Douglas Burgess Jr. makes the interesting argument that pirates are a type of terrorist and should be treated as such.
The solution to piracy lies in the very nature of piracy itself. The Roman lawmaker Cicero defined piracy as a crime against civilization itself, which English jurist Edward Coke famously rephrased as “hostis humani generis” — enemies of the human race. As such, they were enemies not of one state but of all states, and correspondingly all states shared in the burden of capturing them. . . .
Pirates are not ordinary criminals. They are not enemy combatants. They are a hybrid, recognized as such for thousands of years, and can be seized at will by anyone, at any time, anywhere they are found.
. . . Are pirates a species of terrorist? In short, yes. The same definition of pirates as hostis humani generis could also be applied to international organized terrorism. Both crimes involve bands of brigands that divorce themselves from their nation-states and form extraterritorial enclaves; both aim at civilians; both involve acts of homicide and destruction, as the United Nations Convention on the High Seas stipulates, “for private ends.”
It is an interesting argument, but it may have a faulty premise. As Kevin Jon Heller notes, while pirates may be enemies of all states, that does not make them the same as terrorists.
The defining feature of terrorism is precisely that it is committed not for private ends, but to intimidate a civilian population or to influence government policy. Indeed, over the long and troubled history of efforts to create a general definition of terrorism, that is perhaps the only aspect of the definition that has never seriously been in doubt. . . .
Pirates have no politics. They are, therefore, not terrorists.
From what I have read they are responsible for about 9 or 10 deaths this year, plus more "missing" who are assumed dead.
That said it should be obvious that pirates are not terrorists. Terrorists might be like pirates, but they don't share the same goals.
There is, however, a catch: in the current regulatory/customs environment, international shippers are not allowed to defend their own ships. Maybe if we liberalized our customs regimes and allowed shippers to defend themselves, shippers would start internalizing their own defense, and governments around the world could reduce their naval spending.
Hm...it seems to me that all the above applies to ordinary robbers also, except for the claim that piracy is a form of warfare. What exactly does that mean, though? What exactly makes an accused pirate less deserving of civil rights than an accused armed robber?
Nonsense---governments have consistently historically taken very serious measures to protect their merchant marine from piracy. Witness the mini-war against the Barbary Pirates. Also witness the French and English government policies from the same period of paying Tripoli pirates to allow their ships safe passage. See also the multitude of Spanish and English anti-piracy efforts of the 17th and 18th century. I'm all for limited government, but I know the history here is wrong and I seriously suspect the legal premises about the nature of the high seas are as well, but I'll let someone else speak to that. Privateering may be a possible answer to piracy, but it's surely not the only logical one.
Cool.
And who do you think the shippers will pass that "cost of business" on to?
Kinda like the concept of corporate taxes, I suppose.
Rip those shippers! Rip those evil corporations! Make 'em pay!
Doesn't affect me.
No.
Not at all.
I think the point is that having shippers protect themselves and pass on the cost is more efficient than having navies defend the shippers, with Joe Taxpayer covering the tab.
It might just be that the cost of fighting piracy is greater than the benefits, so the current system of capture, ransom and release may be economically optimal.
Although, in our technological age, I imagine it is possible to track and attack the pirates after they release a vessel, and will only get easier with time.
We need a "declaration of sorta war" which would say this land is not controlling its criminals and we can go take anyone and prosecute and punish them to whatever standards we set until control is established by the people there. The standards ought to be a fair determination that an individual is associated with piracy (pretty trivial if caught red handed) and jail by the standards of Somalia. If Somalis want more advanced human and legal representation rights they will have to to govern themselves first.
To be more specific, we normally define terrorism (and terror for that matter) as violence aimed at a goal other than money, which is why armed robbery is not considered an act of terrorism.
What they want from us is money, not compliance in other areas. Hence they are not political terrorists. This seems to be the substance behind 18 USC 2331 definitions.... (i.e. they are not intended to intimidate a "civilian population" as such, and are not intended to affect the course of government).
If we extend "terrorism" to cover piracy, it would be an equal stretch to include all forms of assault and armed robbery as well...
