|View single post by Texas Defender|
|Posted: Fri Dec 14th, 2012 12:07 am||
| In the end, I will only grant Barlow some credit for making a more rational entry onto this thread with the 21st Posting than he did with the 8th.
As for the Jefferson Davis trial, I never took the position that not trying Davis made secession legal. (My position is that the Tenth Amendment made secession legal). What I said was that the Federal Government was afraid to carry forward the trial because top legal minds believed that it was likely that the Government would lose the case. If the Government lost the case, that would vindicate the Confederate position that secession was legal and not a crime. It would also discredit the Government's main argument for fighting the war that caused so many deaths. It was a risk that the Federal Government finally decided that it could not take.
As for Joseph Holt- he was the Judge Advocate General of the Army. He was in charge of the military commission that tried the Lincoln conspirators. He tried to convince the commission that Jefferson Davis was personally involved in the assassination plot. He also withheld the existence of the Booth diary from the commission. In addition, he was accused of withholding the commission's recommendation that Mrs. Surratt be spared the death penalty. His handling of the case seriously damaged his reputation. General Holt attempted to defend himself with a publication titled: "The Vindication of Judge Advocate Holt From the Foul Slanders of Traitors, Confessed Perjurers and Suborners, Acting in the Interest of Jefferson Davis."
After the end of hostilities, the citizenry was much less tolerant of the idea that military tribunals should be trying citizens where normal civilian courts were established or had been re-established. In the USSC case ex parte Milligan (1866) the justices (Even those appointed by Mr. Lincoln) found that military tribunals should no longer be used wherever civilian courts were operating.
Ex parte Milligan - Wikipedia, the free encyclopedia
If the trial of Jefferson Davis had gone forward, it would have been in civilian courts. The Government's case would have been the responsibility of the Attorney General of the United States, not a subordinate of the Secretary of War. The three Attorneys General in office in the years right after the war were James Speed (1864-66), Henry Stanbery (1866-68), and William Evarts (1868-69).
Mr. Speed, a personal friend of Mr. Lincoln, was a radical Republican who resigned in 1866 over Andrew Johnson's opposition to black suffrage (Among other things). Mr. Stanbery resigned in 1868 to conduct the defense of Andrew Johnson in the impeachment trial. Mr. Evarts was ready to release Jefferson Davis rather than pursue a case that the Federal Government delayed for years because it couldn't decide what to do. By 1869, it was recognized that releasing Mr. Davis was the most prudent course to take.
In the case of the terrorists at Guantanamo, the Federal Government finds itself in a sticky mess again. I certainly wouldn't maintain that not trying them makes them innocent. But trying them would present greater problems than doing nothing has- so far.
Absent a declaration of war,there is no real legal precedent for what the Federal Government is doing with the detainees at present. Many have been held for several years without trial. What rights, if any, do they have under U.S. Law? How about International Law? The legality of trying them by military tribunals has also been questioned.
Hamdan v. Rumsfeld - Wikipedia, the free encyclopedia
As seen in the Hamdan case, in some cases, the status of detainees as combatants or non-combatants could be difficult to determine. There are many other questions that an experienced attorney might be aware of that I am not. But I know that it is all a murky situation. I also know that it is in the national interests of the United States that many of the detainees are never allowed to be at large again. Some who have been released have returned to the practice of attacking U.S. troops. In my view, it is in the national interests of the United States to avoid trying them at all unless it somehow becomes necessary. It will be interesting to see how this problem is ultimately resolved.
Last edited on Fri Dec 14th, 2012 04:35 am by Texas Defender