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Contents:
  1. John D. Altenburg
  2. Still a Bad Idea: Military Commissions Under the Obama Administration by David W. Glazier :: SSRN
  3. Chapter Four - Military Commissions
  4. Newsletter
  5. Main navigation

Wade and H. Times Aug. Close and the Senate followed suit on February 14, unanimously passing a resolution directing Secretary of War Stanton to inform the Senate whether he had been providing courts with the lists of prisoners, as the Act required. Close and that the practice of using military tribunals to try civil law offenses was continuing unabated throughout the North, including in many places where civilian courts were open and available.

Representative Davis then set out to put an end to what he saw as a constitutional black mark. Thursday, March 2, , was the penultimate day of the Thirty-Eighth Congress, which would cease to exist at noon that Saturday. Times Mar. Close Davis saw this as his opening.

He rose to offer an amendment to the appropriations bill, one having nothing to do with funding:. And all acts inconsistent herewith are hereby repealed. I do not think it is exclusively, perhaps not chiefly, the fault of those in authority that military commissions have tried, contrary to the Constitution and laws of the United States, many of its citizens. It began first in the rebel States, then spread to the border States, the theater of armed conflicts, then invaded Pennsylvania, Indiana, and New York, amid the general acclaim of the people; and now that it reaches as far north as Boston we hear the first murmur of its advocates or instigators.

If, during the excitement of this civil war, by reason of the real or supposed exigencies of the times, the practice of arbitrary arrests and trials of civilians by military tribunals has grown up, it is our right and our duty now, when it cannot truthfully be claimed that there is any need of proceedings of the kind, to enact a law which shall forbid them in the future, and which shall restore to the jurisdiction of the civil tribunals those who are now in prison.


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If there is room to hold a military court there is room to hold a civil court. If men are not afraid to go to testify before a military court they will not be afraid to go before a civil court. If bayonets are needed to protect them before a military court, bayonets can protect them before a civil court. Sir, this hankering after military courts is not because they cannot be tried and convicted before the courts of the United State if guilty; but men mad with civil war want a sharper and easier way to deal with criminals as enemies.

It is the cry for vengeance and not justice! That is what it is and nothing else. Later that evening, Davis himself successfully moved to strip out the retroactive part of his proposal, so that his amendment would only preclude future military tribunals See Cong. I could give it my most hearty support. Close The House then voted 79 to 64 to approve the Davis amendment.


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What business has this proposition upon such an appropriation bill? I fail utterly to see that it has any connection with the bill before the Senate. Lane and Jacob Howard of Michigan both raised substantive objections, too. He continued:. If there be any fault connected with them, and connected with the Administration on account of them, it is that they have not been used with sufficient vigor and vigilance. That is my opinion.

The rigors belonging to martial law are in a moment of war and public danger the only restraining power sufficient to compel obedience to law and order. Johnson ; id. Trumbull ; id. Hendricks ; id. At this point, the hour was getting very late—it was in the morning of March 4—and the Senate still had several other important pieces of legislation to take up. Close There was hardly time to debate such a contentious, substantive question.

John D. Altenburg

The Senate therefore voted 20 to 14 to strike the Davis amendment. Close Just before am, the House and Senate each selected three representatives to a conference committee to iron out their differences. Henry Winter Davis was one of the House emissaries. Times, supra note Close In the Senate, the chamber was filling with dignitaries, including Supreme Court Justices, for the swearing in of the new Vice President. The Senate conferees on the omnibus bill reported that they had reached agreement on every one of their disputes.

Close With the conferees still at stalemate, Senator Sherman predicted that the House would recede from its insistence on keeping the amendment, and so the Senate did not relent. Henry Winter Davis took the floor just minutes before noon. One of the three House conferees, DeWitt Littlejohn, thought that they should capitulate, See id. Close Representative Kasson pleaded with his colleagues to at the very least pass a separate bill to pay for support of patients at an insane asylum, to provide for the deaf and dumb, and to furnish critical oil to illuminate lighthouses, but Davis—and the House more broadly—would not budge on what they considered sacred principle.

Kasson, Davis, and Littlejohn. See Cong. Meanwhile, over in the Senate, Andrew Johnson was sworn in as Vice President and proceeded to give a singularly embarrassing speech—slurred and melodramatic, virtually confessing that he was a simpleton not up to the job.

