Last November, when President Bush issued an executive order establishing a system of military commissions to punish non-citizens, I asked myself, as no doubt countless other Americans did, “But what about Ex Parte Milligan (1866)?”

Surely George W. and his Dad had studied this landmark Supreme Court decision in the course of those searching discussions of American history they must have had during long winter evenings at the ranch. And what of Attorney General John Ashcroft, ipso facto learned in the law, who presumably composed the order and to whom the Milligan decision must have been as mother’s milk? The two highest law enforcers of the land certainly could not have forgotten the case, famous as it is. If they had not, they must either have found it to be unclear or ambiguous, or they must have decided to sweep it aside and take the law into their own hands.

Consider the question of ambiguity. Here are some pertinent passages from Justice David Davis’s opinion for the Court:

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.

No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence…. But, it is insisted that the safety of the country in time of war demands that this claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all cardinal principles of liberty, is not worth the cost of preservation…. Martial rule [meaning the military commissions created by the Lincoln administration] can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. [Italics supplied.]

There seems to be nothing ambiguous about that. So maybe Bush and Company had forgotten about the case after all, or perhaps were even ignorant of it. I find it less chilling to think so than to believe they knowingly trampled on fundamental constitutional rights. In the hope that Bush and Ashcroft and die others merely blundered, and in the unlikely event that they should ever see these lines, it cannot hurt to remind them what the case was about.

The troubles of Mr. Lambdin P. Milligan, a civilian, were rooted in the extraordinary assumption of executive powers by Abraham Lincoln. Through executive orders issued by Lincoln and enforced by an apparatus presided over by Edwin M. Stanton, his rather sinister secretary of war, newspapers were shut down and many thousands of civilians were summarily arrested, occasionally tortured, and imprisoned for varying periods of time. Some were tried by military commissions, which handed down sentences ranging from light fines to the death penalty.

A brief reference to Lincoln’s executive order of September 24, 1862, may illustrate the character of the policy which led to Milligan’s trial. Therein Lincoln suspended the writ of habeas corpus with respect to “all persons” throughout the United States who might be arrested for aiding and abetting the rebels, discouraging enlistments, or engaging in “any disloyal practice.” A disloyal act, according to Lincoln, could include not only speaking out against the war, but remaining silent when, in the opinion of the local loyalty police, one should speak out for the war.

Milligan was arrested and tried by a military commission in Indiana, where the civil courts were open as usual. He was convicted on charges of conspiring to liberate Confederate prisoners of war, belonging to subversive disloyal societies, and so forth. The commission sentenced him to hang. President Andrew Johnson later commuted his sentence, and Milligan lived to see his request for release on a writ of habeas corpus reach the Supreme Court. Luckily for him, the Court abandoned the position it had taken in Ex Parte Vallandigham (1864), when it disclaimed jurisdiction on the grounds that a military commission was not a court. In 1864, of course, the war was at its height. Now that it was over, the Court felt free, as Justice Davis said, to come “to a correct conclusion.”

Therefore according to the Milligan decision the Federal government has no right to try people by military commission when the civil courts, with their juries and strict rules of evidence, are open. The Constitution, said Justice Davis, protects “all classes of men.”

But George W. Bush has said quite otherwise in his Executive Order of November 13, 2001, which thrust some 20,000,000 non-citizens living in the United States beyond the pale of the Constitution. Anyone “whom I determine,” runs the order, has ever been a member of al Qaeda, or who has “engaged in, aided or abetted, or conspired to commit, acts of international terrorism,  or acts in preparation therefore,” or who has “knowingly harbored such individuals” may be “detained” by authority of die Defense Department, anywhere, any time, for any length of time, subject to trial by a military commission on evidence that would have “in the opinion of the presiding officer ,.. probative value to a reasonable person,” without “any remedy” in any court whatever. This amounts to a declaration of martial law and a suspension of the writ of habeas corpus for those millions of non-citizens. A few months later, it is true, after a few tepid objections in the Senate, Secretary Donald Rumsfeld announced some changes in the executive order. For example, in a paroxysm of tender regard for civil liberties, he said that those arrested would be presumed innocent until proven guilty; one wonders what the presumption had been before this modification. Neither this nor the other cosmetic tinkerings presented by Rumsfeld mitigate in any way the flagrant unconstitutionality of die system. In this respect, at least, Bush has proved himself to be the equal of the Great Emancipator.

