Issue In what cases can we justify the use of military tribunals? Starter Excerpted from Opinion on the Constitutional Power of the Military to Try and Execute the Assassins of the President by Attorney General James Speed (July 1865) [John Wilkes Booth, the assassin of President Abraham Lincoln, was killed during his capture. After Lincoln's assassination, hundreds of suspected conspirators were arrested. Most were soon released due to lack of evidence. The federal government did charge eight of the suspects with conspiracy in the plot to assassinate Lincoln and other high government officials. President Andrew Johnson ordered the accused to be tried before a military commission, presided over by the judge advocate general of the U.S. Army. The trial lasted seven weeks. All eight of the accused were found guilty. Four were hanged a week after the end of the trial, including Mary Surratt, the owner of a boardinghouse where it was alleged that Booth had met with co-conspirators. The other four were sentenced to prison terms, three for life terms. One died in prison in 1867. The other three, including Dr. Samuel Mudd-who had set Booth's leg after his escape from Ford's Theater-were pardoned by President Johnson in 1869.] "Sir: You ask me whether the persons charged with the offense of having assassinated the President can be tried before a military tribunal, or must they be tried before a civil court. The President was assassinated at a theater in the city of Washington. At the time of the assassination a civil war was flagrant, the city of Washington was defended by fortifications regularly and constantly manned, the principal police of the city was by Federal soldiers, and the public offices and property in the city were all guarded by soldiers, and the President's House and person were, or should have been, under the guard of soldiers. Martial law had been declared in the District of Columbia, but the civil courts were open and held their regular sessions, and transacted business as in times of peace. Such being the facts, the question is one of great importance-important, because it involves the constitutional guarantees thrown about the rights of the citizen, and because the security of the army and government in time of war is involved; important, as it involves a seeming conflict between the laws of peace and of war. Having given the question propounded the patient and earnest consideration its magnitude and importance require, I will proceed to give the reasons why I am of the opinion that the conspirators not only may but ought to be tried by a military tribunal." Focus Questions What is Speed's argument why Lincoln's assassins should be tried before a military tribunal rather than a civilian criminal court? Do you agree? Why or why not? What do you think of the idea of using military tribunals to prosecute our current war on terrorism? Under what conditions and circumstances, and for whom, do you think it is necessary? Just? What is war? How is it different from peace? When is wartime? How is it a different time than that of peace? America at War Pathway: 1  2  3  4  5  6  All (.pdf) Note: The views expressed here have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association, nor do they represent the official position or policies of the ABA Standing Committee on Public Education.