I was both pleased and disappointed with the new Robert Redford-directed movie about the conspiracy to assassinate Abraham Lincoln, The Conspirator.  I need to lower my expectations about such treatments, like the Alexander Hamilton documentary on PBS which I recently wrote about.  I need to view them like the dog who talks — it’s not so much what he says, but that he talks at all!  It’s a wonderful thing that people are trying to reach a wide market with a serious attempt to grapple with historical situations and people.

So I begin with the good parts of the movie.

It evokes the era well.  The dress and deportment of the main characters, the appearance of the rooms, the dialogue itself — none if it made me squirm over screaming anachronisms.  I really was drawn back to that moment in time.  That’s an impressive achievement.

The portrayal of Mary Surratt by Robin Wright, the central defendant in the movie version of the case, was credible.  She was an unrepentant Confederate, and that’s acknowledged.  There is a moment when she says to her lawyer (a Union army veteran) that they are “no different” because they both stood by their ideals during the war.  I longed for some voice to note that the ideals of the Confederacy were fundamentally wrong, but I suppose it was fair enough for her to get away with the facile comparison; surely, that was how Confederates felt.  Also, although the movie worries a good deal over how unfair her trial was, she is not portrayed as particularly charming or sympathetic.  She was a strong woman.  I believe she was entirely guilty of participating in the conspiracy.  The movie played that fairly straight.

But there were a few things that stuck in my craw:

• A fundamental premise of the movie is that her lawyer, Frederick Aiken, did a great job defending her.  That is not accurate.  I have read the transcript of the trial.  He was a rookie trial lawyer and he performed that way.  Some have suggested that she would have fared better if she had had no lawyer at all.  So, is this just Hollywood license?  We need to have someone to root for, since Mrs. Surratt’s not very sympathetic?  I suppose so.
• The movie portrays Sen. Reverdy Johnson of Maryland as a defender of the Constitution and a stout fellow, even though he hornswoggled Aiken into defending Mrs. Surratt and then slipped out the side door.  The portrayal is galling.  Johnson was the winning lawyer in the Dred Scott case that helped preserve slavery and ignite the Civil War.  His abandonment of Mrs. Surratt was widely viewed as based on his dismay over her guilt; many think it condemned her to conviction. An fundamentally misleading portrayal.
• The movie makes Edwin Stanton, Secretary of War, the heavy.  He’s the one who supposedly set up an unfair trial system for Mrs. Surratt and her seven co-defendants.  Stanton is easy to demonize; he was a very difficult human being, by all accounts.  But the movie simultaneously shortchanges President Andrew Johnson and lets him off the hook.  It shortchanges Johnson by largely ignoring him, yet he made the final decisions on all major points about the conspiracy trial.  And it lets him off the hook the same way, leaving Stanton to be the heavy.
• The fundamental message of the movie is that Mrs. Surratt’s trial before a military commission was not fair.  It probably was not.  Yet the filmmakers do not note a critical feature of that unfairness:  the two prosecutors were allowed to participate in the deliberations of the nine Union Army officers on the commission.  That, to put it simply, was outrageous.  

Largely unspoken but unavoidable, the movie draws an analogy to today’s military commission trials at Guantanamo, leading us into the ideological muck of 1865 and of today.  Mrs. Surratt’s son, John, who was incontestably Booth’s right-hand man for the conspiracy, received a trial in 1867 in a civil court in the District of Columbia.  The jury deadlocked, and he was set free.  Some argue that his mother should have had the same opportunity to appeal to the prejudices of South-leaning jurors to cheat the hangman.  The Surratt non-verdict was an appalling miscarriage of justice, and it is difficult to take seriously the suggestion that his mother was entitled to the same.

That does not clarify the questions surrounding the military commissions for Guantanamo?  Sunday’s Washington Post reports that prosecutors have concluded that they have enough evidence to prosecute in a civil court only 36 of the remaining detainees.  For all the rest, the evidence is simply not that good.  So why are they not set free?  Because, we are told, they are “the worst of the worst.”  Except we cannot prove it.

The notion behind using a military commission for a trial is that warlike conditions make the use of a civil trial impractical; evidence cannot be gathered or presented in an orderly fashion, and courts are just not available (in theory).  That was a borderline call for the Lincoln conspirators in the summer of 1865.  The war was mostly over, but there were still some Confederate units in the field, and the president had just been assassinated by Southern sympathizers who also tried to kill the vice president and the secretary of state.  So maybe a commission was justifiable for Mrs. Surratt. 

Today in Guantanamo?  The detainees have been incarcerated without any trial for almost ten years.  Several hundred have been released after full investigation demonstrated insufficient basis for continuing their imprisonment.  For those still detained, much of the evidence would have to come from battlefield situations on the other side of the world, many of them a decade in the past.  The physical obstacles to presenting an effective prosecution are tremendous.  On the other hand, though we are still fighting in Afghanistan and Iraq, it cannot seriously be argued that our courts are disrupted by that fighting.

Sometimes living by the rule of law means accepting verdicts that are offensive.  I still am offended that Andrew Johnson escaped removal from office after his impeachment trial in 1868.  And that John Surratt evaded prosecution.  I will be similarly offended if dangerous Guantanamo detainees were to escape conviction following civil trials.  But that is the price of the rule of law.

And I give Redford’s film, and the current coverage of Guantanamo in the Washington Post, full credit for leading me to think through this intractable situation again.