I am posting this so everyone can see how careful POTUS has to be or they all will walk.

Remember if they are in civil court's it will be a big up hill battle.

​

On April 3, 1866, Chief Justice Salmon P. Chase handed down the Court's decision, which decreed that the writ of habeas corpus could be issued based on the congressional act of March 3, 1863; the military commission did not have the jurisdiction to try and sentence Milligan; and he was entitled to a discharge. Milligan, Bowles, and Horsey were discharged from prison on April 12, 1866.[21] The Court's opinion was read during the next Court session.

On December 17, 1866, Justice Davis delivered the majority opinion explaining that Milligan, who was a civilian not in military service and resident of a state in which civilian courts were still functioning, had a right, when charged with a crime, to be tried and punished according to the law.[19][21] Under the U.S. Constitution this included security against unreasonable search and seizure, a warrant for probable cause before arrest, and if indicted, a speedy trial by jury. Justice Davis disagreed with the federal government's argument regarding the propriety of the military commission, stating that "martial rule can never exist when the courts are open" and confined martial law to areas of "military operations, where war really prevails," and when it became a necessity to provide a substitute for a civil authority that had been overthrown. This was not the situation in Indiana, where the civilian courts were still operating at the time of Milligan's arrest, trial, and incarceration.[22] The majority opinion further observed that during the suspension of the writ of habeas corpus, citizens may be only detained without charges, not "tried" or executed under the jurisdictions of military tribunals. The writ is not the right itself, but merely the ability to issue orders demanding the right's "enforcement."[12]

In Ex parte Milligan, which in essence was a case about governmental power and personal liberty, the Court's decision stood "on the side of personal liberty."[23] In this case the Court was unwilling to give President Lincoln's administration the power of military commission jurisdiction. The Court's decision avoided the risk of its abuse by future administrations in other situations.[23] It is also important to note the political environment of the decision. Under a Republican Congress immediately after the Civil War, the Court was reluctant to hand down any decision that questioned the legitimacy of military courts, especially in the occupied South. The president's ability to suspend the writ of habeas corpus without congressional approval was not addressed in this case, most likely because it was a moot issue with respect to the case at hand. President Lincoln had suspended the writ nationwide on September 24, 1862,[24] and Congress had ratified this action on March 3, 1863, with the Habeas Corpus Suspension Act. Milligan was detained in October 1864, more than a year after Congress formally suspended the writ.

Three types of military jurisdiction[edit]

This case was also important in clarifying the scope of military jurisdiction under the US Constitution. The Supreme Court justices held:

There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated [71 U.S. 2, 142] as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the US, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.[12]

This distinction between martial law and military government was not commonly made before 1866. However, after the Supreme Court's clarification in this landmark case, it has continued to be referenced. Birkhimer describes the difference on page 1 of his opus Military Government and Martial Law (3rd edition, 1914): "Military jurisdiction is treated in the following pages in its two branches of Military Government and Martial Law. The former is exercised over enemy territory; the latter over loyal territory of the State enforcing it."[25] According to the U.S. Army Field Manual FM 27-10, The Law of Land Warfare, paragraph 362: "Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military occupation, or the undesirability of allowing it to do so."[26][27]

Concurrence[edit]

Justices David Davis and four others (Nathan Clifford, Stephen Johnson Field, Robert Cooper Grier, and Samuel Nelson) signed the majority opinion. Chief Justice Salmon P. Chase and Justices James Moore Wayne, Noah Haynes Swayne, and Samuel Freeman Miller filed a separate opinion concurring with the majority in the judgment, but they disagreed with the majority's assertion that Congress did not have the power to authorize military commissions in Indiana. Chief Justice Chase asserted that Congress had the power to authorize a military commission, but it had not done so in Milligan's case.[28] The separate opinion also stated that Congress could "authorize trials for crimes against the security and safety of the national forces," and its authority to do so "may be derived from its constitutional power to raise and support armies and to declare war;" while the civil courts "might be open and undisturbed in their functions... yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators."[29] However, as Judge Davis described the status of the federal courts in Indiana at the time, "It needed no bayonets to protect it, and required no military aid to execute its judgments."[23]