Redford's "The Conspirator'

We're supposed to be a country of conspiracy nuts, but when it comes to presidential assassins, the only theory we're allowed to credit is that of the lone assassin. James A. Garfield, William McKinley, John F. Kennedy, Robert F. Kennedy and Ronald Reagan were brought down, respectively, by a disappointed office-seeker, an anarchist, a lone drifter, a Palestinian nationalist and a fan of Jodie Foster. Same drill for Martin Luther King and George Wallace.

Well, we do have plenty of nuts on the loose, and guns to match. And some guns may indeed contain magic bullets, as Arlen Specter imaginatively suggested in the case of the first Kennedy assassination.

But Secretary of War Edwin Stanton, effectively the country's chief executive in the immediate aftermath of Lincoln's assassination, had no doubt that his president had been slain by Southern conspirators in revenge for their defeat in the Civil War. The Union couldn't be defeated, but its leader could be struck down, as an act both of justice and revenge.

A snake with many heads

No one could doubt who shot Lincoln, because John Wilkes Booth leaped down on the stage of the Ford Theatre, pistol in hand, to take credit for it. But who was behind Booth, or at least in cahoots with him? Vice President Andrew Johnson was also targeted, and Secretary of State William Seward was attacked.

Washington, D.C., was then a city bordering on what had lately been Confederate territory. Lee had surrendered at Appomattox, but not all Southern forces had yet laid down their arms. The result of the Civil War wasn't going to be reversed, but pacifying the South would be greatly complicated by Lincoln's death. Secession was a snake with many heads— and all of them, in Stanton's view, had to be cut off for good.

We are now observing the Civil War's sesquicentennial, but for all the commemorations and battle reenactments, Hollywood has been surprisingly reticent on the subject. (So has our black president.) The Union won the war, but the South has won the battle of legend, and, though Lincoln has been lionized any number of times, no notable film about his presidency has ever been made. Robert Redford's The Conspirator, this year's only Civil War film, is no exception.

The Nixon exception

It begins with Lincoln's assassination, and concerns the trial and execution of the accused conspirator Mary Surratt, in whose Washington boarding house Booth apparently plotted. Lincoln himself is shown only in the act of being shot (an uncharacteristically confused sequence) and carted off. We see his funeral train, and the popular images of him that proliferated after his death. He is, as always, only an icon.

But then, Americans have a hagiographical reverence for the presidency— George Washington failed to prevent our chief executive from becoming a monarch— and the only American president who has been treated with anything approaching realism is Richard Nixon.

Mary Surratt's son John was involved with Booth, although a hung jury subsequently freed him. He was a fugitive when Mary was brought, with other conspirators, before a military tribunal. The evidence against her was scanty and mostly circumstantial, but her conviction was a foregone conclusion.

A Catholic, to boot

She was, in Redford's telling, a stand-in for her son, and Stanton was determined to hang all of Booth's accomplices, real or substitutional. Mary was guilty of having borne her traitorous son; her premises had been used by Booth, who was on familiar terms with the entire Surratt family. She was a Southerner, allegedly an unrepentant rebel, and a Catholic.

Her defense— that she was a landlady who minded her own business— wasn't convincing. Too much had been going on in her house for too long.

It's certainly a question whether the evidence that convicted Mary could have held up in a civilian court, but a tribunal was used because a treasonable felony was alleged, and Washington was still deemed a war zone. A year later, and as an at least indirect result of Mary's trial, the Supreme Court would rule in Ex parte Milligan that where civilian courts operated, civilians couldn't be tried by tribunals, even in time of war.

Appeal for clemency

If Mary's prosecution was, as Redford suggests, primarily a bait to lure her son John out of hiding, her death sentence was similarly designed as judicial theater. Five of the nine military judges subsequently appealed to President Andrew Johnson for executive clemency on her behalf. Stanton opposed clemency, and Johnson rejected it.

When Mary's lawyers succeeded in persuading a federal judge to issue a writ of habeas corpus to stop her execution on the grounds that she had been improperly tried in a military court, Johnson was able to quash this too, since the Habeas Corpus Act of 1863, put forward by Lincoln, had authorized the suspension of the Great Writ in wartime.

Inter arma enim silent leges—"In time of war, the laws are silent." In fact, the Civil War was never legally a war at all but, technically speaking, the suppression of a rebellion.

Echoes of The Crucible

Similarly, America's current "War on Terror" isn't a war either, but a hunting license to go after anyone we designate an enemy, be he a head of state, a jihadist in a cave or, for that matter, an American citizen. This is a dangerous game for a people that hopes to remain free or even secure, which is why the assassination of Osama bin Laden shouldn't make us feel safer. And the bill for permanent war currently being put up by House Republicans should positively terrify us.

As I take it, Redford's film is a tract for our times, as Arthur Miller's The Crucible projected the Salem witch trials on the McCarthy era. When Redford's Edwin Stanton (a good turn by Kevin Kline) tells Mary's lawyer, Frederick Aiken (a callow James McAvoy) that without a country the laws cannot exist, the proper response— which Aiken fails to give— is that when the laws do not exist, there is no country either.

Justice is always an ideal, but legal process ought to be a given. Yet, in the case of Jose Padilla, the U.S. citizen convicted in 2007 of aiding terrorists, the George W. Bush administration succeeded in setting aside Ex parte Milligan and making a travesty of Padilla's eventual civil trial.

Bound for martyrdom

Some have criticized Redford for making not only Mary but also the Confederate cause overly sympathetic. I find rather that, in Robin Wright's Sphinx-like performance, Mary appears as someone beyond guilt or innocence, a figure who knows that, whatever the truth of her case, she is bound for martyrdom.

That's what happens when the laws don't operate. The perpetrators of 9/11 regarded themselves as "martyrs," but we shouldn't play their game.

Unfortunately, the killing of Bin Laden has hooked us more deeply into it. Of course, had we captured, tried and duly executed him, we would have only arrived at injustice by a more circuitous route. But the death penalty is a story for another day.