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50 chapter 2 Law and War As the petitioners in the Historical Court of Justice well understood, legality is the basis for legitimacy. The best way to present their case for Leschi’s exoneration was not to question the fairness of the legal system that produced Leschi’s conviction. Rather, the petitioners’ lawyers would need to ground their case in law and highlight the virtuous capabilities of the liberal institution.They would argue for the inherent justice and legitimacy of the law in order to make their argument compelling to the judges. The main issue of debate in the Historical Court was therefore not whether U.S. law should or should not have been applied to Leschi in the 1850s, but rather how it should have been applied to him. Both Leschi’s 1857 conviction and his 2004 exoneration reinforced the legitimacy of law, even as they revealed law’s malleable nature. In this context, did the Historical Court exacerbate the larger problem it was created to address? In Washington’s territorial period, law and courts were put to the task of ordering a settler colonial society in the aftermath of armed Indian resistance . Territorial officials conferred on Leschi an exceptional legal status that made it possible for them to disregard legal restraints on the punishment of former enemies while claiming fidelity to due process.1 In 1856 and 1857, Leschi stood before territorial courts to answer for the specific crime of murder and the more general accusation of “inciting war.” The charges against him hint at the flexible nature of mid-nineteenth-century legality when applied to Indians: Leschi was neither seen as a warrior (for warriors cannot be charged with crimes in civilian courts) nor classified as a citizen (for citizens cannot make treaties or war).2 Territorial officials and settlers treated Indian warriors as both subject to and outside of U.S. law because the liminal legal category justified and advanced their goals of territorial expansion in the region. In 2004, the petitioners’ legal team in the Historical Court made the problem of legal categories central to their argument for Leschi’s exonera- 51 law and war tion. The petitioners asked the judges to interpret Leschi’s alleged actions in the context of legal war and consider his status as an enemy combatant.3 The legal team developed a two-pronged “wartime defense” designed to dismantle the logic of Leschi’s exceptional legal status. First, they argued that the judge in Leschi’s 1857 trial erred by failing to instruct the jury that a combatant could not be charged with murder for killing an enemy during wartime. Second, they insisted that the territory’s civilian courts did not have jurisdiction over an enemy combatant’s case, which should have been handled by military commission, if at all. The issue was not just whether Leschi’s trials followed due process, but whether the United States should categorize an Indian warrior as an enemy combatant or a criminal. The petitioners maintained that Leschi should have been treated consistently as an enemy combatant and should have received the legal protections appropriate to that status. The petitioners struck a chord with the judges when they framed Leschi’s case in terms of the role and proper application of law in wartime contexts. Questions about how to define war and combatants were just as relevant in 2004, when the United States detained alleged terrorists captured in the so-called War on Terror, as they were in 1855 when American militiamen and soldiers fought Nisquallies in South Puget Sound. Once again, war offered the backdrop for debate over the proper judicial action in Leschi’s case. Warfare is as old as human societies, but the laws of war have a history especially suited for discussion in the Historical Court. Enlightenment military theorists treated warfare as a rational science and, as such, assumed it could be ordered through the rule of law. In the first half of the nineteenth century, the professional officer class in the United States developed principles for this legal code based on eighteenth-century philosophy and the writings of lawyers in maritime prize cases. The organizing principle to this body of law held that soldiers must be distinguished from criminals.4 This code further developed in the international realm as rules of warfare that hostile “civilized” nations implicitly agree to follow when declaring war. Laws of war were supposedly based on natural order and rationality, which lent these laws the...

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