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tv   Ex Parte Milligan Supreme Court Case  CSPAN  January 2, 2017 3:05pm-4:17pm EST

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civil war where the lincoln administration used military commissions to put dissenting civilians on trial. the case has been sited frequently since september 11th, 2001, when several military commissioned cases came before the supreme court. next on american history tv, ohio state university history professor amare us the, michael lerks s benedict delivers a keynote speech commemorating ex parte milligan. this is part of a two-day conference hosted by illinois state university. i am going to use the lecturn for just a minute. thank you very much, stewart. it's 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
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students at the university of illinois where we both were studying under harold hymen, one of the greatest of the field of constitutional history and reconstruction. and although les received his b.a. and masters degree at the university of illinois, where he was able to root for his beloved chicago cubs, he later disserted that by going to rice university when professor hymen moved there and received his ph.d. at rice university where unlike many people he published not just one book out of his dissertation but two. and fortunately one of his books that he published out of his dissertation arrived at a perhaps auspicious time, the impeachment of andrew johnson in
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1973. you may know what else happened in 1973. les, as though of us who know him call him, has also been president of the society for historians of the guilded age. he was also a distinguished lecturer for that organization. and a very important mover in that organization, but les has also been extremely active as an author and publisher and speaker, in demand all over the con tri. i recently saw him speaking to the texas humanities counsel. i'm not sure how much advice they took from him based on what i heard, but at least it was a good talk, and he's published many books. he has taught all over the country. in fact, all over the world. university of sussex, university
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in japan and elsewhere. and it is my great pleasure to cut this short because i could talk for many, many minutes about les, but i would rather that we listen to michael les benedict. [ applause ]. >> well, thank you for that lovely introduction, roger. as roger says, we go back a long time. i really can't express the great affection of which i developed for him as a young guy when we were both together. i want to thank the sponsors of this conference and of course stewart winger for organizing it. it's been a pleasure to be here. i want to thank those of you who who participated both as panelists and speakers and also in the audience because one of the beauties of conferences like
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this is you learn things. one of the down sides is you have to insert what you learned into the paper that you wrote a few weeks ago and disrupted and maybe make it run too long and worry whether you've cut too much in order to accommodate what you wanted to add, but it is a pleasure to be able to contribute some thoughts of my own to the case of exparty milligan in american history. so, in the summer of 1866, bloomington's david davis, associate justice of the supreme court, appointed by his long-time 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 ca-parte milligan which had been decided
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a few months earlier. he knew that it was the opportunity of a life time 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 commitments to civil liberty. freedom of speech and press, but most specially the principle that one could not be deprived of life, liberty except by due process of law. there were two ways that the lincoln administration had challenged stra digsal notions of due process. first, it suspended the privilege of the writ of habeas corpus. at first in immediate theaters of conflict but eventually everywhere in the united states. second, it tried people for
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various offenses in military courts, military commissions. rather than in the ordinary civil courts. this was a punitive measure designed to punish people who had done something that had -- that had harmed the war effort. democrats had complained mightily about both of these policies. when you combine them with the see soour of billions of dollars of slave property, promised by the emancipation proclamation, democrats charged that lincoln was destroying civil liberty and property in the united states. that he was, in fact, creating a december pitism. now, davis had no problem with the suspension of the privilege of the writ of habeas corpus once congress had passed a law regularizing it in 1963.