The response to critics of the Bush-Ashcroft-Rumsfeld dispensation has ranged from misleading rhetoric to staggeringly obvious misstatements of fact. As to the first, Ashcroft, huffing with indignation, asked if the government was expected to carry’ a Miranda rights warning to Afghanistan and read it to captives, as if the executive order applied only to that benighted country and not to the United States. But as is well known, more than a thousand individuals have been arrested in this country, imprisoned, some held incommunicado and their identities kept secret. We do not know that any have been tortured, as in Lincoln’s day, but the possibility of doing so has been bruited about. As to the second, a person identified as counsel to the President stated (New York Times, Nov. 30,2001) that (1) the executive order applies only to international terrorist organizations; (2) the order functions within the “American military justice system” (i.e., with courts-martial acting under the code of military justice); (3) it “preserves judicial review” in civilian courts; and (4) that the use of military commissions “has been consistently upheld by the Supreme Court.”

One is reminded of an incident in Boswell’s account of the meeting between Dr. Samuel Johnson and King George III. During the conversation the King asked Johnson for his opinion of a particular writer. The great lexicographer said that the man was ingenious but “had no veracity;” and illustrated his point by citing an assertion concerning the use of microscopes that anyone who used them would immediately see was not true. “Why,” said the King, “this is not only telling an untruth, but telling it clumsily….” Similarly, anyone reading Bush’s order will see instantly that the first three points listed above are directly contradicted by the order itself, while the fourth is disposed of by Ex Parte Milligan. This kind of thing is quite baffling. Could it be that the president’s counsel had not even read the order before he wrote his essay, or that he had never heard of the landmark Milligan case?

Bush defenders have tried to prop up the constitutional basis for military’ commissions by citing the Supreme Court’s decision in Ex Parte Quirin (1942). Seven Germans, Richard Quirin among them, received training in a school for saboteurs near Berlin and then landed on the East Coast of the United States in June 1942. They were paid by and were acting under orders from the German High Command and landed wearing the dress of the German Marine Infantry which they exchanged for civilian clothes after coming ashore. The Federal Bureau of Investigation soon apprehended the men, and President Franklin D. Roosevelt appointed a military commission to try them. The Supreme Court denied the prisoners’ petition for a writ of habeas corpus and upheld the constitutionality of the commission.

Standing alone, the language of the Court would be just what the doctor ordered for the Bush people were it not for the drastic contrast in the facts and the circumstances between 2001 and 1942. These seven men, who were spies in the classic sense of the word, were agents of a nation with whom this country was at w by declaration of Congress. Hitler’s Germany and its ally the Empire of Japan, in their full flood of military might, were a threat to the United States that surely was light years beyond anything posed by a loose organization of assassins, however ruthless they may be.

As said earlier, the Court’s vision cleared up in the Milligan case after the smoke of the battle had dissipated. The same thing happened in the case of Ex Parte Quirin. In 1946 the corrective was administered in Duncan v. Kahanamoku, when the principles enunciated in Milligan were revived in all their pristine purity. The issue was the trial of civilians by a military commission in Hawaii when the regular territorial courts were open. Justice Hugo Black, for the Court, surveyed the history of Anglo-American dedication to trial by jury, starting with die Petition of Right, and quoting emphatically an earlier decision that asserted, “The established principle of every free people is, that the law shall alone govern; and to it the military must always yield.” Justice Frank Murphy, concurring, made much use of the Milligan case and invoked Federalist 83 (Hamilton), which called trial by jury in criminal cases “the very palladium of free government.” Because Duncan had been convicted by a military’ commission and had therefore been denied his constitutional right to a fair trial, both he and a co-petitioner were released from custody.

This case has not been mentioned by the Bush-Ashcroft legal praetorian guard, at least so far as I have seen.

