Administration Continues to Cling to Precedent of Slavery, Genocide, and Illegal Belligerency to Legitimize Its Actions

It has increasingly become clear that the Obama Administration treats the category of “terrorist” more flexibly than the Bush Administration did. With the introduction of the term “countering violent extremism,” for example, the Administration broadened the potential application of terrorist tools to those who were simply, according to them, “extremists.” Then there’s the odd treatment of a bunch of Colombian right wing terrorists, who were extradited on drug charges (but not terrorism), and then entirely disappeared from the docket, with allegations that at least one of them had been freed. And while the Obama Administration has charged some white people with using WMD (a terrorism crime), the disparity in its use is stark.

Carol Rosenberg has been tracking another telling example of the Obama Administration’s flexible interpretations of terrorist-like activity: DOD’s citation of a legally suspect ruling about an attack on Seminoles as precedent for trying material support for terrorism in military commissions.

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.”

In other words, our government is siding with slavery, genocide of Native Americans, and Andrew Jackson’s illegal belligerency–it is citing our own country’s illegal behavior–to find some support for the claim that material support is a military crime.

Not surprisingly, the Seminole tribe objected (see Rosenberg’s collection of documents in the case here).  And now Jeh Johnson (he of the claim that Martin Luther King would have empathized with the attacks on Afghans) has apologized to the tribe–but reiterated our reliance on the precedent.

The Pentagon’s top lawyer has sent the Seminole Tribe of Florida what amounts to an apology for Guantánamo war court lawyers likening al Qaida 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.

And so it is that our government clings desperately to one of the darkest chapters of our history to legitimize its current actions. Rather than reflect on what that means–how damning it is that we can point only to Andrew Jackson’s illegal treatment of Native Americans to justify our current conduct–the government says simply, “a precedent is a precedent!”

Apparently, our country has learned nothing in the last 200 years.

Update: Jackson corrected for Johnson, thanks to JTIDAHO.

  1. harpie says:

    I like this from the prosecutors:

    [from the linked Miami Herald article]

    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.”

    • Jeff Kaye says:

      Yes, I saw that, too. Good catch, and really gets to the amoral core of what this government is all about.

      Thanks for highlighting this, EW, and thanks to powwow for the excellent references to the little-reported CMCR arguments.

      As to the ridiculous article on the CIA, the source for the criticism re the CIA supposedly pulling back is dubious, CIA-linked itself, the International Crisis Group. This article by John Pilger has a nice vignette that captures what kind of people this is, highlighting a certain moment with Gareth Evans, the President emeritus of ICG:

      In my film Death of a Nation, there is a sequence filmed on board an Australian aircraft flying over the island of Timor. A party is in progress, and two men in suits are toasting each other in champagne. “This is an historically unique moment,” says one of them, “that is truly uniquely historical.”

      This was Gareth Evans, Australia’s then Foreign Minister. The other man was Ali Alatas, the principal mouthpiece of the Indonesian dictator General Suharto, who died on the weekend.

      The year was 1989, and the two were making a grotesquely symbolic flight to celebrate the signing of a treaty that would allow Australia and the international oil and gas companies to exploit the seabed off East Timor, then illegally and viciously occupied by Suharto. The prize, according to Evans, was “zillions of dollars”.

      Beneath them lay a land of crosses: great black crosses etched against the sky, crosses on peaks, crosses in tiers on the hillsides. Filming clandestinely in East Timor, I would walk into the scrub, and there were the crosses. They littered the earth and crowded the eye. In 1993, a Foreign Affairs parliamentary committee reported that “at least 200,000” had died under Indonesia’s occupation: almost a third of the population.

      The article is pure spin, as noted in this paragraph (where you must imagine the poor CIA interrogators, forced to sit with their hands in the laps and be good boys and girls while the security officers from other countries tolerate their presence:

      U.S. officials say they expect the CIA will be given access to intelligence gleaned from Indonesia’s interrogations of Patek, and may even be allowed to sit in and provide guidance, given the close ties between U.S. and Indonesian counter-terrorism officials.

      The article is a joke. Can’t you hear them laughing when Saxby Chambliss says “Now we’ll have to rely on a foreign government to grant us access to this terrorist to obtain vital intelligence, if we’re lucky.”

      • fatster says:

        One of the commenters to this curious article succinctly noted that there’s “no big change in policy here . . . we’re just removing our fingerprints.”

      • earlofhuntingdon says:

        I don’t suppose Australia’s criticism of Indonesia’s alleged genocide reflected its own treatment of aboriginal populations. It does seem to admit that the conflict there, as is likely true of US interventions across North Africa and the Middle East, is about resources and money, not about who’s being nice to the natives or “giving” them Freeeeeedom.

    • harpie says:

      ooops, this should be on the previous thread…sorry! [except maybe for the “moral leadership” aspect, maybe…see comment @1]

  2. JTIDAHO says:

    Excellent post – I always read emptywheel every morning, but its Andrew Jackson, not Andrew Johnson (too many Jacksons and Johnsons). First is first sentence after the first quote, second is second sentence after the second quote.

  3. powwow says:

    This gives me a good opportunity to highly recommend that readers take the time to listen to the (repeat) oral arguments in the two pivotal cases at issue before the Court of Military Commission Review (CMCR), which were held on March 17th in Washington, D.C. [It is those CMCR proceedings in which the Seminole arguments were raised by government lawyers. Unsurprisingly, and contrary to the information I had when I wrote this 3/17 comment, there were in fact two repeat oral arguments that day before the en banc CMCR, not one, because Hamdan was also reargued.]

    3/17/2011 Oral Arguments: Al Bahlul, or Case #09-001, and Hamdan, or Case #09-002.

    I particularly recommend the Al Bahlul argument, which was the first of the day (the original Al Bahlul CMCR oral argument in January, 2010 was never made available by the CMCR): Michel Paradis did an outstanding job on behalf of both Ali al Bahlul (who is serving a life sentence at Guantanamo, after being denied the ability to defend himself, and refusing the services of his DOD defense counsel David Frakt) and our Constitutional system of government. Paradis sounded thoroughly familiar with his subject, confident, and uncowed by the line-up of eight military officers facing him to test his arguments for the second time.

    In the Hamdan argument, Hamdan’s long-time civilian defense counsel Joseph McMillan of Hamdan’s Perkins Coie pro bono team repeated the solid, competent performance he delivered a year ago, against the same lame, even embarrassing, performance by retired Army Colonel Fran Gilligan for the government – Gilligan’s argument was again largely political, and obviously tailored for his former military colleagues serving on the CMCR.

    D.C. reporters drooling over, or dreading, the prospects of attending their first military commission proceedings at Guantanamo, if and when the alleged perpetrators of 9/11 are hauled out of their cages for some sort of presidential-prisoner proceedings before military judges and juries, ought to take special care to familiarize themselves with these CMCR proceedings, however belatedly. That’s because the pending judgements in these two appeals – from a new court now composed solely of military officers who also serve on the appellate service courts of criminal appeals (for members of the American military) – may well soon play a decisive role in the future of the ongoing subversion of justice by our Congress and President at their segregated Guantanamo Military Commission playground.

