Wednesday, July 13, 2011

A racist pseudo-precedent and military commissions: Sam Morison's article "Andrew Jackson comes to Gitmo"

Sam Morison, a Defense Department attorney for the defendants at Guantanamo, recently wrote me below about a striking article he has published on the Obama administation's invocation of General Andrew Jackson’s aggression on behalf of slave-owners against Seminoles in Spanish Florida and arrest and execution of two innocent Englishman in attempting to justify “military commissions” at Guantanomo. See here. Let me repeat that: Andy Jackson's aggression against Seminoles to recapture or kill escaped slaves on foreign territory, and, inter alia, murder of two innocent Englishmen...Trying to write satire, a Jonathan Swift could not invent such a story…How did America, under Barack Obama, come to this?

Attorneys outside and inside the government, notably the Center for Constitutional Rights and subsequently, the ACLU, have led the way in fighting to hold the line for restoring and repairing the rule of law in the black holes, the secret prison sites which Bush and Cheney created. Cheney bent the stick so far to authoritarianism and the murder, torture and indefinite detention of anyone who fell within the government’s power - see below - that it will take a very long fight from below to bring the rule of law back.

More generally, as Yale Constitutional lawyer Jack Balkin has eloquently put it, the American legal system is evolving toward a bipartisan National Surveillance State. Obama and many of the Democrats in Congress (Barbara Lee and some others stand out as exceptions) endorse the very policies that they rightly criticized as illegal - more importantly, they are evil - under Bush. They thus consolidate a torture or anti-legal - anti-habaes corpus - merely seeming "legal" regime.

This is true internally, with illegal spying on Americans increasingly practiced, as well as externally. The domestic justice system – which one might perhaps particularly for young blacks and the poor already call an injustice system –jails over 2 million people, one quarter of the world’s prison population, more than half for largely victimless, drug crimes. See Michelle Alexander’s The New Jim Crow and here. Racism toward blacks brings down chicanos and whites as well. According to a Justice Department study, among blacks, 1 in 3 male babies born in 2001 can expect to go to jail sometime in their life, 1 in 6 chicanos, 1 in 17 whites (a much higher percentage among poor whites, and the percentage of poor whites, as the United States slides back into a new depression and promises, with the “deficit deal,” to make a much larger percentage of whites poor). Racism toward Arabs including Arab-Americans maintains and advances this system of injustice, pulling everyone down with it. As Martin Luther King rightly said in his Letter from the Birmingham City Jail, “an injustice anywhere is an injustice everywhere.”

Let us recall the startling scale of the American police state within a formal democracy or rule of law. The United States has a small percentage (roughly 3%) of the world’s population. 25% of the world’s prisoners the US government holds is more than say, those in all the authoritarian (as well as formally democratic) regimes in China, the Middle East and South Asia combined….

Since the 1970s Congressional requiring of mandatory sentences, the number of prisoners has shot up from 300,000 – still very large but comparatively sane – 8 times. This escalation resulted from a reactionary Congressional move which has substituted prison for segregation as the way to keep most blacks and other poor people down (Obama might have made, and in a second term, perhaps with pressure from below, still might make some difference about this). But the only signs of abatement of this terrible shift in the public sphere, aside from the very good campaign of Glenn Greenwald, Michelle Alexander, Andrew Sullivan and others on the explosive imprisonment for drug “crimes,” are that the prisons are so expensive they must be scaled down. Current revenue collapse, particularly in states which are required not to run deficits (these laws are largely destructive of decent state government and foolish), creates some pressure to relinquish the vampire hold of the prison system on the lives of most young blacks. Once one is involved in the prison system, even framed up, one is barred from getting a regular job or having a life, even in poverty – see my comments on Michelle Alexander here. It is these lives, not the fetishism of budget cutting, which are the deep moral issue.

