THE OUTBREAK OF THE CIVIL WAR in April 1861 found a country strongly divided over what course of action to follow. While a majority in the North supported Abraham Lincoln’s decision to use force to put down the insurrection of the Southern states, a significant majority opposed the president’s policy. Mainly Democrats and in most instances proslavery, they believed the secessionist states had been right to oppose federal policy aimed at restricting the growth of slavery in the western territories, and would not only have allowed the states to secede, but in some instances wanted to forge alliances between parts of the Northern states with the new Confederacy.
One of the men agitating for such a course was Lambdin P. Milligan, an Indiana lawyer and politician whose outspoken opposition to the war and alleged ties to a secret association called the Sons of Liberty led to a conviction for treason by a military tribunal. The Supreme Court overturned his conviction in a decision that continues to influence our jurisprudence, especially in the war on terror.
Born in Ohio in 1812, Milligan never received a formal education. His father, however, had a good library and encouraged his son to read widely. When he turned eighteen, Milligan left home to study medicine, but almost immediately changed his mind to pursue a legal career. As was usual at the time, he read law (i.e., apprenticed) in a practicing attorney’s office, and in 1835 he was admitted to the Ohio bar and married Sarah Ridgeway. He was not terribly successful, and after several years he moved to Indiana to try his hand at farming. He had to abandon the farm because he suffered from epilepsy, and decided to make one more effort at the law. This time he proved successful, and soon achieved prominence at the Indiana bar and became active in the state Democratic Party.
During most of the 1850s Milligan led a relatively quiet life, enjoying his family and his success as a lawyer. But as the Union threatened to break apart in 1860, Milligan became involved with an antiwar group in the Indiana Democratic Party. The strong pro-Union forces in the state soon condemned the Peace Democrats as “Copperheads,” implying their disloyalty to the true principles of the Union and comparing them to poisonous snakes. (The Peace Democrats accepted the label, but for them the copper “head” was the likeness of Liberty, which they cut from copper pennies and wore proudly as badges.) But at least before the firing on Fort Sumter in April 1861, groups in both the North and the South sought peaceful means to resolve the growing tensions and avoid a war. America was at the time an overwhelmingly agrarian nation with limited industrial capacity, and farm crops in the North and the South accounted for much of the states’ wealth. The core of antislavery sentiment could be found in the Northeast, especially New England. Most western farmers had nothing against slavery; with the exceptions of some areas of Ohio, the states of the Northwest Territory did not lean toward abolition. Strong political as well as economic ties to the South led many to sympathize with the South’s alleged grievances, and abolitionist efforts to make headway in this area proved futile.
Democrats in the West and Midwest shared another characteristic with Southern planters—a healthy distrust of easterners. Although many of the states in the old Northwest Territory had been settled by New Englanders, there was a strong belief that the growing industrial interests in the Northeast wanted to dominate national politics at the expense of agricultural interests. Lambdin Milligan was a true Jeffersonian Democrat who believed that the ideals of the American republic could best be maintained by an agrarian society, with the states holding more power within the federal system than the national government. If the South seceded, he and other Peace Democrats believed that an ensuing war would isolate westerners as the only remaining agrarian interest in the remnant of the Union, easy prey to domination by New England industrial and mercantile interests.
Their fears seemed justified when, in 1861 and 1862, Congress passed new tariffs on household items such as coffee, tea, sugar, and spices, increasing the cost of living for western farmers and laborers during an economic downturn caused by the onset of the war. Milligan publicly denounced as protectionists the factory owners and bankers of New England who, he charged, were trying to maintain their manufacturing monopolies without regard for the economic interests of the western and agrarian part of the nation. The Peace Democrats also charged New Englanders with promoting the war, provided the West supplied the soldiers to fight and the tax monies to fund it.
Not all Peace Democrats shared this sense of economic exploitation. For many, other considerations also mattered greatly. Some feared that a war would end the American democratic experiment and lead to the establishment of a dictatorship. In the early years of the war, economic depression affected the upper Mississippi Valley far more than it did other parts of the North, further dampening enthusiasm for fighting. Some people simply hated the whole idea of war, of the death, destruction, and bloodshed. Not the least consideration among the Peace Democrats was their intense dislike, one might even say hatred, of the abolitionists. Even those who personally did not care for slavery thought it a lesser evil than war, and they charged that peace and compromise between the North and South could easily have been achieved had the abolitionists not interfered. Peace Democrats were more than willing to tolerate slavery in the South if it meant reconciliation and economic recovery for the region.
