Here's some more on
Milligan:"The decision was announced April 3, 1866. The court unanimously ruled that military commissions had no jurisdiction in a case such as Milligan's, and it ordered his sentence set aside. He was to be released. The justices took time and care in writing their opinions. The full ruling, finished in July 1866, was written by Justice David Davis, a Lincoln appointee and a longtime friend of the slain president.
"During the late wicked Rebellion," he wrote, "the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then considerations of safety were mingled with the exercise of power; and feelings and interest prevailed which are happily terminated. Now that the public safety is assured, this question, as well as others, can be discussed and decided without passion, or the admixture of any element not required to form a legal judgment."
And he ruled that the administration's course had been wrong after all. "Martial law cannot arise from a threatened invasion," but only from a real one. "Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction." This had clearly been the case in Indiana in 1864, as even the government's lawyers admitted. "Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate."
Milligan was set free, then promptly seized by civil authorities, but they never pressed charges against him and ultimately released him. He filed suit to collect damages, but the statute of limitations had expired, and the jury awarded him a mere $5."
The court went out of its way to praise President Lincoln.
When Milligan was arrested, there was no precedent to say he might not be arrested. He would have hanged except for Lincoln
In 1942, the Court denied Habeas Corpus petetitions filed on behalf of German agents captured in New York and Florida. President Roosevelt ordred that six, as I recall, be executed at noon the next day. By 1:30 thet were all dead. Clearly under Milligan New York and Florida were not theaters of war.
Neo-reb apologists hate it when that the president takes reasonable action to defend the country.
Walt
[WhiskeyPapa] In 1942, the Court denied Habeas Corpus petetitions filed on behalf of German agents captured in New York and Florida. President Roosevelt ordred that six, as I recall, be executed at noon the next day. By 1:30 thet were all dead. Clearly under Milligan New York and Florida were not theaters of war.
This claim about these unlawful combatants has more than a few problems.
http://laws.findlaw.com/us/317/1.html See Ex Parte Quirin, 317 U.S. 1
[P]etitioners Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York. The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses and incendiary and timing devices. While landing they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City.
The remaining four petitioners at the same French port boarded another German submarine, which carried them across the Atlantic to Ponte Vedra Beach, Florida. On or about June 17, 1942, they came ashore during the hours of darkness wearing caps of the German Marine Infantry and carrying with them a supply of explosives, fuses, and incendiary and timing devices. They immediately buried their caps and the other articles mentioned and proceeded in civilian dress to Jacksonville, Florida, and thence to various points in the United States.
* * *
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
* * *
Four were arrested June 13, 1942 on Long Island, New York. Four were arrested June 17, 1942 in Florida.
Ernest Peter Burger
George Dasch
Herbert Haupt
Heinrich Heinck
Edward Kerling
Herman Neubauer
Richard Quirin
Werner Thiel
Kerling, Neubauer, Haupt, and Thiel departed for Florida on May 26
Dasch, Burger, Heinck, and Quirin departed for New York on May 28.
On July 2, Roosevelt issued the following:
Whereas the safety of the United States demands that all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion ... should be promptly tried in accordance with the Law of War; now, therefore, I, Franklin D. Roosevelt, ... do hereby proclaim that all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals; and that such persons shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of the United States.
On July 4 the eight Germans were moved from New York to the District of Columbia Jail.
On July 8, trial started in a courtroom set up in the main building of the Department of Justice.
The defense opened with a statement to the tribunal. "In deference to the commission, and in order that we may not waive for our clients any rights which may belong to them, we desire to state that, in our opinion, the order of the President of the United States creating this court is invalid and unconstitutional ... Our view is based first on the fact that the civil courts are open in the territory in which we are now located and that, in our opinion, there are civil statutes governing the matters to be investigated."
The prosecution responded: "This is not a trial of offenses of law of the civil courts, but is a trial of the offenses of the law of war, which is not cognizable by the civil courts. It is the trial, as alleged in the charges, of certain enemies who crossed our borders ... and who crossed in disguise and landed here ... They are exactly and precisely in the same position as armed forces invading this country."
On July 27, the defense rested.
The defense demanded a writ of habeas corpus.
