Tuesday, April 19, 2011

By John C. Whatley

I see some of our “detainees” at Gitmo are still complaining about their treatment at the hands of the U.S. Government. Despite getting 3 hots and a cot, their own religious visitors, and a Koran (the “flushing” incident having been proven a lie), they want to be Americans – at least so far as legal rights are concerned.

It could have been worse for them: They could have been treated like Confederates.

Let’s take a look at the Lincoln conspirators. They were Dr. Samuel Mudd (who treated Booth as he fled Washington), Samuel Arnold, Michael O’Laughlin, Edward Spangler, Lewis Payne (who attacked Secretary of State Seward – executed), George Atzerodt (executed), David Herold (executed although he made a deal – he was the only one of the conspirators who knew that John Wilkes Booth had not been killed), and Mary Surratt (at whose boardinghouse all the conspiracies allegedly were made – executed). Although not charged at the time of their arrest, eventually they were all charged with conspiracy to kill President Lincoln, conspiracy to kill Vice President Johnson, conspiracy to kill Seward, conspiracy to kill Gen. Grant, etc. etc. Apparently the eight conspirators, along with John Wilkes Booth, were capable of taking out the entire U.S. Government!

Originally imprisoned on ironclads in the Potomac River, the prisoners were removed to worse quarters. Except for Mrs. Surratt, everyone was in leg shackles with a bag over his head. “The Secretary of War requests that the prisoners on board the ironclads belonging to this department, for better security against conversation, shall have a canvas bag put over the head of each and tied about the neck, with a hole for proper breathing and eating, but not seeing, and that Payne be secured to prevent self-destruction.” The padding was one-inch cotton and cotton bolls were placed on their eyes. They wore these 24 hours a day. By the way, Payne was for some reason allowed to keep his pocket knife, which he gave to his attorney after the trial, saying, “Thanks for all your help. Here, I’d like you to have my jackknife. It’s the only earthly thing I have to give.”

All prisoners were denied basic sanitary needs, including baths. In addition, they wore stiff-shackle handcuffs, so that one hand could not be moved without moving the other. Payne was also fitted with an iron ball on his bare feet. Whatever they wore when they came in was still on them. Mrs. Surratt had worn winter clothes when she was arrested, and in the summer still wore them. Thomas B. Florence, editor of The Daily Constitutional Union, described Mrs. Surratt’s quarters after she was transferred from the ironclad to Old Capitol Prison: “Its only furnishings consisted of a very thin straw mattress, an army blanket and an old pail. She had neither washing utensils, nor a chair to sit in, nor a single comfort for her toilet or dress.”

The remaining seven prisoners were transferred to the Arsenal Penitentiary and placed in different cells on different floors, so that they essentially occupied three cells each. In front of each cell was an armed guard. The prisoners were allowed visitors, but there were none: The pass had to be signed by the Secretary of War and the Secretary of the Navy. Arnold later said, “Some kind Christian heart provided us with Bibles, from which some consolation could be obtained by the perusal of its pages, but these were soon removed and taken away.” A doctor was allowed to see the prisoners. The guards were not allowed to talk to the prisoners.

The trial was conducted, on the Government’s part, under the “Laws of War”. What are these? There aren’t any, so the court, consisting of military officers, could apply any they wanted to. Defense counsel Walter Cox summed up his thoughts on the Common Law of War: “What a convenient instrument for trampling upon every constitutional guarantee, every sacred right of the citizen! There is no invention too monstrous, no punishment too cruel, to find authority and sanction in such a common law. Is it possible that American citizens can be judged and punished by an unwritten code, that has no definitions, no books, no judges nor lawyer; which, if it has any existence, like the laws of the Roman Empire, is hung up too high to be read? I deny that the Common Law of War has anything to do with treason, or anything traitorous, as such.”

The prisoners, except for Mrs. Surratt, were brought into the court in shackles. Asked if they wanted counsel, they were generously allowed to find counsel by 10:00 a.m. the next morning. Of course, counsel could only talk with their client in open court, but the trial was a foregone conclusion. Defense witnesses were required to face the military panel and not the defense counsel. The Government’s perjured witnesses, being paid large sums to lie under oath, presented enough of a case that the predetermined verdict of guilty came in. “David E. Herold, Lewis Payne, Mrs. Surratt and George A. Atzerodt are to be hung tomorrow, by proper military authorities. Dr. Mudd, Arnold and O’Laughlin are to be imprisoned for life, and Spangler for six years, all at hard labor, in the Albany Penitentiary.” There was no appeal. Lawyers filing a motion for writ of habeas corpus discovered that the President has suspended it.

On the morning of July 7, 1865, the four condemned were hung. Their bodies were not released to their families. Soon thereafter the U.S. Supreme Court decided that military tribunals could not try civilians, so the trial of the Lincoln conspirators was illegal, as was the trial of Andersonville Prison commander Maj. Henry Wirz, and the non-trial of Jefferson Davis (which are other stories for another time).

Oh, yes, it could be worse. They could be treated like Confederates.

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