    There are a few well-defined issues at stake in these two appeals, and, as the Seminole reference highlighted in the post indicates, the government is grasping at straws to defend the 2006 Congressionally-asserted “universal war crimes” of “material support for terrorism” and “conspiracy” – acts committed by the defendants years before 2006, to boot. If the CMCR is determined to defend these two Commission convictions at any cost, it will likewise need to grasp at straws (and will be seen to be doing so), in my opinion. Thus, the failure of the Obama administration to await these two CMCR rulings, before forcing AG Holder to walk the plank and void a valid Grand Jury indictment for the 9/11 attacks, having already waited this long to make its move, seems like the height of folly, even if taking the path of least political resistance is one’s only guiding principle, as seems to be the case with Barack Obama.

    The CMCR could try to limit its rulings to the specific facts of these two cases (the only two Commission cases which will reach the CMCR, unless and until future 9/11 Commission proceedings ensue). Or the CMCR could honorably make up for its unseemly leisure in deciding these important appeals (the only cases on its docket) – delay which has further postponed putting the question of the legitimacy of the latest, 2006 version of the Guantanamo Military Commissions four-square before our independent federal judiciary – by addressing the fundamentals that lie just beneath the surface of both cases (the Constitutional reach of Congressional power in this area, for example); broader rulings which would impact all Commission proceedings going forward, even as appeals continue in the D.C. Circuit and possibly beyond.

      • powwow says:

        They had to wait until David Kris, who believed the material support charges may be illegal, [left], don’t you think?

        Which of course doesn’t bode well for the outcome.

        Yes (in the process helping push out a valuable public servant, with rare personal integrity at the high-level position he held), and yes.

        [I wouldn’t be a bit surprised, either, if another political calculation went into this – a calculation that it wouldn’t hurt to try to pressure the CMCR into upholding the military commissions/convictions, by having Obama make such a high-profile move to rehabilitate the commissions, for the 9/11 perpetrators, while the CMCR’s decisions are still pending. At minimum, I’m sure that the Obama administration is counting on the appeals process outlasting his term of office, regardless of how the CMCR rules “in (over-) due course.”]

    • thatvisionthing says:

      Swell the background music:

      “If there’s an Arab American family being rounded up without benefit of an attorney or due process, that threatens my civil liberties.” – Barack Obama

      “Guantanamo, that’s easy. We close down Guantanamo, restore habeas corpus, say no to renditions, no to warrantless wiretaps…” – Barack Obama

      “We are going to lead by example. By maintaining the highest standards of civil liberties and human rights…. No more ignoring the law when it is inconvenient. That is not who we are.”

      – Barack Obama

  4. fatster says:

    CIA has slashed its terrorism interrogation role
    The agency has stopped trying to detain or interrogate suspects caught abroad, except those captured in Iraq and Afghanistan.


  5. fatster says:

    Thanks ever so much, EW, for underscoring the ugliness that also marks US history. What Jackson did in south GA, north FL and eastern AL while chasing the Seminoles and Creeks was simply barbarous.

  6. donbacon says:

    violate the customs and usages of war

    Like those bastards, the Minutemen.

    BY the rude bridge that arched the flood,
    Their flag to April’s breeze unfurled,
    Here once the embattled farmers stood,
    And fired the shot heard round the world.

    — Ralph Waldo Emerson

    The British, following current US military policy, would have killed the farmers before they ever got to the bridge according to an ISAF news release.

    KABUL, Afghanistan (March 18, 2011) – Afghan National Security and International Security Assistance Forces killed several suspected insurgents during a combined operation to detain a known insurgent leader in Nahr-e Saraj district, Helmand province, today.

  7. earlofhuntingdon says:

    Mr. Obama inherited Bush’s Burrowers at the DoJ. He hasn’t just accepted them, rather than fight their abuse of civil service protections. (He seems incapable of fighting opponents; he’s only confident fighting would be supporters). He has elevated their stature and empowered them to make increasingly obscure and violent uses of awful precedents.

    That his DoJ is reduced to citing precedents relating to genocide against American Indians – even those that combined making war on them to defend slavery – is testament to how little credible support his views find in the law of nations or the hearts of men.

    Using America’s tortured “legal” claims against native populations to justify his own perverted versions of justice and security is beyond words. It borders on analogies we once, but no longer, would have considered obscene. The one that comes to mind is Nazi prosecution of Jews for violating the Nuremberg Laws.

    Is Mr. Obama so empty a suit that he has lost his soul? Or is he the proverbial water looking for the nearest, strongest vessel to give him shape – regardless of what filth that vessel already contains?

    • fatster says:

      Or, perhaps we could borrow an idea from Grover Norquist for that proverbial water of which you speak?

    • patrickhenrypress says:

      Someone posted on another thread a quote from him in 2005 which suggests the rhetoric of the campaign was misunderstood by most of us. He meant to compromise. He signaled it when he said he’d negotiate (in the context of foreign adversaries) anyone at any time.

      Negotiation = compromise. We’ve been compromised. Negotiation complete.

      Based on his actions, that’s what he meant. The rest was hollow rhetoric crafted to win election. He and his handlers knew Bush would be despised. And they knew we’d elect Stalin himself if he masqueraded as the AntiBush.

    • Staggerlee says:

      I hope that phrase isn’t trademarked because I’m gonna use it. If you thought of it, bravo.

  8. Starbuck says:

    So, now anyone who wants to downplay precedent need only to read this. POTUS could equally stand for “Precedent Of The United States.

  9. donbacon says:

    from Attackerman:

    Under President Obama, the CIA is barred from holding terrorism detainees in secret prisons. That’s the Joint Special Operations Command’s job now.

    KIMBERLY DOZIER, AP Intelligence Writer, Apr 8 2011:

    KABUL, Afghanistan (AP) — “Black sites,” the secret network of jails that grew up after the Sept. 11 attacks, are gone. But suspected terrorists are still being held under hazy circumstances with uncertain rights in secret, military-run jails across Afghanistan, where they can be interrogated for weeks without charge, according to U.S. officials who revealed details of the top-secret network to The Associated Press.


    The most secretive of roughly 20 temporary sites is run by the military’s elite counterterrorism unit, the Joint Special Operations Command, at Bagram Air Base. It’s responsible for questioning high-value targets, the detainees suspected of top roles in the Taliban, al-Qaida or other militant groups.

  10. wendydavis says:

    “Will there never be an end to the Indian Seminole Wars?”

    When I am verbally accosted by members of the Tea Party and 9/12ers in this redneck county, and they babble on hysterically about Obama and detention camps and rooundups, I do have to slow them down to say, “You have some of it right, but it’s not so much YOU who must fear this: it’s anyone who can be called and ‘extremist’.

    Thanks, Emptywheel.

  11. earlofhuntingdon says:

    The US asserts the right to use ad hoc military commissions to try alleged terrorists. It cites an example of their use from 1818, by Andrew Jackson after the First Seminole War (1817-18), and makes the following hurried distinction, as quoted by the Miami Herald:

    [T]he 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.”

