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Court Reaches Back to 1818 to Justify Military Commissions

By Jeralyn, Section Terror Trials
Posted on Sat Jun 25, 2011 at 06:27:38 PM EST
Tags: military commissions, Salim Hamdan (all tags)
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The review court for military commission trials issued an en banc opinion yesterday upholding the conviction of Osama bin Laden's driver, Salim Hamdan.

In justifying trial by military commission, it reached back to 1818.

In that case, U.S. forces under Gen. Andrew Jackson invaded Spanish Florida in 1818 to stop black slaves from fleeing through a porous border. Troops captured two British traders, whom the general ordered face a military commission on charges they aided the enemy by helping the Seminoles and escaped black slaves.

The tribunal convicted the men and sentenced them to a whipping. Jackson, a slave owner, declared the punishment too soft and had them executed.

The opinion is here.

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    Court Reaches Back to 1818 to Justify Military Commissions | 17 comments (17 topical)

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    Low Water Mark In US History (5.00 / 6) (#1)
    by john horse on Sat Jun 25, 2011 at 07:27:36 PM EST
    In my opinion the invasion of Spanish Florida in order to recapture escaped runaway slaves by Andrew Jackson was one of the low water marks in American history.  Most people are familiar with the underground railroad and Canada, but in the early 17th and early 18th century Spanish Florida provided freedom to runaway slaves.  Another ally for runaway slaves were the Seminoles who refused to accept the institution of slavery and welcomed the Black Seminoles to their "tribe".  Because of this, Spanish Florida was a threat to the South.  This was the primary reason that Jackson invaded.

    Jackson's invasion of neutral Florida was not authorized by a declaration of war from Congress.  The thought of soldiers fighting under the American flag to support the institution of slavery is sickening.  It is a strange precedent to be citing.

    There is (5.00 / 3) (#2)
    by lentinel on Sat Jun 25, 2011 at 08:14:31 PM EST
    something really chilling about this.

    The crime they are charging Hamden with is being Osama's driver.
    That's about it. That's the manner in which he provided material support for terrorism.

    I don't know.

    But any decision that is based even in part by using as a precedent the attempts to capture runaway slaves is really scary to me.

    geez, (5.00 / 2) (#3)
    by cpinva on Sat Jun 25, 2011 at 08:59:04 PM EST
    you'd think the court might have noticed that jackson had no actual legal authority to support his actions. even the members of his court questioned the legality of it. the fact that he told them what the outcome was expected to be adds just another hint of extra-juridiciality to the incident.

    facts:

    1. jackson, under orders from pres/congress, invades spanish owned n. florida, a clearly illegal act all by its lonesome.

    2. he captures two english citizens, traders with the local native tribes.

    3. he decides to execute them, as an "example". to avoid being seen for what it actually is, summary execution, he sets up a "military trial", with his officers as judges, with a pre-ordained conclusion, having no actual legal authority, either domestic or international.

    4. the traders are "found guilty" (color us all stunned) of basically, well...............being there.

    5. jackson overrides the commission sentences and orders them executed.

    yeah, that's a real solid "precedence" for a country under the rule of law.

    i am not impressed.

    Ugh (5.00 / 3) (#4)
    by cal1942 on Sat Jun 25, 2011 at 09:19:45 PM EST
    Using a dark chapter in US history as justification tells us we're in a real slide on all fronts.

    Obama, as CIC, can override this (5.00 / 2) (#5)
    by Dadler on Sat Jun 25, 2011 at 11:09:11 PM EST
    Anytime he wants.  Waiting, waiting...

    Silence.

    "I said there was a society of men (5.00 / 1) (#6)
    by seabos84 on Sun Jun 26, 2011 at 08:04:55 AM EST
    among us, bred up from their youth in the art of proving by words multiplied for the purpose, that white is black and black is white, according as they are paid. To this society all the rest of the people are slaves.
    ...
      Now, your Honour is to know that these judges are persons appointed to decide all controversies of property, as well as the trial of criminals, and picked out from the most dextrous lawyers who are grown old or lazy: and having been biased all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury and oppression, that I have known several of them refuse a large bribe from the side where justice lay, rather than injure the faculty by doing any thing unbecoming their nature or office.
      It is a maxim among these lawyers, that whatever hath been done before may legally be done again: and therefore they take special care to record all the decisions formally made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of decreeing accordingly."

    let's play guess the author, without google!

    (hint - the writing style predates google by a few ... )

    rmm

    Do tell (none / 0) (#8)
    by BackFromOhio on Sun Jun 26, 2011 at 12:15:41 PM EST


    Parent
    Published in 1726 (none / 0) (#12)
    by seabos84 on Sun Jun 26, 2011 at 04:31:58 PM EST
    Travels into Several Remote Nations of the World, in Four Parts. By Lemuel Gulliver, First a Surgeon, and then a Captain of Several Ships

    ;)

    rmm.

