Ex Parte Milligan Reconsidered

de Stewart L. Winger, Jonathan W. White

"In 1869, Justice David Davis of the US Supreme Court decided Ex parte Milligan, which held that citizens could not be tried under military commissions while civilian courts were still open and there was no war. Beginning already with Ex parte McCardle (1869), however, the Court seemed to hem in the Milligan precedent and disregarded it in subsequent cases. By 1991, the case was declared "irrelevant." All of that changed with the War on Terror and the invasions of Afghanistan and Iraq. In defense of their use of military tribunals, the Bush administration cited cases like Ex parte Quirin (1942) that upheld the use of a military tribunal for Nazi saboteurs. Rejecting such arguments, the Supreme Court has cited Milligan in four decisions, revitalizing interest in a case that had long seemed all but overruled. In doing so, the Court also effectively characterized Reconstruction as a "war on terror"-a war on the terrorist insurgencies against the assertion of black freedom by the Republican Party, the Union Army, and African Americans themselves. Ex parte Milligan Reconsidered explores the precedential power of Milligan and the questions it poses about the Civil War, the War on Terror, and executive power"--