    When citing examples of persuasive, not binding, legal precedent, it’s dangerous to distinguish the precedent’s “legal” value from its morality or propriety. Those are what make the example persuasive. The legal arguments are analogies, not controlling law. They are considered persuasive because their arguments are so compelling that they should be regarded as if they were binding, even though they are not.

    Using Andrew Jackson’s ad hoc military tribunal in 1818 as precedent for the use of such commissions today is the basest sophistry. Its jurisdiction was questionable, its process was summary, and so was the ultimate execution of two British subjects, which General Jackson decreed despite his commission’s recommendation of leniency. Their execution haunted Jackson’s career for decades.

    Andrew Jackson made his name fighting Indians and taking their territory. Those wars ultimately made him president. Jackson,

    was a land speculator, merchant, slave trader, and the most aggressive enemy of the Indians in early American history. He became a hero of the War of 1812, which was not (as usually depicted in American textbooks) just a war against England for survival, but a war for the expansion of the new nation, into Florida, into Canada, into Indian territory.

    America fought three Seminole wars from 1817 – 1858. They were three acts in the long American play entitled Indian Removal [genocide]. The rationale was that it was America’s Manifest Destiny to control the land from sea to shining sea. Denying Indians their lands, life and liberty was just the means. Howard Zinn:

    The philosophy of Manifest Destiny in America was not far from the Soviet rationale today [2000], that…”one nation has a preeminent social worth, a distinctively lofty mission, and consequently unique rights in the application of moral principles.” Socialism and liberalism both have advantages over feudal monarchies in their ability to throw a benign light over vicious actions.

    The First Seminole War resulted in the US taking Florida from the moribund Spanish empire. Jackson’s role was akin to Stanley MacChrystal’s. He led a punitive expedition into foreign territory to punish native Americans for being natives and for allegedly helping escaped slaves. Except that as subjects of the Spanish crown, they owed no duty to the United States. They had no duty to protect the “property rights” that southern Americans regarded as sacrosanct because they formed the basis of their entire economy. They had no duty to regard escaped slaves as slaves and not people.

    Never mind. After the fighting stopped in 1818, Jackson formed a “military commission” to try two Brits who were alleged to have aided the Seminoles, not a criminal act under Spanish rule. His ad hoc commission recommended they be whipped and imprisoned. Jackson, a slave owner, dismissed 50 lashes (a brutal punishment) and a year at hard labor as too lenient. He hanged one man from the yardarm of his own ship, and had the other shot by firing squad.

    Those are the values that peek through the administration’s thinking and its overt defense of the use of that precedent. It is acknowledging that it is engaged in illegal wars and is using illegal methods to pursue them. That’s the important take away.

    • spanishinquisition says:

      Also Congress condemned those trials as both lacking jurisdiction and not giving the accused their rights. Congress passed an act to the effect disapproving those trials. If the Obama administration is going to cite a non-binding Senate resolution about the UN as proof Obama was authorized to go to war with Libya, the Obama administration should also cite the Congressional condemnation of Jackson’s illegal trial and execution of those British citizens.

    • emptywheel says:

      In addition to my suspicion that they waited until Kris was gone to use this precedent, I think they also would not have made it had Zinn been alive. No one could better explain to a mainstream audience how galling this is.

      That said, you did a damn good job worthy of Zinn.

        • earlofhuntingdon says:

          For a refreshing take on American history from the perspective of those traditionally called its “losers” – whether in economic or military wars, and be they the working man and woman, the slave, the Indian, the immigrant – it would be hard to beat Howard Zinn. A good place to start is his People’s History of the United States.

          He taught and advocated for history from a non-traditional perspective and was often ostracized for it. Academics use “advocate” as an epithet, implying Greenwaldian versions of unSerious or lacking in objectivity. Zinn was unabashedly revisionist. The wealthy, he said, like Rockefeller and Carnegie, had entire universities to write their histories and support their legacies. The men who worked their mines, factories and oil fields barely had shirts on their backs.

          Zinn chronicled the lives of the ordinary, the thousands who built the pyramids, not the lone figure interred under them, in a very unordinary way.

    • fatster says:

      “After the fighting stopped in 1818, Jackson formed a “military commission” to try two Brits who were alleged to have aided the Seminoles, not a criminal act under Spanish rule.”

      Those Brits were Alexander Arbuthnot, a 71-yo Scottish trader and Robert Ambrister, a 30-yo trader from Nassau. Jackson had them appear before a court-martial crew of petty officers that he assembled on the spot there at St. Marks. They tried, but had difficulty finding overwhelming evidence Ambrister was guilty, though they recommended he be shot, then returned an hour later and recommended instead that he receive the 50 lashes. Jackson struck through their second recommendation and wrote “Approved” under the first. They found evidence that Arbuthnot was innocent, but went ahead and found him guilty anyway, and recommended he be hanged. Jackson approved of that finding. Early the next morning, Jackson and his men rode off, leaving one detachment of troops to carry out the sentences.

      My reference is an old book that, remarkably, is still in print. A briefer account is here.

    • thatvisionthing says:

      Can we look to Cherokees too? Like, that’s what I think of when you bring up Andrew Jackson and Indian tribes and legal decisions — the Trail of Tears. Earlier the Cherokees had won in the Supreme Court and Jackson is reputed to have said “John Marshall has made his decision, now let him enforce it!”

      A quick wiki swipe:

      Before his election as president, Jackson had been involved with the issue of Indian removal for over ten years. The removal of the Native Americans to the west of the Mississippi River had been a major part of his political agenda in both the 1824 and 1828 presidential elections.[42] After his election he signed the Indian Removal Act into law in 1830. The Act authorized the President to negotiate treaties to buy tribal lands in the east in exchange for lands further west, outside of existing U.S. state borders.

      While frequently frowned upon in the North, and opposed by Jeremiah Evarts and Theodore Frelinghuysen, the Removal Act was popular in the South, where population growth and the discovery of gold on Cherokee land had increased pressure on tribal lands. The state of Georgia became involved in a contentious jurisdictional dispute with the Cherokees, culminating in the 1832 U.S. Supreme Court decision (Worcester v. Georgia), which ruled that Georgia could not impose its laws upon Cherokee tribal lands. Jackson is often quoted (regarding the decision) as having said, “John Marshall has made his decision, now let him enforce it!” Whether he said it is disputed.[43]

      Then he faked a treaty, extended and pretended the Cherokees (so HAMP) in court, and then his successor Van Buren forcibly removed them. 4,000 died.

      Certainly a suitable precedent on the list of presidential-military national shames. Worth revisiting.

      • earlofhuntingdon says:

        Yes, I was thinking of the Trail of Tears, too, but decided that was too lengthy to get into. The Howard Zinn Project has a 10 page teaching guide for it, available here (free, requires registration):

        The events leading up to the infamous Trail of Tears, when U.S. soldiers marched Cherokee Indians at bayonet-point almost a thousand miles from Georgia to Oklahoma, offer a window into the nature of U.S. expansion—in the early 19th century, but also throughout this country’s history.

