Precedent

Via Amy Davidson of the New Yorker, this strange story of legal precedent and moral outrage:

Does it matter if you call a war a war, or how you justify what soldiers do? Military prosecutors recently cited Andrew Jackson’s conduct in campaigns against the Seminoles from 1817 to 1818 to defend Guantánamo’s military commissions before an appeals court. This, as Carol Rosenberg reports for the Miami Herald, made the modern Seminole and other tribes angry. Quotes like this one, from the government’s brief, explain why:

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.

Where to start? “The comparison of Native Americans to al Qaeda is disrespectful,” a lawyer for the National Congress of American Indians told the court. There’s that; there’s also the details about Jackson burning Seminole villages, and those villages being in Florida, which was not part of the United States but belonged to Spain at the time. Jackson used military commissions to execute two British traders who were suspected of helping the Seminoles. And one of the reasons for Jackson’s campaign, Rosenberg notes, was “to stop black slaves from fleeing through a porous border.” Should we maybe expect citations of the Fugitive Slave Act in extraordinary-rendition cases next?

The military prosecutors sort of apologized in court this week, saying that they didn’t really think that Seminoles acted like members of Al Qaeda and that the government “in no way questions or impugns the valor, bravery and honorable military service of Native Americans, past and present.” But they didn’t quite drop the point:

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.

Perhaps that’s why we need to think about morality and propriety before we make things precedent. Jackson’s contemporaries may have thought that this one time it was all right; there had been an ambush by Indians that contributed to the passions of the moment. (Then again, even Congress questioned the executions.) What will Guantánamo be cited to justify, two centuries from now?