Cf. Ex parte Quirin?
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1/ OK, let's back up and take stock here. The Constitution, the Geneva Conventions and CIL all prohibit summary executions of those in one's custody. It once was the case that spies could be summarily executed (e.g., Nathan Hale), but no more.
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Replying to @marty_lederman @jadler1969 and
2/ Spies have also long had a sui generis status, for reasons that are obscure. I discuss this topic at great length in Part IV-B of this article (the most thorough modern treatment, I'm fairly sure, although not everyone will agree w/my explanations). https://georgetownlawjournal.org/articles/241/of-spies-saboteurs-enemy/pdf …
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Replying to @marty_lederman @jadler1969 and
3/ In any event, Lee wasn't a spy. Nor did he commit any obvious violations of the laws of war (or in any event that's not what Ian was getting at). So Quirin is inapposite even if its holding--that military courts can try law-of-war violations--was correct. See Part III of ...
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Replying to @marty_lederman @jadler1969 and
4/ ... of my Spies/Saboteurs article. Ian is focused on treason. The issue of whether it could be tried by a military court--w/o jury and Art. III judge--arose after the Civil War when Jeff Davis was captured. AG Speed concluded that it could only be tried in civilian court ...
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Replying to @marty_lederman @jadler1969 and
5/ ... according to the heightened evidentiary standards that the Constitution prescribes for treason (which of course would have been easy to prove in the cases of Lee and Davis). The Court in Quirin actually later intimated the same, see 317 U.S. at 38-39. Ultimately, ...
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Replying to @marty_lederman @jadler1969 and
6/ ... Davis was released, not tried, in accord w/Lincoln's expectations/exhortations before he died ("w/malice towards none; charity for all"). I discuss all this in Part III-C of this article. See also Cynthia Nicoletti's recent book on Davis's capture. https://www.columbialawreview.org/wp-content/uploads/2018/03/Lederman_The-Law-Of-The-Lincoln-Assassination.pdf …
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Replying to @marty_lederman @jadler1969 and
7/ I don't believe there's any serious case to be made that treason can be tried in a military tribunal--let alone be punished with summary execution.
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Replying to @marty_lederman @jadler1969 and
8/ There were a scattering of treason (or its equivalent) trials in military courts during the civil war, but even at the time they were dubious, and by 1866--especially after Milligan--almost universally understood to have been unconstitutional. See ...
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Replying to @marty_lederman @jadler1969 and
9/ ... notes 144, 176-178, 192 and 240, and accompanying text, of the Lincoln assassination article.
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Dude, you had me at article.
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