        The Cherokees were not the only indigenous people affected by the Indian Removal law and the decade of dispossession that followed. The Seminoles, living in Florida, were another group targeted for resettlement. For years, they had lived side by side with people of African ancestry, most of whom were escaped slaves or descendants of escaped slaves.

        A 2006 docudrama shown at a film festival in Denver explored the lives of the Cherokees after they traveled their 1000 miles trail of tears:

        By most estimates, nearly 4,000 Cherokee Native Americans died on the infamous Trail of Tears — the paths from Georgia to Oklahoma that some 17,000 Cherokees were forced to traverse in the late 1830s as part of Andrew Jackson’s Indian Removal Act….James Garner and James Earl Jones, both of Cherokee ancestry, narrate parts of the film, as does Cherokee actor Wes Studi, who provides on-screen narration in his native language.

        Those numbers understate the tragedy; they don’t deal with the loss of life beforehand, a subject Zinn’s People’s History covers. There’s an extensive literature on the Trail, itself only an accessible milestone on a centuries’ long drama that continues today. In addition to the summaries available at the Howard Zinn Project and in his A People’s History of the United States, see books by Tracy Barrett, Katie Marsico, John P. Bowes, Theda Perdue, and Vicki Rozema.

        Andrew Jackson made Indian Removal his life’s work, as he did supporting slavery. Not coincidentally, the Cherokee and other tribes were made to walk the Trail of Tears, all 1000 miles of it, during Jackson’s presidency. It was only one aspect of his aggressive enforcement of the Indian Removal Act.

        • earlofhuntingdon says:

          Andrew Jackson signed the Indian Removal Act on May 26, 1830, during the second year of his presidency. That act “authorized” the forcible removal of the Cherokee and other tribes from their lands (emphasis added).

          In 1831 the Choctaw were the first to be removed, and they became the model for all other removals. After the Choctaw, the Seminole were removed in 1832, the Creek in 1834, then the Chickasaw in 1837, and finally the Cherokee in 1838. After removal, some Native Americans remained in their ancient homelands – the Choctaw are found in Mississippi, the Seminole in Florida, the Creek in Alabama, and the Cherokee in North Carolina. A limited number of non-native Americans (including African-Americans – usually as slaves) also accompanied the Native American nations on the trek westward. By 1837, 46,000 Native Americans from these southeastern states had been removed from their homelands thereby opening 25 million acres (100,000 km2) for predominantly white settlement.

          A generous estimate of the compensation paid to Indian tribes for those 25 million acres puts it at about a quarter of the market rate for similar lands. Such a deal.

        • earlofhuntingdon says:

          Compare the 1000 mile Trail of Tears to a well-known march that took place 100 or so years later. In 1942, when the Philippines fell to the Japanese, roughly 75,000 Filipino and American POW’s were sent on what was described as the Bataan Death March. The march was 60 miles long and took about a week.

          This description of the Bataan march parallels the attitudes and treatment meted out a hundred years earlier in the several removals of Indian tribes from the American South to the Oklahoma territory (citations omitted):

          The treatment of the American prisoners was characterized by its dehumanization, as the Imperial soldiery “felt they were dealing with subhumans and animals.” Trucks were known to drive over those who fell or succumbed to fatigue, and “cleanup crews” put to death those too weak to continue. Marchers were harassed with random bayonet stabs and beatings. Accounts of being forcibly marched for five to six days with no food and a single sip of water are in postwar archives including filmed reports…. [The estimated] rate of death [was] from one in four up to two in seven.

          Those were men of military age, some fit, some exhausted and sick. Indian removal involved whole families and took place over decades, involving water and land routes. Marches lasted months. The Trail of Tears refers only to the 1838 relocation of the Cherokees. Estimates for the period 1830-1845 vary, but hover between 1-in-4 and 1-in-3.

          The Bataan Death March was considered a war crime. The Japanese general responsible for it was tried, convicted and executed in 1946.

        • thatvisionthing says:

          Yes, I was thinking of the Trail of Tears, too, but decided that was too lengthy to get into.

          The thing that put it tops in my mind was that was when a President told the Supreme Court to fuck off. I don’t know much about history, but that’s something I remember.

          So much to read here, I’ll try to get to it. Thanks to everyone, especially eoh, fatster and powwow

  12. Staggerlee says:

    These disparities are ingrained in American law, I thought we learned this from the crack cocaine/powdered cocaine sentencing laws.

    • earlofhuntingdon says:

      From the Library of Congress research article you cite, Congress’ reviewed Jackson’s use of a military commission to try two British subjects – Arbuthnot and Ambrister – concerning their behavior in Spanish Florida, for which Jackson had them executed following conviction by his hand-picked tribunal (emphasis added, citations omitted):

      [T]he House Committee on Military Affairs issued a report highly critical of the trials. The committee could find “no law of the United States authorizing a trial before a military court for offenses such as are alleged” against the two men, except that of “acting as a spy,” for which Arbuthnot was found not guilty. It acknowledged that the law of nations recognized that “where the war is with a savage nation, which observes no rules, and never gives quarter, we may punish them in the persons of any of their people whom we may take, (these belonging to the number of the guilty,) and endeavor, by this rigorous proceeding, to force them to respect the laws of humanity; but wherever severity is not absolutely necessary, clemency becomes a duty.” Having examined the documentation, the committee was unable to find “a shadow of necessity for the death of the persons arraigned before the court.”

      That’s the precedent that Mr. Obama wants cited and defended in his campaign to use military commissions to try a handful of (newsworthy) alleged terrorists?

      Does Mr. Obama imagine that his critics here and abroad, especially among the peoples most directly affected by his wars in North Africa and the Middle East, are as ignorant of history and the law as he hopes are his own people?

      • earlofhuntingdon says:

        The congressional committee’s review concluded that Jackson’s tribunal lacked jurisdiction over the crimes the men were accused of, that its evidentiary procedures were flawed, and that Jackson’s overruling of the tribunal and imposing the death sentence was flawed. It disapproved of both the trials and the executions.

        Proving that Dick Cheney’s performance during the congressional investigations of Reagan’s Iran-Contra Affair was not original, a

        “minority report from the committee largely defended Jackson’s actions, discovering “much which merits applause, and little that deserves censure.””

        The full House, then as now beholden to the sources of wealth (eg, slavery, acquiring Indian lands) that took them to high office, after a month of debate, ultimately rejected the committee’s findings and approved of both the trials and executions.

        Congress, though, wasn’t finished with Jackson. A select Senate committee reviewed his conduct. It concluded Jackson’s executions were “unnecessary”

        “Humanity shudders at the idea of a cold-blooded execution of prisoners, disarmed, and in the power of the conquerer.” The committee rejected the theory that Arbuthnot and Ambrister were “outlaws and pirates,” and pointed out that Jackson, having created a military court to try them, set aside the sentence of whipping and confinement “and substituted for that sentence his own arbitrary will.”

        Jackson’s supporters persuaded the Senate to adjourn without acting on the committee’s report.