On July 29, the Supreme Court convened in a special session to consider the matter.
On July 31, the Supreme Court unanimously denied the appeal, writing, "The military commission was lawfully constituted ... petitioners are held in lawful custody for trial before the military commission and have not shown cause for being discharged by writ of habeas corpus."
On August 3, the eight guilty verdicts were delivered to Roosevelt. The sentence was death by electrocution. There was a unanimous recommendation that the sentences of Ernest Burger and George Dasch be commuted from death to life imprisonment.
On August 7, President Roosevelt instructed that all but Dasch and Burger were to be electrocuted at noon the following day.
On August 8, the process began at noon.
Just before 1:30 P.M. an announcement was made by the White House press secretary reported that six executions had taken place.
The president commuted the sentence of Burger to life in prison, and the sentence of Dasch to 30 years.
Dasch and Burger spent some six years in U.S. prisons and then were deported to Germany in April of 1948.
U.S. Supreme Court EX PARTE QUIRIN,
317 U.S. 1 (1942)
Ex parte QUIRIN.
Ex parte HAUPT.
Ex parte KERLING.
Ex parte BURGER.
Ex parte HEINCK.
Ex parte THIEL.
Ex parte NEUBAUER.
UNITED STATES ex rel. QUIRIN v. COX,
Brig. Gen., U.S.A., Provost Marshal of the Military District of Washington,
and 6 other cases. Nos. -- Original and Nos. 1, 2, 3, 4, 5, 6 and 7-July Special Term, 1942
Argued July 29, 30, 1942.
Decided July 31, 1942.
Extended opinion filed Oct. 29, 1942.
The Court holds:
(1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission.
(2) That the military commission was lawfully constituted. (3) That petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. The motions for leave to file petitions for writs of habeas corpus are denied. The orders of the District Court are affirmed. The mandates are directed to issue forthwith.
Mr. Justice MURPHY took no part in the consideration or decision of these cases.
Mr. Chief Justice STONE delivered the opinion of the Court.
* * *
Accordingly, we conclude that Charge I, on which petitioners were detained for trial by the Military Commission, alleged an offense which the President is authorized to order tried by military commission; that his Order convening the Commission was a lawful order and that the Commission was lawfully constituted; that the petitioners were held in lawful custody and did not show cause for their discharge. It follows that the orders of the District Court should be affirmed, and that leave to file petitions for habeas corpus in this Court should be denied. Mr. Justice MURPHY took no part in the consideration or decision of these cases. Orders of District Court affirmed and leave to file petitions for habeas corpus in the Supreme Court denied.
* * *
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ALSO, there were fourteen German POW's executed at the U.S. Military Disciplinary Barracks in Fort Leavenworth, Kansas.
August 25, 1945
Fischer, Helmut
Franke, Fritz
Kuelsen, Guenther
Ludwig, Heinrich
Reyak, Bernhard
Stengel, Otto
Wizuy, Rolf
Seven German POWs executed for hanging fellow German POW Werner Drechsler of U-118, in the shower room of Compound 4 at Papago Park in Phoenix AZ, on March 12, 1944. Drechsler was hanged less than six and a half hours after his arrival at the prisoner of war camp, apparently for helping Americans interrogate German POWs at another prison camp. The hangings of the German POWs took place in an elevator shaft of a warehouse.
July 14, 1945
Gauss, Erich
Straub, Rudolf
Two German POWs convicted of the murder of fellow German POW, Horst Guenther at Branch Camp Aiken, South Carolina.
July 10, 1945
Beyer, Walter
Demme, Hans
Scholz, Willi
Schomer, Hans
Seidel, Berthold
Five German POWs convicted of the murder of fellow German POW, Johannes Kunze at Camp Gruber, Oklahoma.
Here's
Milligan with more context:
It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the 'military independent of and superior to the civil power'-the attempt to do which by the King of Great Britain was deemed by our fathers such an offence, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish. This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution.
Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew-the history of the world told them-the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus.
It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character, wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible; and yet, the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.
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Also, from Ex Parte Milligan:
But it is said that the jurisdiction is complete under the 'laws and usages of war.'
It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they 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. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offerce whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior.