The Gilder Lehrman Institute of American History

Activity 1: The Treason of Jefferson Davis and Robert E. Lee.

1. Read and discuss the following excerpt from the US Constitution:

   Article III Section 3 of the Constitution of the United States, Art. III, states:

   Treason against the United States, shall consist only in levying war against them [Note: the States are written in the plural in 1787], or in adhering to their [the states'] enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

   • What are the key facts of this excerpt from the Constitution?
   • How does the Constitution define treason?
   • What conditions are placed upon convicting a person of treason?
     
     
2. Read the following statement:

   "Regardless of one's opinion on the Southern decision to attempt to secede from the Union the Constitution makes it clear that both Jefferson Davis and Robert E. Lee (along with a host of other Confederates) levied war against them and therefore committed treason."

   • Do you agree with this statement?
   • Did Jefferson Davis and Robert E. Lee commit treason as defined by the Constitution?

   Article III Section 3 goes on to say that:

   The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

   • Congress had the power to declare treason a crime punishable by death and it did.
   • Other men were tried and convicted of treason before the Civil War --In 1859 Abolitionist John Brown was famously convicted and executed for committing treason against the State of Virginia at Harpers Ferry. In an ironic twist, John Brown and his followers were captured by Union Army Colonel, Robert E. Lee.
     
     
   Why didn't the United States Government try, convict, and execute Jefferson Davis and Robert E. Lee?
   

Notes for teachers:

Here are the key things to consider regarding Davis and Lee.

1. They were guaranteed a trial in the locale where the crime took place -- i.e. the South.
   
2. They were guaranteed the option of selecting trial by a jury of their peers.
   
3. Where in the South could you find a jury of white men willing to unanimously convict Robert E. Lee or Jefferson Davis?
   
4. Ex Parte Milligan essentially forbade the US Government from trying them in a military court.
   
5. Neither Lee nor Davis were at the time of their treasonous activities members of the U.S. military. Both had legally resigned their commissions -- Davis many years earlier, Lee in early 1861 -- therefore, neither could be tried in military courts.

Though I tell my students to avoid Wikipedia like the plague (my apologies to Wiki-aficionados) there is an accurate and brief description of just what Milligan was charged with and convicted for as well as a description of the court case. It can be found at: http://en.wikipedia.org/wiki/Ex_Parte_Milligan


Activity 2: The German Saboteurs and Ex Parte Quirin

1. Read and discuss the basic facts of Operation Pastorius:

   Prior to this activity the teacher will need to go to the FBI website and print-out the story of Operation Pastorius. The text and photos can be easily highlighted, copied and pasted into a word document or students can access the information at the FBI's famous cases webpage:

   http://www.fbi.gov/libref/historic/famcases/nazi/nazi.htm

   A second online resource of the landing on Long Island is available at: http://www.montauklife.com/history/history_night_of_ the_nazis.html

2. In the chart provided students can answer ten basic questions about Operation Pastorius. This can also be done as part of a class discussion.

3. Ex Parte Quirin:

   The eight saboteurs were tried by a military tribunal starting on July 8, 1942 and concluding with the conviction of all eight on August 4, 1942. All were sentenced to death and after President Roosevelt commuted the sentences of two of the men who had volunteered information to the government the other six were executed at the District of Columbia Jail on August 8, 1942.

   While the military trial was taking place one of the defendants, Richard Quirin, challenged the legality of the military tribunal under which he was being tried. Quirin's lawyers argued that all eight defendants had a right to trial in the civil courts. In their pleading they mentioned the Ex Parte Milligan case.

   The Supreme Court met in special session on July 29, 1942 and ruled that the President had the right to order the creation of a special military tribunal. Excerpts from the Court's decision can be found on the sites listed below:

   A brief explanation of the case can be found at: http://law.jrank.org/pages/13645/Ex-Parte-Quirin.html
   This is probably more suitable for student use because it's so much shorter than the excerpts from the Court's decision.

4. Was it legal?
   
   Does the President have the right to try enemy spies or combatants captured on US soil in military tribunals?

Notes for teachers:

Here are the key things to consider regarding the case of the German Saboteurs.

1. They were tried secretly -- a public announcement was not made until later.
2. There was a fear of a public trial allowing defense secrets to become public.
3. Some argue that J. Edgar Hoover (always an easy target) and other government officials were concerned that a public trial would open their agencies to criticism for not capturing the saboteurs on their own (without the betrayal of the men by one of their number).
4. A number of the online articles listed in the resources are critical of the government's efforts to capture the saboteurs.
5. Both the defense attorneys filing their petition for Richard Quirin and the Supreme Court cite Ex Parte Milligan -- though both sides view the precedent of Milligan differently.
6. The citing of Ex Parte Milligan provides the opportunity to discuss the importance of precedent in our legal system.

Extension Activities:

1. The terrorist attacks of September 11, 2001 left 3,000 American civilians dead. Ask your students how Osama Bin Laden and those responsible for the attacks should be tried if they were captured.
   
2. It might be useful to also discuss or briefly study the trials of other recent terrorists such as Timothy McVeigh whose 1995 attack on the Alfred P. Murrah Federal Building in Oklahoma City left 168 dead, or Theodore Kaczynski, the Unabomber. In both cases the two men were tried and convicted in civilian courts.

   Timothy McVeigh special report from CNN: http://www.cnn.com/SPECIALS/2001/okc/

   There is also information on McVeigh's trial on the Famous Trials website from University of Missouri Kansas City Law Professor Doug Linder.

   http://www.law.umkc.edu/faculty/projects/ftrials/mcveigh/ mcveightrial.html

   Unabomber special report from CNN: http://www.cnn.com/SPECIALS/1997/unabomb/