Posted on 08/23/2002 10:31:20 AM PDT by Wallaby
WASHINGTON -- After 137 years, the effort to clear Dr. Samuel Mudd's name finally has made it to the federal court of appeals. As it turns out, the case hardly could be more timely.
Mudd was the Maryland doctor who treated the broken leg of President Lincoln's assassin, John Wilkes Booth, just hours after Booth fatally shot the president at Ford's Theatre here in April 1865. A military commission later convicted Mudd of aiding the escape of Booth, who was killed after being tracked down by federal troops 12 days after the assassination. Mudd served nearly four years before he was pardoned by President Andrew Johnson, but for decades Mudd's descendants have sought to have the military officially exonerate the doctor, who died in 1883 at age 49.
The family's appeal of a March 2001 federal court order affirming Mudd's conviction is scheduled to be heard in the U.S. Court of Appeals here on Sept. 3.
The Mudd case has long fascinated Civil War buffs and students of wrongful convictions, but now it is particularly poignant because it challenges two key legal positions the federal government has taken in its war on terrorism: that U.S. civilians can be detained by the military as "unlawful combatants," and that they can be tried by military panels.
President Bush's order allowing military trials of civilian terrorism suspects exempts U.S. citizens. But Justice Department attorneys who are fighting Mudd's appeal say the government continues to have the right to conduct such trials. And the Mudd family's attorney notes that Samuel Mudd was a civilian arrested and held by the Army as a "law of war" violator, much like the current terrorism suspects. The Army, attorney Philip Gagner argues, continues to maintain a "shadow" judicial system that is "repugnant" to the Constitution.
The government is holding two U.S. citizens with alleged Taliban or al-Qaeda connections as unlawful combatants. The designation means that they lack the rights that prisoners of war have under international law, or that criminal defendants have in the U.S. justice system.
The men, Jose Padilla and Yaser Esam Hamdi, are challenging their designation. They have not been charged and have not been allowed to meet with lawyers.
Government lawyers have not said how long the men will be held or whether they will be tried by military commissions, also known as tribunals.
Scholars are watching the Mudd case closely.
"It's rare that you get to see currently important issues so clearly through the framework of the past," says Virginia historian James Hall, who has written about the Lincoln assassination. Mudd's descendants long have contended that he merely was doing a doctor's duty when he set Booth's broken left leg. Booth and an accomplice appeared at Mudd's southern Maryland farmhouse after riding on horseback from Washington.
Thomas Mudd, a great-grandson of the doctor, argues that because Samuel Mudd was a U.S. citizen and not in the military, he should have been tried by a civilian court and not a military panel.
In 1992, an Army board agreed, and recommended that Samuel Mudd's 1865 conviction be expunged. But Army officials and a federal judge rejected the recommendation, prompting the Mudd family's appeal.
Thomas Mudd, a retired history teacher from Saginaw, Mich., replaced his father, Dr. Richard Mudd, as the lead plaintiff after the latter's death in May at age 101.
Mudd attorney Gagner argues that Samuel Mudd was not a "belligerent" -- an enemy soldier or agent. In court papers, Gagner writes that military commissions "enforce a rough sort of law."
The U.S. government counters that civilian law should not apply in the Mudd case because the slaying of Lincoln, the commander-in-chief, essentially was a war crime.
Assistant U.S. Attorney Wyneva Johnson also argues that military tribunals can try U.S. citizens, a point made by World War II-era cases that upheld the convictions of an American-born German spy, a naturalized American who was a German saboteur, and an American woman who killed her husband, a U.S. Army officer, in occupied Germany. All were convicted by military tribunals. The government's legal grounds for holding Padilla and Hamdi is rooted in such cases. A victory for the Mudd family could give Padilla and Hamdi legal ammunition in their cases. It also could make it more difficult for the U.S. government to continue to claim that American terrorism suspects may be tried by military commissions.
And also Susan Mudd (liberal activist), wife of Milwaukee Mayor John Norquist, as well as a Dr. Mudd (female) in Columbus, Ohio who delivered two of my grandchildren.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.