Dr. Samuel A. Mudd
For nine years, I was privileged to serve as co-counsel with my great-great- grandfather on this case. My client, Dr. Richard Mudd, grandson of Dr. Samuel Mudd, has worked to clear his grandfather for most of his life, and sadly he died on May 21, 2002, before we accomplished this mission. Regrettably, I have had to suspend my repesentation because I am now Chief Administrative Judge of the U.S. Department of the Interior Board of Contract Appeals. (My great-great-great grandfather Senator Thomas Ewing was the first Secretary of the Interior in 1849!) Philip A. Gagner, of the Washington firm of Shaughnessy, Volzer & Gagner, is continuing to represent the Mudds, and they are intent on finishing their father's work.
In 1992, I represented the family before the Army Board for Correction of Military Records (ABCMR), arguing, as did my great great grandfather Ewing,, that since Dr. Samuel Mudd was a civilian citizen of the Union State of Maryland, the Military Commission had no jurisdiction to try him. The ABCMR agreed, and recommended that the conviction be set aside. The Army brass, however, refused to adopt the unanimous Board recommendation. Therefore, still representing Dr. Richard Mudd and his grandfather, I filed a lawsuit in U.S. District Court in the District of Columbia asking that the Judge order the Army to reconsider its decision. In October 1998 Judge Friedman issued a decision finding that the Army was arbitrary and capricious in refusing to set aside the conviction, and remanding the case for the Army's reconsideration. On March 6, 2000, the Army, through Assistant Secretary Patrick T. Henry, again refused to adopt the Board's recommendation. Click here for the Henry decision. (Some of these documents are in Adobe PDF format. If you need an Adobe reader, you can download it free byclicking on the button below.)
We asked Judge Friedman to review this new decision, and oral argument was held on October 2, 2000, Phil Gagner arguing for Dr. Mudd. Click here for a copy of the second Mudd summary judgment motion, the Army's response, our reply, and the hearing transcript. On March 14, 2001, unfortunately, Judge Friedman ruled in favor of the Army, holding that it was within executive discretion to decide a civilian citizen was subject to trial by a military commission for violations of the law of war, rather than indicted for trial by a U.S. Court. Click here to see this new decision, also in PDF format. The Mudd family, on April 2, 2001, appealed this decision to the United States Court of Appeals for the District of Columbia Circuit, because it believes that under the Constitution citizens are entitled to trial in a civil court. On December 10, 2001 the Court of Appeals denied the Government's motion for summary affirmance of Judge Friedman's decision which Dr. Mudd opposed. (Click here for the Government's reply. ) Here's Mudd's Brief, and here is the Government's brief. The Mudd reply is particularly well written. Unhappily, the Court of Appeals ruled against Dr. Mudd on the grounds that Dr. Sam was not in the military and therefore didn't have standing to dispute the military record!
Take a look at the webpage of my co-counsel Philip Gagner, He has some additional materials there, such as some of the briefs we filed in United States District Court when we were arguing to overturn the first Army decision before Judge Friedman. Also see Phil's 12/26/2001 article on the trial of U.S. citizens by military tribunals -- it is really excellent! Here are links to the President's 11/13/2001 executive order authorizing military commissions to try NON-citizens for terrorist acts, the ACLU's Timothy Edgar's 11/29/2001 memorandum on the subject, and a great 12/14/2001 article by John Dean.
January 21, 2003