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that was the habs you corp. us act of 1863. if the prisoners weren't 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 liberty 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. as republicans said, temporary arrest was precautionary. it was not punitive. now, trials by military commission were something else again. they were punitive and could lead to long jail terms and even
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death sentences. davis along with many republicans thought that 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, of course, 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 yet -- yet military commissions were an ordinary part of military administration in times of war. commanders had a responsibility to protect their troops, keep order where their troops were stationed and the authority to punish enemy combatants who violated the laws of war,
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especially fighting as gorillas out of uniform or sabotage or es spee knowledge, again, 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 an act of war. and the accused ranged from confederate gorillas to sab tors and spies whose actions clearly did violate the laws of war, to outspoken confederate sympathizers in areas that were still contested, to cheating peddlers and prostitutes and thieves hanging around the military camps. davis had no problem witht 1200
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indictment that government was supposed to bring in the civil courts. those convicted in such military courts were not entitled to relief at the end of the terms of the circuit courts, local courts, that followed their arrests. in other words, the government could evade the 1863 law by holding military trials. lincoln's actions became the center of an intense public debate over civil liberty in times of crisis. democrats denied and many wigs as well denied -- old wigs, people not yet republicans and were only now beginning to alie with the democrats on this civil liberties issue. they denied that the war justified the suspension of protections of civil liberty specified in the constitution. republicans, union of war
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democrats, argued that the constitution did justify these kinds of suspensions and the issue was debated in congress, in newspapers, in pamphlets, in stump speeches. democrats made it the central issue of the elections of 1863 and 1864. they made the trial of clement landing them the test case politically, addressing powerful political letters to lincoln, which he answers just as forcefully. all of which were published and put before the people before the election of 1864. the milligan trial was part of this debate designed to prove to the public that the danger was real and that therefore the military trials were justified.
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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 really put the -- the war effort at risk. but davis was not convinced. he told lincoln that the military commissions in the north were unconstitutional. he was worried that his friend had defended them so successfully that he seemed to have won the public debate. he later told his brother-in-law that he had been afraid that if things went on as they had, civil liberty, as he wrote his brother-in-law, would be all gone. and it was not only davis who was worried. many republicans had begun to worry as well. in march, 1865, they tried to pass an amendment to an
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appropriations bill to ban trials by military commissions all together. the leader, the congressman who moved the proposal in the house of representatives was the ultra radical republican from maryland hunter william davis. that was david davis' cousin. his proposal passed the house. the house of representatives voted to end all military commissions on an amendment to an appropriations bill moved by david davis's cousin, henry david davis, a radical republican. it lost in the senate. 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
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the election. once the war was over, davis determined to insert the supreme court into this great debate and he determined to do son the side of those who wanted to uphold constitutional liberties in times of crisis and he had the perfect case. well, almost the perfect case. a locally prominent indiana democrat named landon milligan and a number of others had tried to organize critics of the lincoln administration to defend themselves against december petism. i think you've heard today how seriously those people took the threat of december pitism. if they were unarmed, if they had no organization, how would they resist if their fears came true and the lincoln administration, who had infringed so many other rights, interfered with the election of 1864 in order to control it even if they had lost?
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so they organized. they wanted to organize these people, these people, by the way, were already sometimes violently resisting people trying to catch draft dodgers, assaulting marshalls who were trying to enroll people in the draft. they saw all of this as a dep vision of their liberties and individually people were resisting in various ways. milligan and his confederates wanted to organize them in case there was a final confrontation. they persuaded landing them to become the itular leader of what they called the sons of liberty. confederate agents in canada decided to use the prod yen organization to free confederate prisoners of war being held in the north and launch an uprising in the union army's rear. milligan and his associates accepted the confederate agent's
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money and it appears their advice. they were arrested, tried by that military commission at the propitious time for abraham lincoln of the fall of 1864 and milligan was sentenced to death. now, davis had no doubt about milligan's guilt, but why not try them before a jury in an ordinary federal court? they were unlikely to get off, which is one of the things that made this a good case, not a great case to try to interfere with somebody who then might get off with treason. this was a guy who was going to be convicted if you tried him in a civil case. davis personally made sure that the death sentence was not carried out so that milligan could petition for a writ of habeas corpus. the petition went to the circuit court on which he himself joined another judge to hear the petition. then davis arraigned with that judge to disagree on whether
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answering the petition was legitimate and whether milligan should be released. if two circuit court judges, if two judges rather, 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. 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 has expressed reservations about military commissions in that fight in the house of representatives. future president james a. garfield. davis arranged for his wife,