        Jackson had waged and quickly won his war against the Seminoles in the sort of military campaigns he made his life’s work. His military commission, sitting in Florida after hostilities were over had all the leisure it wanted to consider the facts and the law. This was no hurried justice; it was a hurried lack of justice.

    • earlofhuntingdon says:

      Many thanks for the citation. The Library of Congress report’s analysis of the precedential value of Jackson’s 1818 military tribunal’s decision is chilling. Especially so is the executive power-supporting distinction cited by William Birkhimer. No doubt, such reasoning is why Mr. Obama’s lawyers chose to resurrect so volatile a 200 year-old precedent (emphasis added):

      Experts in military law have differed on the legitimacy of Jackson’s action. William Winthrop, writing toward the end of the nineteenth century, noted that if any officer ordered an execution in the manner of Jackson he “would now be indictable for murder.” To William Birkhimer, in his 1904 treatise, Jackson had asked the special court only for its opinion, both as to guilt and punishment, and the delivery of that opinion could not divest Jackson of the authority he possessed from the beginning: to proceed summarily against Arbuthnot and Ambrister and order their execution. Birkhimer’s analysis would allow generals to execute civilians without trial or to dispense with the fact-finding and judgment that results from trial proceedings.

      Birkhimer was writing at the dawn of the 20th century. America’s destiny had been made manifest: it finally occupied all the land from sea to sea. Buffalo Bill Cody was no longer an Indian scout; he ran a circus. America needed to look elsewhere to expand, and it had just acquired the Philippines and parts of Cuba from Spain. Birkhimer was writing at the dawn of the American overseas empire, and it needed precedents it could count on, just like Mr. Obama.

      • spanishinquisition says:

        “Birkhimer’s analysis would allow generals to execute civilians without trial or to dispense with the fact-finding and judgment that results from trial proceedings”

        And Obama is doing that now too

        • earlofhuntingdon says:

          That’s certainly the consequence of Mr. Obama’s assertion that he can impose sentences of indefinite detention on defendants who win a verdict of “innocent”. What’s the rule of law for if not to use as the president’s personal pinata?

  13. sunshine says:

    I watched the republican History channels show on O a couple months ago. They said the reason he didn’t/wasn’t fullfilling his campaign promises was because of “the Office” of the Prez. That once you get there you find you cannot do what you promised. While watching the republicans talking I felt like O was either being blackmailed or the office that has the power is the pentagon’s. They also don’t like O having a Blackberry. People are creatures of habit and O has just changed too much to say it’s campaign money.

  14. OscarRomero says:

    Another example of what Obama administration means by terrorist: Luis Posada Carriles. Why are they letting this admitted terrorist live in Miami? Why don’t they extradite him to Venezuela, which has been requesting extradition for a long time? Blowing up airplanes is okay with Obama as long as it’s Cubans who die.

  15. ondelette says:

    The deeper issue is, of course, that it is a war crime — in the sense of a grave breach of Protocol I by violating Article 75 — to charge and convict a detainee of armed conflict for war crimes or even ordinary crimes that were not crimes at the time the detainee was detained. The Pentagon is working overtime to justify charging people detained earlier than 2006 with a war crime created by Congressional statute in 2006.

    Since Hillary Clinton has just proclaimed that the U.S. will abide by Article 75 as customary international humanitarian law, the landscape is perhaps a bit changed.

  16. earlofhuntingdon says:

    Surely, lawyers working for Barack Obama could find less volatile precedents for their insistence that military-controlled tribunals are the only safe, secure means of establishing the guilt or innocence [sic] of a handful of newsworthy alleged terrorists. Or maybe not.

  17. earlofhuntingdon says:

    An interesting sidebar about the Cherokee that would have appalled their white southern neighbors is this: they had no bar against intermarriage with whites and African Americans. That was a felony in the ante-bellum and post-Reconstruction South. Civilized white folk are still struggling with it.

    • fatster says:

      And then there is this controversy.

      Thanks, EOH, for covering the Cherokee, too. A ggggrandmother perished on the Trail of Tears. Her sister survived, and fled OK, returning as near to her ancestral home in northern GA as she could. She lived in a northern AL county adjacent to GA as she dared not cross that dotted line else she be arrested and sent back to OK.

      • earlofhuntingdon says:

        Apparently, the Indian Removal Act as implemented left in place native Americans living with permission on private lands.

        The principal removals were from lands “owned” collectively by the tribe. (Differences in understanding between ownership and stewardship we’ll leave for another time.) That, of course, covered the vast bulk of the Indian population and of those 25+ million acres – a huge swath of the South – that white settlers and land speculators like Jackson and his supporters wanted access to.

        • fatster says:

          GA repealed their anti-American Indian laws in 1980. Imagine that! This article also discusses the Creeks to some extent. Jackson’s campaign against them, chasing them mercilessly into AL, was not altogether successful, though. The Creeks were clever, knowing full well how to hide in the thickets and swamps for however long it took, and they did.

          • thatvisionthing says:

            Nice to think that the Creeks could best Jackson at his own game

            The Battle of New Orleans
            written by Jimmy Driftwood
            sung by Johnny Horton

            In 1814 we took a little trip
            Along with Colonel Jackson down the mighty Mississip.
            We took a little bacon an’ we took a little beans
            And we caught the bloody British at the town of New Orleans.

            We fired our guns an’ the British kept a’comin’.
            There wasn’t nigh as many as there was awhile ago.
            We fired once more an’ they begin to runnin’
            On down the Mississippi to the Gulf of Mexico.

            We looked down the river an’ we seed the British comin’,
            There must a’been a hundred of ’em beatin’ on the drum.
            They stepped so high an’ they made their bugles ring,
            We stood beside our cotton bales an’didn’t say a thing.


            Ole Hickory said we could take ’em by surprise,
            If we didn’t fire our muskets ’til we looked ’em in the eyes.
            We held our fire ’til we seed their faces well,
            Then we opened up our squirrel guns an’ really gave ’em …well!


            Yeah, they ran through the briars an’ they ran through the brambles
            An’ they ran through the bushes where the rabbits couldn’t go.
            They ran so fast that the hounds couldn’t catch ’em
            Down the Mississippi to the Gulf of Mexico.

            We fired our cannon ’til the barrel melted down,
            So we grabbed an alligator an’ we fought another round.
            We filled his head with cannon balls an’ powdered his behind,
            An’ when they touched the powder off, the ‘gator lost his mind.

            • fatster says:

              Thanks, thatvisionthing. How come you and I tend to end up here in epu-land, anyway?

              Two of my (white) Southern families each took in a wounded Creek warrior in the 1830s-40s, kept them hidden until things settled down and then sheltered them for the duration of their lives. They were a vivid part of the oral traditions of the two families. Hence, my passion about these topics.

              Jackson almost got his, or so it was said in a popular story of the time (which I can’t verify it, so be forewarned). Supposedly, President Monroe’s Secretary of War John C. Calhoun suggested hanging Jackson in order to appease both England and Spain. The tables got turned later, however, as attested by Jackson himself who famously said he had “two regrets: I didn’t shoot Henry Clay and I didn’t hang John C. Calhoun.” (That quote is contained in this playful, disrespectful account.)

