The Long Shadow of Ex Parte Milligan
Except on battle-reenactment fields, American wars of the distant past do not often act on us in any form but memory, so historians of these events must be content to remain guardians of that memory rather than literal combatants. Yet issues of federal war and emergency powers — and their impact on civil liberties — are anything but matters of history; they are perennial concerns that have come to the fore with the various conflicts and crises of the 21st century.
Writing during the Second World War, Supreme Court justice Robert Jackson warned that when a court rationalizes a federal order based on emergencies and anomalies, the precedent "lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need." He wrote these words in a dissent to Korematsu v. United States — the case that upheld Franklin Roosevelt's detention of Japanese American citizens in the wake of Japan's attack on Pearl Harbor. That shameful precedent remained live until it was explicitly overturned in 2018, three-quarters of a century after it was handed down.
With global conflict escalating, we would do well to keep Justice Jackson's warning front of mind. To understand why, we can look to a Civil War-era Supreme Court decision on another controversial executive order — one that had long faded into the footnotes of legal textbooks before its resurrection near the turn of the millennium. That case is known, with something less than rhetorical elegance, as Ex parte Milligan.
MILITARY TRIBUNALS
Ex parte Milligan was a landmark Supreme Court case that dealt with the constitutionality of military tribunals, which were developed during the Mexican War of 1846-48. The U.S. Army's general-in-chief at the time, Winfield Scott, had to arrange for the temporary occupation of Mexico City while the United States and Mexico hammered out a peace treaty. Scott was worried about the increasing toll Mexican guerillas were exacting on U.S. occupying forces, but he saw no solution in either shipping Mexican civilian suspects back to the United States or in turning them over to the Mexican civil courts. Instead, he invented the idea of military tribunals — or, as he called them, military commissions.
Unlike proceedings carried out under martial law, Scott's tribunals would deal with civilians as well as soldiers; unlike those under civil law, the tribunals would be administered by military officers according to their own rules, without empaneling juries, recognizing writs of habeas corpus, or observing due process. After all, Scott reasoned, the accused would usually be non-citizens, and the proceedings would not take place on U.S. soil.
Scott's tribunals ended up dealing less often with hostile Mexicans than with disorderly American volunteers who committed civil crimes in Mexico City. But their use during the Mexican War created a precedent soon followed during the Civil War.
Beginning in 1861 and throughout the war, President Abraham Lincoln refused to recognize the legitimacy of the Southern Confederacy. This created a problem regarding the legal identity of soldiers and civilians of the Confederate states, as well as their Northern sympathizers. Holding Confederate soldiers as prisoners of war would implicitly recognize the Confederacy as an independent sovereign belligerent. Classifying Southern civilians and Northern dissidents as traitors under Article III, Section 3, of the Constitution was another option, but the botched treason trial of Aaron Burr in 1807 suggested that convictions for treason in federal civil courts would be extremely difficult to obtain. The third option was the recently minted military tribunal.
In practice, however, it became impossible to contemplate trying captured Confederate soldiers by tribunals. There were simply too many of them, and tribunals would have invited a tit-for-tat response by the Confederacy against captured Union soldiers. Yet in almost every circumstance involving Northern civilians — draft resistance, political dissent, smuggling, and the like — resorting to military tribunals proved irresistible. Lincoln had no great confidence in the federal court system that had produced the Dred Scott decision in 1857, and no greater confidence in it after Chief Justice Roger Taney tried to interpose a writ of habeas corpus to shield a Maryland militia officer, John Merryman, from arrest for burning railroad bridges. Military tribunals seemed to be the only reliable path forward for punishing disloyal behavior.
Reliable, perhaps; but constitutional? It was one thing for Lincoln to suspend habeas corpus in the case of Merryman, who was widely known to have participated in destructive anti-Union behavior in his native Maryland; it was another thing entirely when the Lincoln administration began expanding its roundups to include citizens of Maryland and elsewhere whose actions posed serious trouble and disruption but did not rise to the level of outright violence.
THE VALLANDIGHAM CASE
As the political situation stabilized over the first year of the war, military tribunals might have dwindled away. But the summer of 1862 brought the first Northern military draft, which triggered angry political outbursts across the North from Lincoln's Democratic opposition. In 1863, draft riots broke out in New York City and Boston, accompanied by the rise of shadowy resistance groups, calls for defiance from Democratic politicians, and near insurrection in the coal fields of Pennsylvania. Lincoln's Emancipation Proclamation only further aggravated these dissenters, and by the fall of 1863, Democratic opposition had found new voices in House minority leader Samuel Cox, New York governor Horatio Seymour, New Jersey governor Joel Parker, and Delaware senator Willard Saulsbury.
