parent nodes: Al-Marri v Pucciarelli | enemy combatant | Ex parte Quirin | Hamdi v Rumsfield | military commission | Rasul v Bush | Suspension Clause | war and individual liberties
Ex parte Milligan
Facts
M, a civilian and US citizen living in IN, criticizes Union during Civil War
US general commanding military district of IN arrests M
M accused of conspriacy, disloyalty, etc., before a military commission
M found guilty and sentenced to be hanged
M petitions for a writ of federal habeas corpus
Issue: Does the federal government have power to institute a military commission in the US?
The Court says no, at least not where the courts are open and functioning.
Davis first denies that the military commission exercises any valid judicial power, because the judicial power is vested exclusively in the Article III courts. Next, Davis points out that the military commission cannot be justified by Congress' Article I powers, because Congress has not authorized a military commission here. Finally, Davis denies that the military commissions can be justified by the President's Article II executive power, because "he is controlled by law . . . to execute, not to make, the laws."
Finally, and most importantly, Davis holds that military commissions cannot here be justified by the [law of war]. Regardless of the law of war, "they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed." The courts are open in Indiana, and Congress thus lacked the power to impose the military laws of war on civilians.
Further, notes Davis, Miligan was deprived of his Amendment VI right to [jury trial] when tried by a military commission. Congress may lawfully provide for nonjury criminal trial for members of military, given their need for discipline and Congress' Article I power to regulate the army. But "(a)ll other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury."
In contrast, argues Davis, the purported right to impose military law in time of war would render "the end of liberty regulated by law" and the "failure" of "republican government." Martial rule can never exist, says Davis, when the courts are open. Only when "there is a necessity to furnish a substitute for the civil authority," strictly limited by the duration and scope of the necessity, can martial law be rightfully imposed.
Finally, argues Davis, it would be inconsistent to try Miligan before military commission, because he cannot enjoy the privileges of the law of war (that is, POW status) as well as its responsibilities (amenability to trial before commission).
Chase, dissenting, argues that Congress does have power to impose martial law, even if it has not exercised such power here.
Chase notes that Congress has the power to declare war, as well as to raise and support armies. Therefore, argues Chase, Congress has the power to "provide by law for carrying on war," which "necessarily extends to all legislation essential to the prosection of war," such as the authorization of military commissions where necessary.
Even if the courts were open, argues Chase, they might be "wholly incompetent to avert threatened danger, or to punish" the guilty. Thus, Congress might have power to impose military commissions where necessary.