So the great preponderance of legal and constitutional fact and argument is against the Bush system. So too is the history of the centuries-long struggle to win the right to trial by jury according to fair rules of evidence and with the right to counsel. These are the very warp and woof of the American philosophy of government.

What, then, about presidential “war powers”? After all, the great Lincoln himself Military Commissioners that tried Indiana conspirators in 1864. Courtesy of the Hunting County Historical Society, Indiana claimed that he had the constitutional right to do anything whatsoever to preserve the Constitution, which at that time meant crushing the Confederacy. Can we object to the current president taking a leaf from the book of the man Admiral Raphael Semmes called “the sainted Abraham Lincoln”?

Assume only for the sake of argument that there can be, under our Constitution, unlimited executive power in time of war. Die question then arises, what is meant by “war”? The progressive debasement of the English language has deprived a growing number of words of their clear definitions. Of course, some have survived this epidemic of ambiguity7; there may still be a common understanding of the meaning of the word “death,” for example. “War” was once equally comprehensible, both in its legal and substantive connotations. Now it can mean almost anything: a “war” on poverty, a “war” on cancer, a “war” on drugs, and so on.

Now’we have the “war” on terrorism, and the mere use of the word is taken to legitimize the application of martial law to millions of people. (As Justice David Davis wrote in the Milligan case, to claim that “martial law covers with its mantle tire proceedings of this military commission” is to say that “there is an end of liberty regulated by the law.”) Legality aside, just to proclaim that a war exists gives the executive and his party tremendous political leverage, leverage which can be used to carry through policies that predate the so-called war and have nothing to do with it.

This is a well-known phenomenon. To the American people, in time of war, the president represents the nation. Not supporting the commander-n-chief is to run the risk of being called unpatriotic, even disloyal, a possibility that makes every politicians blood run cold. As mentioned, Lincoln said that even silence could be evidence of disloyalty, just as today people are asked by total strangers, ‘ ‘Where is your flag?” or pin or decal or whatever. One is reminded of the Reconstruction era, when army officers could, and did, order Southerners to display die Union flag on public occasions.

There was a time when the existence of a war between the United States and another nation required a specific declaration by Congress, as stipulated in /Article I, Section 8, of the Constitution. This attribute of war suffered a body-blow—not the last—when Lincoln proclaimed a blockade of the South in 1861 and thus, according to long standing canons of international law, declared war.

If memory serves, Congress itself has not declared war on anybody since December 1941. Subsequently, war has shed its legal garments and has come to mean large-scale military conflict with a recognizable enemy. Thus Vietnam and Korea were certainly wars by any common-sense definition, fought with huge armies and costing vast numbers of casualties. The United States alone lost a total of almost 100,000 dead and 250,000 wounded. In the Gulf War, the scale of operations, the size of forces on both sides, and heavy Iraqi casualties made this a real war, brief as it was. None of these wars, it might be noted, called forth from the executive branch an assault on civil liberties such as the Bush administration has made.

What are the characteristics that can establish the “war” on terrorism as a real war, with all the legal and political consequences that have followed from the use of the word? Not the size of our army, for we have only a few thousand troops oil the ground and have suffered, happily, only a handful of casualties from hostile action. Is it then the size of the opposing forces? One of the mysteries of this “war” is the whereabouts of the enemy In recent years estimates of the size of the Afghan (Taliban) army have run from 60,000 to 400,000. We have taken captive a few hundred men of indeterminate status. (We refuse to call them prisoners of war, even though we are supposed to be at war.) Where are the other myriad thousands?

Does our virtually unopposed bombing of Afghanistan constitute a war? If so, are we then “at war” with Iraq, which we have bombed periodically for years? Our intervention in the Balkans has not led anyone to claim we are “at war” there, although we have certainly done a lot of bombing and have had many more troops involved than we have had in Afghanistan. Has anyone called the invasion of Panama by the elder Bush a war? Wait a bit—perhaps it was part of the “war on drugs,” since our ostensible reason for going there was to seize our one-time pal and ally, Manuel Noreiga, allegedly a big player in the international conspiracy to sell narcotics to .Americans, a conspiracy that must dwarf in size and resources Bin Laden’s al Qaeda. One wonders why Bush Senior did not anticipate Bush Junior, order the creation of military commissions, and “detain” Latino-looking non-citizens.

