Pentagon prosecutors who compared Seminole Indians from the first Seminole War in the early 1800s to al Qaeda in a brief filed with a U.S. military court last month backtracked after receiving letters decrying the analogy from both the Seminole Tribe of Florida and the National Congress of American Indians.
The brief was submitted to United States Court of Military Commission Review in the case of United States v. Al Bahlul for a hearing held on March 17. Bahlul, of Yemen, who has spent nearly a decade at the U.S. detention center in Guantánamo, was convicted of several terrorism-related charges at a military commission trial in 2008 and is now on appeal.
In their historical analogy, military prosecutors specifically cited the Robert Ambrister and Alexander Arbuthnot incident. The two British nationals were executed for their friendly trading ties with the Seminoles when General Andrew Jackson invaded Florida, held by Spain at the time.
“Examination of their case reveals that their conduct 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. Because Ambrister and Arbuthnot aided the Seminoles both to carry on an unlawful belligerency and to violate the laws of war, their conduct was wrongful and punishable,” as stated in the brief.
NCAI was the first to catch wind of it, being notified by a defense attorney two days before the hearing. It responded with a letter brief amicus curiae on March 17, expressing its concern with this “distorted and offensive historical analogy.”
It called it an “astonishing statement of revisionist history” and then pointed out that Jackson was ordered by President Monroe to lead a campaign against Seminole and Creek Indians in Georgia, orders he used as an excuse to invade Florida and launch an illegal war, an extermination campaign during which Indian villages were burned.
“The Seminole efforts to defend themselves from an invading genocidal army could be termed an ‘unlawful belligerency’ only by the most jingoistic military historian,” NCAI wrote.
The Seminole tribe responded on March 24 with two letters, one for Secretary of Defense Robert Gates requesting the withdrawal of the “highly offensive and historically inaccurate” statements from the brief and one for President Obama that expressed the tribe’s concern and dismay with military prosecutors’ “backward dive into racist, revisionist history.”
Willard Steele, the Seminole’s tribal historic preservation officer, is used to defending tribal history, yet he was blown away by the statements in the brief. He said the Seminoles referred to in the brief were defending a recognized sovereign nation. They were some of the tribe’s founding fathers.
He said, looking at U.S. history, “Would you refer to John Hancock and Thomas Jefferson and all the founding fathers as terrorists?”
John H. Dossett, NCAI general counsel, said historical analysis is an important part of any kind of legal analysis. But when lawyers make misstatements or mischaracterize the history of American Indian policy, NCAI steps in.
“We want to make sure misunderstandings don’t persist,” he said. “We don’t want federal attorneys going around comparing Indian tribes to al Qaeda.”
Dossett said it was a poorly done analogy and was surprised it was even used.
Bahlul was convicted of, amongst other charges, aiding the enemy. “I think the argument is that he was the enemy—of course, he is aiding the enemy,” Dossett said.
Prosecutors have since backtracked from the analogy, and the NCAI amicus brief was accepted by the court on March 28. However, the Seminole tribe, to date, has not received an apology.