              Interestingly, the quarrel with Calhoun was over–wait for it–states’ rights! Thus, some efforts underway today to undermine the Affordable Care Act stem directly from Calhoun.

  18. harpie says:

    I’d like to thank everyone for this enlightening discussion, especially ew and earlofhunitingon. I’m very sorry I missed it in real time. And thanks also to spainshinquisition, for the CRS report, written by Louis Fisher. I had begun looking for it, but got pulled away.

    It’s almost as if the Executive Branch reads Louis Fisher, and does exactly the opposite of what his work suggests is the right thing to do.

  19. powwow says:

    We certainly seem to be in Andrew Jackson “The Supreme Court has made its decision, now let it enforce it!” territory again these days, given the brazen abuses of recent occupants of the presidency. Although perhaps “The Supreme Court won’t hear the cases, so we’re free to ignore Constitutional limits on our power!” is closer to the mark [see, for example, the latest Constitution-bypassing OLC opinion on Obama’s air war against Libya].

    I’ve added at length below to earlofhuntingdon’s verbatim Congressional statements @ 38 & 39, to expand upon the incomplete references – which purport to reflect the profound series of events triggered by General Jackson’s “Seminole War” – that are contained in the government’s highlighted pre-oral argument brief to the CMCR. [That March 11th government brief, in defense of Ali Al Bahlul’s military commission “war crime” conviction, was in fact produced, at the direction of the CMCR, about one week after David Kris had left the DOJ, in line with emptywheel’s supposition above (although I don’t know whether, or to what extent, the DOJ’s National Security Division has input into these DOD/Office of Military Commissions submissions in the CMCR appellate process).]

    The 3/11 Al Bahlul brief (and, I assume, a parallel government brief in Hamdan), with the alleged Seminole War precedent it cites, was generated in response to this January request from the CMCR for further briefing:

    Upon consideration of the record of trial and pleadings of the parties and amicus curiae, the following issues are specified and oral argument is ordered:

    I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006).

    II. In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation? See Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).

    Those are the two primary questions that were at issue in the oral arguments I linked to in Comment 5 above. [For a broader, more comprehensive discussion of the principles involved, the original January, 2010 CMCR oral argument in Hamdan may be the best place to start, especially for those new to the subject.] Question II is what seems to have prompted the government to unearth General Jackson’s 1818 actions in Florida, in order to try to transform “material support for terrorism” into an “aiding the enemy” war crime-by-another-name (though the 2006 MCA claims both as war crimes, yet only the former was charged).

    But to get back to 1818 and 1819, and the parallels of the abuses of the “Seminole war” to Obama’s unauthorized war against Libya – particularly the untenable situation in which Congress finds itself when the Executive Branch commits offensive acts of war against a vastly-inferior opponent without permission from Congress, and refuses to admit it abused its power. [That is, when the role of Congress is inverted from a hurdle to presidential war-making in the absence of formal Congressional action, to a body forced to act, and to clear high hurdles, to stop presidential action unilaterally commenced.]

    First of all, the government’s brief tries to pretend that “it is not even clear at this juncture whether the [1818] military tribunal that tried them [Arbuthnot and Ambrister] was a court-martial or military commission,” by citing for the latter proposition (which helps their argument) to a 1914 source. However, the contemporaneous accounts by Members of Congress who examined General Jackson’s actions – as part of the “earthquake” those actions caused in Congress – never waiver in calling it a “court martial.”

    As indicated above, a House committee and a separate Senate committee were both charged with examining Jackson’s actions against the Seminoles in Florida.

    The House committee was a select committee on military affairs chosen for this purpose on November 18, 1818, and was composed of Richard M. Johnson of Kentucky, Philip Reed of Maryland, Thomas M. Nelson of Virginia, Ebenezer Huntington of Connecticut, Joshua Gage of Massachusetts, James Stewart of North Carolina, and George Peter of Maryland.

    The Senate committee was also a select committee (contrary to the government’s brief), of five, chosen on December 18, 1818: Senators Abner LaCock of Pennsylvania, John Henry Eaton of Tennessee, John Forsyth of Georgia, Rufus King of New York, and James Burrill, Jr. of Rhode Island (only Senator LaCock was also a member of the Senate’s standing Committee on Military Affairs).

    The House committee report is shorter, with a narrower focus, than the Senate committee report. In the House there was also a form of minority report issued by Representative Richard M. Johnson of Kentucky, which is much longer than the committee-adopted report, unabashedly pro-Jackson, and written in a tone all too familiar to those exposed to the many demagogues among today’s politicians: “Thus gloriously terminated the Seminole war, a war reluctantly entered into, but urged by dire necessity, to protect from the tomahawk and scalping-knife of the most ruthless savages our peaceful frontier settlers, who, from decrepit age to helpless infancy, for more than two years had been exposed to their cruelties – a war in which our citizens and soldiers, with their usual fortitude and valor under their persevering and determined commander,” [etc., etc.]

    Yet even Rep. Johnson’s Jackson-friendly version of events calls the tribunal in question a “court martial” in no uncertain terms: “General Jackson ordered him [Alexander Arbuthnot] to be tried by a court martial, consisting of thirteen respectable officers, with Major General Gaines president. […] It being well known that he [Robert C. Ambrister] had been a leader and commander of the hostile Indians and fugitive slaves, General Jackson also directed him to be tried by the same court martial.

    Both the House and the Senate committee reports are admittedly unwelcome duties for their authors, given Jackson’s earlier contributions to the nation. But, commendably, neither committee pulls its punches.

    The House select committee report, issued on Tuesday, January 12, 1819 [see Page 515 of the Annals of Congress for the Second House Session in the 15th Congress], quotes part of a Jackson 4-26-1818 general order for “a special court martial”:

    […] But, as the occupation and capture of Pensacola and St. Marks are subjects of negotiation and correspondence at this time, between the two Governments, and as the Committee on Foreign Relations will probably consider this part of the President’s Message more immediately connected with their branch of the subject, your committee will confine themselves, in this report, to the trial and execution of Alexander Arbuthnot and Robert C. Ambrister.

    On the 26th April, 1818, a general order issued at headquarters, Fort St. Marks, by Major General Jackson, signed by Colonel Robert Butler, Adjutant General, detailing “a special court martial, to meet at 12 o’clock, A.M., for the purpose of investigating charges exhibited against A. Arbuthnot, R. C. Ambrister, and such others, who are similarly situated, as may be brought before it.”

    Your committee do not deem it necessary to attach to their report the proceedings of that court, as every member of the House has been furnished with several copies, to which reference can be made.

    Your committee can find no law of the United States, authorizing a trial, before a military court, for such offences as are alleged against Arbuthnot and Ambrister, (except so much of the second charge as charges Arbuthnot with “acting as a spy,” of which part of the charge the court found him “not guilty;”) nor, in the opinion of your committee, does any usage authorize, or exigency appear from the documents accompanying the report of the trial, which can justify the assumption and exercise of power by the court martial, and the commanding General, on this occasion.


