Bitter analogy in war crime case: Indians, al Qaeda


Seminoles in 1818 similar to al Qaeda in 2001? Some Pentagon prosecutors appeared to make this analogy to support a Guantánamo war crimes conviction, then clarified in a war court filing.

President Andrew Jackson.
President Andrew Jackson.

The Bush administration and Congress created the Court of Military Commissions Review after the Sept. 11, 2001 attacks to decide the appeals of decisions by military judges and juries at the Guantánamo war court. The panel that heard last week’s appeals in the cases of Osama bin Laden driver Salim Hamdan and Bin Laden media secretary Ali Hamza al Bahlul: U.S. Air Force Col. Barbara Brand, as presiding judge, with U.S. Army Cols. David Conn, Theresa Gallagher, John Hoffman and Martin Sims; Air Force Col. William Orr Jr., Marine Corps Col. Joseph Perak and Navy Capt. Eric Price.

Pentagon prosecutors touched off a protest — and issued an apology this week — for likening the Seminole Indians in Spanish Florida to al Qaeda in documents defending Guantánamo’s military commissions.

Citing precedents, prosecutors reached back into the Indian Wars in arguments at an appeals panel in Washington D.C. Specifically, they invoked an 1818 military commission convened by Gen. Andrew Jackson after U.S. forces invaded then-Spanish Florida to stop black slaves from fleeing through a porous border — then executed two British men for helping the Seminole Indians.

Navy Capt. Edward S. White also wrote this in a prosecution brief:

“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.”

A native American advocacy group complained to the military court. Defense lawyers for two Yemenis convicted of war crimes at Guantánamo countered that the behavior of Jackson, the future U.S. president now on the $20 bill, was no shining example of American military justice.

A politically ambitious Jackson, defense lawyers wrote, waged “an illegal war” that set fire to entire Indian villages “in a campaign of extermination.”

In the legal precedent, U.S. troops convicted two British traders, Alexander Arbuthnot and Robert Ambrister, for helping the Seminoles and escaped slaves and sentenced them to a whipping. Jackson, a slave owner, declared the punishment too soft. He had them executed.

Florida historians are familiar with the episode.

“Arbuthnot was hanged from the yard arm of his own ship,” said University of Florida history professor Jack Davis. “Ambrister was killed by firing squad.”

At issue in the Court of Military Commissions Review is whether a newly minted post 9/11 war court crime — providing material support for terror — is legitimate for prosecution at a war crimes tribunal.

At oral arguments last week, prosecutors argue that when Congress created the war crime in 2006, it simply gave a new name to an old crime — “Aiding the Enemy” — that is also a available as a Guantánamo war crime, though never charged.

The military court is the first stop in a war court appeals system that could next go to a federal appeals court and the U.S. Supreme Court.

Retired Army Col. Francis Gilligan, defending the August 2008 conviction of Osama Bin Laden’s driver, Salim Hamdan, said in the 1818 case, “the substance there was the savage killing of civilians.”

Then, “The goal we know of al Qaeda is the savage killing of Americans wherever they find them throughout the world.”

The same day, the National Congress of American Indians, wrote the court.

“We wish to express our significant concern at the distorted and offensive historical analogy used by the United States in this case when it compared the first ‘Seminole War’ of 1817-18 to the terrorism of al Qaeda,” wrote John H. Dossett, the advocacy’s group lawyer

“The comparison of Native Americans to al Qaeda is disrespectful,” he said, to the nearly 24,000 American Indians currently serving in the U.S. armed forces, and some 383,000 veterans.

Davis, the history professor, calls the comparison “ridiculous.”

“One can make the argument that al Qaeda is the aggressors,” he told The Miami Herald from Gainesville, “but the Seminoles were the innocent targets.”

“It was Jackson invading the territory of a sovereign country, Spain, and he’s executing within that territory citizens of another sovereign country, Britain.”

By Monday, the chief Pentagon War Crimes prosecutor, Navy Capt. John F. Murphy, along with Gilligan and White, notified the appeals court that the government did not object to a National Congress of American Indians filing.

Moreover, the prosecutors acknowledged that the Seminole portion of the brief “could have benefited from greater precision.”

The government “in no way questions or impugns the valor, bravery and honorable military service of Native Americans, past and present,’’ the prosecutors wrote, adding that the Military Commissions prosecution team “does not, in fact, equate the conduct of the Seminoles in 1817-1818 with that of al Qaeda and its affiliated terrorist group.”

Rather, they wrote, 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.”

Defense lawyers, however, urged the court to ignore the Seminole argument.

In Florida, the Seminoles first learned of the brouhaha from a Miami Herald reporter.

General Counsel Jim Shore declared the tribe’s 3,500 members “deeply offended” by the government position.

“To equate the historic struggle of our ancestors in resisting General Andrew Jackson’s unlawful invasion of our homeland to al Qaeda terrorism is a vicious distortion of well-documented history,” he said Wednesday.

Shore said he would soon write Defense Secretary Roberts Gates “demanding” that the government withdraw the offending portion of the brief.

“The Government’s strained comparison of Native Americans to al Qaeda is disrespectful to our Tribe, all American Indians and our American Indian military veterans, as well as those in active military service,” he said.

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