Turtle Talk

Matthew’s Commentary:

Coming on the heels of the Geronimo/bin Laden Incident, what do you make of the government’s expropriation of indigenous history— using Geronimo as the code name for Osama bin Laden, and then citing the Jackson’s murderous actions against the Seminoles and Brits as a precedent for the prosecution of Al Qaeda suspects?

Generations of West Point officers learn about war from studying the “Indian wars,” and so it would make perfect sense for them to draw an analogy between Indians and al Qaeda. The military tradition is that the Indians were the bad guys, they were savage and engaged in non-traditional, even scary warfare, and that they had no rights under the U.S. Constitution. As such, they were fair game for anything—anything at all—the U.S. military wanted to do to them. Preemptive attacks on unarmed women and children like Wounded Knee, indefinite detention in concentration camps like Fort Sill, mass executions for trumped up war crimes like at Fort Snelling all of it legally justifiable from the point of the view of the military. Same is true in the Department of Justice, where in the days following 9/11, Bush Administration attorneys like John Yoo (now a Berkeley law professor) and Jay Bybee (now a Ninth Circuit judge) argued that the President needed no authorization from Congress to engage in torture, establish military jails and commissions to house and try al Qaeda suspects, etc., through extensive reliance on Indian war-related “precedents” involving self-serving legal opinions about the Modocs, the Seminoles, the Dakota at Fort Snelling, and others. It was Yoo and Bybee who authored so many of the so-called “torture papers” who first explicitly compared the Seminoles and other tribes to al Qaeda. The military prosecutors are just cribbing from them.

What do you think of the government disregarding the moral issues surrounding Jackson’s actions and insisting it was only considering the legal precedent?

If the “precedents” involving the Seminoles and other tribes were Supreme Court cases, they’d be the equivalent of Korematsu (which the Solicitor General just apologized for). Korematsu is an example of an immoral action creating a legal precedent that later was repudiated. I’ve yet to see the Department of Justice repudiate anything expressly when it comes to Indian law—the taking of Indian property without providing just compensation—Tee-Hit-Ton Indians v. US, for one example. And that’s an easy one. No one would seriously object to it. But that rule is still there and has application. I would –argue that legal precedent cannot be persuasive if based on a fundamental immorality—but Indians always seem to be the exception.

And from the article:

Andrew Jackson’s illegal and heavily censured actions during the First Seminole War in 1817 were cited recently during the military trial of a Guantanamo prisoner and was used as a precedent for the $690 billion defense authorization bill recently passed by Congress that would give the president unilateral authority to wage war at home or abroad and detain anyone suspected of terrorism or “providing material aid to terrorism” anywhere in the world, indefinitely and without trial. Although there is no direct connection between the Guantanamo case and that legislation, the right of free speech is threatened by both and raises fears that the legislation could be used to squelch any kind of dissension or resistance to government policies or actions. And coming on the heels of the government’s use of “Geronimo” as the code name for Osama bin Laden, the man who epitomized global terrorism, indigenous peoples fear that the legislation could be used against them for asserting their right to self determination, sovereignty and the protection of their lands and resources against exploitation by governments or corporations.

And

In the course of making their case that providing aid is a war crime under military jurisdiction, the prosecutors compared the Seminoles to Al Qaeda and the Yemeni prisoner to the two British men. They said the conduct of the two British men was viewed as “wrongful, in that they were assisting unlawful hostilities” by the Seminoles and their allies. “Further, 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 violated the customs and usages of war.” That slur against the Seminoles was not the only mistake the prosecutors made in using the execution of the two British men to build their argument, said Samuel T. Morison, Appellate Defense Counsel in the Department of Defense and an expert in 19^th century legal history. The Jackson incident “is problematic,” Morison wrote in a forthcoming essay in the University of Pennsylvania Journal of International Law, Vol. 33, 2011 called History and Tradition in American Military Justice “because it is also one of the most notorious episodes in the history of American military justice.”