The greatest step that one can currently take to fight for American liberty is to combat the prison system and the racism off which it feeds. We need to end militarism, but its roots are deeply in the prison system. For instance, Charles Graner, jailed at Abu Ghraib as proxy for the war crimes of Cheney, Bush, Rumsfeld et al, was before a prison guard in the South. He learned to put panties on the heads of Arab males from abusing blacks…

The election of Barack Obama, a former head of the Harvard Law Review and a professor of constitutional law before he went into politics, promised some abatement of this. His second day in office Obama issued an executive order against torture (some prominent lawyers who had fought the tyranny of the Bush administration were also appointed by Obama). But to be the head of the Empire transforms even good Presidents, who are fairly rare, into administrators of a corrupt system (by militarism, I mean, for instance, 1280 bases around the world and some $700 billion in official Pentagon expenditures. That is roughly 12 times the amount the U.S. government speands on the State Department or diplomacy). That system includes the gigantic prison apparatus domestically and the current move away from the rule of law…

Perhaps high on himself as a constitutional lawyer - illustrating hubris in the idiom of the ancient Greeks - Obama has recently striven to outdo the Bush administration in fatuousness about the law. Perhaps the outstanding example we all know about recently has been the European/American war in Libya. Obama launched this war in violation of the Constitution, never going to Congress for the required approval. In defence of this crime, he has offered that US missiles, daily crashing into Libya and killing, are somehow not “hostilities” because the US has no troops on the ground.

Merely to say these words aloud ought to produce laughter. But not, of course, in the kept corporate media.

But it is, of course, a) not true that the US has no troops in the Libyan desert. The CIA, the Pentagon, and Blackwater/Xe corporation, inter alia (the Pentagon is better than half privatized troops, an increasingly pseudo-governmental body) have many “stealth” troops on the ground. The are stealth only from the American people because of Congress and the corporate press. These institutions are all part of the war complex – the military-industrial-congressonal-political-media-intelligence-think tank complex which is at the center of American destructiveness internationally as well as its rather obvious self-destructiveness. This self-destructiveness is part of the increasing insecurity of ordinary Americans as the US wages more and more war, the economic collapse, and a likely budget "deal" which will substantially cut social security - have older Americans eating dog food and dying from lack of medical care - and refusing to deal with the real problem of unemployment. See James Galbraith here. Doing little about rising unemployment and punishing and demobilizing many of his supporters in the last election, Obama is making his own defeat likely in 2012 (a cost of hubris).

But b) imagine if in the later 21st century a powerful Saudi-China rained drones down on the US. If it blew up a school or killed a child of a future President, would we Americans regard the action as "non-hostile"? See here and here. One would think that only a drowsy and foolish emperor, a W, could have invented a rationalization like this.

There is thus a danger in being too smart, as Obama and his attorney who “legitimized” this, Howard Koh, a former Dean at Yale and a legal scholar on the War Powers Act are. They have set a standard of fatuousity even compared to the Bush administration and offer it with a straight face (see Bruce Ackerman’s fine "Legal Acrobatics, Illegal War" in the Times about how Obama dishonored the Office of Legal Counsel and made binding advice as to administration criminality simply one “voice” among others, here).

But Sam Morison has described a case that tops this for an emperor’s new clothes award. The first black President, a constitutional lawyer and inspiring speaker, a decent person unusually in American politics but a President (being and wanting to be reelected President often trumps decency and suborns intelligence), wants to use the Military Commissions Act of Congress to try prisoners in special military courts in violation of the rule of law. Under domestic law, giving material aid to terrorists is now a crime. Proceedings could occur in a real court of law. There is a tradition of justice here, as Sam rightly says, that such courts sometimes live up to.

But Congress made up, out of whole cloth, a previously undiscovered “crime of war” of such aid, allowing those accused to be shunted off to extra-legal “military commissions.”

There is no international agreement, like the Geneva Conventions or the Convention against Torture, mandating this pseudo-crime. No other country recognizes it. The Obama administration frees officials who tortured without a hearing or even a Congressional investigation recounting the criminal acts in order to bar them in future - the future that Obama looks to is, in this respect, an increasingly degraded one - but fabricates pseudo-war crimes.

There is, one might say following the administration, the no doubt insignificant matter of torturing people to death – over a hundred people were murdered so far in American secret prisons by the Pentagon’s own account (see the movie Taxi to the Dark Side, and Jane Meyer, The Dark Side) – but in that case, Obama says “The United States must look to the future.” There is, however, the undoubtedly very weighty legal matter of breathing life into the military commissions’ phony trials of those captured by the US government and thrown into secret prisons. Can Obama’s lawyers find, in American history, a precedent?

Sam Morison tells the story in this article of an Englishmam and a Scot who were trading – a perfectly legal activity, the core of Republican and often Democratic imagination of a good society – in Florida, then under the power of Spain. General Andrew Jackson invaded, destroying Fort Apalichicola, the so-called Negro Fort, with 300 men, women and children inside (a cannon ball hit the store of powder inside the fort and exploded it).