    A court martial is a tribunal invested with limited jurisdiction, having for its guidance the same rules of evidence which govern courts of law; and yet Arbuthnot is refused by the court martial, before whom he was on trail for his life, the benefit of the testimony of Ambrister, who had not been put upon his trial at that time, and whose evidence would have been received by any court of law as legal, if not credible. Many other exceptions might be made to the evidence recorded in these proceedings…

    The Senate select committee report, issued on Wednesday, February 24, 1819 [see Page 255 of the Annals of Congress for the Senate’s Second Session in the 15th Congress] by the five-member committee (a report upon which apparently no further debate ensued before the Second Session closed on March 3rd) elaborated:

    Mr. LACOCK, from the committee appointed in pursuance of a resolution of the Senate of the 18th December last [1818], “That the Message of the President and documents, relative to the Seminole war, be referred to a select committee, who shall have authority, if necessasry, to send for persons and papers; that said committee inquire relative to the advance of the United States troops into West Florida; whether the officers in command at Pensacola and St. Marks were amenable to, and under the control of, Spain; and, particularly, what circumstances existed, to authorize or justify the Commanding General in taking possession of those posts,” reported:

    […] The committee, after the most mature and dispassionate examination of the subject, offer for the consideration of the Senate the following narrative of facts, and the opinions and deductions clearly arising from, and growing out of, the facts thus presented.


    Your committee will dismiss this branch of the subject by observing that, consistently with the character and genius of our Government, no officer, however high or exalted his station, can be justified for an infraction of the Constitution; it is an offence against the sovereignty of the nation, this sovereignty being vested in the great body of the people. The Constitution is the written expression of their will, and above the control of all the public functionaries combined. And when that instrument has been violated, the people alone have power to grant the indemnity for its infraction; and all that can be said in favor of the officer who transcends his constitutional powers, must be taken not in justification of the act, but in mitigation of the enormity of the offence committed. With this view of the subject, which they conceive to be a correct one, the committee have in vain sought for an excuse for the commanding general.


    The army marched upon St. Marks, a feeble Spanish garrison, which was surrendered “without firing a gun,” and then occupied as an American post; the Spanish commandant having first, by humble entreaties, and then by a timid protest, endeavored to avert the measure. Here Alexander Arbuthnot was found, taken prisoner, and put in confinement, for the purpose, as it was stated by General Jackson, “of collecting evidence to establish his guilt;” and here, also, were taken two Indian chiefs, one of whom pretended to possess the spirit of prophecy; they were hung without trial, and with little ceremony.

    This being done, and St. Marks garrisoned by American troops, the army pursued their march eartward to Suwaney river, on which they found a large Indian village, which was consumed, and the Indians and negroes were dispersed; after which the army returned to St. Marks, bringing with them Robert C. Ambrister, who had been taken prisoner on their march to Suwaney. During the halt of the army for a few days at St. Marks, a general court martial was called; Arbuthnot was arraigned; found guilty; sentence to suffer death, and hung.

    Ambrister was tried in like manner, found guilty, and sentenced to whipping and confinement. General Jackson annulled the sentence, and ordered him to be shot: and this order was executed.


    And General Jackson having declared, in numerous communications to the Department of War, that the Seminole war was closed, and the object of the campaign at an end, he returned to his residence at Nashville, State of Tennessee. And here it would have given the committee sincere pleasure to have stated, that the story of the campaign had closed, but facts which it becomes now their duty to report, require that history to be continued. On the 7th of August, 1818, more than two months after his consummation of the conquest of West and part of East Florida, he issued an order to General Gaines, direction him to take possession of St. Augustine, a strong fortress, and the capital of East Florida. A copy of this order is subjoined to this report, and his reasons for this measure are stated at large in the order, and reiterated and enforced by his letter to the Secretary of War, dated the 10th of the same month, which reasons, fully and beyond the possibility of doubt, discover the motives of the commanding general in all his movements against Spain.

    The tendency of these measures by the commanding general, seems to have been to involve the nation in a war without her consent, and for reasons of his own, unconnected with his military functions.


    The President of the United States is bound, constitutionally, to preserve the peace of the country until Congress declares it in a state of war; he can only, while thus in a state of peace, use the military forces of the nation in three specified cases, that is: “to execute the laws of the Union, to suppress insurrection, and repel invasion.” [See Constitution, article first, section eight; also, the act for calling forth the militia, passed 28th February, 1705.]


    If all these acts of hostility combined do not constitute war, the committee confess themselves utterly at a loss for its definition; or, if the fact be denied, the consequence of such denial will be a proof that no war was made by the Seminole Indians on the United States, and, of course, that the invasion of Florida was an unauthorized act of aggression on the part of the United States.


    Here the committee would observe that they are neither the advocates nor the apologists of Spain. There can be no doubt but she had, by the violation of her engagements, given sufficient cause of war; but they defend the Constitution by saying that General Jackson had no power to declare war nor make the war; that neither he, nor even the President of the United States, had any discretion or power to judge what was or was not cause of war. This the Constitution had wisely lodged in Congress. The treaty with Spain still existed, it was made by the Constitution the supreme law of the land, and had Spain violated on her part every article of that treaty, still the Executive of the United States, who is bound to see the laws “faithfully executed,” must, in good faith towards Spain, have observed on our part that treaty; and the obligation of preserving the peace of the nation would have remained until the treaty should have been revoked or annulled by Congress.


    It is necessary here to remark, that a copy of the order issued by General Jackson to General Gaines, for the reduction of St. Augustine, was transmitted to the Secretary of War, and a countermanding order promptly despatched to General Gaines, which reached him before the military expedition set on foot by General Jackson had commenced; and thus was suddenly arrested a military scheme, as unconstitutional as it was impolitic, and which might, as stated by the Secretary of War in his letter of the 8th day of September, 1818, have involved this nation in a war with all Europe.


    In reviewing the execution of Arbuthnot and Ambrister, your committee cannot but consider it as an unnecessary act of severity, on the part of the commanding general, and a departure from that mild and humane system towards prisoners, which, in all our conflicts with savage or civilized nations, has heretofore been considered, not only honorable to the national character, but conformable to the dictates of sound policy. […] As prisoners of war they were entitled to claim from the American Government that protection which the most savage of our foes have uniformly experienced when disarmed and in our power.

    Humanity shudders at the idea of a cold-blooded execution of prisoners, disarmed, and in the power of the conquerer. […] It is not believed that any attempt has ever been made to retaliate for charges so general as those exhibited against Arbuthnot and Ambrister, viz: “Inciting the Indians to war.”


    The principle assumed by the commanding general, that Arbuthnot and Ambrister, by uniting in war against the United States, while we were at peace with Great Britain, “became outlaws and pirates, and liable to suffer death,” is not recognised in any code of national law.


    Having detailed a court martial, for the purpose of trying the prisoners, the commanding general, by his own authority, set aside the sentence of the court, and substituted for that sentence his own arbitrary will. In trials involving the life of an individual, a strict adherence to form is in ordinary cases considered the best security against oppression and injustice.