I am well aware of the long history of states defending their merchants from pirate attacks. I'm also well aware of the long history of states subsidizing slave owners by using public monies to hunt down escaped slaves, subsidizing aristocrats by funding their lavish lifestyles, subsidizing environmental destruction by paying farmers above-market prices for their crops, etc., etc. But that doesn't make any of this just or economically efficient.
If it costs me $10 to produce a good, and it costs the Chinese $8 to produce the same good, but the government spends $3 protecting the ship that carries the good from Shenzhen to Los Angeles, are we really better off as consumers paying $8 for the imported good and $3 to the government, rather than paying $10 to the domestic producer and nothing to the government?
For all the hubbub about American jobs going overseas, you'd think that people would support efforts (such as stopping subsidizing anti-pirate naval missions) that would force international traders to pay the full price of their operations.
If you have one armed ship and demand money from a single merchantman, you're a criminal and will be hanged.
If you have a navy and demand tribute from every merchantman, you're the government and get to hang criminals.
Pirates operate on the high seas which is different than being within the borders of a country with clearly defined laws. For example suppose the National Security Agency intercepted pirate communication and that led to their capture. Would the exclusionary rule apply?
Piracy is special in this and other respects. Giving civil rights to pirates is not only hard to implement, but unnecessary.
Crime is all externalities, and crime-control is a common good.
On the other hand, how many times can you hang someone?
A pirate: once. A terrorist - oops, US Constitutional protection - rarely if at all.
Terrorists, in contrast, frequently operate out of places where the law does run (Oklahoma City), but their actions are uniquely bad on their own "merits". It's an entirely different category.
International terrorists are clearly more dangerous and destructive as pirates, and at least as black hearted. They should hardly have any more protections that pirates.
But I see no reason that a pirate cannot commit an act of terrorism (e.g., to oppose government action to clamp down on piracy ala narcoterrorism) or that a terrorist cannot commit an act of piracy (e.g., to fund their terrorism).
I agree with this. I also think that the death penalty as applied to pirates wasn't meant to be as disproportionately punitive as people are making it out to be. During the heyday of piracy, there were literally hundreds of offenses that could land you at the end of a hangsman's gallows, even in countries like Britain that considered themselves relatively civilized. That piracy was among them isn't particularly surprising (or even noteworthy).
We saw a similarly unperceptive and even more breathless op-ed by WSJ's neocon Bret Stephens two weeks ago.
In the context of the US's counterproductive engagement with nascent Somali regimes, and calls by shippers (and other lovers of the state) for governments to provide protection, let us not forget the ironies that St. Augustine pointed to centuries ago, about states (the biggest pirates) hypocritically talking up the outrages of much smaller brigands:
The 18th century attempts to define piracy as "robbery on the high seas" (James Wilson) doesn't really work, and was not used that way consistently. The term would be better defined as a "warlike act against ones own country by a foreign nonstate actor, or against another country by a domestic nonstate actor". Then treason becomes a warlike act against ones own country by a domestic nonstate actor, felony or misdemeanor a less-than-warlike act by a domestic state or nonstate actor, insurrection a warlike act by a domestic statelike actor, and war a warlike act by a foreign state actor. The various permutations of domestic or foreign, against our country or another, state or nonstate, warlike or less than warlike, partition the space of possibilities and each is covered by its own long-established law.
A president who directs a warlike act against a foreign state without a declaration of war or letters of marque and reprisal is thus a pirate, and so are the men who might carry out such a directive.
A warlike act by a foreign nonstate actor is properly under the jurisdiction of the military, and of a domestic nonstate actor under the jurisdiction of civilian courts.
That leaves a grey area of the actions of foreigners present on U.S. soil, either with or without permission, or if with permission, whether admission was secured through fraud. That would normally make it civil.
One argument I made for how torture could be made legal was to first try and condemn the pirate (terrorist) to death, then defer the execution pending the results of interrogation. Once "legally dead" there would be no limit to what could be done to him, because he would always have the option to be terminated.
