INTRODUCTION I. LAW OF THE FOUNDING AND ANTEBELLUM PERIODS A. Allegiance and Protection B. Municipal and International Law C. War and the Alien D. The Antebellum Law of Treason and Rebellion II. LEGAL UNCERTAINTY AT THE OUTSET OF THE CIVIL WAR A. Was the Insurrection Crime, War, or Both? B. Legal Theories Available to the U.S. Government III. THE WAR OF IDEAS: THE LAWS OF WAR DISPLACE THE CONSTITUTION WHEN THE UNITED STATES ACTS MILITARILY AGAINST ENEMIES A. The Union's Lawyers, Statesmen, and Theorists 1. Rebels in Arms 2. Noncombants B. A Theory of Extra-Constitutional, Lawless Power? C. The Work of Lower Federal Courts in 1861 and 1862 1. Decisions on Prize and Other Seizures 2. Piracy and Treason Prosecutions IV. THE SUPREME COURT ENTERS THE WAR A. The Prize Cases B. Wartime Decisions After the Prize Cases 1. Additional Decisions Concerning Maritime Prizes 2. Courts Closed to Rebel Enemies During the War 3. Vallandigham's Case V. POSTBELLUM SUPREME COURT DECISIONS ON WAR ISSUES A. Secession Was Treason Because Allegiance Was Unimpaired. B. The Laws of War Displace Constitutional Rights of U.S. Citizen Enemies C. Discretion to Choose Sovereign or Belligerent Methods D. Immunity/Indemnity E. The Displacement of Constitutional Protection by the Laws of War Was Not a Theory of Extra-Constitutional Power F. Enforcing the Constitutional Rights of Citizens During the War G. Military Occupation of Enemy Territory H. Milligan in Context CONCLUSION INTRODUCTION
In the courts and legal academy, interest in the Civil War has increased greatly in the last decade, and it is not hard to understand why. The 9/11 attacks were by far the most spectacular and deadly military attacks on the mainland United States since the Civil War. Both the conflict against al Qaeda and the Civil War were untraditional; in both, it was contested whether they amounted to "war" in the sense used in the Constitution and public international law, and what effect that had on government powers and individual rights. Lines between combatants and noncombatants were blurry in both conflicts, often intentionally so. Because significant aspects of both conflicts occurred on U.S. soil and involved American citizens (the Civil War much more so, obviously), the federal courts were from the outset asked to rule on the legality of executive and congressional actions.
The Supreme Court has issued four important decisions regarding the war on terror: Hamdi v. Rumsfeld, (1) Rasul v. Bush, (2) Hamdan v. Rumsfeld, (3) and Boumediene v. Bush. (4) In all four, the Court found and enforced novel constitutional, statutory, or international rights for alleged terrorist enemies of the United States. In all four, the Justices relied on precedents and authorities from the Civil War and engaged in detailed debate about their meaning. The scholarly literature about war-on-terror legal issues is rife with references to Civil War precedents. Two which have been very prominent in the post-9/11 debates are the Supreme Court's decisions in the Prize Cases (5) and Ex parte Milligan. (6) The former held that President Lincoln had the authority to invoke belligerent rights akin to those in international wars--that is, the rights and powers that the laws of war allow sovereign nations to use in their mutual conflicts--to blockade the ports of seceded states in the spring of 1861 against Confederate and neutral shipping, without Congress having first declared or otherwise noticed the beginning of a war between the states. (7) (Enemy vessels or cargo seized validly under the international laws of war were referred to as "prizes" of war, because they generally accrued to the financial benefit of the captors--hence the "Prize Cases.") The Court rejected claims by U.S. citizens resident in Virginia that individual constitutional rights prohibited the seizure of their property; the Court held that, war existing de facto, the U.S. government could treat them as military enemies without any rights because they resided in enemy territory. (8) The Prize Cases featured prominently in Justice Thomas's dissents in both Hamdi and Hamdan, and in internal memoranda of the Bush Administration's Department of Justice--said to stand for the proposition that the President has illimitable constitutional power to choose how to respond to attacks on the United States. (9)
The second case, Milligan, held unconstitutional the military commission trial of an Indiana resident, not enrolled in the Confederate armed forces, who was accused of plotting in Indiana to attack federal facilities to steal weapons and liberate Confederate prisoners of war. (10) In a reversal of its posture in the Prize Cases, the Court rejected the Executive's claim that the laws of war overrode any otherwise applicable individual constitutional rights and allowed military jurisdiction over Milligan and his coconspirators. The meaning and contemporary precedential value of Milligan was extensively debated in Hamdi. (11) Justice Kennedy relied on it in his opinion for the Court in Boumediene and his important concurrences in Hamdan and Rasul. (12) Milligan and its sweeping rhetoric--"The Constitution of the United States is a law for 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" (13)--has been repeatedly invoked in recent scholarship to show the almost self-evident unconstitutionality of post-9/11 national security policies of the Executive and Congress. Another Civil War-era legal authority which has received extensive attention in post-9/11 litigation and scholarship is the Union Army's codification and applications of the international laws of war. (14)
With all this attention to legal precedents from the Civil War, one might expect that their meaning and significance would by now be well understood. But the opposite is the case. Contemporary courts and commentators generally have at best incomplete, and at worst fundamentally misconceived, views about war powers doctrines of the Civil War era.
