We all knew that President Obama, like President Bush, would have to defend Americans from a ruthless foreign organization—actually, a cluster of similarly motivated foreign organizations—that takes advantage of the chaotic conditions of failed states to hide and regroup, and that therefore cannot easily be handled with ordinary criminal process. We just didn't realize this group would consist of Somali pirates rather than Islamist terrorists. It is eerie testimony to the unpredictability of events, yet there is an underlying theme: the dangers posed by the confluence of three trends—the advance of crossborder economic activity, the improvement of weaponry, and the disintegration of states.
There are differences, of course, but these are less significant than they first appear. Al Qaida is (was?) more dangerous, but that could end. Al Qaida is a terrorist group that seeks political ends; the Somali pirates are robbers who seek profits. Legally, this distinction matters, but only at the retail level. Laws against terrorist financing prohibit ransom-paying to terrorists, not to (profit-making) kidnappers, and, for similar reasons, you're less likely to get in trouble if you donate money to the pirates (in case you sympathize with their plight, as many people apparently do) than if you donate money to Al Qaida. But the distinctions blur. Revolutionary and other politically motivated organizations have often resorted to common crime to finance their operations, and criminal organizations often adopt political causes to spread their appeal. If the Somali pirates hire a PR firm and announce an intention to form a revolutionary government dedicated to the oppressed and firmly opposed to American empire, and finance some nursery schools from the ransom money, soon Noam Chomsky will be on their side. Yes, they will be terrorists under the law, but they will also be an oppressed group with legitimate grievances that appeal to anyone who rejects the existing order.
The Obama administration has not repudiated the Bush-era theory that members of Al Qaida may be detained indefinitely with minimal process, as enemy combatants in fact if not in name. And it has enthusiastically carried on the Bush-era practice of blasting them to pieces when they appear on the "battlefield." Yet it would be awkward, to say the least, to apply these precedents to the pirates, even though it would be easy enough to classify them as a nonstate entity with which the United States is at war. (Congress would surely supply an AUMF if that is necessary.) Obama has, in word if not in deed, repudiated these Bush-era practices. But there seems to be little effective alternative.
All the old problems pop up in new form. Criminal trials of pirates in the United States are likely to be expensive and impractical. The current detainee, caught red-handed, may not pose much of a challenge (putting aside the awkward question of whether he is a juvenile). But imagine what would happen if the U.S. detained pirates in the act of attacking a ship from Malaysia: the crew, the only witnesses, are not going to travel to district court in New York City, and the sailors involved in the detention will be on the other side of the world. If the U.S. is actually to make headway with the pirates, it will have to detain hundreds or thousands of people, not just a few. This would overwhelm American logistical capacities, not to mention those of the Kenyan courts, a twelfth-best option that has been explored but that is costly and raises the same set of problems for crews who do not live in the area. (The Somali justice system is not considered a serious option.) And any serious effort would mean shooting to kill long before the type of imminent threat that is necessary under domestic and international criminal law involving civilian suspects. Of course, none of this would solve the problem; it would at best reduce the risks to shipping by a small amount. Soon nation-building in Somalia will appear the only viable option as it has in Afghanistan. History has never before repeated itself so quickly.
People talk now of an international court. Perhaps, such a court will be constructed on a platform that floats along the currents of the Gulf of Aden. The important thing to see is that the purpose of an international court would be to compromise the due process protections that the pirates would otherwise receive. If it instead hews to western standards, and provides lawyers, translators, and security in a chaotic environment, and demands that transient crew members from all over the world appear and testify, then this court will be like all international criminal courts—an unbelievably cumbersome and expensive monument to the fear of action.
So we will have the closest thing to a controlled experiment that one can ever have for such matters—two administrations, two parties, one type of problem. Will the Obama administration swallow its pride and pursue the military option that has apparently addressed the Al Qaida threat for the time being? Or will it pursue a criminal law enforcement strategy more in line with prevailing rhetoric? Much depends on how strong the pirates become, and how quickly. One suspects that, like the Bush administration, Obama will use military and law enforcement approaches as needed, but, unlike Bush, will avoid warlike rhetoric, and sing the reassuring but uninspiring poetry of legal process.