Historical antecedents of police brutality

With the protests against police shootings in Ferguson and New York City, Native writers are noting that violence against minorities is nothing new.

The I Can’t Breathe Movement

By Dana LonehillBeing shot and killed by police is nothing new to people with darker skin. Maybe some people think it is because of the recent civil rights movement dubbed I Can’t Breathe, in honor of the many killed by police and justified. Natives, Blacks, and other minority groups alike all know this story. They make up most of the prison system to this day and have never been under represented in anything to do with acts of genocide. Police brutality and militarization of police are something that date back slave days and days of putting Indians on a reservation.

In researching and preparing to write this, I asked many people their opinions or for quotes. I found many. I could and should post them here, but instead in the simplest terms, I will just throw it down like this. This country was founded on brutality and racism, resulting in genocide. This country was never about apple pie and baseball.

And all the muddy, messed up past is not recorded in the history books. Sure they talk about slavery and praise Lincoln for “freeing the slaves” but do the schoolbooks include Lincoln signing the death sentences of 264 Dakota prisoners? Or the mass hanging of 38 of those prisoners in what is now the largest mass execution in America? The history books will tell you what they want you to think, like you will remember or care, but they won’t tell you the truth.

Violence in the form of brutality and death is nothing new in this country. It has been happening for hundred of years, it is the foundation of this country.Where's the Senate Torture Report on All the Violence Done to Natives?

By Boyd CothranFollowing 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.

One hundred thirty years later, Yoo resurrected this legal theory to support his expansive articulation of executive power and to maintain American innocence in the Global War on Terror. “The strictures that bind the Executive in its role as a magistrate enforcing the civil laws have no place in constraining the President in waging war,” Yoo argued. Enhanced interrogation techniques, including waterboarding, could be used on enemy combatants because federal criminal laws prohibiting assault and battery simply do not apply to such criminals. Within the eyes of American law, the enemy combatant was a criminal because the Modocs were criminals; the use of torture in the Global War on Terror was justified because hanging the Modoc was justified.

What does this all mean? Why is it important to recognize the historic roots of our current conversation about torture? Because history matters. Setting the record straight matters. In reckoning with the legacy of the September 11, 2001 and its aftermath Americans must confront the violence of the past and say "never again." But in doing so we must not think that these sort of judicially expedient accommodations are unprecedented. Too often we forget that the colonization and subjugation of the powerless are often carried out under the guise of the law. Williams constructed a legal opinion in 1873 to justify ends, which most Americans at the time would have viewed as necessary and justified. But in doing so, he created a means for others. A true accounting for the history of the use of torture in the war on terror will have to look far beyond the last decade to understand our longer use of the law to justify the unjust.Comment:  For more on the subject, see "Hands Up, Don't Shoot!" and Grand Juries Won't Indict Killer Cops.