    "They look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege, that care and vigilance, with a very common understanding, may preserve a man's goods from thieves, but honesty hath no fence against superior cunning; and since it is necessary that there should be a perpetual intercourse of buying and selling, and dealing upon credit, where fraud is permitted and connived at, or hath no law to punish it, the honest dealer is always undone, and the knave gets the advantage."

    Parent

    Thanks (none / 0) (#21)
    by BackFromOhio on Wed Jun 29, 2011 at 08:25:39 AM EST


    Parent
    Yikes .... (5.00 / 2) (#7)
    by Robot Porter on Sun Jun 26, 2011 at 11:00:40 AM EST
    and what an 1818 decision too!  Not only does it defend Military Tribunals but slavery and Native American genocide.

    A trifecta!

    Avast there you lubbers! (none / 0) (#9)
    by Gerald USN Ret on Sun Jun 26, 2011 at 03:45:06 PM EST
    You might argue that the 1818 action and decision doesn't hold in this case, but I summarily reject your statements about the 1818 action and decision, and in particular what you say and imply about the great American hero General Andrew Jackson.

    General Andrew Jackson, may his name not be sullied in this forum, was a man of his time, a boy of immigrant parents whose father died before his birth, a soldier, a General, a teacher, lawyer, a President, even some say the originator of the Democratic Party.

    People that look back 200 years and say "that was bad", "that was evil" are laughable.  General Jackson lived in those times.  He had early experience with the British as a teenage prisoner of war.  His brothers died at British hands.  He would of course have no mercy on the hated British.  That was the way of the times.

    Say if you will that the 1818 action is not relevant today, but don't impugn the honor of a great man who was acting as his President and Congress wished.

    I should add (none / 0) (#10)
    by Gerald USN Ret on Sun Jun 26, 2011 at 03:58:32 PM EST
    that almost his entire family except his father died because of the British.
    His blessed mother nursed POW troops suffering from cholera on ships in the Charleston Harbor and he became an orphan at 14 when she died from the disease and was buried in an unmarked grave.

    General Jackson was a man of the times, the times he lived in some 200 years ago.  These were harsh times, and he was at times a harsh man.  That is how he survived, and how this country survived and became free.

    All honor to General Andrew Jackson!

    Parent

    Agreed, but what of the people ... (none / 0) (#14)
    by Erehwon on Sun Jun 26, 2011 at 04:45:51 PM EST
    who elected him President, and those who put him on the twenty dollar bill, and those continue to tolerate it.

    Parent
    Further, consider this. (none / 0) (#15)
    by Gerald USN Ret on Sun Jun 26, 2011 at 06:35:21 PM EST
    If our ancestors had sat at home on their hands,  or wrung their hands, and whined "we should only follow the rule of law" we should still be the subjects of the British Crown, or worse lackeys of the French.

    We would be speaking in francais of OUR President Sarkozy or about OUR Queen Elizabeth.

    Remember my friends and you have seen it in our recent and in many cases foolish intrusions into other countries, war is certainly hell as General Sherman said, but the real hell is to lose one.

    At least here in America we haven't lost any lately except maybe the one on drugs, and we have our own kind of hell in America because of that loss.

    The Indians are a different matter, and I won't broaden the topic anymore to include them.

    Parent

    Donald, (none / 0) (#17)
    by Gerald USN Ret on Mon Jun 27, 2011 at 01:55:44 AM EST
    I don't defend General/President Andrew Jackson's every decision and action.

    He owned and worked slaves as many did at that time.
    He certainly caused the Indians misery, some of which was beyond what was required to accomplish set goals.  
    I am sure there are other foibles we could talk about as well, but my main thrust was to say that he did what was expected, indeed demanded, of a leader at that time by his President, the Congress, his party and the people of this nation.  

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    Foibles indeed! (none / 0) (#19)
    by Erehwon on Mon Jun 27, 2011 at 04:39:14 AM EST
    He certainly caused the Indians misery, some of which was beyond what was required to accomplish set goals.
    His behavior, by the standards of those days, downplaying the deaths of children and women (and men) was contemporaneously deplored. His decision not to enforce the Supreme Court decision in Worcester v. Georgia violated his presidential oath obviously!

    Misery! Foibles!

    Parent

    And lastly Donald, and Erehwon, (none / 0) (#20)
    by Gerald USN Ret on Mon Jun 27, 2011 at 01:53:58 PM EST
    granted that the vessel (Andrew Jackson) wasn't always perfect, still I admire him greatly for what he brought to our nation.

    He was forged in the fire of history and fate that Americans can only try to imagine today.  He was a great leader, and the stalwart fierce soul that America needed at the time.

    He inspired his contemporaries, his men and his nation.  He inspires still.

    Try and see past the scabs and warts, to the child that was tried in the inferno of our war for independence and became (and I cannot  emphasize it any more) America's General Andrew Jackson.

    Parent

    Court Reaches Back to 1818 to Justify Military Commissions | 17 comments (17 topical)

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