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Ex Parte Milligan at 150: The Constitution & Military Commissions in American Wars on Terror

Saturday, September 24, 2016

In the summer of 1866, US Supreme Court Justice David Davis retired to his home here in Bloomington, Illinois to write the majority opinion in Ex parte Milligan, a controversial case that developed out of the Civil War and the Lincoln Administration’s use of military commissions to try civilians. Contrary to his friend Lincoln’s position, Davis famously held that trial by military commissions was only acceptable where there was a real war and where civilian courts were impaired. Milligan was apprehended in Indiana, where the courts were open and where according to Davis at least, there was no war.

To the satisfaction of the Democrats at the time and civil libertarians since, Davis went on to hold that the administration had violated Milligan’s rights under Article III, Section 2, as well as the 4th, 5th, and 6th Amendments to the Constitution. Davis concluded that, “the Constitution of the United States is a law for the rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.”  In a concurring opinion of Justice Salmon P. Chase argued that the military commissions might be set up by Congress under its Article I war powers.  

Despite Davis’s soaring rhetoric, the decision has remained controversial. Radical Republicans who believed such a precedent would inhibit the ability of the Army to protect Black freedom in the South responded by stripping the Supreme Court of appellate jurisdiction over military commissions. And while cited in a few cases arising out of WWII and a stray case in the 1950’s, the case has largely languished in obscurity, in part because it is not entirely clear what the decision really means.

Since 9/11 however, ex parte Milligan and the issues surrounding it have assumed renewed centrality in our national debates. The administration of George W. Bush exercised and defended sweeping executive discretion in prosecuting the war on terror, including the use of military commissions, an assertion seemingly counter to both Davis’s majority opinion as well as the more circumspect concurring opinion. But despite four Supreme Court decisions, Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008), the law in this area remains unsettled. The continuing salience of ex parte Milligan has been underlined again. On October 22, 2014, it and related decisions aired again in a Guantanamo-related case heard in the US Court of Appeals for the DC Circuit, which some expert observers believe will soon head to the Supreme Court.

9:00-11:45: Panel Presentation – 2.5 Hours
Chair: Meghan Leonard
Associate Professor of Political Science
Illinois State University

Luci Petlack: "A Dilemma of Civil Liberties: Blacks under Union Military Control, 1861-1866."
PhD History
University of California, Davis (2013)

Abstract: A discussion of the effects of military occupation and martial law on black communities during the Civil War (Baltimore, MD; New Orleans, LA; Cincinnati, OH). Martial law including military commissions resulted in a flowering of black civic life.  White racists were not allowed to express their racism under Union military control! This involved restrictions on civil liberties (for white men) in order to create room for black civil liberties.

Bio: Luci Petlack received her Ph.D in History from University of California, Davis in 2013 with a dissertation, "A Dilemma of Civil Liberties: Blacks under Union Military Control, 1861-1866." She published, “A Dilemma of Civil Liberties: Cincinnati's Black Community, 1862-1863,” in Ohio History, January 2013.  A well-researched and concise look at the effects of martial law and military rule on the lives of black Americans in Cincinnati, Ohio during the American Civil War. Through newspaper accounts, police reports, and records of the black community, this article shows a thriving black community under the heavy hand of army generals and Union military men seeking to limit upheaval in a Southern-sympathizing city.

John Moreland: “David Davis Jurist and Civil Libertarian”
Chief of Staff
Cox Law Firm, Monticello, IL

Abstract: This presentation will briefly explore the life of Supreme Court Justice David Davis, thus providing the back-story to Ex parte Milligan, in which Davis wrote the majority opinion.  Historians have traditionally focused on his close relationship with Abraham Lincoln on the Illinois 8th Judicial Circuit and his brilliant management of Lincoln’s 1860 nomination campaign.  This presentation, however, will concentrate on Davis’s increasing concern over civil liberties issues during the Civil War and his subsequent interventions on behalf of those who faced such violations.   

Bio: John Moreland received his B.A. in history from the University of Illinois in 2013 and his M.A. in history from Illinois State University in 2016.  His Master’s thesis entitled, “A Law for Rulers and People: David Davis, Ex parte Milligan, and Constitutional Liberalism During the Civil War Era” explored the legal career of Supreme Court Justice David Davis, his reasoning in Ex parte Milligan, and the opinion’s impact on Congressional Reconstruction.  John currently serves as the Chief of Staff of the Cox Law Firm in Monticello, Illinois and plans on starting law school in the fall of 2017.

Roger Billings: “The Salmon P. Chase Concurring Opinion in ex parte Milligan
Professor of Law
Northern Kentucky School of Law

Abstract: Examining the possibility of Chase's concurring opinion as an opportunity to examine his beliefs about Constitutional law in juxtaposition to Lincoln's.  Maybe Chase gained respect for Lincoln's mind when he was no longer his rival. But I am also looking into the lawyers' briefs in Milligan and how they influenced Chase. Finally, I will see how Chase’s more lenient view of military courts has held up since Milligan.

