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26 Whittier L. Rev. 981 (2004-2005)
The Essential Importance of Ex Parte Milligan

handle is hein.journals/whitlr26 and id is 1007 raw text is: THE ESSENTIAL IMPORTANCE
It would seem to me in light of the decisions in Hamdil and
• Elwood Earl Sanders, Jr., Esq., J.D. 1983 University of Alabama. Adjunct
Assistant Professor, School of Continuing Studies, University of Richmond. Sanders is
an associate with the Framme Law Firm in Richmond, Virginia. All affiliations are for
identification purposes only. Respectfully dedicated to Dr. Martin G. Arbagi, Dr. Reed
Smith, and Dr. Allen B. Spetter for their special encouragement to me as an
undergraduate at Wright State years ago.
1. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), My concern about the future of
Milligan arose from the plurality opinion of Justice O'Connor and the dissent of Justice
Thomas in Hamdi.
The plurality first stated:
There is no bar to this Nation's holding one of its own citizens as an enemy
combatant. In Quirin, one of the detainees, Haupt, alleged that he was a
naturalized United States citizen. We held that [c]itizens who associate
themselves with the military arm of the enemy government, and with its aid,
guidance and direction enter this country bent on hostile acts, are enemy
belligerents within the meaning of ... the law of war. While Haupt was
tried for violations of the law of war, nothing in Quirin suggests that his
citizenship would have precluded his mere detention for the duration of the
relevant hostilities.
Id. at 2640 (plurality) (internal citations omitted).
The opinion treated Quirin as limiting Milligan to its facts:
Ex parte Milligan does not undermine our holding about the Government's
authority to seize enemy combatants, as we define that term today. In that
case, the Court made repeated reference to the fact that its inquiry into
whether the military tribunal had jurisdiction to try and punish Milligan
turned in large part on the fact that Milligan was not a prisoner of war, but a
resident of Indiana arrested while at home there. That fact was central to its

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