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sarah, to sit in the lady's gallery and she reflected his excitement when she wrote their son its considered the most important case ever brought before the supreme court. milligan's lawyers made great oral arguments. they described the angle american heritage of liberty. they stressed the founding father's 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. the arguments on behalf of the government did not come close to matching these great legal oruations. attorney general james speed was way out of his depth. he brought in the bombastic
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radical republican general benjamin f. butler to help him. 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 figured out why he was authorized to do it. butler had figured that out and he gave that argument to the supreme court. and he did t in the bombastic stump speech style that worked 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 superseded the constitution. in times of war, the law of necessity trumped civil and
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constitutional law. it was an argument guaranteed to alienate a court. but especially davis. davis, like lincoln, had been a wig boy. the wigs had prided themselves on their respect for law and for the judiciary. they had blasted democrats for pandering to the masses at the expense of the law. they pointed to andrew jackson's disregard for supreme court decisions he disagreed with, like the one up hoeding the constitutionality of the national bank and the one protecting cherokee indians from the state of georgia's claim that they could take over their land. it's not true, but it was rumored that jackson had said john marshall has given his opinion on that charity. let him enforce it. and he might as well said it because the court was unable to enforce it. when they were young wigs, both
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davis and lincoln, had observed the great debate in congress from 1842 to 1844. andrew jackson has military commander in new orleans in 1814 had pronounced marshall law and had instituted military commissions to prosecute people who he thought was dangerous. he had banished people from the town and one of the victims petitioned the local federal judge in 1814 for writ of habeas corpus. the local judge issued the petition which simply brought the guy before him for the decision. jackson arrested the judge. and banished him from the city. when it was all over, the judge came back and demanded that jackson answer for his actions. jackson refused to come. the judge instituted contempt of court fine of $1,200.
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to his credit, andrew jackson paid it. but in 1842, he asked congress to reimburse him for what he had paid. all 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 in putting a judge in jail rather than permitting a writ of habeas corpus. every wig had said that jackson had been wrong and said to reimburse him for that fine would manifest in the most obvious way, disrespect for the judiciary. that's when davis and lincoln were young wigs. the wigs, the primary protection of constitutional rights, lay in the court and lay in the people's respect for the law.
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now, that was davis' background and unlike lincoln who had modified his views in this regard, davis still stuck to him. butler's arguments supported everything that was wrong. lincoln's argument 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. they agreed on the decision, but they didn't agree on the reasoning. chief justice sam p. chase and three colleagues said they would write up their decision in a concurring opinion separately. and because davis had done so much to get the case before the court, chase naturally assigned the majority opinion to him. now, davis wanted to do more than merely establish a legal precedent binding on the courts.
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he wanted to settle the great public debate on how to interpret the government's constitutional 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 ajs and he drew upon what milligan's lawyers drew up in their argument. he drew upon the great wig constitutional lawyer johnson. johnson tried to persuade the military commission to concede that it didn't 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 that had taken place in
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the actually theories of war. 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. now after long, 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 graver question has ever been considered by this court, nor one which nearly concerns the rights of the whole people he wrote. the decision does not depend on arguments or judicial precedence. all of those precedence merely illustrated the deeper history, the extent of the struggle to preserve liberty and to relieve
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those in civil life from military trials. the found irs of our government were familiar with the struggle and secured 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 must be determined. the constitution of the united states is a law for rulers and people equally in war and peace. and covers with the shield of his protection all classes of men at all times and under all circumstances. davis lambasted the idea that butler had articulated so aggressively in his oral argument. no doctrine involving more per
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any shous consequences was ever invented by the whit of man than that any of the constitution's provisions can be suspended during any of the great exigency 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 the time detainees could be held before either being indicted or release and pointed out that milligan's situation fit squarely within the terms of that law but he would not rely on so limited reason for releasing him. the problem was not only that the trial was inconsistent with the statute, it was that it denied the specific protections of liberty so carefully
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incorporated into the constitution. such a power could be exercised only when ordinary law had collapsed, when there were no courts toed a min ter. hence, he developed the specific rule that should govern this case. he of course articulated the great principle, how to apply it. the specific rule, marshall law can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. and, it must be confined the locality of actual war. there had been no justification for military trial in indiana, far from the actual theater of battle, where the courts were open and had never been closed. if milligan committed the crimes, let him be tried, quoted by an established court and an
