Because this apparently needs saying periodically: Robert E. Lee was a traitor, fought for the slave empire, and should have been summarily executed at the end of the war.
- "Should have been summarily executed"?!
- What I’m hearing is that this may not comport with traditional notions of the law of war?
- and a little thing called the constitution
- What process is “due” in this circumstance seems open to fair debate
- I yield to no one in my awareness of the harm this cult has done but SOUTH was the region of summary justice, the mob, the noose and the bastinado. The victory of the North was a victory for Constitution and Law. Celebrating that victory with a lynching would have been dreadful.
- Describing the hypothetical death of the white leader of the Confederacy as “lynching” seems like a really dissonant comparison
- If done without process that’s what it would have been.
- It would have had process—a summary process, as is often used in many important contexts. Immigrants are removed every day in summary proceedings where no factual questions are at issue. Summary judgment can move billions of dollars around
- We have a process known as summary judgment and therefore we should have summary treason trials and executions?
- Arguing that the most infamous traitor in American history deserved certain treatment does not in any sense imply that it should be routine. To the contrary, actually.
- 1/ OK, let's back up and take stock here. The Constitution, the Geneva Conventions and CIL all prohibit summary executions of those in one's custody. It once was the case that spies could be summarily executed (e.g., Nathan Hale), but no more.
- 2/ Spies have also long had a sui generis status, for reasons that are obscure. I discuss this topic at great length in Part IV-B of this article (the most thorough modern treatment, I'm fairly sure, although not everyone will agree w/my explanations). https://georgetownlawjournal.org/articles/241/of-spies-saboteurs-enemy/pdf …
- 3/ In any event, Lee wasn't a spy. Nor did he commit any obvious violations of the laws of war (or in any event that's not what Ian was getting at). So Quirin is inapposite even if its holding--that military courts can try law-of-war violations--was correct. See Part III of ...
- 4/ ... of my Spies/Saboteurs article. Ian is focused on treason. The issue of whether it could be tried by a military court--w/o jury and Art. III judge--arose after the Civil War when Jeff Davis was captured. AG Speed concluded that it could only be tried in civilian court ...
- 5/ ... according to the heightened evidentiary standards that the Constitution prescribes for treason (which of course would have been easy to prove in the cases of Lee and Davis). The Court in Quirin actually later intimated the same, see 317 U.S. at 38-39. Ultimately, ...
- 6/ ... Davis was released, not tried, in accord w/Lincoln's expectations/exhortations before he died ("w/malice towards none; charity for all"). I discuss all this in Part III-C of this article. See also Cynthia Nicoletti's recent book on Davis's capture. https://www.columbialawreview.org/wp-content/uploads/2018/03/Lederman_The-Law-Of-The-Lincoln-Assassination.pdf …
- 7/ I don't believe there's any serious case to be made that treason can be tried in a military tribunal--let alone be punished with summary execution.
- You are simultaneously convincing me that I might have made a mistake & making me glad I did, because I’m learning a lot. Looking forward to reading the article!
- Thanks, hope you enjoy them!
- Mercifully there were no summary executions at the end of the Cibil War(and only one war crimes trial), and I don’t regret that; Lee did however commit treason.
Seth Barrett Tillman, You Be The Judge: An Exchange on Twitter on Summary Executions at the End of the U.S. Civil War, New Reform Club (Oct. 17, 2018, 2:24 AM), https://reformclub.blogspot.com/2018/10/you-be-judge-exchange-on-twitter-on.html.
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