Bradley on The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization

Curtis A. Bradley, Duke, has posted a new essay, The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization. It is forthcoming PRESIDENTIAL POWER STORIES (Christopher H. Schroeder & Curtis A. Bradley eds.,). Here's the abstract:

In Ex parte Milligan, decided a year after the end of the Civil War, the Supreme Court held that the U.S. military had lacked the constitutional authority during the war to try U.S. citizens living in Indiana before a military commission. Milligan is often cited as a rare and admirable instance in which the Supreme Court invalidated Executive action during wartime in order to protect civil liberties, and it is frequently invoked in challenges to government action in the current war on terrorism. The precedential effect of Milligan, however, is far from clear. Part of the uncertainty stems from the decision's apparent inconsistency with widespread practices during and immediately after the Civil War, including most notably the use of military commissions to try thousands of individuals not formally associated with the Confederate army. Probably because of the particular way in which the government argued the Milligan case - focusing on the bounds of martial law rather than on military jurisdiction over violations of the laws of war - the Court in Milligan did not discuss this widespread military commission practice, and it is unclear to what extent the Court meant to repudiate it. The Supreme Court's subsequent treatments of Milligan only add to the uncertainty about its scope. The Court has construed Milligan as applying only to the military detention and trial of “non-belligerents,” but neither Milligan nor the subsequent decisions provide a clear line for distinguishing between belligerents and non-belligerents. One possible approach would be to limit military jurisdiction to individuals covered by the international laws of war, but one problem with this approach is that the petitioners in Milligan were in fact charged with and convicted of violating the laws of war. The difficult issues of military jurisdiction that were present during the Civil War turn out to be with us still today.