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impartial jury. the supreme court had put americans general commitment to due process and civil liberty. a commitment often articulated in what you might call constitutional politics, the debates that i had just described that were rendering the united states during the civil war. and the supreme court had put that general commitment so often articulated in constitutional politics squarely into constitutional law where it would not only influence public debate, but held pres den shall authority in the courts. to davis's surprise, chase and his three colleagues did not dissent on the jurisdictional question. after davis's law kpis gist on it, they dismissed the issue with hardly a word. instead they criticized the opinion for concluding not only
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the commission which convicted milligan which was approved by the president without congressional authority but for precluding congress from authorizing military commissions anywhere that the courts were open. that went too far. the constitution gave congress the power to declare war and this power necessarily extends to all legislation essential to the prosecution of the war with vigor and success, chase wrote. we cannot doubt that congress had power under the constitution to provide for the organization of a military commission to try the conspirators. it had chosen to rely on prosecution in the civil courts instead. but that fact could not deprive congress of the right to do otherwise. davis was devastated at the title wave that greeted his opinion. the conservative republican new york times blasted the court for
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throwing the great weight of its influence into the scale of those who assailed the union and impugned the constitutionality of everything that was done to uphold it. the editor of the independent called it the most dangerous opinion ever produced by the supreme court which says a lot after scott. harper's weekly called it the new dred scott. not only they but respective legal commentators criticized davis and the 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 involving the greatest -- gravest and highest powers of congress. that's from the american law review at that time had just been established and become leading journal in the country for decades. davis did not understand that in the time between the announcement of the decision of ex-parte milligan and first days
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of 1886 and the delivery of the opinion on december 17th, 1866, the context of the case had entirely changed. it was no longer a civil liberty's case. it had become a federal 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 supervised the establishment of new state governments in the south and as far as he was concerned, the process of reconstruction was over. he issued a proclamation declaring that peace existed throughout the south, civil government was reestablished and the courts were open and unobstructed. davis never mentioned reconstruction in his opinion. and he conceded that marshall law could be imposed on occupied
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territories. but he had said pretty clearly that marshall law could not continue after the civil courts had been reestablished. the implication of his opinion was to preclude congress from establishing marshall law or military commissions in the south. protections for the newly-freed slaves, hated southern unionists and northern troops still stationed in the south would be in the hands of southern law enforcement officials and courts. if a disgruntled southerner shot and killed a u.s. soldier, the only sure recourse would be prosecution in the state courts. maybe the perpetrator would be liable to prosecution in the federal courts. congress would be sure to make such an assault a crime in the future, but it was not at that time. but even that would require conviction by a southern jury. still all white under
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governments johnson had organized. what a military commander could not do, it seems, was to arrest the perpetrator and try him before a military commission. of course congress was not going to allow this condition to continue. it passed a new reconstruction act in 187 67. it authorized the use of military commissions if necessary to secure order and the rights of american citizens. was that constitutional in light of the milligan decision? congressional republicans insisted that it was, saying that peace was not restored until the southern states were restored to their normal relations in the union and represented in congress. after all, davis had recognized that marshall 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
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court on these questions. and republicans worked just as hard to prevent it. and in the end, republicans 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. first, it was one of the reasons congress had to hurry the process. republicans did not dare risk an adverse court opinion. second, milligan prevented the use of military commissions once the southern states were restored. violence racked 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 by the federal courts. critical as they were of davis' opinion, republicans never dared
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rely on chase's dissent to authorize military trials 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 war and crisis. case books still quote it to contrast davis's constitutionalism with lincoln's supposed extra contra constitutionalism. they include the source books of constitutional documents is always included in books of essays on great cases. the author of the essay in one of those compilations concluded at the height of the cold war the heart of this decision is the heart of the difference between the united states of
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america and nazi germany and the soviet union. political scientists and lawyers have been more skeptical. the entry on military commissions in the first encyclopedia of political science published in 1983 did not mention milligan. it focussed instead on the rules developed in the -- on international law, international law of war, which davis had considered irrelevant. one of the great pioneers of american political science, john w. burr guess declared in 1890 that chase's opinion was the correct one. as to davis' opinion, he opined that if it were ever subjected to the stress of war, we will safely predict that it will necessarily be discarded. on the eve of world war ii, the great constitutional lawyer edward s. korwin called davis's opinion mere questionable. it was childish to think that it would prove a better precedent in times of crisis than lincoln's actual example.