None of these new Democratic leaders carved out more notoriety for himself than Ohio congressman Clement Laird Vallandigham. By 1863, Vallandigham had become such a thorn in the Lincoln administration's side that Ohio's Republican legislature gerrymandered his district out from under him. Undaunted, Vallandigham delivered an incendiary anti-war speech at Mt. Vernon, Ohio. This aroused the ire of Ohio's military-department commander, Ambrose Burnside, who sent soldiers to drag Vallandigham from his home in the middle of the night and bring him before a military tribunal that (predictably) found him guilty and ordered him imprisoned at Fort Warren. The national fury that resulted from Vallandigham's case persuaded Lincoln to intervene and, in an adroit move, change Vallandigham's sentence to expulsion to the Confederacy.
Vallandigham's case generated two responses that would have long constitutional legacies, the first of which came from the Supreme Court. Undeterred by Lincoln's suspension of the writ of habeas corpus, Vallandigham applied for one anyway, denying that a military tribunal had any authority while the civil courts of Ohio were still open and operating. Federal district judge Humphrey Leavitt declined to issue the writ, citing Lincoln's suspension of habeas corpus, but Leavitt and the U.S. Supreme Court justice assigned to the Ohio district, David Davis, were sufficiently troubled by the case to certify an appeal to the Supreme Court.
When the Court finally responded in Ex parte Vallandigham in February 1864, it declined Vallandigham's appeal for what the justices described as lack of jurisdiction. In times of war, it held, the Court has no power "to issue a writ of habeas corpus ad subjiciendum to review or reverse" a tribunal's proceedings "or the writ of certiorari to revise the proceedings of a military commission." Everyone, in other words, wanted very badly for the case to go away — everyone except Clement Vallandigham.
The other result of Ex parte Vallandigham was an extended justification issued by President Lincoln in June 1863. Lincoln claimed that, under normal circumstances, Vallandigham would have been entitled to a civil trial, no matter how noxious his opinions. But civil war did not constitute normal circumstances, and the atmosphere it generated called for a different application of the law. The Constitution, he claimed, "is not in its application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security." As if appealing to a jury, he asked: "Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?"
The common-sense answer might well be that he must not shoot the boy and he should touch the hair on Vallandigham's head; the legal and constitutional answer might be something very different. That would become the issue at stake in Ex parte Milligan.
THE MILLIGAN CASE
Vallandigham had been scheduled to deliver the keynote speech at a Democratic rally in Crestline, Ohio, on May 5th, but his arrest two days prior threw a wrench into those plans. Event organizers scrambled to find a replacement speaker, ultimately settling on visiting state senator and anti-war Democrat Alexander Douglas.
Douglas was a state senator in Indiana, not Ohio. But the Civil War in Indiana had, at many points, reached an even higher degree of unrest than in Vallandigham's Ohio. In the 1860 election that made Lincoln president, Indiana elected a Republican state legislature and a Republican governor by a slim margin. The legislature then promptly elected the new Republican governor to the U.S. Senate, allowing his lieutenant governor, Oliver Perry Morton, to become governor. But the state legislature flipped Democrat in 1862. When the legislature tried to remove control of the state militia from Morton, the governor simply refused to call the legislature into budget session and proceeded to govern without it, producing howls of denunciation from Democrats — including Senator Douglas.
As Vallandigham's replacement at the May 5th rally, Douglas did not disappoint. Speaking before the raucous, whiskey-fueled crowd, he railed against the administration's conduct of the war, accusing the Union government of "aiming to build up a despotism" and advising that the audience "buy powder and lead" to resist military arrests. News of the speech's contents soon reached Ohio authorities, and on May 13, troops acting under the orders of General John Mason arrested Douglas at the Crestline railroad station, where he was waiting to return to Indiana. When Douglas appeared before a military tribunal to face charges for "declaring disloyal sentiments and opinions with a view to weakening the power of the Government in its efforts to suppress an unlawful Rebellion," his defense counsel was Lambdin Milligan.
Milligan had been born in Ohio, where he became a lawyer in 1835 and a devoted follower of Andrew Jackson and the Democratic Party. He was a vehement Jacksonian, too: He refused to endorse Martin Van Buren, Jackson's own anointed successor to the presidency in 1836, for being too limp in his dedication to pure Jacksonian populism, and added that the "domestic institutions of the States" — namely, slavery — were "sacred to themselves." In 1845, he moved to northern Indiana, turning from law to real-estate speculation and then back to law in the 1850s. He argued with everyone with "threats and malicious thrusts." He made several bids for elected office, most of which failed, and supported Lincoln's opponents in the 1860 election.
