Constitutional/Civil Rights: Defense Department Attorneys Attempt to Justify Military Commissions By Equating Al Qaeda with Native Americans

Credit to Jonathan Hafetz and the blog Concurring Opinions:  http://www.concurringopinions.com/archives/2011/03/the-pentagon-likens-native-americans-to-al-qaeda-more-than-just-an-incredibly-offensive-analogy.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ConcurringOpinions+%28Concurring+Opinions%29

Somehow, Defense Department lawyers thought they could strengthen their defense of military commissions by comparing the Seminole Indians of Spanish Florida to al Qaeda. (Hat tip to the indispensable Carol Rosenberg of the Miami Herald for picking this up).

In a recent brief to the Court of Military Commissions Review (CMCR), the Pentagon cited an 1818 military commission convened by General Andrew Jackson to execute two British men, Robert Ambrister and Alexander George Arbuthnot, for assisting the Seminole Indians after U.S. forces had invaded then-Spanish Florida to prevent black slaves from escaping.  The prosecution’s brief elaborated: “Not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violate the customs and usages of war. Because Ambrister and Arbuthnot aided the Seminoles both to carry on an unlawful belligerency and to violate the laws of war, their conduct was wrongful and punishable.” (emphasis added).

Bad lawyering? Very. Offensive? Deeply. Revealing? Highly.

The filing set off a storm of protest, prompting the National Congress of American Indians (NCIA), the nation’s oldest and largest association of tribal governments, to file a letter brief with the CMCR correcting the record. As the NCIA put it:

“This is an astonishing statement of revisionist history. General Jackson was ordered by President Monroe to lead a campaign against Seminole and Creek Indians in Georgia. The politically ambitious Jackson used these orders as an excuse to invade Spanish-held Florida and begin an illegal war, burning entire Indian villages in a campaign of extermination. The Seminole efforts to defend themselves from an invading genocidal army could be termed an “unlawful belligerency” only by the most jingoistic military historian. General Jackson narrowly escaped censure in the U.S. Congress, was condemned in the international community, and his historical reputation was stained with dishonor.”

Prosecutors acknowledged that the Seminole portion of their brief “could have benefited from greater precision” and clarified that they do not actually “equate the conduct of the Seminoles in 1817-1818 with that of al Qaeda.” Instead, prosecutors noted, the government “cites General Jackson’s campaign and the tribunals he convened not as an example of moral right but as legal precedent: the morality or propriety of General Jackson’s military operation in Florida is irrelevant.”  Prosecutors, to my knowledge, have not agreed to withdraw the offensive portions of the brief or disavowed their reliance on this precedent.

The Ambrister- Arbuthnot commission may be historical evidence, but it’s not legal precedent and it’s very poor evidence. That commission was never considered or validated by any court. Jackson, meanwhile, was almost censured by Congress and the decision was castigated, including by the House Committee on Military Affairs.  William Winthrop, whom the U.S. Supreme Court has called “the Blackstone of Military Law” and repeatedly cited in Hamdan v. Rumsfeld and other opinions, later described Jackson’s order to execute Ambrister (after the commission had sentenced him to corporal punishment) as “wholly arbitrary and illegal.”  (Winthrop also remarked that if an officer had ordered the execution as Jackson had, he “would now be indictable for murder.”). If one were defending the commissions, this is historical evidence you’d normally want to bury, not showcase.

So why did the government stoop so low?  Because one of the charges at issue–material support for terrorism–has never been treated as a war crime, nor is it viewed that way today, except by the U.S. Congress. Prosecutors are thus seeking to avoid looming constitutional problems (under the ex post facto clause and define and punish clause) by arguing that material support for terrorism is analogous to the traditional crime of aiding the enemy. The Ambrister-Arbuthnot commission was the best they could dig up in support.  The argument is as unpersuasive as it is offensive.