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.
The National Defense Authorization Act for Fiscal Year 2012 (HR 1540), sponsored by Rep. Howard “Buck” McKeon (R-Calif.), passed the House on May 26 by a vote of 322-96. A companion bill sponsored by Sen. John McCain (R-Ariz.) now faces review in the Senate. In addition to handing the president the sole authority to wage war against Al Qaeda, the Taliban and “associated forces,” HR 1540 also gives him authority to lock up anyone found “substantially supporting” those forces without charges or trials for an unspecified amount of time. The bill does not identify the “associated forces” or define “substantially supporting”; nor does it provide a timeline for ending a president’s authority to use such military force.
The bill was opposed by dozens of groups, and the American Civil Liberties Union says there is “a sleeper provision deep inside the bill… that could become the single biggest hand-over of unchecked war authority from Congress to the executive branch in modern American history.” The New York Timesreported on May 18 that McKeon believes the bill simply aligns old legal authorities with current threats.
At the same time that McKeon introduced the bill in March, government prosecutors were trying to align old legal authorities with the very contemporary issue of prosecuting Guantanamo Bay detainees accused of terrorism under the Military Commissions Act of 2006. One of them, Ali Al-Bahlul, a Yemeni citizen captured in Afghanistan in 2004, was convicted in 2008 and sentenced to life in prison for “providing material support for terrorism” to Al Qaeda.
Government prosecutors drew parallels between the Seminoles and today’s terrorists, and Al Bahlul and two men executed by Jackson as “providing aid to the enemy” that have raised concerns about the potential abuse of power in the legislation.
In an attempt to determine the legal status of providing material aid the court asked the prosecutors at the end of January if only citizens or residents of a nation—in other words, people with an allegiance or obligation to be loyal to that nation—could be charged with providing material aid to an enemy. Common sense seems to argue against charging someone who is not a U.S. citizen or resident with aiding the enemy, particularly in a case such as Al Bahlul’s, in which the detainee proudly declares he is the enemy. Al Bahlul’s defense attorneys, who argue that providing material aid is not a recognized war crime and that Congress cannot create new war crimes not accepted internationally as violations of the rules of war, reviewed U.S. military commission records from the Civil War on, and found that in every case involving aiding the enemy, “None involved a foreigner who had not undertaken some allegiance to the government by, at a minimum, temporary residence in an area under its authority.”
In addition to aiding the enemy, Al Bahlul was charged with conspiracy and solicitation to commit murder. The charges were made retroactively under the Military Commissions Act of 2006, which Al Bahlul’s defense lawyers argued violates the constitutional prohibition against ex post facto charges. But even though Al Bahlul had admitted to joining al Qaeda, swearing allegiance to Osama bin Laden and serving as his personal secretary, the prosecution could not link him to any act of violence against the U.S. or its coalition forces. Instead, the prosecution won its conviction based a video Al Bahlul made called State of the Ummah. The video pieces together clips that are widely available on the Internet and includes speeches by Osama bin Laden and others against U.S. politicians and military leaders. As offensive as the video may be to some Americans, Al Bahlul’s defense lawyers built their appeal against his life sentence on his First Amendment right of free speech.
“There is little doubt that Mr. Al-Bahlul is not a sympathetic defendant,” the defense lawyers said in court documents. But the solicitation charge against Al Bahlul “conflates offensive behavior with criminal behavior. As offensive as it may be to some, State of the Ummah is speech that falls within the core protections of the First Amendment,” they wrote. And, they said, the case has as much to do with the rights of American citizens as it does with Al Bahlul or anyone else detained in the global war on terror because if he can be sentenced to life imprisonment for making a video, then—with the help of legislation like HR 1540—the U.S. government could imprison anyone it claimed was participating in the global war on terror by speaking, writing, making films, posting on the Internet or engaging in any other form of free speech. That could easily include indigenous peoples who complain against government water polices on their sovereign land, for instance, or journalists who criticizes government policies or actions.
Prosecutors also made a reach when they grasped for a historic precedent to support their claim that providing aid is a war crime under the jurisdiction of the military commission. The case they cited occurred in 1818 when then Major General Andrew Jackson illegally invaded Spanish Florida in search of runaway slaves with the intent of returning them to their “owners” and the Seminoles resisted this invasion of their land. Jackson’s incursion kicked off the First Seminole War and during that conflict, Jackson captured two British men, Alexander George Arbuthnot and Robert C. Ambrister, who were living among the Seminoles. One of the men had written letters about their support for the Seminoles’ land and treaty rights and Jackson used this “evidence” to accuse the men of “inciting” the Seminoles to “savage warfare” against the U.S. He convened a “special court martial” tribunal—what would today be called a “kangaroo court”—then had the men executed.