When the war broke out, Milligan made no secret of his belief that secession from the Union was the Southern Confederacy's right. In one speech, he reportedly said "he would rather spit upon the stars and stripes than to see them at the head of an army marching" in "an unjust, and unprofitable crusade against the Southern people." He continued to denounce the war in 1862 for its sacrifice of lives "wasted upon useless fields of carnage to carry out the crazy schemes of New England fanatics." But Milligan could not persuade Indiana Democrats to nominate him for Congress in 1862, since he was, as one Democratic newspaper put it, "personally unpopular."
Unpopularity did not prevent Alexander Douglas from calling on Milligan as his defense counsel after Douglas's arrest in May 1863. Milligan and Douglas had shared many anti-war platforms since the outbreak of the conflict and, characteristically, Milligan came out swinging. The tribunal before which Douglas was being hauled, he declared, had no legitimacy in constitutional law, and especially no jurisdiction over a civil case. He pummeled witnesses to admit that Douglas had spoken against "illegal arrests" rather than "military arrests"; he wondered whether the witnesses were in fact hired snitches of the military; and he produced three witnesses who swore that Douglas had only spoken against "Republican politicians," not against the Union. In the end, the tribunal convicted Douglas anyway, but on only two of the six counts with which he had been charged. It was enough of an embarrassment that on June 3, Douglas was released by the military authorities and returned home to a rapturous reception.
Milligan's success seems to have emboldened him, especially after the Indiana military-district commandant, Milo Smith Hascall, greeted the assembly of the Indiana state Democratic convention that summer with armed soldiers and artillery, ostensibly to prevent a rumored insurrection. Milligan now began addressing Democratic paramilitary groups, prominent among them a murky organization known as the Knights of the Golden Circle.
It has long been an open question whether anxieties about the Knights of the Golden Circle and other dissident Democratic groups represented little more than paranoid Republican fantasies. Yet there seems no doubt that in northern Indiana, the Knights had taken on a military character, calling themselves the Sons of Liberty, and that Milligan — along with other prominent Indiana Democrats like Harrison Dodd, William Bowles, Stephen Horsey, and Andrew Humphreys — were involved in plans to stage an attack on the prisoner-of-war camp in Indianapolis. The idea was to arm the prisoners with weapons the Sons of Liberty had stockpiled in a warehouse and set off a Democratic uprising in Indiana.
Word of this scheme found its way to federal military authorities, who infiltrated the Sons of Liberty and began arresting Milligan and his fellow plotters. In September, they seized Harrison Dodd; on October 5, they arrested Milligan at his home in Huntington, Indiana, and transported him to a military prison in Indianapolis. The others were soon rounded up as well.
Five charges were lodged against Milligan and his associates on October 21. None of them actually involved treason (that would have shifted matters onto a civil basis) but rather the vaguer notion of conspiracy. They were not dissimilar to those that had been used against Clement Vallandigham a year before: first, that they did "secretly organize and disseminate a secret, unlawful society or order...for the purpose of overthrowing the Government"; second, that they "did design and plot to communicate with the enemies of the United States, with the intent that they should, in large force, invade the territory of the United States"; third, that they did "organize and attempt to arm, and did arm, a portion of the citizens of the United States...with the intent to induce them...to co-operate with said armed enemies"; fourth, that they "did counsel and advise citizens...to resist a call or draft"; and fifth, that they planned to "introduce...enemies of the United States into the loyal States of the United States, thereby to overthrow and destroy the authority of the United States."
There was at least circumstantial evidence that Harrison Dodd was responsible for acquiring weapons for this hare-brained plot. But the proceedings of the court did not have much practical application to Dodd, since he managed to escape from prison and disappeared to Canada. It was less clear what role, if any, Milligan had actually played. But the real question was the jurisdiction a military tribunal had over the case when the civil courts of Indiana were clearly open.
The trials dragged on through November and into December, thick with salacious testimony about Milligan's denunciations of the Union and equally thick with indignation that he was being misrepresented. But on December 10, all four of the defendants were found guilty — guilty on all counts for Milligan, Horsey, and Bowles, with a lesser finding for Humphreys. The verdict was not announced until the beginning of January, although by the time it appeared, Republican newspapers were already gloating at the prospect of the three being "hanged by the neck until dead."
