At Concurring Opinions, Seton Hall lawprof Jonathan Hafetz notes that Andrew Jackson's 1818 executions of Robert Ambrister and Alexander Arbuthnot during the First Seminole War have become a hot news item.
Apparently the Justice Department, seeking to defend military commissions, cited Jackson's actions as precedent. In the process, DOJ likened the Seminoles to al Qaeda and seemingly endorsed Jackson's actions:
In a recent brief to the Court of Military Commissions Review (CMCR), the Pentagon cited an 1818 military commission convened by General Andrew Jackson to execute two British men, Robert Ambrister and Alexander George Arbuthnot, for assisting the Seminole Indians after U.S. forces had invaded then-Spanish Florida to prevent black slaves from escaping. The prosecution’s brief elaborated: “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. 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.” (emphasis added).
Prof Hafetz condemns the argument as "[b]ad lawyering", "[o]ffensive" and "[r]evealing":
The Ambrister- Arbuthnot commission may be historical evidence, but it’s not legal precedent and it’s very poor evidence. That commission was never considered or validated by any court. Jackson, meanwhile, was almost censured by Congress and the decision was castigated, including by the House Committee on Military Affairs. William Winthrop, whom the U.S. Supreme Court has called “the Blackstone of Military Law” and repeatedly cited in Hamdan v. Rumsfeld and other opinions, later described Jackson’s order to execute Ambrister (after the commission had sentenced him to corporal punishment) as “wholly arbitrary and illegal.” (Winthrop also remarked that if an officer had ordered the execution as Jackson had, he “would now be indictable for murder.”). If one were defending the commissions, this is historical evidence you’d normally want to bury, not showcase.
OK, you Andy Jackson scholars, have at it!