In 1862 the war was not going well for the Union, and in that year’s elections the Indiana Democrats seemed poised to take over the state government from the Constitutional Union Party, a branch of the national Republican Party. The strong antiwar sentiment led Milligan to make a bold proposal. The best way to get New England to consider peace would be for the Midwest to threaten to secede and establish a western confederation. Other Peace Democrats took up the cry, and called for a national convention to discuss whether the Union could be saved, and by what means.
Then, on September 22, 1862, President Abraham Lincoln announced that he would issue a formal proclamation freeing all the slaves in any state of the Confederacy that had not returned to the Union by January 1, 1863. This proved to Milligan that Lincoln had fallen under the control of the New England abolitionists, men determined to profit from the war and extend their industrial economy over the West. The war, he believed, would eventually destroy the importance of agriculture in the nation’s economy and the influence of the agrarian sectors in its government.
If the Democrats could negotiate a peace with the South, Milligan believed that the agricultural West (by which he meant what we would now term the Midwest as well) could join with the plantation South, and together they could defeat the destructive influence of New England. The Emancipation Proclamation went into effect on January 1, 1863, and soon afterward Milligan began openly advocating for an armistice. Democrats, he claimed, needed to protect their constitutional rights “at all costs,” including the use of arms.
Even as Milligan grew more outspoken, the Peace Democrats were losing political ground. The Emancipation Proclamation had converted the war from a fight to preserve the Union to one that also had the great moral weight of freeing the slaves. Milligan failed to win the Democratic nomination in Indiana’s 1864 gubernatorial race. The Peace Democrats were ostracized by the mainstream of the Democratic Party, which, whatever their views in 1860 and 1861, now strongly supported the war, the Union, and the abolition of slavery. In addition, their clumsy efforts to form secret societies that would work behind the scenes to win over public sentiment backfired, and Republicans had a field day mocking them.
Milligan, Indianapolis printer Harrison H. Dodd, John C. Walker, a lawyer, and others had helped organize these societies. From all evidence the groups formed by the Peace Democrats did not plan armed revolt, but instead intended to generate publicity to win over the people to the cause of peace and reconciliation. Some argued that the Republicans had formed similar societies, which they needed to counteract. The societies enjoyed a short spurt of popularity; at one time the Peace Democrats claimed membership of some 18,000 men. Interest, however, usually proved short-lived, they had little money, and the various local societies could not seem to agree on any statewide organization.
In 1863 Milligan became involved in a new secret society, the Order of the American Knights, which later evolved into the Sons of Liberty, named after the Revolutionary era patriots. Harrison Dodd served as the grand commander, and the organization claimed to be a Democratic club to aid the party’s future political campaigns. The regular Democrats would have nothing to do with it, and some historians believe the Sons of Liberty was more of a construct of Dodd’s imagination than a viable organization. Dodd also tried to give it a military character, which discouraged men who might have sympathized with its alleged civilian purpose. Dodd also appointed Milligan as a “major general” of the society, although Milligan later swore he knew nothing about the organization. A military investigation determined that Dodd had received at least $10,000 from Confederate agents in Canada to organize a northwest confederacy that would actively aid the rebellion.
The supposedly “secret” Sons of Liberty did not remain a secret very long. News of the rituals and proceedings soon leaked out to the public, and the society became a target for the Republican Party. The Republican governor of Indiana, Oliver P. Morton, a staunch supporter of the war and of Lincoln, and General Henry Carrington, the military commander of the district of Indiana, quietly employed detectives to infiltrate the group. (Military districts existed in all states that bordered on the Confederacy, and while they were not in control of the civil government, they could act in matters the commanders believed affected military security.) The most effective of these operatives, a Kentuckian named Felix Stidger, gathered evidence against Milligan, Dodd, and other members of the Peace Democrats. Although Stidger relied on hearsay and exaggerated much of what he heard, his reports led to Dodd’s arrest and, subsequently, the arrest and treason trials of others, including Milligan.