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to understand what has happened to milligan, one has to recognize a basic irony. milligan articulated a general principle to govern rulers as well as the rules. that constitutional protection is not suspended by the 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 ordinary courts were available, open and unobstructed. it did not apply, for example, to american indians. or in combat against american troops. it did not apply in the war filipino patriots fought against occupying troops in the philippin philippines. neither case involved american citizens where ordinary courts were open. so it was natural that in 1916
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and 1920 congress authorized military commissions to try violations of the laws of war. in ex-parte-q-u-i-r-i-n, the supreme court made the limitations of boundaries of the milligan case clear. when german sab tors were caught in the united states, in that case, it sustained their trial by military commission. they were not american citizens and at least in the case of the one who might have been considered a citizen because his parents actually were naturalized citizens, he had been under the orders and the control of the foreign enemy. that trumped the fact that he might be considered a citizen. milligan applied only to american citizens who are noncombatants the supreme court held in quirin. and the nature of the offense that it violated the laws of war both sab tors had violated laws, that was far more important than the location of trial or the
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fact that civil courts were open. so it's a specific holding of milligan was interpreted rigidly, so was itted a moe in addition. during world war ii the supreme court carefully refrained from challenging president roosevelt's orders forcing the relocation of people japanese dissent from the west coast. the justices barely mentioned milligan at all and certainly not davis' great exhortation that the constitution protect all classes of men equally in war and in peace. and yet despite that fact, milligan's great principle remains surprisingly resilient. the dissenters in the japanese relocation cases relied upon it and quoted it. equally important, perhaps, the historical judgment of the japanese relocation has been
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almost uniformly negative. that it violated basic rights is merely universal conclusion. the courts failure to intervene has been roundly condemned. congress has formally apologized and indemnified the victims. the main objection has been -- the main objection has been to the blatant reasons that precipitated the program, but every critic points to the supreme court's failure to stand up for the milligan case's basic injunction that war does not suspend constitutional protections of liberty. nor should one discount of milligan's specific rule, a military commander took over the government of hawaii after pearl harbor, replacing civil courts with military commission. that was a decision -- a situation that really paralleled the milligan situation. the question was whether
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congress had authorized this action, implying clearly that the court agreed with chase that he could authorize the action and not davis' opinion that it could not, but the court decided that congress had not authorized such trials in hawaii. because america's long heritage of opposition to arbitrary military powers made it highly unlikely that congress would have done so. and of course in that case the court relied on and quoted ex-parte milligan. and that brings us to war on terror. from the beginning the bush administration insisted that the president had inherent power to hold unlawful combatants and subject them to trial by military commissions. it buttressed that claim by pointing to the resolution that congress had passed after the terrorist attack of september 11th, 2001, which authorized the president to use, quote, all
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necessary and appropriate force, end quote, against those responsible. so the bush administration not only said that the president had inherent power to create a military commissions but this did give the this did give the congressional opinion that chase thought was necessary. milligan once again became relevant to current constitutional. case books which had treated ex parte as more relevant to modern law than milligan restored it to the cannons. the court cited milligan when they cited that the prisoners had the right to challenge whether they were actually the people described and being held. the court has nonetheless sustained congress's power to authorize military commissions in effect endorsing chase's opinion rather than davis's.