By the time the verdict became public, however, the Union armies had won significant victories in Georgia and Virginia, Lincoln had been reelected, and, to some, the end of the war seemed in sight. The Cincinnati Enquirer did not believe that the execution of "such upright, high-minded and honorable citizens" would ever actually take place, and Lincoln seems to have assured Milligan's fellow Democrat and former congressman from northern Indiana, Joseph McDonald, that he wouldn't hang them, but "[k]eep them in prison awhile to prevent them from Killing the government," and then release them.
Instead it was Lincoln who was killed, and his successor, Andrew Johnson, came into office determined to make an example of Milligan, who had been sentenced to be hanged (or shot, it was not clear in the newspapers) on May 19. Nine days before his scheduled execution, just as had happened in the case of Clement Vallandigham, a nervous Milligan applied to the federal district court for Indiana for a writ of habeas corpus; and just as had happened with Vallandigham, the district judge was officially inclined to deny the application, while David Davis, the same Supreme Court justice who shared the district, disagreed. Once more, then, a habeas appeal would go to the Supreme Court.
MILITARY TRIBUNALS OVERRULED
Justice Davis would turn out to be Lambdin Milligan's best friend, though not because either of them knew the other.
Davis had harbored doubts about military tribunals' legitimacy since Lincoln had nominated him to the Supreme Court in 1862, and from the outset, the principal issue in the case titled Ex parte Milligan was not Milligan, but the tribunals. For that reason, the case attracted attention that Milligan himself had never really merited. "It is considered the most important case ever brought before the court," Davis's wife Sarah wrote with some pardonable exaggeration. The prominence of the legal counsel for Milligan — Joseph McDonald, Milligan's former congressman; David Dudley Field, the brother of Davis's fellow justice Stephen Field; Jeremiah Black, a former attorney general; and James Garfield, a former Union general, now a member of Congress, and later the 20th president of the United States — only underscored its significance. The Court scheduled oral argument for early March 1866 and declared a decision on April 3: The military commission did not have jurisdiction to try and sentence Milligan, and therefore Milligan was entitled to habeas relief and to be discharged from detention.
The full opinion of the Court was not read until the Court's next term, on December 17. When it was released, it filled out all of Justice Davis's suspicions about the legitimacy of military tribunals and presidential prerogative in times of national emergencies. The opinion, written by Davis himself, began by conceding that "during the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question." But the war was now over, and as minds cleared, three devastating objections to the proceedings against Milligan (and Horsey and Bowles) emerged.
First, Congress had laid down rules surrounding the Lincoln administration's suspension of the writ of habeas corpus in the Habeas Corpus Act of March 1863. Among those rules was the explicit provision that anyone arrested after the passage of the act was "entitled to his discharge if not indicted or presented by the grand jury convened at the first subsequent term of the Circuit or District Court of the United States for the District." Milligan had, of course, been denied that entitlement.
Second, military tribunals had no jurisdiction in places where there was no invasion or rebellion, and where "the Federal courts were open...to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service." Again, the outcome here favored Milligan.
Third, and above all, both the executive branch and the military needed to understand that the Constitution did not, as Lincoln had argued after Vallandigham's arrest, operate differently in a time of war or emergency. Davis made this clear in a single ringing sentence: "The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances." There is, he continued, no military-tribunal exception to the Constitution: "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish." The only qualification to Davis's opinion was uttered by Chief Justice Salmon Chase: Military tribunals might operate, but only with explicit sanction by Congress, under its powers "to raise and support armies." That was certainly not the case in Indiana, where "the judges and officers of the courts were loyal to the government."
Not surprisingly, Davis's opinion triggered an outburst of criticism from Republicans. The decision, wailed the Washington Chronicle, "can scarcely fail to shock the sensibilities and provoke the severe rebuke of loyal men everywhere." Had the Court not realized the danger Milligan and his fellow plotters had posed to the survival of the Union? Even worse, now that Congress was wrestling with bloodied but unbowed Southerners over civil rights for blacks, did the Court not realize that it was dashing from the hand of Reconstruction the one sure weapon, in the form of military tribunals, that could override unrepentant Southern juries and judges who would never concede civil rights to the freed slaves? The decision, complained the Chronicle,
will awaken a jubilant echo throughout rebeldom, and the hearts of traitors will be made glad by the announcement that treason, vanquished upon the battlefield and hunted from every other retreat, has at last found a secure shelter in the bosom of the Supreme Court.