In October 1864 the military arrested Milligan for a speech he had given the preceding August in which he had openly criticized Lincoln’s conduct of the war. Milligan and five others were charged with conspiring to seize munitions at federal arsenals and to liberate Confederate prisoners being held in Northern prison camps. In December, after a trial that lacked many safeguards of due process, such as a grand jury indictment and restrictions on the type of evidence that could be used, the military court found all of the defendants guilty of treason, and sentenced Milligan, along with Dr. William Bowles, Andrew Humphreys, and Stephen Horsey, to be hanged.
Almost immediately doubts about the guilt of the defendants surfaced, and Governor Morton, who had originally pushed strongly for the trials, urged President Lincoln to pardon the men. Lincoln promised to issue the pardons when the war ended, and in the meantime Secretary of War Edwin Stanton granted the condemned men stays of execution. Before he could carry out his promise, Lincoln was assassinated, and President Andrew Johnson commuted Milligan’s sentence to life imprisonment. Milligan, however, wanted his freedom, and applied to a federal circuit court for a writ of habeas corpus, on the grounds that although civil courts had remained open in Indiana throughout the war, Milligan and his codefendants had been tried before a military commission. The two judges on the circuit court disagreed on the issue, and the case went to the U.S. Supreme Court, which heard oral argument in early 1866.
There was little in the jurisprudence of the Court, or indeed of the young country, to govern the situation. The last time that any part of the United States had been under military control was during the War of 1812, when British troops had occupied some areas. No charges of treason against American citizens had arisen during that war, and the Madison administration had seen no need to establish military commissions.
Two earlier cases, however, had arisen during the Civil War. Shortly after the attack on Fort Sumter in April 1861, Lincoln had ordered the suspension of habeas corpus in Maryland, fearing that the border state might well try to secede and join the Confederacy. This allowed the military to round up and hold people suspected of disloyal activities and prevented their release by court order until a determination could be made on their potential to cause future trouble. All told, the military arrested about 18,000 civilians in the Northern states during the war. Many were arrested for evading military service. Most of the others regained their freedom within a few days of taking an oath to abstain from further secessionist activities. Although the action shocked many, the government did not abuse its extraordinary power; not a single person suffered torture or execution.
Lincoln resorted to this drastic tactic because substantial sympathy for the secessionists existed at first, especially in the border states, and because he could not rely on local law enforcement officials, many of whom shared secessionist sentiments, to keep order. When the war began, there were very few federal criminal laws, nor was there any federal police force, like the modern FBI. Thus, when Confederate sympathizers attempted to disrupt rail service, prevent troops from marching to defend the national capital, or even organize treasonous conspiracies to make war on the United States, Lincoln could not turn to any existing law or law enforcement agencies. His only tool for suppressing the rebellion was the army, and to use the army against civilians in the United States he had to declare martial law, which he did early in the war. Congress would later approve these actions.
In Baltimore, local mobs, abetted by officials, attacked troops passing through the city on the way to Washington, D.C. Acting on Lincoln’s orders, the army began arresting some of the troublemakers, including one John Merryman, a well-known Baltimore social figure, a member of the state legislature, a colonel in the militia, and an ardent secessionist. Merryman was trying to organize troops to fight for the Confederacy and to destroy railroad lines and bridges to cut off Washington, D.C., from the rest of the nation. Thus he was arrested by the army and held in Fort McHenry.
Despite Lincoln’s suspension of habeas corpus, which authorized the military to arrest him, army officers allowed Merryman access to counsel, who quickly filed for a writ of habeas corpus. Since the local military commander had ignored a similar writ issued by District Judge William F. Giles (in the case of a minor who had enrolled in Union forces without the consent of his parents), Merryman’s attorney decided to present the petition directly to Chief Justice Taney, in his capacity as the circuit justice for Maryland. On May 26, 1861, when Taney arrived in Baltimore to sit as circuit judge, he learned that Merryman had been charged with various acts of treason, and that, in light of the current crisis, the president of the United States had suspended habeas corpus in the area. The commander of the Fort McHenry military district, General George Cadwalader, ignored the writ and refused to present the prisoner.
Two days later, Taney, now in his chambers in Washington, delivered an impassioned opinion asserting that the suspension of habeas corpus, while permitted by the Constitution (Article I, Section 9), belonged within the powers of Congress, and that the president could not suspend the writ on his own authority or authorize any military officer to do so. Taney declared that he would write out his opinion fully, have it delivered to the president, and call on him “to perform his constitutional duty to enforce the laws. In other words, to enforce the process of this Court,” and obey writs of habeas corpus.