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and while it has insisted that any military trial adhere to the rules of fairness established by the geneva convention, the justices have not suggested that milligan itself applied all of the provisions of the united states constitution to the american citizens. an american noncombat ant citizen has to be tried in a civil court if the courts are open. unlawful combatants do not. critics of the milligan decision say that it's proved largely irrelevant to the issue of military trials for those held at guantanamo bay and they can point to how the laws and prosecutions in federal courts
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have impaired freedom of speech as in the se dishen act cases during world war i or the smith act prosecutions of communists during the civil war. and of course, to the japanese relocation in world war ii. all that's true. but there is something we take for granted as was mentioned here in our discussion earlier today when people suggest that maybe the decision has not -- has not really 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
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the united states for supposedly endangering american security. if americans thought that criticism of our participation in world war 1 harmed the war effort and should be suppressed, if they thought that membership in the communist party was subject ver subversive, they had to pass a civil law and that law had to be enforced in court. the inability of government to turn to military courts makes it much easier -- i should say makes it much harder for the federal government to enforce federal laws against local intrangs gents and makes it much easier to resist. as the south during reconstruction or the civil rights movement demonstrates, but that may be a price worth paying. thank you.
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>> excuse me. i think now we're to take questions if anybody has any and i'll bring you the microphone. this is chris river phillips. >> wonderful talk, les. historians aren't good at what ifs and so i'm hesitant to ask a what if, but what if lincoln hasn't been assassinated, would the ruling that came down have changed a whit based upon the different politics that might have ensued after the war? >> not only -- that's a tough what if. lincoln was certainly not andrew
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johnson and lincoln understood constitutional politics and he understood how to make arguments that would be persuasive to the public. he was going -- he was going to be faced with this opinion. davis -- in the case -- andrew johnson somehow found out most likely about this decision. abraham lincoln would have found out, but davis certainly told him about this decision. i think that lincoln, a good lawyer, which andrew johnson was not, he was not even a good tailer, lincoln would have recognized and seen the importance of convincing americans that the south was not yet -- he would not have issued the peace proclamation. he would not have announced that the south was restored and the courts were open and operating unobstructed. to do so would have absolutely tied his hands. so i think that would have
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been -- that would have been the most immediate consequence. he never would have done that. therefore the milligan decision, when it came down, wouldn't have carried the implications that it carried because it came after andrew johnson had issued that peace proclamation. that proclamation wouldn't have been there. we don't know just how lincoln would have restored southern states and that's a real what if, but he would have understood -- if one thing that lincoln wanted to do, it was to keep a lot of authority in his own hands. that would have probably continued to have make problems in congress over reconstruction, but he certainly wasn't going to give up his authority to protect union soldiers in the south to the supreme court. so that's where the nub would have come. democrats still would have argued that the peace does exist there. lincoln would have tried to restore some semblance of order, including civil courts down
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there. and so the argument still could have been made, but lincoln would have been in a far better position to resist. yeah. >> isn't it true that lincoln had already arranged before he died for the release of prisoners? >> he hasn't arranged for it, but he had told milligan's lawyers that he was going to -- that he was going -- well, the way he put it -- and i think it's important how he put it. he said i think i'll keep them in prison -- he says -- after the war -- the war is nearly over. after the war is over, there's -- everyone's going to feel there's been enough of killing, but i think i'll keep them in prison for a while so they don't kill the government. so of course that implied very clearly that once the government was safe, he was going to let them go. and he certainly was not going to allow the death penalty to be
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exercised. >> that was a wonderful talk. i just was -- i just was -- just raised a question in terms of the legacy of milligan and post world war ii with kuron. i had always -- milligan really my understanding sort of reflected or expressed the dominant tradition. you referenced duncan. you see echos of milligan in cases like reed versus cobber which were about court marshal and the supremacy of civilian authority. and to me until 911 when kuron became the template for the commissions that would be established after that was the more marginal case and it was milligan still was -- even if it
