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Wednesday, Dec. 26, 2001

The defendants were led into the courtroom in shackles, hoods covering their heads. They were not soldiers, but they were to be tried by a military court in Washington, D.C. Most of them were destined to be hanged, and all were destined to be convicted. Now, one hundred thirty-five years later, one of those convictions has been challenged.

The case in which the challenge has been made, Mudd v. Secretary of the Army, is currently pending in the United States Court of Appeals for the District of Columbia Circuit. Also described in a recent article in FindLaw's Writ by John Dean, Mudd presents the most significant challenge to the legitimacy of military government in the United States since World War II.

Mudd Reveals The Federal Government's Position on Military Tribunals

John Wilkes Booth broke his leg while fleeing after shooting President Abraham Lincoln, stopping at the Maryland farm of Dr. Samuel Mudd. He was in disguise and in great pain. Dr. Mudd set his leg and Booth continued his flight. When Dr. Mudd heard about the assassination of Lincoln, he notified Union troops that a man with a broken leg had been at his farm. Mudd was arrested by the military and tried by a military tribunal for conspiracy to murder Lincoln and for traitorously aiding his assassin.

The Mudd family has always considered the conviction to be factually without basis and legally improper. Samuel Mudd, they argue, was a civilian not subject to military jurisdiction. The military tribunal, they argue, did not permit him to present evidence, and ignored any evidence that conflicted with its assassination theory. Dr. Richard Mudd, grandson of Samuel Mudd, succeeded in having the matter heard by the Army Board for Correction of Military Records, a body established by Congress to review past military actions. The Board decided unanimously in a 13 page opinion that the conviction should be overturned. The Army declined to overturn it, and this case followed.

First, they contend that - despite the views of most recent commentators - military commissions have jurisdiction to try all persons, whether they are United States citizens or not. They interpret a World War II Supreme Court case, Ex parte Quirin, to support this position.

Second, they argue that military commissions are proper whether or not there is a real war, with real battles in progress. Indeed, the slightest connection with the military is sufficient: For instance, because the President is the head of the military, an attack on the President is an attack on the military, triable before a military commission - whether or not it is also a civil crime triable by a civil jury.

Third, it is not necessary to have well-defined crimes. The military, they argue, and only the military can define what is and what is not a violation of the law of war. Crimes against the law of war are international in scope, they argue, and need not be established or defined by Congress. Similarly, it is not necessary to notify the accused of the charges against him--he'll figure it out as the case goes along.

Fourth, they claim that it is not necessary for Congress to establish military tribunals or military courts. Rather, military authorities (including the President as Commander-in-Chief) have inherent authority, they argue, which does not derive from the Constitution but precedes it. And Congress does not establish the law of war; soldiers do.

The Opposing Position

These four points constitute the battleground of the Mudd case. Here is the other side:

The creation of military commissions is a legislative act, that Congress properly should perform. Moreover, trying civilians for crimes is a judicial power, and only when civil government is completely unable to function (and the courts are closed) is such jurisdiction proper. The Executive cannot usurp these other two branches' powers to itself, arrogating to itself the power to criminalize and the power to judge as well as its proper powers to prosecute and to wage war.

Indeed, it was this principle - that all power resides in the Executive - that was repudiated when the Republic was founded. The wrongs of King George described in the Declaration of Independence included that "[h]e has affected to render the Military independent of and superior to the Civil power." Accordingly, the Constitution gave Congress, not the President, power over the military.

Specifically, Article I, Section 8 of the Constitution gives Congress the power "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; ... To make Rules for the Government and Regulation of the land and naval Forces; ... To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States..."

Suppose the Executive's legal position in the Mudd case is adopted. The consequences will be dramatic.

The President alone will determine when there is a state of military emergency. The President will also determine whether there is a violation of the law of war, and whom to charge. The President will determine what the rules for the tribunal shall be, what the standard of proof is, and what are the appropriate sentences for violators. Moreover, the President will be the only one to hear an appeal, if any.

In short, the grand jury, the civil jury, courts, and the legislature will simply be rendered irrelevant if the government's position in Mudd is adopted.

The Bush Administration Has Claimed More Power Than It Has Exercised

Of course, President Bush has limited the use of military tribunals for September 11th terrorists to foreigners only. In this respect, he has not exercised all of the authority the Executive claimed in Mudd.

In one way, however, he has pushed Mudd's claims to their limits. The President issued the order establishing the tribunals without Congressional authorization - and in particular, usurped the power to suspend access to the civil courts, something the Constitution says only Congress can do.

Even those who sing the praises of military tribunals should at least consider where the limits are. We happen to be fortunate in our current Chief Executive: He is neither a dictator nor a tyrant, and there is no indication that he intends to use the extraordinary powers his Administration has claimed in Mudd to become one.

Still, entrusting any one person, no matter how well-meaning, with such power over U.S. citizens as well as aliens invites disaster. We may not always be so fortunate in our President. And our freedom is best preserved by the rule of civil law, not by the judgment of one man.

Power to define crimes (including international crimes) and to constitute tribunals to hold trials was given to Congress by the Constitution. That is where it should remain. For citizens, those tribunals are, and must be, the federal and state civil courts.

Philip Gagner is counsel for the Mudd family in the case described in this piece. He is a member of the Washington, D.C. law firm of Shaughnessy, Volzer & Gagner, P.C. He was formerly a former senior staff member of the Federal Judicial Center, and is a graduate of Georgetown Law Center. The firm's website,, contains the pleadings of both the government and the Mudd family in this case.

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