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A chapter in American history that has come to life again in the federal courts may shed light on the jurisdiction of post-Sept. 11 military tribunals. It involves the assassination of President Abraham Lincoln by John Wilkes Booth and the arrest, trial and conviction by a military commission of Dr. Samuel Mudd, who treated the injured Booth after his flight from Ford’s Theatre. Mudd’s heirs, led by his 101-year-old grandson, Dr. Richard D. Mudd, will appear before the U.S. Court of Appeals for the D.C. Circuit in September in their decade-long challenge to the jurisdiction and conclusion of the so-called Hunter Commission. Mudd v. Department of the Army, No. 01-5103. Mudd was convicted of aiding and abetting as an accessory after the fact in the conspiracy to kill Lincoln and other officials. Sentenced to life, he was pardoned by President Andrew Johnson because of his work during a yellow fever epidemic while in prison. He had argued that the commission lacked jurisdiction and that the trial violated his right to a civilian jury trial. If the court reaches that issue, it may “shed some light” on aspects of the operation of Bush administration military tribunals, says Eugene R. Fidell, president of the National Institute of Military Justice and a partner in Washington, D.C.’s Feldesman, Tucker, Leifer, Fidell & Bank. ‘MUDD’ REVIEW The orders establishing tribunals don’t provide for court review, Fidell says. But he adds, “They may not have shut the door to Mudd review.” Mudd’s heirs’ route to the federal courts started in 1990, when the grandson applied to the Army Board for Correction of Military Records, saying that his grandfather was not guilty and that the commission had lacked jurisdiction. Jan Horbaly, a retired Army reserve colonel with a Yale doctorate and expertise in court-martial jurisdiction, testified that there were two relevant types of jurisdiction: martial law and law of war. The commission couldn’t have had martial-law jurisdiction, which exists only if the civilian courts are closed, he said. Nor did it have law-of-war jurisdiction, which exists only when civilian courts are closed and a U.S. citizen is charged with treason, or when a state of war exists and a noncitizen belligerent is accused of violating rules of war. Mudd was from a state that hadn’t seceded. The board found that it had no authority to consider guilt or innocence but said the commission had lacked jurisdiction. It recommended that the conviction be set aside — which the Army refused to do. The heirs sued. Judge Paul Friedman found that the refusal was arbitrary and capricious. He sent the case back for a decision on whether Mudd’s U.S. citizenship precluded law-of-war jurisdiction. Assistant Army Secretary Patrick Henry, relying on Ex parte Quirin, 317 U.S. 1 (1942), said U.S. citizenship was relevant but not the last word. “Dr. Mudd was charged with acting as an enemy belligerent by aiding and abetting those who have violated the laws and customs of war,” he concluded. Lincoln was killed because he was commander in chief, Henry said, a military offense. Friedman ruled for the Army, citing Quirin and another case, which dealt primarily with martial-law jurisdiction. Ex parte Milligan, 71 U.S. 2 (1866). Among other issues, the cases raise the question of the role of federal courts, if any, in reviewing decisions of military commissions. On the circuit’s accepting the case for argument, Fidell says, “It’s hard to say too much about what it means when they deny summary affirmance. It just means they don’t think the issues are so clear. It’s not a slam-dunk.” The Mudds’ counsel, Philip A. Gagner of Washington, D.C.’s Shaughnessy, Volzer & Gagner, argues that the Army secretary’s interpretation of Quirin was wrong. “There was no evidence in the record, nor has the Army ever tried to identify any, suggesting that Dr. Mudd was an enemy belligerent,” he says. Nor, he adds, is there a record of either Mudd or the Hunter Commission being notified that the charge involved the law of war. Milligan, he argues, holds that civilian citizens cannot be tried by military tribunals when the courts are open, making no distinction between martial law and law-of-war cases. The Army says the court lacked jurisdiction to hear the suit and that military commissions are excluded from the definition of “agency” in the Administrative Procedure Act (APA), the basis of the Mudds’ case. Assistant U.S. Attorney R. Craig Lawrence says that the suit is a challenge to the legality of a military commission under the act. Gagner counters that the “agency” is not the Hunter Commission but the undersecretary of the Army in the context of an Army Board for Correction review. Using the board to review commission actions, with a shot at court review under the APA, appears to offer today’s Sept. 11 defendants more review than the president’s order envisions. “Obviously I think everybody will be looking at this case,” says Lawrence. “But you have a major distinction between Mudd and events related to Sept. 11. There is a question in the Mudd situation because he was a U.S. citizen. And there is the question of [the] role of the military commission in the circumstances of the Civil War. “You’re pretty far removed from that here. In addition, the ruling is probably not likely to be a straight-up determination of the validity of the military commission but, instead, whether the secretary’s decision was arbitrary and capricious.” But, he adds, “You never can tell exactly how these things will come out.”

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