John Fabian Witt: When Americans were unlawful combatants
[John Fabian Witt is a professor of legal history at Columbia University and the author of Patriots and Cosmopolitans: Hidden Histories of American Law.]
On an island under military occupation at the edge of an empire, the armed forces of a global superpower detain hundreds and sometimes even thousands of allegedly unlawful combatants. The powerful nation consigns the detainees to a legal limbo, subjecting them to treatment that critics around the world decry as inhumane, unenlightened, and ultimately self-defeating. That may sound like a history of Guantanamo. Yet the year was 1776, the superpower was Great Britain, and the setting was New York City. The "unlawful" combatants were American revolutionaries.
Ever since President-elect Barack Obama suggested that he will close down Guantanamo, historians and journalists have been racing through the American past in search of evidence for our commitment to the rule of law in wartime. The Founding Fathers are the first stop. The days when New York was America's 18th-century Guantanamo, it seems, hold lessons for extricating ourselves from the Bush Administration's 21st-century mess. New York's notorious prison camps are the subject of a new book, Forgotten Patriots: The Untold Story of American Prisoners During the Revolutionary War, by Pulitzer Prize-winning historian Edwin G. Burrows. Though he mentions current events only once, the American experience since 9/11 looms over his story.
After the Continental Congress issued the Declaration of Independence in Philadelphia on July 4, 1776, British forces under Gen. William Howe began warehousing thousands of Americans captured in and around New York in Britain's first major campaign of the war. For the next seven years, British forces occupied the city, turning it into a barracks and loyalist refugee center, but also a prison camp for Americans taken prisoner around the Eastern Seaboard and on the high seas....
Parallels to recent American history are sometimes so close as to be eerie. In the months after 9/11, the United States hoped that putting detainees at Guantanamo would insulate its detention decisions from legal challenges in the courts. Lord North and the British Cabinet hoped that locating prisoners in New York would do the same. (North shipped American revolutionary hero Ethan Allen from London to New York in order to keep him out of reach of habeas corpus proceedings in the British courts at Westminster.) As in Iraq and Afghanistan, the ambiguous legal status of American prisoners tacitly licensed shocking abuses. The surviving diaries of American prisoners describe sadistic treatment by captors who were every bit the equal of Charles Graner and Lynndie England at Abu Ghraib.
What Burrows wants us to see is that the laws of war and its humanitarian protections were once rallying points for American patriotism, not obstacles to its realization. Virtually every one of the founding fathers—George Washington, Benjamin Franklin, and Thomas Jefferson most of all—cited the humanitarian imperatives of what was then known as the Law of Nations and excoriated the British for their treatment of American captives....
Read entire article at Slate
On an island under military occupation at the edge of an empire, the armed forces of a global superpower detain hundreds and sometimes even thousands of allegedly unlawful combatants. The powerful nation consigns the detainees to a legal limbo, subjecting them to treatment that critics around the world decry as inhumane, unenlightened, and ultimately self-defeating. That may sound like a history of Guantanamo. Yet the year was 1776, the superpower was Great Britain, and the setting was New York City. The "unlawful" combatants were American revolutionaries.
Ever since President-elect Barack Obama suggested that he will close down Guantanamo, historians and journalists have been racing through the American past in search of evidence for our commitment to the rule of law in wartime. The Founding Fathers are the first stop. The days when New York was America's 18th-century Guantanamo, it seems, hold lessons for extricating ourselves from the Bush Administration's 21st-century mess. New York's notorious prison camps are the subject of a new book, Forgotten Patriots: The Untold Story of American Prisoners During the Revolutionary War, by Pulitzer Prize-winning historian Edwin G. Burrows. Though he mentions current events only once, the American experience since 9/11 looms over his story.
After the Continental Congress issued the Declaration of Independence in Philadelphia on July 4, 1776, British forces under Gen. William Howe began warehousing thousands of Americans captured in and around New York in Britain's first major campaign of the war. For the next seven years, British forces occupied the city, turning it into a barracks and loyalist refugee center, but also a prison camp for Americans taken prisoner around the Eastern Seaboard and on the high seas....
Parallels to recent American history are sometimes so close as to be eerie. In the months after 9/11, the United States hoped that putting detainees at Guantanamo would insulate its detention decisions from legal challenges in the courts. Lord North and the British Cabinet hoped that locating prisoners in New York would do the same. (North shipped American revolutionary hero Ethan Allen from London to New York in order to keep him out of reach of habeas corpus proceedings in the British courts at Westminster.) As in Iraq and Afghanistan, the ambiguous legal status of American prisoners tacitly licensed shocking abuses. The surviving diaries of American prisoners describe sadistic treatment by captors who were every bit the equal of Charles Graner and Lynndie England at Abu Ghraib.
What Burrows wants us to see is that the laws of war and its humanitarian protections were once rallying points for American patriotism, not obstacles to its realization. Virtually every one of the founding fathers—George Washington, Benjamin Franklin, and Thomas Jefferson most of all—cited the humanitarian imperatives of what was then known as the Law of Nations and excoriated the British for their treatment of American captives....