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 Guantánamos 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 Ladens 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 advocacys 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.