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wasn't as you pointed out even if sort of the holding had been eroded as reflective of the tradition was -- had always been the kind of dominant case of the two. >> you know, what i wanted to get across was that its ironic what lawyers attend to are the issues that are being litigated and so the cases that are being litigated are ones that lie outside the main issue of milligan and it makes lawyers think -- basically somehow is inconsistent with milligan. not exactly clear to me why but if lewis fisher were here he would explain to me why he feels that way and explain to all of us, but kuron becomes i think -- more important case books have
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kuron in it. they do not have milligan in it. the reason is kuron talks about the conditions in which you can hold military conditions and that is when people have violated the laws of war and particularly -- particularly when they have violated the laws of war, military commissions are appropriate. that reflects a counter tradition to milligan which relies on the laws of wars which categorizes a number of situations in which military commissions are okay. so for most lawyers this was a case that would show when you could have military commissions. and of course, now it's used in the war on terror issues because in fact the major point of it was noncombatants don't get the benefit of the milligan -- pardon me, combatants don't get
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the benefit of the milligan decision. so it is the case that took lawyers' attention away from milligan. milligan is as -- who was it who made that brilliant comment this afternoon, milligan is so established that lawyers don't even think about it. there is the gentleman right over there. >> further questions? something that we don't think about as much is the constitutional justification for the emancipation proclamation as being rooted in the commander in chief in clause, which for lincoln and his constitutional invests him with all the powers of a commander in chief under the laws of war, which includes then forgetting about the fifth amendment and confiscating property which under the laws
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when the state comes into possession of a slave, the state can emans pat the slaves, so doesn't milligan challenge the -- in denying the relevance of international law, challenge the emancipation proclamation? >> of course, davis never mentions it and davis for all the el consequence of his opinion is probably not the world's best lawyer. so the question is did he question it. you would think that a lawyer would look at some of that language and say, gee, somebody who thinks that the -- that -- somebody could argue that under what i've just said the president doesn't have the right to emans pat slaves. after all, it's depriving people of property without due process of law, but any other good
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lawyer -- or maybe davis did ask this and he comes to the other conclusion. you have to remember his decision. the constitution applies with all of its protections where the courts are open and where the law is. it doesn't apply in the futors of military war. there the laws do apply, including the right to hold military commissions and i presume the right to emans pat the property of your opponents. you'll remember that lincoln never claimed the right to abolish slavery. if you saw the movie "lincoln" you understand he moved heaven and earth to get an amendment to the constitution to abolish slavery because all he could do was emancipate slaves. lincoln despite all the -- a lot of the talk we had here today
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about -- about the pres dense that might be dangerous, he had a deep commitment to abiding by the formalities of the law. he gave not -- he gave our arguments why his actions were constitutional and they were not insubstantial mass car raiding arguments. they were real arguments that carried weight and that's part of the reason that people feel more comfortable with lincoln in these areas. he didn't just exercise power and he always knew he had to convince the american people that what he was doing was constitutional, that he could not get reelected if he didn't do that.
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>> was there any interaction in the milligan code before the decision? was there any impact? >> i would have to say no. davis must have known the code. he must have known the general. he doesn't allude to them in the case or he alludes to them when he says -- the most per nishus argument ever devised by the wit of man is that those things could replace the actual constitution. it's as if they don't exist. it's one of the reasons that milligan holds such an odd position in american law because the development of military law even a decade after milligan is to develop these ideas that are in general orders number one and in the code which becomes the foundation for the geneva
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convention and talk about what those mean and not talk about milligan. milligan has its purpose. it prevents the laws of war in the geneva convention from applying to us as ordinary citizens on the pretense that we are somehow undermining national security. that's what's being explored and developed in the legal community. yeah. >> when do you think a u.s. citizen crosses the line to become a combatant? for example, he joined the secret society and they gave him a military rank in it, of course honorary, and so -- >> he was a regional commander. you raised that point earlier in the discussion and of course -- >> i did.