Of course the real issue for many of the detainees is the ways they were captured. The theory does require some due diligence in capturing only those caught in the act, and not just in the area. "Kill 'em all and let God sort 'em out" is an easy way to avoid casualties to one's own troops but not a good way to Win the Hearts and Minds.
Crime is all externalities, and crime-control is a common good.
As an anarcho-capitalist, I agree with you that protection against piracy is no different than protection against common criminals. As for a crime control being a "common good," I assume you mean public good (as "common good" is a vague term that doesn't have any meaning in an economic sense), but why is it a public good? Police protection is not non-rivalrous, and is definitely not non-excludable. Private security is a very old industry with a very illustrious history, and just because its been usurped by public security functionaries in recent decades/centuries doesn't mean that it's inherently better.
Note that the government backed piracy is lawful and not a war crime...privateering (eg letters of marque and reprisal) is legal in our constitution. Is blowing up a merchant marine vessel different than blowing up an oil refinery?
However, government backed terrorism is not lawful...and is often a war crime.
But calling them "terrorists" doesn't help either. Aside from sheer overuse of the word (see: "terroristic threats"), "terrorist" has been increasingly used not to describe people who have committed acts of violent terrorism, but who are accused of conspiring to do so at some point in the future, or of associating with bad people. Piracy is tied to an act—I can point to people and say "these are pirates," and prove it because they commandeered ships on the high seas (and didn't die in the process, which is often the problem with naming terrorists based on observable acts instead of associations, bin Laden and McVeigh notwithstanding).
"Hijackers" seems to describe the phenomenon well enough without confusing the issue with terrorism.
Article I, Section 8: "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations."
Why would the constitution give Congress the power to define and punish piracy if they were excluded from the normal framework of law?
"Probably"???
Given your monicker, I should think you would be at least somewhat familiar with Roman history - which includes the famous episode of Julius Caesar and the Cilician pirates. As a young man, he was captured and held for ransom. He told his captors that he was going to come back and hunt them all down. They thought it was a joke: but soon after he raised a fleet, defeated the pirates, and had them all crucified.
Piracy is as old as commerce at sea. I have no doubt that the Phoenician and Minoan merchants of the Bronze Age encountered pirates.
That's a problematic assertion, given that own Constitution grants the government the power to issue letter of marque -- licenses to commit piracy against the civilian ships of countries we do not like.
Pirates are the enemies of states because they challenge the state's monopoly on the use of force and thus threaten the state system itself. They do not "violate every standard of civilized behavior"; if they did, our Constitution would not include the power to enlist them in our wars.
Ron Paul has made a point of advocating the use of letters of marque and reprisal (a power given to Congress in the same clause granting the war power) to authorize government-rewarded and countenanced private efforts to kill and/or apprehend terrorists, specifically bin Laden and those responsible for 9/11. Paul introduced a bill to that effect right after 9/11, which defined the attacks as an act of "air piracy" (which seems to imply that his definition had something to do with equating air travel and sea travel, as well, something that's not unheard of). Such letters were a common anti-piracy tactic used by governments at the time the Constitution was ratified, but dwindled out over the course of the 19th Century.
http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.3076:
Among the findings is this:
The bill also allows for $40 billion to be used by the President at his discretion to established bounties on bin Laden and other "al-Qaeda co-conspirators". One of the points I remember Paul making is that the current bounties are pitifully insufficient to cover the actual cost of a private effort to locate/capture/kill bin Laden and his ilk.
Because the Constitution gives Congress the power to "define and punish piracy" outside normal criminal law.
Obviously the framers put that section in the constitution because they knew that ordinary criminal law was not sufficient to deal with piracy.
Taking the single line you're talking about:
I don't agree that your explanation is "obvious" or even persuasive. Rather I think it's something that was clearly outside the ability of the several States to deal with effectively, so it was expressly granted to the federal government.
This is the same reason Article I also gives Congress the power
It's not because "normal criminal law" can't deal with it, but because it's something that just makes more sense for the federal government to deal with. Just as the federal government is the one coining the money, the federal government is also the one with the Navy.
If you have a navy and demand tribute from every merchantman, you're the government and get to hang criminals.