One of the Englishman, Robert Ambrister, had urged the Seminoles not to fight, since American power was too great (this was obviously a mistake; it supposed a civilized and not genocidal enemy). Jackson, as Morison relates, proceeded to destroy here and there, without opposition.

He put the captured Englishmen to a “court martial”, but Ambrister threw himself on the mercy of the court; the court ruled not to kill him. In an act of murder (unfortunately, not a disqualification for his later becoming President), Jackson ordered him to be hanged. Morison describes the sycophancy of his political supporters as others tried to point to the horror of what he had done (very much like Howard Koh, the leading academic writing about the War Powers Act, who decided, to please the leader, that really, firing missiles into Libya aren’t “hostilities”).

But even Obama's attorneys have become shamefaced. That Andrew Jackson’s aggression for slaveholding involved murders of these Englishmen – as straight and unmitigated evil as lynching – some have recognized now as “unsavory.” But it is a “precedent” and a so-called court approved it. Perhaps this “precedent” will now get to the Supreme Court, and the four authoritarian judges can find a fifth to declare American illegality “international law.”

The election of Obama miraculously healed for a time the damage that the Bush\Cheney police state had done to America’s reputation. But this appeal to Andrew Jackson's "justice" shows why that change is likely to be short-lived…

Sam has written a very important article on this precedent, worth taking in. Aside from incredulity, it is very hard to absorb fully: Obama, the first black President, the Constitutional lawyer, invokes Andrew Jackson’s murder of innocents on behalf of an aggression waged to defend property in slaves...

In February 2008, I took my then 12 year old son to hear Barack speak at the University of Denver with some 30,000 others. His speech brought tears to the eyes of pretty everyone present (me, too), though I noticed critically that he praised Andrew Jackson as a great American President. I figured he didn’t know much about the genocidal “Indian-killer” (after all, most lawyers aren’t historians). But now, his attorneys have supplied him with this seemingly useful - as long as no one looks at it; otherwise, one might die laughing - falsehood. As a parallel, it would be like Obama pinning a medal of freedom on some surviving and unrepentant segregationist and proposing the lofty precedent of lynching for his offing of Bin Laden...

Sam calls the Obama administration – by what is good in the American tradition, the notion that all men and women are created equal, enshrined in the Bill of Rights and the long fight for its extension – to account. He is a courageous lawyer, defending the prisoners at Guantanamo from the wasteland that Bush, and now, Congress and Obama have mandated. If these things can happen under Obama, leaving in place tyranny, what will happen under future Presidents who are not constitutional lawyers and sometime anti-racists?

Only a movement from below can sustain decency here and move toward reversing American illegality (violations of habeas corpus abroad and at home) and the militarist-prison industrial complex. Every one of us should join Sam in doing this. At the least, naming this issue is of great public importance.


From: Sam Morison
Sent: Monday, July 04, 2011 11:52 AM
Subject: Andrew Jackson goes to Gitmo

Prof. Gilbert,

We haven’t met, but I'm a defense attorney at the Office of Military Commissions in DoD, where as you probably know we're responsible for defending persons detained at Guantanamo Bay and charged with alleged war crimes. In that regard, I thought you might find some interest in my latest piece, which is titled History and Tradition in American Military Justice, and will be published this fall in the Univ. of Penn. Journal of International Law. I've posted a draft on my SSRN page at Here's the abstract:

At present, there are two military commission cases involving terrorism defendants incarcerated at Guantánamo Bay making their way through the appellate courts. In both cases, the defendants are challenging their convictions for “providing material support for terrorism.” While this is a federal offense that could be prosecuted in an Article III court, the legal issue in these appeals is whether providing material support is also a war crime subject to the jurisdiction of a military tribunal. Congress incorporated the offense into the Military Commissions Act, but that is not dispositive, since it is arguably beyond Congress’ legislative competence to create war crimes out of whole cloth and then impose them on foreign nationals having no jurisdictional nexus to the United States.

As a result, the Government has not disputed that there must be at least some historical evidence that the conduct now styled 'providing material support' to an enemy previously has been treated as a war crime, where the defendant was a non-resident alien who owed no duty of allegiance to the injured State. In what might be fairly described as a desperate attempt to discharge its burden of persuasion, the Government has now embraced the only “precedent” that comes close to fitting this description. This is problematic, however, because it is also one of the most notorious episodes in the history of American military justice.

