Native Americans: Modern-Day al Qaeda?

al bahul

In this courtroom illustration, Ali Hamza Ahmad Sulayman al Bahlul (seated at 2nd R) appears before a military commission at Guantanamo Naval Base August 26, 2004 in Guantanamo, Cuba. Bahlul is charged with conspiracy to commit war crimes. (Illustration by Art Lien/Getty Images)

Government Calls Native American Resistance of 1800s “Much Like Modern-Day al Qaeda”

The Center for Constitutional Rights (CCR) issued a statement recently  concerning the hearing before the United States Court of Military Commission Review in United States v. Al Bahlul, scheduled for March 17, 2011.  Al Bahlul is the first appeal of a Guantánamo military commission conviction to proceed before the Court of Military Commission Review.  The case is notable because, in essence, it is a conviction in desperate search of supporting war crimes.  But it’s also notable for the ahistorical and racist rhetoric in the government briefs that suggest equivalency between Native Americans resisting US take over of their homelands and al Qaeda.

If you were to ask the Seminoles, I suspect they would say that the greatest threat to their homeland security during the 1800′s was in fact the US Government. It’s appalling that the Obama administration has abandoned it’s pledge to close Guantanamo. But it’s intolerable that it would invoke and distort one of the darkest moments in American history to justify its failure. Here’s the CCR statement:

Mr. Bahlul has been imprisoned at Guantánamo for nearly a decade.  After two presidential administrations, one Supreme Court decision, two acts of Congress, three sets of charges, a trial that concluded more than two years ago, appellate proceedings that began more than a year ago, a reshuffling of the Court of Military Commission Review, and a decision to hear the appeal en banc, the government has all but conceded that the offenses for which Mr. Bahlul was originally convicted before a military commission – conspiracy, solicitation and providing material support for terrorism – were not established law-of-war offenses under U.S. or international law at the time they were allegedly committed.

The court appears to recognize this as well, because on January 25, 2011, it issued certified questions on its own and ordered the parties to address whether Mr. Bahlul’s conviction can nonetheless be supported under a “joint criminal enterprise” theory of liability, or on the ground that he “aided the enemy,” despite the fact that he owed no duty or allegiance to the United States. These questions are the subject of tomorrow’s hearing.

The court’s action is highly irregular because the government expressly withdrew reliance on a “joint criminal enterprise” theory of liability and never argued a charge of “aiding the enemy” at Mr. Bahlul’s commission trial.  Common sense also dictates that attempting to justify a life sentence for an alleged “enemy” who owes no duty or allegiance to the United States because he “aided the enemy” is legal bootstrapping.

Military commission judges, no less than other military officers, are sworn to uphold and defend the Constitution, not devise creative legal theories never argued by the parties at trial in order to uphold law-of-war convictions.  Although the government may have badly botched the prosecution of Mr. Bahlul, the court should reject the invitation in the government’s response to the certified questions to search out some legal theory – any legal theory – to support his conviction.  Nothing less is demanded of a regularly constituted court.

The court should also reject the government’s notable reliance on the “Seminole Wars” of the 1800s, a genocide that led to the Trail of Tears.  The government’s characterization of Native American resistance to the United States as “much like modern-day al Qaeda” is not only factually wrong but overtly racist, and cannot present any legitimate legal basis to uphold Mr. Bahlul’s conviction.

Sadly, however, the removal and attempted eradication of Native Americans is not unlike the treatment of detainees at Guantánamo in that each stands alongside slavery and Jim Crow, the targeting of immigrants, and the internment of Japanese-Americans, among other examples, as a stark reminder of how in times of fear and xenophobia our nation has brutalized and demonized human beings as “others” who are unworthy of the rights most Americans take for granted in order to deny them equal protection of the law.

Guantánamo was designed to be a prison where no laws applied.  Today, it remains a prison reserved exclusively for Arab and Muslim men, many of whom the president recently announced would be subjected to military commissions, an ad hoc system intended to manufacture convictions unattainable in federal court.

vince warren

This secondary system of justice should be abandoned.  Mr. Al Bahlul’s conviction should be overturned, and the prison, which administration officials continue to recognize threatens and demeans the United States, must be closed now.

Vincent Warren
Executive Director for the Center for Constitutional Rights

Published by the LA Progressive on March 23, 2011
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About Vincent Warren

Vincent Warren is the Executive Director of the Center for Constitutional Rights (CCR), a national legal and educational organization dedicated to advancing and defending the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Vince oversees CCR’s groundbreaking litigation and advocacy work which includes combating the illegal expansion of presidential power and policies such as illegal detention at Guantanamo, rendition, torture and warrantless wiretapping; holding corporations and government officials accountable for human rights abuses; and, challenging racial injustice and mass incarceration.

Vince has spearheaded a public campaign, “Beyond Guantanamo: Rescue the Constitution” coinciding with CCR’s landmark Supreme Court victory in Al Odah v. U.S. and Boumediene v. Bush, which held that the detainees at Guantánamo Bay have a constitutional right to the writ of habeas corpus.

Prior to his tenure at CCR, Vince held the position of national senior staff attorney with the American Civil Liberties Union (ACLU), where he led constitutional and impact litigation to advance civil rights and liberties. Among the cases he has litigated are:

• Gratz v. Bollinger, companion case to the landmark Supreme Court decision to uphold affirmative action in college admissions.

• Dasrath v. Continental Airlines on behalf of plaintiffs removed from an airplane shortly after 9/11 because they were perceived to be Arab or Muslim, and

• White v. Martz, a class action lawsuit which helped create Montana’s first statewide public defender system.

Vince also monitored South Africa’s historic Truth and Reconciliation Commission hearings and worked as a criminal defense attorney for the Brooklyn Legal Aid Society. Vince holds a law degree from Rutgers School of Law and a B.A. from Haverford College.