In contrast with the Supreme Court's small output of war-on-terror decisions, the Court during and after the Civil War decided over 300 cases arising from the war. Each decision was a small part of a vast and complicated series of legal debates that ended up spanning decades. Detailed debate about the legality of war measures of the U.S. government was a daily occurrence in Congress, the administration, and the press before the Confederates had ever fired on Fort Sumter. Once Lincoln initiated the Union's military responses in April 1861, the volume and intensity of debate increased exponentially and lower federal courts became involved. By March 1863, when the Prize Cases came down, the legality of the blockade had been thoroughly mooted for two solid years and upheld in Congress, the lower federal courts, and the most authoritative northern journals and papers. By late 1866, when Milligan was decided, questions about the jurisdiction of military commissions over U.S. citizens had been front-page news for over five years. Understanding Milligan, the Prize Cases, and other war powers decisions of that era requires a great deal of background knowledge about legal and policy debates arising from the war. They have proved to be quite difficult to understand for modern readers.
The past is a foreign country, as the saying goes. And the relevant past, knowledge of which allows one to understand Milligan, the Prize Cases, and the rest of the Court's corpus of work about the war, is truly a terra incognita. Both decisions involved the interaction of the international laws of war, the constitutional rights of individuals, the constitutional war powers of the U.S. government, and the jurisdiction of federal courts. Conventional understandings today about these legal regimes and their mutual interactions often bear little relation to the Civil War generation's.
Today, a judicially enforced Constitution is seen as a kind of universal providence. The Supreme Court recognized that the 9/11 attacks and Congress's Authorization for the Use of Military Force put the United States in a state of "war" against al Qaeda, the Taliban, and affiliated groups and individuals. (15) In Hamdan, the Court even bound the U.S. government to comply in this conflict with so-called Common Article 3 of the Geneva Conventions of 1949. (16) Notwithstanding, the Supreme Court held that even these military enemies of the United States--who it had already protected by at least some parts of the international laws of war--have a U.S. constitutional right to invoke the habeas jurisdiction of federal courts to challenge the constitutionality of their detention or trial by the U.S. military. (17) Today the clear trend in the Court and legal academy is "globalist"--viewing the reach of the Constitution's protection of individuals as unaffected by geography, citizenship, or hostility to the United States (18) and construing the document as if it were an international human rights instrument. (19) The Bush Administration's claims that federal courts lacked jurisdiction to hear habeas cases filed by noncitizens detained at Guantanamo Bay as military enemies and that these detainees lacked constitutional rights because of their presence outside the sovereign territory of the United States were considered shocking and even "un-American." (20) The very words of condemnation used by critics of these legal claims--the administration was attempting to construct a "'legal black hole'" (21)--suggest the depth of the assumption of access for all to judicially enforced constitutional rights. Given this modern assumption, it is natural to read Milligan's grandiose description of a universal Constitution (22) as confirmation that the Court of the Civil War era had the same views.
But that would be a mistake. The Civil War Court's true view of the scope of the Constitution...