Anti-administration newspapers in the North hailed the chief justice as the defender of the Constitution; the South greeted the decision as equivalent to a military victory. Lincoln’s supporters, on the other hand, criticized Taney severely and pointed out the inconsistencies in his career: for example, he had supported strong executive action, except when such actions might harm slavery. They also quoted his earlier opinion in Luther v. Borden (1849), that “power in the President [is said to be] dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe and at the same time equally effectual.”
A majority of the Court realized that Lincoln would not obey this order, and the associate justices refused to go along with Taney in his demand that the Court confront the president. Hostilities had begun, and Lincoln had wide support in the North for his measures taken to prevent the rebellion from spreading. Lincoln would suspend habeas corpus again, from time to time, in some parts of the North, especially those areas harboring pro-Confederate sentiment or exposed to invasion, and in March 1863, Congress finally enacted a habeas corpus statute, retroactively authorizing the president’s actions from the start of the war.
As for Merryman himself, it appears that he might have been released earlier had the chief justice not intervened. Criticism of his arrest had harmed the Union cause, and the administration, unsure about what course to follow, had even considered backing off from habeas corpus suspension. Taney’s attempt to turn Merryman’s case into a conflict between the executive and the judiciary stiffened the administration’s resolve, and in fact led to widespread support of the policy. In the end, the administration got rid of the problem by having Merryman indicted for treason in civil court. He was released on bail in July 1861, and his case, like that of many others similarly indicted, hung in the fire for the rest of the war. But although Taney’s draft opinion had never been adopted by the Court, the justices in 1866 recognized the validity of what he had written, especially as it applied to the Milligan case.
A second case, which was even more relevant to Lambdin Milligan’s petition, involved a racist, proslavery Ohio politician and Confederate sympathizer named Clement Vallandigham. A shrewd and clever man, Vallandigham always prefaced his tirades against Lincoln, the draft, emancipation, and the use of black troops with the caveat that of course people should not directly break the law. Even as he ratcheted up the fervor of his tirades against the administration and its policies, Vallandigham made sure to distance himself from possible charges of treason by reiterating that he never, ever urged illegal activities.
The administration considered this all a ruse, and in 1863 military authorities in Ohio arrested and tried Vallandigham for publicly declaring that the Civil War “was a wicked, cruel, and unnecessary war, one not waged for the preservation of the Union, but for the purpose of crushing out liberty and to erect a despotism; a war for the freedom of blacks, and the enslavement of the whites, and that if the administration had not wished otherwise, that the war could have been honorably terminated long ago.” He also accused Lincoln of trying to set up a monarchy and destroying the liberties of the American people. Vallandigham’s goals were clear, despite his claims that he did not encourage illegal actions. He wanted to stop conscription, end the war effort, and prevent emancipation of the slaves. While he was technically innocent of inciting resistance, everyone understood that, in fact, that was what he wanted people to do.
At his trial Vallandigham refused to enter a plea. He asked for counsel, but the three lawyers he chose refused to enter the courtroom to represent him. So he conducted his own defense, called only one witness to testify for him, and ended by reading a long statement challenging the military’s authority to try him. The court found him guilty and sentenced him to be confined to a military prison.
In a brilliant move, Lincoln commuted his sentence to exile, and he was handed over to the Confederacy. “Must I shoot the simpleminded soldier who deserts,” declared Lincoln, “while I must not touch the hair of a wily agitator who induces him to desert?”
Before his exile, Vallandigham petitioned the Supreme Court for a writ of certiorari, demanding that it review his case. The Court granted the writ, but concluded that it had no jurisdiction to review the proceedings of a military tribunal, noting that the actions of a military court were not “judicial,” and therefore a writ of certiorari could not be directed at it. This, of course, made no sense since the Court had already allowed the writ, but in this way sent the message that in wartime the justices would not second-guess the military, a posture the Court would resume during later conflicts. The justices had no desire to challenge presidential authority in the midst of a conflict, but parts of Justice James Moore Wayne’s opinion were noteworthy for the limits the Court placed on itself.