    A departure from these forms is calculated to inflict a wound on the national character and tarnish the laurels to justly acquired by the commanding general by his former victories. Such are the facts, as they appear to the committee, and such are the views taken by them of the important subjects referred to their consideration, and, together with their report, they submit various depositions and documents, to which, and to the correspondence and documents relating to the Seminole war, communicated to the Senate by the President of the United States, at the last and present session, they refer.

    The House report, unlike the Senate report, ended with this resolution:

    Resolved, That the House of Representatives of the United States disapproves the proceedings in the trial and execution of Alexander Arbuthnot and Robert C. Ambrister.”

    That resolution, and others proposed in response to the House committee report, kicked off a remarkably lengthy, intense debate in the House that lasted for about three weeks, which ended with the House declining to adopt the committee resolution of disapproval, or any further formal censure of General Jackson, as noted in the government brief.

    Here’s how Representative Thomas W. Cobb of Georgia opened the House debate on Monday, January 18, 1819 [a debate that didn’t conclude until February 8th; see Page 583 and subsequent pages of the 2nd House Session of the 15th Congress], as reported at the time, in a distinct echo of Senator Rand Paul’s honorable exhortations to his colleagues to end their deplorable silence in the face of the usurpation of the Senate’s war powers:

    But to the point. That part of the Constitution which I believe to have been violated by the capture of the Spanish posts, is the one vesting in Congress solely the power of declaring war. Is it necessary to enter upon a course of reasoning to prove the policy of vesting this power in Congress, or, in other words, in the people? I would fondly hope that there is no man upon this floor who wishes to see it changed; and I should feel that I was doing them an injustice did I even suspect them of such a wish. So clear, so self-evident is the policy of placing it where the Constitution has left it, that, if I am not mistaken, the immortal authors of the letters of Publius, would not condescend to consume one moment of time, or waste one solitary argument in the proof of it. But such a discussion is now too late. It is vested in Congress – in the people; and the true question is, will you preserve it to them inviolate? Sir, so long as it is preserved to the people, we have the best security against the amibition of individuals – we need fear no tyrants. It it is once lost, ruin is the consequence.

    […] It is natural to the public mind to admire warlike deeds. In the splendor of military achievenments our eyes are blinded, and our reason is obscured. We become so infatuated with the man that we lose sight of principle, and we are offering him our worship, before we are aware that we have made him a god. Sir, I much fear that this spirit of adulation has already pervaded the minds of the people of this country to a most injurious extent.


    Will it be denied that war has been prosecuted against the Spanish authorities in Florida? What is war but the exercise “of force, of violence between nations, in the prosecution of their rights,” whether real or imaginary? Such gentlemen will find to be its definition, whether their own reason or the best writers upon this subject be consulted. Such it is defined to be in the work which I hold in my hand, (Vattel.) That the Spanish posts were captured by the exercise of this force by the Army of the United States, is most evident, from the communications of General Jackson with the War Department. […] But this is not all – it was an offensive war. To give it the character of a defensive war, it must appear that our country had been invaded, or was in imminent danger of invasion by the Spanish forces in East Florida, or elsewhere. Or, if this was not the case, it ought, at least, to be made to appear that our army, which had been marched into East Floriday, in pursuit of an Indian enemy, had been attacked by the Spaniards; or that they had arrayed themselves against us, for the purpose of preventing that pursuit of our enemy. None of these cases appear to have happened. The Spanish authorities spoke the language of peace. The Minister of Spain was here. We had a Minister at Madrid; peace prevailed between the two nations, and negotiations of a friendly kind were going on.

    Finally, because John Quincy Adams’s name was speciously invoked to support the government’s self-serving, faithless interpretation of the law of nations (and its subset law of war) by Francis Gilligan (who called him “James Quincy Adams” in the 3/17 Hamdan oral argument, while citing a letter Secretary of State Adams wrote to Spain about the Seminole war court-martial), I give Adams the last word here, to demonstrate how a United States Senator of integrity once upon a time went about honoring his oath of office and the limits of his Constitutional power to “define” the law of nations:

    On these principles, thus equitable and moderate in themselves, and thus universally established, is founded every provision of the bill before you, so far as it implicates the law of nations. I have been fully aware that, although by the Constitution of the United States[,] Congress are authorized to define and punish offenses against the law of nations, yet this did not imply a power to innovate upon those laws. I could not be ignorant that the Legislature of one individual in the great community of nations has no right to prescribe rules of conduct which can be binding upon all; and therefore, in the provisions of this bill, it was my primary object not to deviate one step from the worn and beaten path – not to vary one jot or one tittle from the prescriptions of immemorial usage and unquestioned authority.

    Senator John Quincy Adams, March 3, 1806

    • earlofhuntingdon says:

      Many thanks for your additional comments.

      Congressman Johnson of Kentucky appears to have been quite fond of Gen. Jackson and his decades of making war against American Indians. Haling from Kentucky, he would have been a considerable potential beneficiary of the Indian wars and of the later, formalized dislocation under Jackson’s Indian Removal Act. The Act institutionalized longstanding practices; Mr. Obama, on the other hand, is attempting to institutionalize more shortlived practices adopted by CheneyBush.

      “Purchases” of Indian lands expropriated under the Act at roughly 25% of their value, assuming they were paid for (the list of unpaid Indian claims is longer than the Bible), leaves on the table a margin of 300%. Under the Act, 25+ million acres of tribal lands were nationalized by the USG for the benefit of its white constituents.

      (Nationalizing of private property is one of the Right’s longstanding grievances against governments generally, socialist and communist governments in particular. See, Cuba, Russia, the practice of eminent domain here.)

      It’s useful to note that Arbuthnot and Ambrister were both English traders, one was a former Marine. After his campaigns in the War of1812, Gen. Jackson appears to have been as well-disposed to the English as he was to native Americans. Characterizing Jackson’s 1819-19 tribunal as a court martial would not favor Mr. Obama’s arguments. His tribunals offer nothing like the established rights and procedures available under the modern UCMJ.

      • fatster says:

        Ambrister’s father had settled in South Carolina, but had to flee once the Revolutionary War was over as he had been a Loyalist. If Jackson knew that, and he may well have known it, I’m sure that only added fuel to his highly-flammable temper.

  20. earlofhuntingdon says:

    Alexander Arbuthnot was found, taken prisoner, and put in confinement, for the purpose, as it was stated by General Jackson, “of collecting evidence to establish his guilt;”

    That’s considered illegal today. Attorney General Ashcroft’s FBI committed it in its frequent abuse of material witness warrants. Those allow the detention of persons solely to ensure their appearance and testimony at criminal proceedings against others. It also appears to be one form of abuse practiced against Bradley Manning, insofar as the government appears determined to use illegal means to secure his testimony against Julian Assange and WikiLeaks.

  21. earlofhuntingdon says:

    and thus was suddenly arrested a military scheme, as unconstitutional as it was impolitic, and which might, as stated by the Secretary of War in his letter of the 8th day of September, 1818, have involved this nation in a war with all Europe.

    Gen. Jackson’s ego, and apparently his greed and hatred of Indians, was bigger than the continental United States.