The Constitution and the Laws of War During the Civil War

INTRODUCTION I. LAW OF THE FOUNDING AND ANTEBELLUM PERIODS A. Allegiance and Protection B. Municipal and International Law C. War and the Alien D. The Antebellum Law of Treason and Rebellion II. LEGAL UNCERTAINTY AT THE OUTSET OF THE CIVIL WAR A. Was the Insurrection Crime, War, or Both? B. Legal Theories Available to the U.S. Government III. THE WAR OF IDEAS: THE LAWS OF WAR DISPLACE THE CONSTITUTION WHEN THE UNITED STATES ACTS MILITARILY AGAINST ENEMIES A. The Union's Lawyers, Statesmen, and Theorists 1. Rebels in Arms 2. Noncombants B. A Theory of Extra-Constitutional, Lawless Power? C. The Work of Lower Federal Courts in 1861 and 1862 1. Decisions on and Other Seizures 2. Piracy and Treason Prosecutions IV. THE SUPREME COURT ENTERS THE WAR A. The Cases B. Wartime Decisions After the Cases 1. Additional Decisions Concerning Maritime Prizes 2. Courts Closed to Rebel Enemies During the War 3. Vallandigham's Case V. POSTBELLUM SUPREME COURT DECISIONS ON WAR ISSUES A. Secession Was Treason Because Allegiance Was Unimpaired. B. The Laws of War Displace Constitutional Rights of U.S. Citizen Enemies C. Discretion to Choose Sovereign or Belligerent Methods D. Immunity/Indemnity E. The Displacement of Constitutional Protection by the Laws of War Was Not a Theory of Extra-Constitutional Power F. Enforcing the Constitutional Rights of Citizens During the War G. Military Occupation of Enemy Territory H. Milligan in Context CONCLUSION INTRODUCTION In the courts and legal academy, interest in the Civil War has increased greatly in the last decade, and it is not hard to understand why. The 9/11 attacks were by far the most spectacular and deadly military attacks on the mainland United States since the Civil War. Both the conflict against al Qaeda and the Civil War were untraditional; in both, it was contested whether they amounted to in the sense used in the Constitution and public international law, and what effect that had on government powers and individual rights. Lines between combatants and noncombatants were blurry in both conflicts, often intentionally so. Because significant aspects of both conflicts occurred on U.S. soil and involved American citizens (the Civil War much more so, obviously), the federal courts were from the outset asked to rule on the legality of executive and congressional actions. The Supreme Court has issued four important decisions regarding the war on terror: Hamdi v. Rumsfeld, (1) Rasul v. Bush, (2) Hamdan v. Rumsfeld, (3) and Boumediene v. Bush. (4) In all four, the Court found and enforced novel constitutional, statutory, or international rights for alleged terrorist enemies of the United States. In all four, the Justices relied on precedents and authorities from the Civil War and engaged in detailed debate about their meaning. The scholarly literature about war-on-terror legal issues is rife with references to Civil War precedents. Two which have been very prominent in the post-9/11 debates are the Supreme Court's decisions in the Cases (5) and Ex parte Milligan. (6) The former held that President Lincoln had the authority to invoke belligerent rights akin to those in international wars--that is, the rights and powers that the laws of war allow sovereign nations to use in their mutual conflicts--to blockade the ports of seceded states in the spring of 1861 against Confederate and neutral shipping, without Congress having first declared or otherwise noticed the beginning of a war between the states. (7) (Enemy vessels or cargo seized validly under the international laws of war were referred to as prizes of war, because they generally accrued to the financial benefit of the captors--hence the Prize Cases. …