It could not issue a writ of certiorari because a military tribunal did not constitute a proper court—that is, an Article III court within the constitutionally authorized structure of the federal judiciary. This implied, of course, that if the appeal had come from a lower, nonmilitary federal court, the Supreme Court could issue the writ. In Ex parte Vallandigham the justices found a technicality to avoid confronting the administration in wartime. But the argument they used, once the fighting had ended, worked in Milligan’s favor—he had gone through a civilian court, and thus his appeal was not directly from the military tribunal that had tried him, but from a regularly constituted Article III court.
Now that the war had ended, Milligan’s allegedly treasonous behavior, as well as his clearly outspoken antiwar and pro-Confederacy positions, could be put aside, and the justices could address the issue they had so studiously avoided in the Merryman and Vallandigham cases, namely the extent of military authority. Four of the most distinguished lawyers in the country appeared for Milligan—James A. Garfield (then a member of the House of Representatives and a future president), Jeremiah S. Black (a former attorney general), Joseph Ewing McDonald (a former Indiana attorney general and a future U.S. senator), and David Dudley Field (a leading legal reformer). Representing the government were James Speed (a former attorney general under Lincoln), Henry Stanbery (the attorney general under Andrew Johnson), and Benjamin F. Butler (a Massachusetts lawyer and future governor whose harsh attitudes toward southerners during the war had earned him the nickname “Beast Butler”).
Although both sides focused on the question of the extent of military authority, there was a secondary question below the surface. The Republican-controlled Congress and Andrew Johnson had been at odds almost since he took office upon Lincoln’s assassination. Congress wanted to ensure that the former Confederate states would respect the rights of the newly freed slaves, and intended to do so through a series of stringent laws. Johnson opposed this policy, wanted the former rebellious states readmitted to the Union with no strings attached, and would have left the fate of the freedmen to their former owners. The fight between the executive and legislative branches of government would lead to the impeachment and near-conviction of the president, the imposition of harsh measures in congressional reconstruction, and the passage of the Fourteenth and Fifteenth Amendments.
Many Republicans in Congress viewed the Milligan case as a test of whether the Supreme Court would attack their Reconstruction policies. If the Court ruled against Milligan, then Congress could assume that there would be no judicial objections to a strong Reconstruction policy that might well involve (as it eventually did) military governments in the former Confederate states. If the Court decided for Milligan, however, this might mean that the Court would take a very narrow view of what restrictions Congress might impose on the rebellious states before admitting them back into the Union. While clearly the justices could have ruled for Milligan (whose facts arose from wartime policies) and not viewed this decision as having anything to do with postwar Reconstruction (which in fact is what happened), few people believed that when the Court heard the case.
During the oral presentations, the weight of the arguments clearly went against the government. Field showed that when Milligan’s military trial began, no known armed enemy could be found in the state of Indiana; in fact, none could be found within hundreds of miles. On the day originally set for Milligan’s execution, a date allegedly set out of military necessity, Confederate resistance had collapsed, and all Confederate armed forces had surrendered throughout the area of the former rebel states. Jeremiah Black noted that in an earlier uprising, the Whiskey Rebellion of 1794, President George Washington had called out the militia to quell the insurgents, but had never thought of suspending constitutional guarantees in Pennsylvania. During the Civil War, members of the House of Representatives had attached a rider to an appropriation bill declaring that, except for military personnel or alleged spies, “no person shall be tried by court-martial or military commission in any State or Territory where the courts of the United States are open,” and that measure passed.
Milligan’s lawyers also argued that precedents from Anglo-American history supported their case. In 1745 a Lieutenant Frye, serving on a British warship in the West Indies, had been ordered to arrest another officer, but doubting the legality of the action, demanded that his superior provide him with a written directive. For this Frye was himself arrested and tried by a naval court, which sentenced him to fifteen years in prison and disbarred him from any future service in His Majesty’s forces. He immediately went to civil court in England and brought suit against the president of the navy tribunal, who was arrested. The judges of the civil court awarded him damages of 1,000 pounds for illegal detention and sentencing, and told Frye that he could arrest and sue any member of the naval court. An irate Frye immediately had two more members arrested.
Upon receiving this news, fifteen officers, including a rear admiral, met and publicly denounced, as a gross insult to His Majesty’s Navy, that any civil officer should cause the arrest of a navy officer for any official act. Thereupon the lord chief justice had all fifteen officers—including the admiral—arrested and brought before him. Their efforts to have the king intervene on their behalf failed, and after two months of examination in the civil court, the fifteen signed a humble letter of apology acknowledging the supremacy of civilian courts over military tribunals.