In 1818, then Major General Andrew Jackson led an armed invasion of Spanish Florida, thereby instigating the First Seminole War. In the course of the conflict, his troops captured two British citizens who had been living in Florida among the Seminole Indians. In his inimitable style, Jackson impetuously ordered the summary trial and execution of these men, allegedly for “inciting” the Seminoles to engage in “savage warfare” against the United States. Worse yet, Jackson’s immediate motivation for the invasion was to recapture fugitive slaves, who had escaped from the adjacent States and found refuge among the Seminoles. In addition to territorial expansion, his mission was to return this “property” to their “rightful” owners and prevent Florida from serving as a safe haven for runaway slaves.

Remarkably, the legal basis of the Government’s assertion of military jurisdiction over material support charges therefore rests on Jackson’s decision to execute two men, who were almost certainly innocent, in the context of a war of aggression waged to vindicate the property rights of antebellum Southern slaveholders. The purpose of this essay is to reintroduce the episode to a wider audience, and to reflect on the implications of the Government’s decision to rely on it as a precedent for a modern war crimes prosecution.

Best regards,
Sam Morison
Appellate Defense Counsel
Office of Military Commissions

Dear Sam Morison,

Thank you very very much for doing the job you do- the rule of law and decency need every passionate defender they can find particularly with the Obama's administration’s increasing affection for executive power and the most empty justifications (no "hostilities" in Libya, therefore no need to go to Congress) - and for sending your fine piece. I am part way through it, but the example of Andy Jackson murdering an innocent British man in an aggression on behalf of slavery as a precursor to what the Obama administration is doing at Guantanamo beggars satire....Would you mind if I post your link and the link (or the article) on my blog?

All the best,

From: Sam Morison []
Sent: Saturday, July 09, 2011 9:58 AM
To: Alan Gilbert
Subject: RE: Andrew Jackson goes to Gitmo


Thanks so much for the reply. I'd be delighted if you post something about the paper on your blog, which I visit regularly. We're trying to keep the issue alive, so any attention your blog might generate would be greatly appreciated. Not surprisingly, we've gotten a good reception from the Native American community, and the National Congress of American Indians has agreed to submit an amicus brief in the DC Circuit and/or Supreme Court…

In my view, it would be difficult to overstate the danger of the military commissions as they are currently constituted, which I think is the proverbial camel's nose under the civil liberties tent. With the passage of the Military Commissions Act, which purports to legislate new war crimes out of whole cloth and then apply them extraterritorially, the United States is quite literally attempting to impose a form of martial law on the entire world. The hubris is just breathtaking. Indeed, the CMCR actually invoked the spectre of "crimes by analogy" to avoid ex post facto concerns with material support charges under the MCA, which as we pointed out is a legal concept borrowed from the Soviet Union. Soviet law included an “article permitting a judge to consider the social danger of an individual even when he had committed no act defined as a crime in the specialized part of the code. He was to be guided by analogizing the dangerous act to some act defined as crime.” Papachristou v. City of Jacksonville, 405 U.S. 156, 169, n.12 (1972) (quoting J. HAZARD, THE SOVIET LEGAL SYSTEM 133 (1962)). The Supreme Court rejected this because “[p]unishment by analogy . . . though long common in Russia, [is] not compatible with our constitutional system.” Id. at 169; see also Zaimi v. Untied States, 476 F.2d 511 (D.C. Cir 1972). Somewhere, Stalin is smiling.

Moreover, as you know, military commissions traditionally have been viewed as courts of necessity, temporary expedients justified by the exigencies of an ongoing armed conflict. Now, we've used the metaphor of a "war against terror" to institutionalize a system of second class courts martial for foreign nationals, which logically presupposes a permanent "state of exception," as Carl Schmitt would have it. The pressure to expand the jurisdiction of the commissions is inevitable; one benighted congressman recently introduced legislation to designate several Mexican drug cartels as "enemy aliens" and subject them to military trial at Gitmo for drug trafficking, which, last I checked, is not a recognized violation of the LOAC [Law of Armed Conflict]. While that attempt failed, it surely will not be the last.

Thanks again for positive feedback.