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>> well, davis was trying to effect the whole course of american understandings of civil liberty. bring back american history to the course of love of civil liberty which he thought had almost been destroyed in the civil war. he wanted the best case he could have. he may not have been able, because it wasn't a dominant theme in law, combatant versus non, there wasn't a dominant theme in law to try to decide who's a combatant and who wasn't. he might not have asked the question. it might have been obvious to him a guy getting arrested at 2:00 a.m. at night in his own home in a place like indiana, but what he was so happy with was that the guy was an american citizen who had been living in peace in indiana for a long time, who himself was not a
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member of the confederate armed forces or the united states armed forces. he was a perfect case. of course he had to kind of skirt the issue that the actual allegation was that milligan was a part of a conspiracy that was financed by the confederate government and was undertaking activities that the confederate agents were advising him to undertake. milligan is a combatant. that's why in the case of kuron itself, they refer to milligan and they say it's a very specific case. the court interpreted milligan to be a non -- a civilian noncombatant and we will accept the court's opinion in that case. we won't question it, but it's irrelevant to a situation where somebody is a combatant. so that's -- yeah, i think, you know, in modern terms, milligan was a combatant and an unlawful
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one. >> what do you think about ex t executive action against an american citizen who is allegedly a combatant outside the country? >> yeah. >> you may hear that coming up. >> we had the hamdy case and the drone cases, which have hit american citizens. again, because milligan has been cabined to preclude the military trial of an american noncombatant citizens in places where there are courts that can hear a case, those -- those are going to be considered outside the purview of milligan. and when i say that, one of the points i want to make is that doesn't mean milligan is unimportant. it protects all the rest of us pretty clearly.
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it would be very difficult for anybody to create a military commission to try american citizens in one of the american states, but by golly if you go out of the united states and you take up weapons against the united states, milligan is not going to cover you. >> i have another question, if i might. milligan strikes me as a new kind of language. do you hear earlier in the 19th century kind of payonce to the bill of rights to the kind that davis articulates in milligan? i guess my thinking is this die verge ens, you could say they diverged because they have to defer to the court. that's not to diminish the seriousness of lincoln's
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constitutional arguments, but that might explain the diverge e yedivergeness. one thing that strikes me is that these kind of songs to the bill of rights aren't sung in the first half of the 19th century to my knowledge. do you know of this kind of use sweeping language in the bill of rights? >> it's taken for granted. you can see the effects of american -- ordinary americans' commitment to constitutional approval of law in the state constitutions that they frame all the time. now, the one of the principals that you're not supposed to be deprived of liberty without due process of law. how is that enforced? there's almost no court cases dealing it because the issue doesn't arise. how is it enforced? it's enforced every time there's a constitutional convention and the people at the constitutional
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convention create a state bill of rights which requires you to have a trial and to be tried. that's how civil liberty has been protected. of course it is absolutely in that degree engrained. it's not engrained in a bunch of controversies like arise during the civil war, it's engrained that way. then when a specific controversy does arise, it's there. that's what happened in the debate about andrew jackson getting reimbursed for the money and criticism for andrew jackson's when he fought the creeks, that he was high-handed there. there will be times. that in turn is quite important because it helps create the wigs mentally, the wigs conception of themselves. the real course of our modern understanding of what the court does, if we still have it, that it undertakes especially to protect ordinary people from
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majorities. that isn't really there. that's not where civil liberties -- it comes from the ordinary activities from people. one of the things i haven't quoted which is interested in the transition potential here, is that after david davis gets criticized so badly for the decision, it sobers him about the american people and he writes his brother-in-law saying, you know, in that case why do we have constitutions? it's certainly not to protect the majorities who can always protect themselves. it's to protect the miernnoriti from the majorities. it's the first time i've seen that language used by anybody and he used it which later becomes the dominate theme of legal discourse in the later 20th century. so it's there, but, no, not in a
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constant litany of debates. >> davis, if i recall correctly, read lincoln's 1860, right? >> right. >> what impact did that have on his legal thinkings and politics in the supreme court? >> i think it had a great day. i think that davis being the kind of guy he was would have been more similar to benjamin robin, a supreme court justice in the 1870s who was a wig, but who during the civil war took very active position against the violation of civil liberties, that abraham lincoln was engaged in. johnson was a similar kind of person. davis had no use for african-americans. he had no use for abolitions. he blamed that wing of the republican party for putting the
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union at risk. he saw abraham lincoln as a conservative wig choice for the republican party. he had no idea the war was coming and he had no idea what lincoln would do. he loved lincoln. i think it's safe to say david davis was a republican in 1864 because he loved lincoln and that he woo that he wouldn't have been on otherwise. assuming he got to the supreme court he wouldn't have openly indicated his partisan, but when you read what he says, he's an old wig. >> any other questions or thoughts? let's give michael another hand. >> thank you very much. very much enjoyed it. thank you for the great introduction. you're watching american
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