In the face of these and other arguments to show that the history of Anglo-American law did not recognize military authority when civilian courts remained open, the government’s lawyers could do little other than argue that courts should not be second-guessing decisions made by the military during a conflict, and that the nature of Milligan’s crimes warranted the imposition of military justice. The justices did not concur.
All the justices agreed that the military court had failed to live up to the terms of Congress’s 1863 act suspending habeas corpus. Specifically, while Congress and the president certainly had a right and a duty to suspend habeas corpus where the civil courts were closed, they could not do so where the civil courts remained open. The Constitution, declared Justice David Davis, “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.” He asserted that “civil liberty” and “martial law cannot endure together.” Davis acknowledged that in an emergency it was permissible to suspend habeas corpus, and thus Merryman’s arrest had been permissible. But, Davis argued, there was a clear difference between arrest in an emergency and the trial of civilians by military courts when the civilian courts could operate. Envisioning future emergencies and the possibility that at other times executives might want to avoid civilian courts, Davis noted:
This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.
While the Court was unanimous in believing that Milligan should have been tried in a civilian court, the justices divided over who had the power to decide when a crisis justified the expediency of imposing martial law. Davis unnecessarily noted that a military commission did not meet the Article III constitutional description of a court created by Congress, and he doubted that Congress had the power to create such tribunals. This led four justices to enter a partial dissent, in which they claimed Congress did have the power to determine when military justice should be established, even in areas remote from the actual theater of war. This debate within the Court was not, in fact, about Milligan at all, but about the power of Congress to regulate trials in the postwar South, where Ku Klux Klan terrorism was rampant. Although a Lincoln appointee and in fact a close friend of the slain president and the executor of his estate, Davis was unsympathetic to issues of black freedom and more inclined to support an early return of white rule to the South.
Chief Justice Salmon Chase wrote a concurring opinion that rested on a different reasoning. Chase believed that congressional war powers could authorize military trial of civilians even if the civil courts still functioned. The 1863 Habeas Corpus Act, however, stated that civilians detained by the military had to be released if grand juries failed to indict them—and since grand juries were not part of the military justice system, the act not only protected civilians’ rights to trial in civil courts, but actually mandated the civil courts as the required venue for those trials.
When the decision came on April 3, 1866, some commentators believed that the opinion called into question Congress’s power over the South. Justice Davis later voiced his dismay at this reaction, since the Court diligently avoided saying a word about Reconstruction. Yet Secretary of War Stanton told the president that in view of Milligan, his department could not “determine what cases, if any . . . can be acted upon by the military authority.” Even normally acute constitutional scholars like Francis Lieber accused the Court of undermining congressional policy, when in fact it had not done so.
Milligan then and afterward has been hailed as a landmark in constitutional protection of civil rights, and its language certainly allows the courts to interpose themselves between the citizenry on the one hand and Congress, the president, and the army on the other. There is little doubt that the Lincoln administration occasionally overreacted to threats of potential disorder and pro-Confederate activity in the Northern states. The arbitrary use of executive authority—often without congressional approval—can only be justified by the unique conditions surrounding the war. Davis, with the benefit of hindsight after the war, could claim it had been unnecessary for the government to react so strongly to disloyalty in the North. Lincoln, having to act in the midst of crisis, knew that Southern sympathizers had already provoked violence in several areas and had no assurances that it would not happen again. If the imposition of military law later seemed too strong a step, Lincoln’s policy did work and forestalled civil disorder. Moreover, as in other areas, Lincoln scrupulously avoided going too far; he utilized martial law sparingly and never attempted to impose a permanent military regime.
In many instances Milligan provided a useful limit on the use of the military in civilian areas. During the internment of Japanese Americans during World War II, however, Milligan proved to be unhelpful. In Hirabayashi v. United States (1943) and Korematsu v. United States (1944) the Court easily distinguished between the trial of civilians by the military in Milligan and civilian authorities using the military to detain and guard civilians. Although the facts were quite different, the Court might have used Milligan for the theory that incarceration by the military, even under congressional authority, is unnecessary as long as the civil courts are open to try people who are accused of committing crimes or making plans to do so. However, in the Japanese internment cases, the Court refused to second-guess military decisions in the midst of conflict.
