Denver Bar Association
December 2004
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The Serious Issue of the War on Terrorism

by Elliott E. Maynard


by Chief Justice Elliott E. Maynard
Reprinted from the July 2004 edition of The West Virginia Lawyer


The heavy wooden door leading from the prison into the courtyard opened at exactly 1 p.m. Mary Surratt clumsily stepped into the heat and the haze. It was July in Washington, D.C., and miserably hot.

This was the last day that Mary, a 45-year-old widow, would feel the warm sun on her face. Her fear and the oppressive heat suffocated her. She felt faint, but thanked God that her captors had allowed her daughter Anna to stay with her and comfort her most of the night.

But now she was alone. Alone, except for Fathers Wiget and Walter and the other two gentlemen who supported her as she walked feebly to the gallows. She also had the company of her three male co-conspirators who were to be hanged with her.

Mary’s terror made her so weak she could not stand. Mercifully, she was seated on a chair while her legs and arms were tied and a hood was placed over her head. Without any struggle, a noose was placed over her head. The trap was sprung. Mary Surratt and her co-conspirators passed into history.

Mary Surratt, David Harold, Lewis Payne, and George Atzerott were tried, convicted, and executed for their involvement in the plot to assassinate President Abraham Lincoln and other high government officials. The U.S. government had actually tried eight people at the same time as Mrs. Surratt. Three others, Dr. Samuel Mudd, Samuel Arnold, and Michael O’Laughlin, received life sentences. Edman Spangler received six years in prison. These eight defendants were U.S. citizens. Not one was tried by a jury. They were
tried by a military tribunal.

The sad story of the trial of Mary Surratt and the Lincoln conspirators is fascinating on its own. The story, however, has great relevance today. President George W. Bush has ordered that military tribunals will try al-Qaeda members and other persons suspected of terrorists acts against the United States.

Mary Surratt, circa 1850.
Courtesy of Surratt House
Museum. Used with
If Osama Bin Laden ever comes into American custody, will he be placed on trial for the September 11, 2001 attacks on the World Trade Center and the Pentagon? If so, in what forum will he be tried? Will Osama Bin Laden, like Mary Surratt, be tried by a military tribunal? . . .

Before we completely leave poor Mary Surratt to the dustbin of history, there are a few more interesting tidbits about her.

Major General Lew Wallace, who was at Philippi, WV when it was occupied by Union troops, was a member of the military tribunal that convicted Mary Surratt. Major General Wallace also was a famous author who wrote a great novel, "Ben-Hur," which was later made into a classic movie of the same name, chariot race and all.

Last, for the lawyers among those reading this, the day before her execution, Mrs. Surratt’s attorneys sought a writ of habeas corpus on Sixth Amendment grounds. Judge Wylie of the U.S. District Court of D.C. issued a writ to Major General Hancock. Ironically, Abraham Lincoln had suspended the writ of habeas corpus during the Civil War.

Based on that, President Andrew Johnson (who became president after Lincoln was assassinated by John Wilkes-Booth) issued an executive order to Major General Hancock directing him to ignore the writ.

The order stated, "I, Andrew Johnson, President of the United States, do hereby declare that the writ of habeas corpus had been heretofore suspended in such cases as this; and I do hereby specially suspend this writ, and direct that you proceed to execute the order heretofore given. . . ." So much for the separation of powers doctrine.

The question of the use of military tribunals in the war on terrorism is more than legal or constitutional. The world’s perception of the American judicial system is at stake. We should have a vigorous public debate on the use of military tribunals before we start conducting such trials.

Editor’s Note: Obviously, this is an on-going issue, making its way through the courts. We welcome your opinion, too.

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