Combatants vs. aiders and abettors
doughr at ACAD.UDALLAS.EDU
Thu Dec 13 11:36:18 PST 2001
Lincoln's 1863 letter to Erastus Corning states Eugene's point nicely, I
think (whether one agrees with Lincoln, or with Eugene, is a separate
"Long experience has shown that armies cannot be maintained unless
desertions shall be punished by the severe penalty of death. The case
requires, and the law and the Constitution sanction, this punishment.
Must I shoot a simple-minded soldier boy who deserts, while I must not
touch a hair of a wily agitator who induces him to desert? ...I think
that in such a case to silence the agitator, and save the boy is not
only constitutional, but withal a great mercy."
Lincoln is presumable referring here to the Vallandigham case, since he
had just been speaking of it; he did commute the sentence to banishment
within the Confederate lines. Mark Neely suggests Lincoln did himself
something of a disservice in the letter, though, publicly defending "an
arrest of which he did not wholeheartedly approve," and that this has
damaged his reputation among civil libertarians.
University of Dallas
Volokh, Eugene wrote:
> I think there's a great deal to Chris's point, but I was
> wondering if we could explore it some more.
> First, to support the argument, to the comparison of Quirin
> and Milligan we might add the comparison of Quirin, Haupt (330 US
> 631), and Cramer (325 US 1). Recall that Haupt and Cramer were
> accused of treasonously harboring the very saboteurs who were tried in
> Quirin; but they were tried before civilian courts, not military
> tribunals. The Court didn't, to my knowledge, hold that such a
> procedure was necessary, but I think that the executive decision to
> treat Quirin et al. differently from Haupt and Cramer reflected the
> insight that Chris mentions below. One who aids and abets a saboteur
> is not the same as a saboteur.
> But on the other hand, it seems odd to distinguish principals
> from aiders and abettors -- a distinction that the law rarely much
> focuses on. Is the explanation for the distinction that those who are
> sent behind enemy lines with the intention of committing sabotage or
> espionage are different from those who are recruited here to help with
> it? As I mentioned, I find this appealing, but at the same time I'm
> not sure how robust or persuasive such a distinction might be.
> Wouldn't some say, in response to the claim that "some distinction
> must be made between combatants or belligerents (Quirin) and
> non-combatants who are actively trying to support a rebellion or war
> effort (Milligan)," that someone who begins to try to actively support
> a rebellion or war effort -- not just with advocacy but with harboring
> or other aiding and abetting -- has *become* a combatant or a
> In any event, I think Chris's distinction is a very important
> one, and I've tentatively leaning in this direction myself. But I'd
> really love to hear what others think about it.
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