America's Disgraceful History Of Military "Trials"

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The latest assault on the civil liberties of the American people in the name of fighting terrorism is President Bush’s recent decision to use U.S. military tribunals to try foreigners accused of terrorist attacks and to decide on sentences, including the death penalty. This is a horrible idea with a horrible precedent: the largest mass execution in U.S. history.

In 1851 the Santee Sioux Indians in Minnesota sold twenty-four million acres of land to the federal government for $1.4 million. By August of 1862 thousands of white settlers continued to pour into the Indian lands even though none of the money had been paid to the Santee Sioux. There was a crop failure that year, and the Indians were starving. The Lincoln administration refused to pay them the money they were owed, breaking yet another Indian treaty, and the starving Sioux revolted.

A short "war" ensued, with Lincoln putting one of his favorite generals, General John Pope, in charge of federal forces in Minnesota. Pope announced that "It is my purpose to utterly exterminate the Sioux . . . . They are to be treated as maniacs or wild beasts, and by no means as people with whom treaties or compromise can be made." (Similar statements were being made at the time by General William Tecumseh Sherman, who said that to all Southern secessionists, "why, death is mercy").

The Santee Sioux were overwhelmed by the federal army by October of 1862, at which time General Pope held hundreds of Indian men, women, and children who were considered to be prisoners of war. The men were all herded into forts where military "trials" were held, each of which lasted about ten minutes according to David A. Nichols in Lincoln and the Indians. They were all found guilty of murder and sentenced to death even though the lack of hard evidence was manifest and they were not given any semblance of a proper defense. Most were condemned to death by virtue o the fact that they were merely present during a battle, during a declared (by the Indians) war.

Minnesota political authorities wanted the federal army to immediately execute all 303 of the condemned men. Lincoln, however, was concerned that such a mass execution of so many men who had so obviously been railroaded would be looked upon in a bad light by the European powers who, at the time, were threatening to support the Confederate cause in the War for Southern Independence. His compromise was to pare the list of condemned down to 39, with a promise to the Minnesota political establishment that the federal army would eventually kill or remove every last Indian from the state. As a sweetener to the deal Lincoln also offered Minnesota $2 million in federal funds.

On December 26, 1862, Abraham Lincoln ordered the largest mass execution in American history in which the guilt of the executed could not be positively determined beyond reasonable doubt. (The cartel of "Lincoln scholars" actually praises Lincoln for this act, claiming that it is yet another example of his humanitarianism and his "culture of life." He may well have killed 39 innocent people, they say, but it could have been much worse).

This is not to suggest that the Bush administration, with its decision to use military tribunals instead of civil courts to try suspected terrorists, will exercise the kind of tyrannical behavior that occurred during the Lincoln administration, but it could. Military men who are influenced by the passions of war are not suitable as unbiased judges. The administration should use the current crisis as an opportunity to speed up our sclerotic legal system and prosecute accused terrorists under the normal rules of trials that are consistent with the U.S. Constitution.

Thomas J. DiLorenzo [send him mail] is professor of economics at Loyola College in Maryland. His book, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, will be published in February.

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