Bio: Roger Billings is a professor at Northern Kentucky University’s Salmon P. Chase College of Law. His articles have appeared in such publications as the ABA Journal, and Journal of Illinois History.

David Campmier: “Robert Cobb Kennedy, the Just War Tradition and the Lieber Code in Military Tribunals”
PhD Candidate
CUNY Graduate Center

Abstract: Robert Cobb Kennedy was a Confederate Army officer and Confederate Secret Service operative who was tried and convicted before a military court and executed for espionage, arson, and sabotage. Specifically, Kennedy was tried before a military commission, a court composed of military officers who played the roles of judge, jury, prosecution, and, at times, defense and tried the accused based on the laws of war. During the American Civil War, in response to the vast legal complexities of fighting a civil war, the Lincoln Administration, and the Union War Department tasked Prussian-American professor of law Francis Lieber to write the official laws of war which the Union expected its officers, soldiers, and their Confederate counterparts to heed. The Lincoln Administration stated that they would try both Union and Confederate soldiers and civilians for breaking the laws of war, as arranged in the Lieber Code.  This case illustrates the use of the Just War tradition and the Lieber Code within the military tribunal system to deal with Confederate guerrilla warfare and “terrorist attacks” before the ex Parte Milligan ruling in 1866.

Bio: David Campmier studies under James Oakes in the Department of History at the CUNY Graduate Center. He received a B.A. in History from Adelphi University in 2014. 

12:00-1:15: Lunch with Keynote: Johnathan Hafetz – 1 Hour

"Ex Parte Milligan in the War on Terrorism: Testing the Constitutional Bedrock of a Criminal Trial."

Summary: The Supreme Court's decision in Ex parte Milligan has long been recognized as a landmark ruling for solidifying the constitutional sanctity of the criminal trial, no matter how grave the offense, thereby securing both the rights of individuals and the supremacy of civilian authority over the military.  This foundational ruling has, however, come under persistent attack since 9/11, as successive administrations have sought both to detain individuals suspected of terrorist acts or associations indefinitely without trial and to prosecute them in military commissions.  These military detentions and prosecutions pose significant challenges to Milligan's legacy, while also illustrating Milligan's continued importance in the constitutional fabric.

Bio: Jonathan Hafetz is Professor of Law at Seton Hall University School of Law.  Professor Hafetz is the author of the award-winning book, Habeas Corpus after 9/11: Confronting America's Global Detention System (NYU Press) and of numerous scholarly articles in constitutional law, federal courts, and international human rights.  Prior to joining Seton Hall, Professor Hafetz was a senior attorney at the American Civil Liberties Union and at NYU's Brennan Center for Justice, where he litigated numerous constitutional law cases throughout the federal courts, including  He has litigated numerous cases at all level of the federal courts, including Al-Marri v. Spagone, 555 U.S. 1220 (2009), Boumediene v. Bush, 553 U.S. 723 (2008), Munaf v. Geren, 553 U.S. 674 (2008), Rasul v. Rumsfeld, 542 U.S. 466 (2004), Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015), Salahi v. Obama, 625 F.3d 740 (D.C. Cir. 2010), and Jawad v. Obama (D.D.C. 2009).  Professor Hafetz has authored or co-authored more than thirty amicus curiae briefs for the U.S. Supreme Court and federal courts of appeals.

1:30-3:00 Plenary: Milligan and GITMO – 1.5 Hours

Initial Question: What Place, if any, does the Davis opinion in Milligan Decision (or the alternatives set out by Chief Justice Chase or the Lincoln Administration) have in our current war on terror and its jurisprudence.

Michael Les Benedict: Historian, the Ohio State University

Bio: Michael Les Benedict is Professor Emeritus of History at The Ohio State University and Visiting Scholar at the University's Moritz College of Law.  He is the author of numerous books and articles on American constitutional history and the history of Reconstruction after the Civil War, including The Blessings of Liberty: A Concise History of the Constitution of the United States, a new edition of which will appear next month.  He is presently writing Salmon P. Chase, Constitutional Politics, and Constitutional Law in the Civil War Era, to be published by Cambridge University Press.

Jonathan Hafetz: Professor, Seton Hall Law School

Itai Sneh: Professor, John Jay College

Bio:  Tenured at the Department of History in John Jay College of Criminal Justice of the City University of New York, Associate Professor Itai Sneh completed his doctorate in American history at Columbia University. He holds a law degree, and a Masters in Eastern European Jewish Studies, from McGill University in Montreal, Canada, and a B.A. in Jewish History (with minors in International Relations, Biblical Studies, and Yiddish Language and Culture) from Hebrew University in Jerusalem, Israel

Brooks Simpson: Author of Ulysses S. Grant: Triumph Over Adversity, 1822-1865

Bio:  Brooks Simpson is a distinguished specialist in the American Civil War. Among his many important credits are Let Us Have Peace: Ulysses S. Grant and the Politics of War and Reconstruction, 1861-1868 .


2016-09-22T09:49:18.024-05:00 2016