Meh. If my neighbor steals from me it's thievery. If enough of my neighbors get together and take from me it's government. I think the scale of power and violence makes those sorts of comparisons a bit silly.
Count me among those who would like to see terrorists treated like pirates. But I'm not sure what that means, since we don't treat pirates like pirates anymore.
Nowadays, though, American citizens can be punished for torture, child molestation, evading U.S. taxes on foreign business ventures and other crimes even if it pertains to conduct done entirely within the borders of a foreign country. This, it seems to me, is a relatively new phenomenon aside from piracy which Congress has always had explicit authority to punish.
Rich Rostrom replied:
From what slender threads are snarky posts suspended. I plead guilty to a stupid use of the word "probably." Should have said "even," or something equivalent. Does that change the meaning of my post? But you follow with a couple of whopping non sequiturs: First, that my poor word choice shows I am not "at least somewhat familiar with Roman history" and, second, that my posting name here indicates I am a Roman history buff. I thought pluribus had some significance in American history.
If you were to establish a rule "When you see a pirate or terrorist, kill them instantly but only if you have incontrovertible evidence of their nature," you would annihilate all pirates long before you killed your 10th terrorist.
Therefore, the solution to the Somali pirates is that used on the Caribbean ones in ages past--put a company of Marines on a cargo ship, and when the pirates come open fire. Any who survive get tossed overboard.
Haven't you heard? We're doing the exact opposite. When a pirate crew gets stranded at sea, the Danish send someone to save them and make sure they get back to land safely.
Just as a note, my ancestors, in the 1600, made a LOT of money with a ship, letters of marque, and a strong resentment towards Catholics......
Somalis are very moderate Muslims, and the pirates who are ransoming ships have shown no indication that what they're doing is for reasons of jihad. They're mostly out-of-work coast guards who are putting their old skills to new use. Not every example of Muslims attacking non-Muslims is an act of jihad.
I still like the conservative response to either ...... BOOM!
But that's me. :)
Well, there was a solution to most piracy from the early 19th century until the 1990s, and that was massive armed naval presence across the globe. The Brits effectively removed piracy as a major threat to global commerece and the presence of a 350+ ship US Navy kept that peace after Britain succumbed to the weight of empire. Rome also eliminated piracy in the Med at the height of its power. Now, the US Navy is too small to deal with all the world's maritime problems and very few states have blue water navies or even brown water navies capable of controlling their own coasts.
Appeasement has been used before against piracy, namely against the Barbary priates until the US grew weary of paying a tribute and changed the system. Nations will grow weary of paying tributes again, and the pirates will have longer necks for it.
Or maybe Jonathan Adler isn't the same person as Ilya Somin?
The practice was useful in the 18th and early 19th centuries because the building or conversion, and fitting out of a privateer ship that could hold its own in battle against contemporary warships was possible. That has not been possible since about the time of the Civil War. That's partly why the practice faded out.
For similar reasons, paying someone like Blackwater or Triple Canopy to go after Bin Laden isn't practical. We would be competing against the funding from Saudi Arabia and Pakistan, and they are operating in their own back yard. Better to risk pissing off the Paks with the occasional Hellfire shots from Predators. Or maybe laser shots.
In the case of Somali pirates, they are using small boats and captured ocean going fishing boats and merchant ships. Being out spent and out equipped is not going to be a problem for the "privateer" if the Letter of Marque means that they can get access to weapons that would normally be restricted to a government. So IF Congress decides that Somali pirates are sufficiently threatening to U.S. interests but don't want to task the 5th Fleet to the job, a Letter of Marque to a a company with some former SEALs and Marines on the payroll could be effective.
The other reason Letters of Marque went into disuse, is that the bearers were essentially legalized pirates. Most of their income came from selling captured ships and cargo. If the illegal pirates had stolen a cargo, and then the legal pirate stole it from them, the cargo was considered to be the privateer's to sell. That practice would hardly work today, so the privateer would have to function as private security. So the will to foot the bill drops back into the laps of governments and shippers. That will remain the case even if the legal hurdles are cleared away.
I take your meaning, but, really, are not intimidation and influence "private ends"?
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