Talk:Ex parte Milligan

Ex parte Quirin

Seems to me a reference to this case (with its own page herein) is merited. Ditto a ref to Gitmo & Iraq. Trekphiler 13:00, 2 December 2005 (UTC)

Why is this case not of the form "x vs. y?" Iflipti 09:10, 16 June 2006 (UTC)

See Ex parte for an explanation. To sum up, there's no x v. y because one side is petitioning regarding habeas corpus. --Rajah 10:19, 11 July 2006 (UTC)

Chase's opinion

The infobox listed Chase's opinion as a "dissent", which it really isn't. It concurs in the judgment, but disagrees with some of the court's reasoning. In modern terminology, that would be an opinion "concurring in the judgment"; a "dissenting" opinion actually disagrees with some substantive part of the majority's holding. Chase's opinion says as much pretty explicitly in the first paragraph:

Four members of the court, concurring with their brethren in the order heretofore made in this cause, but unable to concur in some important particulares with the opinion which has just been read, think it their duty to make a separate statement of their views of the whole case.

I've changed the wording accordingly, but thought I'd leave a note here. --Delirium 09:16, 4 July 2006 (UTC)

Upon digging through the page history it seems it actually used to say "concurrence", but was changed pretty recently to "dissent" in the midst of a move from a raw table to the template syntax. I assume it was just a typo then, so no harm done. --Delirium 09:24, 4 July 2006 (UTC)

It is misleading to call Chase's separate opinion a concurrence. While the four justices did concur in the judgement, they dissented from the majority's opinion that it would have been unconstitutional for a military tribunal to try a civilian. The infobox identifies this as the finding of the case. Chase and the others found that while Milligan's trial by a military commission violated "the act of Congress of March 3d, 1863" it did not violate the Constitution, saying "We think that Congress had power, though not exercised, to authorize the military commission which was held in Indiana." and "We cannot doubt that, in such a time of public danger, Congress had power under the Constitution to provide for the organization of a military commission and for trial by that commission of persons engaged in this conspiracy. The fact that the Federal courts were open was regarded by Congress as a sufficient reason for not exercising the power, but that fact could not deprive Congress of the right to exercise it. Those courts might be open and undisturbed in the execution of their functions, and yet wholly incompetent to avert threatened danger or to punish, with adequate promptitude and certainty, the guilty conspirators." I have changed the infobox to list Chase's opinion as "Concur/dissent". Johhtfd (talk) 19:54, 6 May 2010 (UTC)

Holding

Is the opening sentence of this article correct? The ruling was that martial law was unconstitutional when civilian courts are operating, not that suspension of HC was unlawful in these circumstances. This article itself, under the decision section, says the Court decided the suspension of HC was lawful.208.180.21.22 (talk) 05:27, 23 October 2008 (UTC)

You are right. Finding a specific holding of 'antebellum' cases can be difficult. Here, I would cite the language in which Justice Davis writes, "If... the courts are actually closed, and it is impossible to administer criminal justice according to the law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course."

I would interpret Justice Davis as saying that military courts may only be used in theaters of war when they are strictly necessary. That is, when civilian courts are actually unavailable, and incapable of use. Further, the military may only try criminals so long as the civilian courts are so incapacitated. Anwoolve (talk) 03:31, 11 May 2009 (UTC)

Applicability to "Enemy Combatants" after 9/11?

I'm curious why this isn't grounds for a suit against the US Government's treatment of "Enemy Combatants" since 9/11. The courts are certainly functioning, so this precedent seems to say that the USSC would not accept the use of military tribunals. I'm sure greater legal minds than mine have thought about this, but I think a mention is in order.JakartaDean (talk) 03:36, 12 January 2010 (UTC)

An excellent question, & something I wondered, too. It bears addressing. TREKphiler ^{any time you're ready, Uhura} 20:35, 12 January 2010 (UTC)