More recently, the actions of the George W. Bush administration in the early years of the Afghanistan and Iraq Wars, in detaining civilians and so-called enemy combatants and refusing to allow them to be tried in civilian courts, brought the issue of the extent of military authority back to the high court. In Rasul v. Bush (2004)—decided along with Al Odah v. United States—a 6–3 majority made it clear that the Bush administration had gone too far in seeking unchecked power to detain and interrogate individuals in its war on terror. The detainees were entitled to review by neutral adjudicators, either in civilian or in special military tribunals, and in a direct rebuff to the administration, reminded it that the Supreme Court, and no one else, is the final arbiter of the boundaries among the branches, in wartime as well as in peace.
The Court was even more explicit in Hamdi v. Rumsfeld (2004), a case involving an American citizen captured with the Taliban in Afghanistan. “We have long since made clear that a state of war is not a blank check when it comes to the rights of the nation’s citizens,” wrote Justice Sandra Day O’Connor. “The threats to military operations posed by a basic system of independent review is not so weighty as to trump a citizen’s core rights to challenge meaningfully the government’s case and to be heard by an independent adjudicator.” Even the dissenters in that case opposed the administration’s argument of military necessity. Justice Antonin Scalia said the Constitution offered only one way to achieve the administration’s goal—suspension of habeas corpus by a vote of Congress, a step that has not been taken in the contiguous states since the end of Reconstruction. “If civil rights are to be curtailed during wartime,” Scalia wrote, “it must be done openly and democratically as the Constitution requires.”
When Congress and the Bush administration tried to sidestep the Court by stripping it of the jurisdiction to hear appeals from newly created military commissions, they received a stinging rebuke in Hamdan v. Rumsfeld (2006). The Court declared that the military tribunals convened by the Defense Department did not measure up to any standards provided for either under civilian courts or military courts convened under the Military Justice Act, and in fact lacked any constitutional base whatsoever. Speaking for the majority, Justice John Paul Stevens used a separation-of-powers argument to note that Congress and the executive could not strip federal courts and the Supreme Court of jurisdiction to hear cases involving basic rights.
Lambdin Milligan was released from prison only a few days after the high court ruled in his favor. He immediately denounced Governor Morton and his use of a military commission to achieve political ends, and he made it clear that he wanted redress for his time behind bars. Republicans still controlled the Indiana legislature, and in March 1867 moved to protect Morton and other Indiana officials from damage claims for actions taken in their official capacity during the war. Under the act, the state provided free counsel to the defendants.
In 1868 Milligan filed suit in Huntington County Court against Morton, the twelve members of the military commission that had found him guilty, and nine other men whom he considered responsible for his arrest, and asked for damages totaling $500,000. During the trial, Milligan testified that he had never been an officer in the Sons of Liberty or even a member of that organization. He won the case, and the jury awarded him the statutory limit of five dollars in damages plus costs.
Despite his failure to win the large sum he had sought for damages, Milligan considered the trial result a victory and a vindication of his antiwar beliefs and actions. He returned to Huntington, where his fellow townsmen hailed him as a hero. He rebuilt his law practice there and remained politically outspoken for the rest of his life. He died on December 21, 1899, at the age of eighty-seven.
Al Odah v. United States, 542 U.S. 466 (2004)
Ex parte Merryman, 17 F. Cas. 144 (1861)
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)
Ex parte Vallandigham, 68 U.S. 243 (1 Wall.) 243 (1864)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Hirabayashi v. United States, 320 U.S. 81 (1943)
Korematsu v. United States, 323 U.S. 214 (1944)
Rasul v. Bush, 542 U.S. 466 (2004)
The fullest examination of the episode is Samuel Klaus, The Milligan Case (1970). Two sources that put Milligan into larger, and differing, contexts are Jennifer L. Weber, Copperheads: The Rise and Fall of Lincoln’s Opponents in the North (2006), and Frank L. Klement, “The Indianapolis Treason Trials and Ex parte Milligan,” in Michal R. Belknap, ed., American Political Trials (rev. ed. 1994), 97–118. For the issues as they reappeared in modern times, see Jonathan Mahler, The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power (2008). A contrarian view from one of Bush’s legal advisers is John Yoo, “Merryman and Milligan (and McCardle),” 34 Journal of Supreme Court History 243 (2009).