Re: Civil War POW Case May Help GWOT Terrorists

Date: April 22, 2004

"Civil War case may help men held as terrorists

By MARY DEIBEL

A Confederate sympathizer convicted of conspiring to terrorize the Midwest during the Civil War likely will figure large when the Supreme Court weighs whether the military can indefinitely hold American civilians based solely on a president's say-so.

Bush administration lawyers say the ongoing military detention of two citizens in a South Carolina brig and 600 foreigners at Guantanamo Bay, Cuba, is justified by a 1942 Supreme Court ruling that upheld military convictions of eight Nazi spies caught after they shed their uniforms and came ashore in New York and Florida.

But other legal experts say the landmark case of small-town Indiana lawyer and rebel sympathizer Lambdin Milligan is key, especially in the challenged detention of Jose Padilla, which the Supreme Court takes up Wednesday, April 28, along with an appeal by Yaser Hamdi.

Like Milligan 140 years ago, Padilla is a civilian and a U.S. citizen who was arrested on U.S. soil. The former Chicago gang member was stopped at Chicago's O'Hare International Airport, not on or near the Afghan battlefield the way U.S. citizen Hamdi was before he and Padilla landed in the same Charleston, S.C., Navy brig. Nor was Padilla a foreigner caught fighting in a foreign land, as are the Guantanamo detainees.

Instead, Padilla was held 22 months as a post-9/11 material witness for questioning in a radioactive "dirty bomb" plot allegedly being planned by al Qaeda without being charged with a crime, without having a hearing and without consulting a lawyer. The reason: President Bush designated him an "enemy combatant."

Milligan faced a similar plight during the Civil War. A lawyer and partisan Democrat from Huntington County, Ind., he joined a secret society known as the Sons of Liberty whose members allegedly plotted how to free Confederate prisoners of war being held in Indiana and Illinois, stage guerrilla raids on arsenals and even kidnap Indiana's Republican governor.

"These crimes took place when the nation's very existence was imperiled," Columbia law professor Louis Henkin told the justices in a friend-of-the court brief.

With other Sons of Liberty members, Milligan was arrested by Union Army officers in 1864, tried by a military tribunal and sentenced to "hang by the neck until he be dead."

But Milligan slipped the noose by appealing to the Supreme Court on grounds it is unconstitutional for military tribunals to try civilians even in a time of war, even though President Abraham Lincoln and Congress had suspended habeas corpus, the ancient legal principle that ensures judicial protection against unlawful imprisonment.

The justices stayed Milligan's execution and heard his case. They waited until 1866, after the Civil War was over, to hand down a broad ruling on the need to preserve civil liberties even in wartime.

"The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men at all times and under all circumstances," Justice David Davis wrote for the court.

Davis, who had been Lincoln's law partner and campaign manager before Lincoln named him to the court, said a president has no right or authority to use military tribunals "where the courts are open and their process unobstructed."

Ever since, Yale Law School Dean Harold Koh said in a friend-of-the-court brief, the Milligan case has stood for the constitutional right to due process of law and the right to trial by jury when the courts are open for business.

The Milligan decision posed problems for the 1942 secret trial of the Nazi spies, with Attorney General Francis Biddle denouncing the Milligan ruling as "bad" law.

Still, the Supreme Court affirmed the Nazis' conviction by noting that Milligan was a civilian and citizen of Indiana, not an "enemy belligerent." In contrast, the Nazi saboteurs were out-of-uniform officers of America's enemy in a declared war - not even "legal combatants" entitled to prisoner-of-war status, the high court said.

That sort of line-drawing is what the current Supreme Court likely will do in the Padilla case and other appeals in the ongoing war on terror, deferring to military need where necessary but not surrendering the courts' role entirely.

Chief Justice William Rehnquist, a law-and-order judge who is also a staunch defender of court prerogatives, is no stranger to wartime law, having written a 1998 book, "All the Laws but One: Civil Liberties in Wartime," that includes four chapters on Milligan's case. (The Nazi saboteurs get shorter mention.)

In the book, Rehnquist predicted that the courts and "the laws will ... not be silent in time of war, but they will speak with a somewhat different voice."

What voice that is, given Bush's declaration that he has the sole power to indefinitely detain citizens or foreigners he designates "enemy combatants," the Supreme Court is expected to say by June.

Footnote: Lamdin Milligan wasn't retried but sued the government instead in 1871 for $100,000 in damages over being tried by a military tribunal instead of a civilian court.

President Ulysses Grant tapped Indiana lawyer Benjamin Harrison, who went on to become president in 1888, to defend the United States against Milligan's suit on grounds the military acted in good faith. The jury found the law was on Milligan's side, but, in a victory for the military, awarded him only $5 in damages.

E-mail Mary Deibel at deibelm(at)shns(dot)com

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