DEPARTMENT OF THE ARMY

link to Candida Ewing Steel's
Dr.Mudd page

OFFICE OF THE ASSISTANT SECRETARY  
MANPOWER AND RESERVE AFFAIRS

(links have been added to the Milligan and Quirin cases cited in this decision letter.  -- CES)

111 ARMY PENTAGON

WASHINGTON DC 20310-0111

March 6, 2000

Dear Ms. Steel:

I have reviewed the decision of the Army Board for Correction of Military Records (ABCMR), dated January 22, 1992, regarding the application by Dr. Richard Mudd to amend the record of his grandfather, Dr. Samuel Mudd. I conducted this review  pursuant to the remand of the U.S. District Court in the case of Mudd v. Caldera, 26 F. Supp. 2d 113 (D.D.C. 1998). Based upon the administrative record submitted to the court and upon the applicable law, I must reject the findings and recommendation of the ABCMR and deny your client's application for relief.

As you know, the ABCMR did not address the factual matters pertaining to Dr. Mudd's guilt or innocence. I similarly limit my review to the ABCMR's consideration of the issue of jurisdiction, consistent with the terms of the district court's Order and Judgment. The issue before me is whether your client has sustained his burden of showing clear evidence of material error or injustice as to whether the Hunter Commission lacked jurisdiction to try Dr. Mudd for the offense of which he was convicted.

In addition to the jurisdictional issue, the district court found that a portion of the Assistant Secretary's decision noting that Dr. Mudd had abandoned attempts to seek judicial relief in his lifetime was not supported by substantial evidence. We take no position as to the district court's decision in this regard. This decision focuses solely on the dispositive issue of whether the Hunter Commission had jurisdiction to try Dr. Mudd. No portion of this decision is premised on whether Dr. Mudd abandoned attempts to seek judicial relief during his lifetime.

At the time of his trial, Dr. Mudd was a citizen of the State of Maryland, a non-secessionist state. He was not formally a member of either the Union or Confederate armies during the Civil War. I also acknowledge that the civilian courts in Washington, D.C., were open at the time the Hunter Commission tried Dr. Mudd. However, these facts are not critical to the resolution of whether the Hunter Commission had proper jurisdiction in this case.

The ABCMR relied upon the case of Ex Parte Milligan, 71 U.S. 2 (1866), to support its recommendation. However, in light of the U.S. Supreme Court's more recent case of Ex Parte Quirin, 317 U.S. 1 (1942), I do not accept the ABMCR's recommendation. Milligan dealt primarily with martial law Jurisdiction, not law of war jurisdiction, for military commissions. In Ex Parte Quirin, the Court held that a military

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commission may try unlawful belligerents for law of war violations committed during a time of war, even though they are citizens of the United States. The Supreme Court stated, "Citizenship in the United States of an enemy belligerent does not relieve him of the consequences of a belligerency which is unlawful because of a violation of the law of war." Quirin at 5

Although I considered Dr. Jan Horbaly's testimony, I do not agree with his opinion and interpretation of Ex Parte Quirin that citizens of the United States cannot be tried by a military commission when the civilian courts are in operation. I also question his opinion that Quirin stands for the proposition that when a citizen acts as an enemy belligerent, they are divested of their status as a citizen, thus permitting them to be tried by a military commission. To the contrary, Quirin holds that citizenship in the United States and the fact that the civilian courts may be open are not relevant factors in determining which tribunal has jurisdiction to try civilian belligerents for law of war and military violations. Therefore, based on the Supreme Court's decision in Quirin, as further discussed herein, I find that Dr. Mudd's citizenship in the State of Maryland is notdispositive of the issue of whether the military tribunal had jurisdiction because Dr. Mudd was charged with acting as an enemy belligerent by aiding and abetting those who had violated the laws and customs of war.

    Dr. Horbaly dismissed the opinions of Attorney General James Speed and the decision of Federal District Court Judge Boynton in Ex Parte Mudd. Both opined that the  assination of President Lincoln in his capacity as Commander-in-Chief was essentially a military offense that could properly be tried by a military commission. Dr. Horbaly's argument that Ex Parte Milligan precluded the Hunter Commission from exercising jurisdiction over Dr. Mudd was made by Dr. Mudd himself in the United States District Court for the Southern District of Flenda over 130 years ago. Attorney General Speed and the federal district court correctly rejected this argument.

One might contend that the facts in Ex Parte Ouirin are distinguishable from those in the Mudd case because the assassination of President Lincoln did not occur during a time of formally declared war. However, the state of hostilities we now call the Civil War was not legally declared at an end until 1866. At the time of President Lincoln's assassination, Washington, D.C. served as the nation's military headquarters and was a fortified city. It remained under martial law for the duration of the Civil War and, as noted by the district court, remained under a form of martial law at the time of the Lincoln assassination. Soldiers, for the most part, conducted civil policing in and around the city. Under these circumstances, conditions tantamount to a state of war existed at the time of President Lincoln's assassination and at the time of Dr. Mudd's trial in 1865. The Hunter Commission, therefore, had jurisdiction over Dr. Mudd and the military offenses for which he was tried, notwithstanding that he could also have been tried in civilian courts.

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Any argument that the availability of civilian courts and applicability of civilian offenses preempted trial by military commission is plainly contradicted by Quirin. Dr. Mudd and the accused in Quirin were tried for violations of the laws and customs of war for military, not civilian offenses. The Quirin defendants argued that because there were analogous civilian offenses and because the civilian courts were available to hear the cases, they were entitled to be tried in a civilian court. The Supreme Court rejected this argument, concluding that it was up to the President and other Executive Branch officials to decide the appropriate forum. This reasoning also applies to the facts of the Mudd case.

Finally, Quirin relied on the fact that the President established the military commission based on his authority as Commander-in-Chief, acting in concert with the congressional authority contained in the Articles of War. The Supreme Court thus traced the authority for the commission back to the plenary authority of Congress to make rules for the armed forces and the authority to define and punish offenses against the law of nations, and the "necessary and proper clause" of Article I of the Constitution. The Hunter Commission was similarly constituted, and President Johnson properly determined it was the appropriate tribunal to hear the case.

Accordingly, I find that the charges against Dr. Mudd (i.e., that he aided and abetted President Lincoln's assassins) constituted a military offense rendering Dr. Mudd  accountable for his conduct to military authorities under the principles of the law of war and, therefore, subject to trial by the Hunter Commission, a properly constituted military commission. I further find that the Hunter Commission properly exercised jurisdiction over Dr. Mudd and the offenses for which he was convicted. 

Therefore, I must deny the recommendation of the ABCMR to set aside the conviction of Dr. Samuel Mudd or otherwise amend his records. I regret the length of time that has passed since the district court's decision, but assure you that this matter has been the subject of careful consideration and deliberation. I appreciate and respect your efforts on behalf of your client, Dr. Richard Mudd.

sincerely,

Return to Candida Ewing Steel
Dr. Mudd page

Patrick T. Henry

Assistant Secretary

Manpower & Reserve Affairs