no. davis must have known the labor code. key must have known the general's order number one. or he alludes to them when he says the most pernicious argument ever devised by man is that those things could replace the actual provisions of the constitution. it is as if they don't exist. that is one of the reasons that
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milligan holds such an odd decision in american law. even a decade after milligan these videos are developed after general order one, which becomes a code for the geneva convention, and talk about what those main, engine not really about milligan. milligan has its portion, that the laws of the geneva convention do not apply to us as ordinary citizens in that we are undermining national security. but for everyone else, that is was is being explored and developed in the legal community.
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[indiscernible] michael: he was a regional commander. you raise that point earlier in the discussion. it's great -- davis was trying to affect the whole course of american understanding. to bring back american history in the course of several liberty -- civil liberty, which he thought had been almost destroyed in the civil war. he wanted the best case you could have. he we not have been able because it was a dominant aim, there was not a dominant theme in law to determine who was a combatant. might not have asked the
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question. is if a guy getting arrested at 2:00 a.m. in his own home in indiana? but what he was so happy with was that the guy was an american citizen who had been living in indiana for a long time, who himself was not a member of the confederate armed forces or united states armed forces. he was a perfect test. he had to script the issue -- skirt the issue is that milligan was part of a conspiracy financed by the confederate government and undertaking activities the confederate agencies were advising him to undertake. in kirin terms, milligan is a combatant. they refer to him in that is a specific case. the court interpreted milligan
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to be a civilian noncombatant, and we will accept the court opinion in that case. you won't question it, but it is irrelevant to a situation where someone is a combatant. in modern terms, yeah, milligan as a combatant. unlawful. >> what do you think about executive action against an american citizen who is allegedly a combatant outside the country? you may hear that coming up. michael: we of course have the drone cases that have hit american citizens. again, because milligan has been cabined to preclude the trial of american noncombatant citizens in places where there are courts
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that can hear a case. those are going to be considered outside the purview of milligan. when i say that, that doesn't mean milligan is unimportant. it projects all of the rest of us pretty clearly. it would be difficult for anyone to grade a military commission to try american citizens in one of the american states. but by golly, you go one of the -- you go take appointments outside of the united states -- take up weapons outside of the united states, milligan is not going to cover your. >> milligan strikes me as a new kind of language. do you hear earlier in the 19th century, my thinking is this divergence, you could cynically say that lincoln and davis diverged because their interests
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diverged. davis has the courts and lincoln is grubbing for executive power. --that does not diminish their arguments. i am wondering if there are other sources for their mental divergence. one thing that strikes me is that these kinds of songs the bill of rights are not sung. do you know of this kind of use? michael: it is taken for granted. you can see the effect of american's ordinary commitment to the rule of law in the state constitutions.
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one of the principles is that you are not supposed to be private of liberty without due process of law. how is that enforced? it is enforced every time there is a constitutional convention. the people at the constitutional convention great a state bill of rights, which requires you to be indicted, which requires you to be tried. that is how civil liberty has been protected. of course it is absolutely ingrained. it is not ingrained in a bunch of controversies that arrived during the civil war. then the specific controversy arrives, it is there. that is what happens in the debate about andrew jackson getting reimbursed. criticism for introduction of actions that he took when he fought the creeks, that he was high-handed. that in turn is important.
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it helps create the whig's conceptions of themselves. the modern understanding of what the court does. and protecting ordinary people from the majority. that isn't really there. that is not where their civil liberties -- it comes from the ordinary action of people. one of the things i haven't quoted that is interesting and the transition potential is that after david davis gets criticized so badly for the decision, it sobers him about the american people. he writes to his brother-in-law, why do we have constitutions? it is not protect the majority that can protect themselves. it is to protect the minority
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from the majority. he uses that language, which later becomes the dominant theme of legal discourse in the later 20th century. it is there, not in a constant litany of debates. >> if i recall, davis ran lincoln's campaign -- in the 60's? what impact did that have on the supreme court? michael: this would have been more similar to a supreme court justice from the 1850's who dissented from prescott -- from dread scott, took up a pilot
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against civil liberties-- reverend johnson is a similar person. davis had no use for african-americans. he had no use for abolitionist. he blamed that wing on the republican party for putting the union at risk. he saw abraham lincoln as a conservative whig choice for the republican party. he had no idea what lincoln would do. it safe to say david davis was a republican because he loved lincoln. and he wouldn't have been otherwise. when he got to the supreme court, he would not have
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indicated he was partisan. when you repeat what he says, he is an old whig. >> other questions or thoughts? >> as give les benedict another hand. [applause] michael: thank you very much. and [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> you are watching american history tv, all weekend, every weekend on c-span3. to join the conversation, like us on face book at the span history. >> each week, american history america brings you archival films that bring context to real events in america. ♪ >> the ballot is right at the
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voters i level, easily read. and all candidates are at the same level. no candidate suffers by being placed in an unfavorable position. the commissioner one over service clubs all over the county whenever he addressed them by reminding them of the large number of voters who are disenfranchised every year at the paper ballot type holes by making mistakes. busy people, often by habit, make checkmarks on the ballot in exes are required. they might as well have stayed home. that vote doesn't count. it is illegal. at the last, find minute they have accidentally voted for the wrong man or they have changed your mind. it doesn't count.
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or you know election pencils. try, sir. this ballot will be thrown out. or, in the multiple-choice, errors are frequent. he's entitled to choose five state representatives, but has marked six. vote.s a no yes, but out of every thousand people, some hurried, some nervous, some uninformed, how many do you think do it perfectly? figures there's to be swayed by tierney, were or fear. it can happen here, but not for
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well-intentioned mistakes, not the age of the voting machine. which cannot make a check mark instead of and at, which does let you change your mind by pushing the point of fact up, which has no pencil to break or paper to tear, which will not let you vote for more than you are allowed. satisfied, a are new privilege awaits you. you will register and count your own vote by returning this handle, walk away knowing your ballot, be disqualified, thrown out or miscounted. it is already counted, the moment you leave. as the commissioner likes to say, we have become one of the freedom curtain counties.
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>> each week, american history america brings you archival films that provide context for gives you coverage. next between the fourth debate between incumbent vice president richard nixon and john f. kennedy. after opening statements the candidates took questions on foreign affairs from a panel of journalists. topics included u.s. policy towards cuba, nuclear testing and american prestige around the globe. senator kennedy defeated vice president nixon in a close general election with less than 1% of the popular vote separating the two. this hour-long debate took place in new york city. quincy howe: i am quincy howe of cb- of abc news saying good evening from new york where the two major candidates for president of the united states

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