Pentagon lawyer regrets Seminole-al Qaeda analogy

Defense Department General Counsel Jeh Johnson, right, and now former Deputy Defense Secretary William Lynn attend a House Armed Services Committee hearing on March 17, 2011 in Washington, DC.
Defense Department General Counsel Jeh Johnson, right, and now former Deputy Defense Secretary William Lynn attend a House Armed Services Committee hearing on March 17, 2011 in Washington, DC. GETTY IMAGES

The Pentagon’s top lawyer has sent the Seminole Tribe of Florida what amounts to an apology for Guantánamo war court lawyers likening al Qaeda to the Native American tribe in 1818.

But Defense Department general counsel Jeh Johnson made clear in the single-page letter that the U.S. government was standing by its precedent from Gen. Andrew Jackson’s Indian Wars in its bid to uphold the life-time conviction of Osama bin Laden’s media secretary at Guantánamo’s Camp Justice.

“I regret any larger suggestion that the Seminole Tribe should be equated with al Qaeda,” Johnson wrote in an April 7 letter. “I understand why the members of the Tribe and many others would take offense at the suggestion.”

Johnson pointed out in the letter that war court prosecutors had written the military commissions review panel “clarifying the legal point they originally intended to make” – that the analogy “could have benefited from greater precision” but was a valid precedent.

"The morality or propriety of General Jackson’s military operation in Florida is irrelevant,” they wrote.

Tribe lawyer Jim Shore wrote Secretary of Defense Robert Gates March 25 asking the government to withdraw the offensive portion of the 37-page military commissions brief that included this:

“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 Pentagon appellate lawyer, Navy Capt. Edward S. White, included the line in his defense of the conviction of Yemeni Ali Hamza al Bahlul, now serving life at Guantánamo, because military commission lawyers are relying on the precedent of an 1818 tribunal that ended in the conviction and executions of two English merchants in Spanish Florida.

In the 1800s, Jackson led a U.S. military invasion of Florida to stop black slaves from fleeing through a porous border and put the merchants before a military commission on charges of aiding the enemy, Seminoles. The commission found them guilty and sentenced them to hard labor, a punishment Jackson overruled and had the men executed.

Shore wrote Gates that the prosecutors’ statements were an apparent “effort to turn back the clock and rewrite history,’’ because they include the comparison, which is both “inaccurate and insulting, especially in the context of our ancestors’ resistance to an invading army engaging in a campaign of ethnic cleansing and other atrocities.”

Mitchell Cypress, the Seminole Tribe of Florida chairman, also wrote President Barack Obama a bitter letter that accused war court prosecutors of taking a “backward dive into racist, revisionist history.”

Johnson appeared to apologize:

“The Department and the Administration share your pride in the great progress our nation has made in correcting and learning from the injustices of the past,” he wrote, “and also recognize that much remains to be done.”

The tribe did not find the Johnson letter of regret sufficient.

After receiving the letter, Tina Osceola, the Tribe Historic Resources Officer, wrote the White House Friday saying the Seminoles still were awaiting a response from President Obama.

“We are hopeful that once the president reviews the chairman’s request, we can continue to work with your office to organize an official apology,” she wrote White House staffer Charles W. Galbraith. “We would welcome hosting such an event at our Big Cypress Seminole Indian Reservation.”

The White House spokesman responsible for tribal issues did not respond to a request for comment or confirmation that President Obama had seen the Seminole correspondence.

Johnson, in writing the note, copied in Secretary of Interior Ken Salazar on the apology, but not the president.

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