Boyd Cothran: Torture justified by treatment of Indian prisoners

Following the attacks of September 11, 2001, the George W. Bush administration began constructing its legal response to the perceived terrorist threat. This response consisted of a series of legal opinions from the Department of Justice, many of them written by John C. Yoo, a University of California law professor who was then serving as a deputy assistant attorney general. The memorandums provided legal arguments to support the administration’s claim that detainees from the war in Afghanistan did not enjoy the protections of either the U.S. Constitution or the Geneva Convention and that the War Crimes Act of 1996 also did not apply. Despite considerable disagreement from Secretary of State Colin Powell and others, the administration went ahead, and by December 2002, the Defense Department had drafted detailed policies for interrogation techniques. Then, in early March 2003, Yoo authored one of his most sweeping legal briefs in what came to be known as the infamous Torture Memos. In it, he set out not only a legal justification but also a historical connection between unlawful combatants in the current conflict and Indigenous peoples in the nineteenth century.

Reading the eighty-one-page memorandum after it became available to the public in April 2008, I was surprised to discover that at a crucial point in his memorandum Yoo relied on U.S. attorney general George H. Williams’s 1873 opinion regarding the legality of denying Indian P.O.Ws fifth amendment due process rights. The opinion provided a legal justification for circumventing civilian jurisdiction to try the Modocs for murder by a military tribunal.

“It cannot be pretended that a United States soldier is guilty of murder if he kills a public enemy in battle,” Williams wrote in 1873, “which would be the case if the municipal law was in force and applicable to an act committed under such circumstances.”

The Modocs, Williams had argued, could be legally prosecuted and executed by the U.S. military as long as they were first declared criminals; the U.S. Army, in other words, could kill Indians who were deemed murderers without themselves becoming murderers.