To give a war that scarcely anyone comes to can get embarrassing after a while. The stubborn refusal of the other side to appear makes it difficult to keep up the kind of patriotic fervor that so dramatically empowers the president and his party Hence, one suspects, the administration’s attempt to create a war-time atmosphere by its continuing series of terrorist attack alerts, with no particulars as to when, where, or how the attacks will come, only that they are looming up over us and that we should be “alert.” Calling up reserves and having National Guard troops standing around air terminals looks like the same kind of stage management. Unless some bloodthirsty fanatic rushes screaming up to the gate, bomb in hand, it is hard to see just what these soldiers are supposed to do except to persuade people that there is a war.

Presumably martial law for non-citizens will last as long as Bush says we are at war. This is a bleak outlook for present and prospective detainees, because how will we know’ when the war is over? Other wars, real wars, end by negotiation or by surrender. Now it appeal’s there are no enemy armies to surrender and no one with whom to negotiate. Meantime, detainees may rot in jail, waiting in vain for charges to be brought against them or a trial commenced. This is not the American way of doing things.

To me the most depressing aspect of the whole subject is the lack of widespread outrage at this savaging of the Bill of Rights. Yet what can be expected when the mass of the people know’ nothing of our history’ when our citizens visit Mount Vernon, not to learn how George Washington lived but to find out who George Washington was. Even among those who are not historically challenged, the reaction to the Bush-Ashcroft-Rumsfeld regime has been at best feeble, at worst enthusiastically supportive.

I had hoped for something better from Southerners, at least. History’ is something that happened to their ancestors: four years of slaughter and  destruction followed by military rule. They felt the mailed fist of the Federal government, as melded by Lincoln and the Republican Party. Had that generation heard John Ashcroft announce that “freedom is not the grant of any government, but is our endowment from God,” suggesting that Ashcroft will tell us how God defines our liberties, they’ would have instantly been reminded of William H. Seward’s promulgation of “a higher law than the constitution,’’ and of William Lloyd Garrison, who publicly burned a copy of the Constitution, calling it “a covenant with death and agreement with hell.” They would have heard the alarm bell in the night. They had bought with blood the knowledge of what it can mean to be dealt with by those who claim to get their orders straight from God.

The vast majority’ of Americans do not feel threatened by the Bush-Ashcroft-Rumsfeld subversion of the Bill of Rights, even those who have heard of it. A few have misgivings, such as the manufacturer of politically charged bumper stickers who was investigated by the FBI. Or the man whose locker room remarks critical of our military actions in Afghanistan provoked a visit by two FBI agents. And the college student who was called on by two Secret Service operatives because she was reported to have threatening posters on the wall of her apartment. These three we know about from a network news program; we do not know how many others may have had such experiences. Anyone who believes that to be questioned by emissaries of a government that claims the right to arrest people, try them in secret by military commissions, and hand down the death sentence does not do violence to the right to free speech is out of touch with reality. Under the Bush philosophy there is no reason why these people could not have been “detained.” It would only take another executive order.

But, people will say, “they” would never do that. Laws are made because of what may be done, not because of what we believe will or will not be done. That is why we have a Bill of Rights.

In The Letters of Junius, which was an attack on the abuse of power by the government of another George—George III—the author, Sir Philip Francis, implored his readers “never to suffer an invasion of your political constitution, how’ever minute the instance may appear, to pass by, without a determined, persevering resistance. One precedent creates another…. Be assured that the laws, which protect us in our civil rights, grow out of the constitution, and that they must fall or flourish with it.” This is as true now as it was 230 years ago. Circumstances change; principles endure.

This article was originally published in the July/August 2002 issue of Southern Partisan magazine.

Ludwell H. Johnson

Ludwell H. Johnson was Emeritus Professor of History at The College of William and Mary and the author of North Against South: An American Iliad.

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