Military & National Security Law
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)
Study notes for Ex parte Milligan: professor notes, cold call prep, exam angles, and memory aids.
Civilians in loyal states cannot be tried by military tribunals when civilian courts are available.
Ex parte Milligan is a cornerstone case that establishes the limits of military authority during peacetime, particularly in relation to civilians. A key aspect for professors to emphasis is the Court's steadfast commitment to civil liberties, even amidst the pressures of war. Milligan's arrest and trial, carried out without the involvement of civilian courts, underscore potential abuses of executive and military power and raise significant constitutional questions regarding due process and the right to a fair trial.
Furthermore, the Supreme Court's decision reinforces the principle that the judiciary must remain intact and functional during times of war. The ruling signals to students the importance of maintaining constitutional rights in the face of national security concerns and serves as an early example of judicial pushback against military overreach in democratic governance.
CIVIL: Civilians In Vital Integrity of Law
| Case | Distinction |
|---|---|
| The Prize Cases | The Prize Cases involved more direct military action and questions of wartime powers under international law, focusing on the legality of blockades rather than civilian trials. |
| Korematsu v. United States | Korematsu concerned the internment of Japanese Americans during WWII, which had a different context of national security and the treatment of citizens versus the treatment of civilians in loyal states. |
| Hamdi v. Rumsfeld | In Hamdi, the Supreme Court addressed the detention of enemy combatants, diverging from Milligan's focus on civilian rights under available judicial systems. |
Maintaining civil liberties during wartime reinforces democratic ideals and prevents potential abuses of power by the military.
National security may require exceptional measures, including military trials, when facing threats that civilians cannot adequately address.
Examiners may focus on the tension between military authority and civilian rights, presenting hypothetical scenarios involving military tribunals and asking for an analysis based on the Milligan ruling.