Within months, indignant Republican congressmen — including John Bingham, an author of the 14th Amendment — proposed legislation to "sweep away at once" the Court's jurisdiction over appeals. The bill failed to pass.
EX PARTE MILLIGAN'S AFTERLIFE
No one could have been happier with the result of Ex parte Milligan than Milligan himself. He was released from detention in Columbus, Ohio, in the spring of 1866, and returned home to Huntington, Indiana, where he would spend the rest of his life denouncing his prosecutors and struggling to rebuild the Democratic Party in Indiana.
Yet since he could not reconcile himself to any other Democrats who had submitted to Lincoln's "deceitful revolution" against state sovereignty, he tore down as much as he rebuilt. He sued for defamation 24 individuals whom he accused of colluding in his 1864 arrest, demanding $500,000 in damages. The case became a rehearsal of all the old charges against him, and when a jury in Indianapolis finally handed down its conclusions in May 1871, they found in his favor, but awarded him damages of only $5. His various indignations never ran out of fuel, and he complimented himself at his retirement from law (in 1898, at age 86) as the man to whom was due "the restoration of law over anarchy and military despotism."
The Supreme Court's opinion in Ex parte Milligan went more quietly into the legal shadows. The decision effectively reversed the Court's previous conclusion in Ex parte Vallandigham, and the number of military tribunals fell steeply with the close of the war. Though the first of the Reconstruction Acts in 1867 explicitly authorized the use of military tribunals, the former Confederate states were now being administered under the acts as military jurisdictions, so the actual number of military trials was comparatively few.
As the former Confederate states were gradually readmitted fully to the Union by 1870, tribunals disappeared entirely. President Ulysses Grant used the Enforcement Acts of 1870 and 1871 to erase the Ku Klux Klan in South Carolina, but the cases all went to federal court.
The tribunals reappeared during World War II in the 1942 appeal to the Supreme Court for habeas relief in Ex parte Quirin. This case involved eight Nazi saboteurs (two of whom were actually birthright U.S. citizens) who had landed from two submarines on Long Island and Florida. But the Quirin case suffered from the duress of wartime circumstances, and like the Vallandigham appeal, the Supreme Court backed away in the knowledge that President Roosevelt was likely to disregard an adverse judgment. (Six of the saboteurs were ultimately executed.)
Tribunals also prevailed in post-war Germany, where military occupation operated for a decade after the close of the war. But the operation of these tribunals more nearly resembled the example put forth by Winfield Scott in Mexico; whatever civil courts were open were German and not under any U.S. constitutional jurisdiction, and so military tribunals could proceed unhampered.
It would not be until the War on Terror that the use of military tribunals — especially in cases involving U.S. citizens — would bring Ex parte Milligan back to life in footnotes to Hamdi v. Rumsfeld in 2004 and Hamdan v. Rumsfeld in 2006. The question posed was what to do with the terrorist conspirators who eventually fell into American hands in the months after the 9/11 attack. They were not, after all, soldiers or representatives of a sovereign nation, much less legal belligerents; neither did they act in the name of a sovereign nation as guerillas or partisans. Instead, they belonged to shadowy international organizations that behaved more like criminal syndicates than anything else.
The first instinct of many jurists was to treat groups like Al Qaeda as a problem for international law enforcement, to be dealt with by trial in an international court, or more directly as pirates by the law of the sea. But a domestic trial for piracy raised a host of complications, and turning Al Qaeda's members over to an international tribunal could easily fail to produce a conviction. So, the U.S. government classified its Al Qaeda prisoners as "unlawful enemy combatants" and tried them, not in civil courts, but by military tribunals.
The move encountered Chief Justice Chase's old congressional-permission exception in the form of Congress's 2006 Military Commissions Act (MCA), which denied the availability of habeas appeals to enemy combatants. But the MCA was anything but the last word, as the Supreme Court declared the law unconstitutional in 2008. Writing for the majority in Boumediene v. Bush, Justice Anthony Kennedy declared: "To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is.'" After all, he warned, "the habeas writ is itself an indispensable mechanism for monitoring the separation of powers."
The shadow that Ex parte Milligan throws on the practices of 21st-century warfare reveals how issues of emergency and war powers are not confined to the age of muzzle-loading muskets and smoothbore artillery. There will always be times when, as Justice David Davis wrote of the 1860s, "the temper of the times [does] not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question." On those occasions, we would do well to recall the admonition of justices Davis and Robert Jackson, and think twice before leaving a loaded weapon within reach of government authorities.