Tuesday, July 12, 2011 by Inter Press Service

Calls Mount to Investigate Bush Era Officials for Torture
by Naseema Noor

WASHINGTON - Senior officials under the former George W. Bush administration knowingly authorized the torture of terrorism suspects held under United States custody, a Human Right Watch (HRW) report released here Tuesday revealed.

Titled "Getting Away with Torture", the 107-page report presents a plethora of evidence that HRW says warrants criminal investigations against former Vice President Dick Cheney, former Secretary of Defense Donald Rumsfeld, former Central Intelligence Agency (CIA) Director George Tenet and Bush himself, among others.

Newly de-classified memos, transcriptions of congressional hearings, and other sources indicate that Bush officials authorized the use of interrogation techniques almost universally considered torture – such as waterboarding – as well as the operation of covert CIA prisons abroad and the rendition of detainees to other countries where they were subsequently tortured.

HRW also criticized the United States under the current Barack Obama administration for failing to meets it obligations under the United Nations Convention Against Torture to investigate acts of torture and other inhumane treatment.

"President Obama has defended the decision not to prosecute officials in his predecessor's administration by arguing that the country needs 'to look forward, not backward,'" said HRW executive director Kenneth Roth. "[He] has treated torture as an unfortunate policy choice rather than a crime."

To date, both the Bush and Obama administrations have successfully prevented courts from reviewing the merits of torture allegations in civil lawsuits by arguing that the cases involve sensitive information, which, if revealed, might endanger national security.

Last year, Bush defended the use of waterboarding on the grounds that the Justice Department deemed it legal. In 2002, lawyers in the Office of Legal Counsel had drafted memos approving the legality of a list of abusive interrogation techniques, including waterboarding. However, HRW documents evidence that shows senior administration officials pressured the politically-appointed lawyers to write these legal justifications.

"Senior Bush officials shouldn't be allowed to shape and hand-pick legal advice and then hide behind it as if were autonomously delivered," Roth said.

HRW further recommends that Congress establish an independent, nonpartisan commission to examine the mistreatment of detainees in U.S. custody since the Sept. 11, 2001 terrorist attacks against the World Trade Center and the Pentagon and compensate victims of torture, as required by the U.N. Convention Against Torture.

"Without [a commission], torture very much remains within the toolbox of accepted policies. People are not going to back away from it until there is accountability," Karen Greenberg, executive director of New York University's Center on Law and Security and author of "The Least Worst Place: Guantanamo's First 100 Days", told IPS.

In 2009, U.S. Attorney General Eric Holder appointed a special prosecutor to investigate detainee abuse, but limited the mandate to only "unauthorized" acts, which effectively excluded violations like waterboarding and forcing prisoners to maintain stress positions that were approved by the Bush administration.

But on Jun. 30 of this year, the Justice Department announced that it would continue probing only two of nearly 100 allegations of torture. The open cases involve the deaths of two men – Manadel al-Jamadi, an Iraqi, and Gul Rahman, an Afghan – in CIA custody.

Human and civil rights group criticized the narrow scope of the torture investigations, while HRW said they failed to address the systematic character of the abuses.

"The U.S. government's pattern of abuse across several countries did not result from acts of individuals who broke the rules," Roth said. "It resulted from decisions made by senior U.S. officials to bend, ignore, or cast aside the rules." If the U.S. does not pursue criminal investigations, HRW is urging other countries to exercise universal jurisdiction under international law and prosecute the aforementioned officials.

A number of former detainees have already taken this step by filing criminal complaints in courts outside of the U.S.

In February 2011, alleged victims of torture living in Switzerland planned to file a suit against Bush, causing him to cancel his trip there.

Another investigation is underway in Spain, where the Center for Constitutional Rights and the European Center for Constitutional and Human Rights requested a subpoena for a former commander of the Abu Ghraib prison to explain his role in the alleged torture of four detainees.

Washington's failure to investigate its own citizens for abuses like torture ultimately undercuts its efforts to hold other governments accountable for human rights violations, according to HRW.

"The U.S. is right to call for justice when serious international crimes are committed in places like Darfur, Libya, and Sri Lanka, but there should be no double standards," Roth said.

"When the U.S. government shields its own officials from investigation and prosecution, it makes it easier for others to dismiss global efforts to bring violators of serious crimes to justice," he added.

Failing to prosecute ultimately sends the message that "if you are powerful, you can get away with even torture," Greenberg said.

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