Still a Bad Idea: Military Commissions Under the Obama Administration by David W. Glazier :: SSRN

Close Minutes later, by contrast, on the East Portico of the Capitol, President Lincoln solemnly recited a succinct four paragraphs that were the greatest of his distinguished career Cong. Close The differences between the two officers could not have been more pronounced. See Pitman, supra note 18, at 45 testimony of Samuel Chester. Less than two months later, in late April , as the War Department was rounding up and interrogating the suspects in the assassination plot against Lincoln, the Johnson Cabinet debated the question of what sort of trial to convene. Close a tribunal that was open and operating normally and that Lincoln and the Congress had taken extraordinary steps to ensure would remain under the supervision of judges who were scrupulously loyal to the Union cause.

In , parents of teenage soldiers in the Union Army began to petition for writs of habeas corpus to have their sons discharged, arguing that a federal law prohibited their enlistment without parental consent. See Howard C. One of the D.

Chapter Four - Military Commissions

Circuit Court judges, William Matthew Merrick, began to grant some of these petitions. Eventually, Merrick met with resistance from the executive branch. On October 19, , he issued a writ of habeas corpus ordering the Army to release James Murphy, a seventeen-year-old boy. See United States ex rel. Murphy v. Porter, 27 F. Porter did not produce Murphy to the court, however. Andrew Porter Oct. See White, Sweltering with Treason, supra, at It is not clear what came of this patent violation of Article III: According to one scholar, Merrick received his check on the next scheduled payday, in December See Westwood, supra, at Murphy , 27 F.

In February , the Senate suddenly took up legislation that would disband the D. Circuit Court altogether and replace it with a new court, to which Lincoln could appoint new judges more amenable to the Union cause. Saulsbury ; see also id.

Newsletter

Their objections were to no avail. The Senate narrowly approved the bill, id. See generally Westwood, supra, at —71; White, Sweltering with Treason, supra, at 33— The new law replaced the Circuit Court, as well as the local criminal court which had been established in , with judges who were not tenured, see Act of July 7, , ch.

Eight days after enactment, Lincoln appointed four judges to the new court. See Matthew F. Two of those new judges had been members of the House of Representatives that voted, one week earlier, in favor of the court-switching legislation. George Fisher. In , however, President Cleveland appointed Merrick to fill a vacancy on the D.

Supreme Court, and Merrick served on that court for the final four years of his life. See Act of Mar. Laird, 5 U. The Supreme Court, however, did not say a word about the question in its opinion in Stuart. The constitutional question thus remained an open one when Lincoln and his cohorts acted in Secretary of War Stanton, however, emphatically urged Johnson to authorize a military commission.

Close Within hours of the assassination, Stanton and Judge Advocate General Holt had aggressively taken charge of the investigation, to the virtual exclusion of civil authorities. Close Not surprisingly, they lobbied to retain control as the case moved to the trial phase. Close Stanton argued to Johnson that he and Holt had already developed evidence that the crimes of April 14 were part of a vast conspiracy to slaughter most of the Cabinet—the work of none other than Jefferson Davis himself, along with Alabama Senator Clement C.

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Clay and other Confederate officials scheming in Canada to effect a spree of sabotage and terror in Northern cities. Stanton prevailed: On May 1, President Johnson signed an order authorizing the military commission and commanding Holt to prefer the charges and conduct the trial.


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First, Stanton and Holt had become very familiar with, and deeply committed to, the elaborate system of military commissions the War Department had used throughout the war to try thousands of civilians, for all manner of offenses. Close As we have seen, however, by there was widespread concern about, and sharp criticism of, the commissions, including even by some staunchly pro-Union Republicans in Congress, who thought they had become a singular stain on the legacy that Lincoln and the Radical Republicans were establishing.

Close Holt and Stanton thus had reason to think that the Lincoln assassination might be a rebuke to such critics—the crown jewel in their innovative mode of wartime justice, which would confirm the legitimacy and necessity of their ambitious program. Second, Stanton and Holt knew that Holt himself, rather than a federal judge, would effectively be in charge of the military proceedings, which meant that the prosecution would have far greater leeway to introduce whatever evidence it wished.

See Pitman, supra note 18, at ; see also James M. Pitman, supra note 18, at The same Confederate officials in Canada were said to have conspired with Booth on a plan to kill Lincoln and other U. Close Holt reasoned:.

By no other species of tribunal and by no other known mode of judicial inquiry could this result have been so successfully attained; and it may truly be said that without the aid and agency of the military commission one of the most important chapters in the annals of the rebellion would have been lost to history, and the most complete and reliable disclosure of its inner and real life, alike treacherous and barbaric, would have failed to be developed. Its object is not merely to punish one or more individuals for a specific act of crime.

The government seeks to unravel a conspiracy—to follow every clue that may be offered for the detection and arraignment of every person in any way connected, directly or indirectly, with the extended and formidable conspiracy, in which the assassination of the President was only one of the objects sought. It is noteworthy that the Times , like Holt, considered this an admirable feature, not a constitutional flaw.