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 19th 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.”
Jackson’s illegal war against a nation at peace with the U.S. and his execution of two British citizens “were not without controversy,” according to court documents. During congressional debates over censuring Jackson, Rep. Charles Mercer of Virginia said the trial and execution of the two British men was “a stain on the records of the judicial proceedings of this nation.” Morison quotes historian Bertram Wyatt-Brown’s assessment of Jackson: “His actions were a study in flagrant disobedience, gross inequality and premeditated ruthlessness… he swept through Florida, crushed the Indians, executed Arbuthnot and Ambrister, and violated nearly every standard of justice.”
The prosecutors’ comparison of the Seminoles to Al Qaeda provoked strong objections from both the Seminole Nation and the National Congress of American Indians. Seminole Tribe Chairman Mitchell Cypress wrote an angry letter to Obama on March 24, saying the tribe is “concerned and dismayed by the military prosecutors’ backward dive into racist, revisionist history.” The NCAI filed an amicus curiaeletter objecting to the “distorted offensive historical analogy” comparing the First Seminole War to the terrorism of al Qaeda. “This is an astonishing statement of revisionist history,” NCAI wrote. “The Seminole effort to defend themselves from an invading genocidal army could be termed an ‘unlawful belligerency’ only by the most jingoistic military historian” and “calls into question the reasoning and judgment of those who are representing the government in [Al Bahlul’s] case.”
The government backtracked in its response to the NCAI’s letter, “but its attempt at ‘clarification’ arguably descends from the merely offensive into incoherence,” Morison wrote. First, the prosecutors claimed they had not questioned or impugned “the valor, bravery and honorable military service of Native Americans, past and present.” Then they denied that they had equated the conduct of the Seminoles in 1818 to al Qaeda and “its affiliated terrorist groups,” even though that claim undermines their central argument in the al Bahlul case. Perhaps the prosecutors’ most astonishing statement was that they do not view Jackson’s actions as “an example of moral right, but as a legal precedent: the morality or propriety of General Jackson’s military operation in Florida is irrelevant.” That means the government’s legal basis for asserting military jurisdiction over material support charges in Al Bahlul’s case and others “rests entirely on a naked exercise of power by a general officer, divorced entirely from the constraints of moral principle,” Morison wrote.
Donna Loring, a Vietnam veteran, former representative for the Penobscot Indian Nation to the Maine legislature, and author of In the Shadow of the Eagle: A Tribal Representative in Maine, expressed her astonishment at the government’s use of Jackson as a legal precedent in a very direct way: “Andrew Jackson was a total complete bastard! Some Native people refuse to use twenty dollar bills because of his face on it.”
Indigenous opponents say they have reason to be concerned about the expanded government powers that HR 1540 would provide. They point to a recent Inter Press Service report that highlights their fears about the potential abuse of HR 1540 against indigenous peoples asserting their land rights. “Dictatorship-Era Law Used to Squelch Activism” by Pamela Sepúlveda tells of four Mapuche men—activists involved in the struggle for their land rights—swept up in the country’s Pinochet-era “counter-terrorism” law and sentenced to 20 and 25 years in prison in what appears to be trumped up charges under the anti-terrorism legislation. “What is happening in Chile isn’t justice; it’s a pantomime, because under the anti-terrorism law, there is absolutely no way justice can be done,” said José Venturelli, spokesman for the European Secretariat of the Ethics Commission against Torture.
The same can happen under HR 1540, said an Indian rights activist who asked not to be named, because he fears retaliation if the bill becomes law. “It’s a totalitarian dream come true. Material support for terrorism is about speech and even Indian Country Today Media Network could be providing material support if the government wanted to say so. If the government wanted to squelch dissent, how far would it go?”
It’s not just activists who are mulling that question. Major Todd Pierce, a defense attorney in the Office of Military Commissions, sees increasing militarization and repression leading a downward spiral in the U.S. He says this bill “will be seen by many people in the world as nothing less than a declaration of war against any dissent against American hegemony (and military governance) extending over the entire globe, unprecedented in history by any nation, with predictable opposition…. This was precisely Osama bin Laden’s stated objective and it appears that after his death, his objective may yet be realized,” Pierce said.
The only way to avoid that downward spiral is to expand discussion and speech in the country, not chill and suppress it by calling it ‘material support for terrorism,’ Pierce said. “We need as many intelligent voices with different viewpoints debating our policies as possible…. Leaving those policies to just one sector to decide is the course followed by the former Soviet Union and dictators like Hosni Mubarak and we know how they all ended,” Pierce said. “And they all started with laws declaring war against “terrorists” or some other loosely defined group so that the ‘state of emergency’ could never end.”