Prof. Eugene Kontorovich passes along the news about United States v. Said, and has this analysis:
Today a district court in Norfolk dismissed on summary judgment of piracy charges against alleged Somali pirates captured by the U.S. for an attack on American warship. (Many other non-international charges remain.) In short, he ruled that attempts are not part of the definition of piracy. This is a tremendous development, it is perhaps the first federal opinion on the meaning of piracy at international law since 1820. But even more remarkably, the judge’s opinion touches on major questions about the incorporation of international law into domestic law. His argument for dropping the charges is the same kind of argument currently made against the use of conspiracy charges by Guantanamo military commissions; and echoes the calls to limit ATS litigation based on relatively novel norms. As it happens, this is all the subject of an article I’m finishing off, Discretion and Delegation in “Defining . . . Offenses”: Article I Limits on Alien Tort Suits and Military Commissions.
The last time the Supreme Court addressed itself to the issue, in U.S. v. Smith (1820), it said piracy was robbery on the high seas, taking things by force. The judge concludes from this that attempted piracy is not robbery – because nothing is taken. I disagree: the issue in Smith was not what the definition was, but whether there existed a reasonable concrete one such that Congress executed its power to “Define” by simply naming the offense. Smith did not rule out attempts. Moreover, since the statute criminalizes piracy against “the law of nations,” Congress, which knew that international law changes, manifestly did not want to set the definition in stone.
Judge Jackson knows that various developments indicate that attempts are part of the piracy prohibition. However, the opinion demonstrates a deep hesitancy to weave the ephemeral strands of customary international law – state practice, international organization pronouncements, professorial writings – into something as solid as handcuffs. In other words, the judge applies an high standard to establish something as international law for the purposes of creating liability in U.S. courts. For customary international law to establish liability, there must be what Judge Jackson calls “controlling judicial actions” establishing the rule; and the rule must be undisputed by scholars.
There is much to recommend this approach, which would have significant limiting implications both for military commissions and ATS suits. Congress has the power to punish piracy on the high seas and offenses against the law of nations: if conduct is not piracy or otherwise an international law violation, Congress simply has no power to punish it (holding aside the power over felonies on the high seas). Given the amorphous nature of international law, Congress could vastly expand its powers by claiming things are against international law. The courts, to enforce the enumerated powers, must be and have been willing to measure claims by Congress, or in this case the executive, that something violates international law against international law itself. Because Congress is limited by the law of nations, Define and Punish legislation cannot be part of the progressive development of international law. It can only follow, not lead, and this is what Judge Jackson in essence says.
The situation would be different had Congress actually “defined” piracy – then the courts would give that definition considerable deference, if past practice is a guide. Here, however, Congress has left the defining to the judiciary, So the deference disappears – courts cannot play past and loose in defining actionable norms where Congress has not done so. So in establishing the contours of piracy in the law of nations, it is entirely appropriate that they be tough-minded about vetting purported international law norms. This is what the Supreme Court in Sosa tells the courts to do in the ATS context; the judge here recognizes that this caution is not just a matter of legislative intent, it is a constitutional mandate. Going outside international law does not just take the court beyond the statute, it takes it past the Define and Punish clause.
While the approach is sensible, these principles are misapplied here, for reasons David Glazier mentioned in comments earlier, and others. The Law of the Sea treaty clearly includes attempts as part of piracy. Here the judge errs in claiming the U.S. did not ratify the treaty: it ratified the 1958 version of the treaty that had the same piracy language. And Washington accepts the current UNCLOS as stating customary international law. Moreover, the Executive has in recent times treated attempt as part of piracy. In 2006 the US Navy captured some Somalis in the Gulf of Aden and turned them over for trial in Kenya on piracy charges (the first such handover). The incident involved an attempted piracy.
The opinion’s due process argument is also pretty weak. If one is on notice that piracy is illegal under international law, isn’t one also on notice that trying to commit it will also get you in trouble, especially when as in this case the attempt failed not through lack of trying, but solely because of resistance by the would-be-victim?