He was charged with treason. If he was held as a prisoner of war, I don't believe he would have been tried at all.
"All charges against Merryman were dropped."
Taney stymied any trials for in excess of a year. By that time, the immediate disloyalty crisis in Maryland had passed. Eventually Merryman was released on bail, and if I am not mistaken, he defected south.
With respect to your lengthly passage from Ex parte Milligan, the Court apparently had "second thoughts" in Ex parte Quirin:
"Petitioners, and especially petitioner Haupt, stressed the pronouncement of this Court in the Milligan case ... that the law of war 'can never be applied to citizens and states which have upheld the authority of the government, and where the courts are open and their process unobstructed.' ... We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with armed forces of the enemy, was a non-belligerent, not subject to the law of war save as ... martial law might be constitutionally established. The Court's opinion is inapplicable to the case presented presented by the present record. We have no occasion to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries...." (Rehnquist, Pg 137).
Merryman's situation, as a member and officer of the disloyal Maryland militia engaged in sabotage, is much more like that of Quirin than than Milligan.
I find it interesting, though, that you make the same case for Merryman (not being subject to the laws of war) that the American-born nazi saboteur Haupt made for himself. John Merryman most certainly could have been tried by a military tribunal, if that is what the government had wished to do.
[capitan_refugio #1711] I find it interesting, though, that you make the same case for Merryman (not being subject to the laws of war) that the American-born nazi saboteur Haupt made for himself. John Merryman most certainly could have been tried by a military tribunal, if that is what the government had wished to do.
Of course, the Court ruled that Milligan was inapplicable to Quirin.
Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case, 4 Wall. page 121, that the law of war 'can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed'. Elsewhere in its opinion, 4 Wall. at pages 118, 121, 122, and 131, the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as -- in circumstances found not there to be present and not involved here -- martial law might be constitutionally established.The Court's opinion is inapplicable to the case presented by the present record.
Unilke the rape of the Constitution in Merryman, Quirin et al were actually charged with read charges, including specifications. You will recall that in Merryman, General Cadwallader documented that he did not have a clue as to why Merryman was being held.
On July 3, 1942, the Judge Advocate General's Department of the Army prepared and lodged with the Commission the following charges against petitioners, supported by specifications:
- Violation of the law of war.
- Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to relieve, or corresponding withor giving intelligence to, the enemy.
- Violation of Article 82, defining the offense of spying.
- Conspiracy to commit the offenses alleged in charges 1, 2 and 3.
And indeed, the Court found that Specification 1 was all they needed.
Specification 1 of the First charge is sufficient to charge all the petitioners with the offense of unlawful belligerency, trial of which is within the jurisdiction of the Commission, and the admitted facts affirmatively show that the charge is not merely colorable or without foundation.Specification 1 states that petitioners 'being enemies of the United States and acting for ... the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States ... and went behind such lines, contrary to the law of war, in civilian dress ... for the purpose of committing ... hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States'.
This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners' contentions.
Clearly there is no connection between the case against Quirin and that of Merryman.
I find it interesting, though, that case for Quirin involves someone serving a ruthless insane dictator with an insatiable lust for power, a victim of syphilis, possessed of racism, and who initated a war which took millions of lives. Indeed, there any many similarities to Lincoln. Of course, neither leader was impeached or convicted of criminal misconduct.