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[Eugene Kontorovich, guest-blogging, April 14, 2009 at 6:30pm] Trackbacks
Pirate Prosecution NIMBY: Catch-and-Release or the Kenya Option

The very pirates who terrorized the crew of the Maersk Alabama may have been caught and released by the U.S. or navies in the past year.

Given the robust military reaction to the seizure of an American vessel, most people would be surprised to learn that the response of the United States and other nations patrolling the Gulf of Aden to pirate attacks over the past year has been to either avoid arresting the pirates in the first place, or to put them back in the water once caught. Indeed, some European countries have even given pirates in broke-down boats a lift back to port. After all, international law (the UNCLOS treaty) demands solicitude for "distressed mariners."

The reason for such a strange piracy policy is that the legal obstacles to successfully prosecuting are so daunting that Western nations would rather not risk it. The title of my forthcoming essay in the California Law Review is taken from a quote from the German Foreign Minister, who explained the catch-and-release policy by saying no one wanted a "Guantanamo on the Sea."

According to news reports, the Administration is debating whether to try the captured pirate in the U.S. or to transfer him to Kenya. The U.S and Britain had made a deal with Kenya to transfer captured pirates there, so that they could be tried under universal jurisdiction. This is analogous to the rendition or third-country solution to the Guantanamo problem, and is similarly limited by Kenya's unwillingness to be a pirate holding pen. There are numerous problems with this plan, and it is to early to judges its success, as no trial has yet finished.

Yet the current case is unique because it involves an attack on a U.S. vessel. America has jurisdiction not because of the universal status of piracy but because the attack happened on what is constructively considered its territory, involving its nationals. Much like the attacks on U.S. embassies in Kenya and Tanzania, there could be no clearer case for U.S. prosecution. Such piracy cases are quite rare because there are very few U.S. flagged commercial vessels.

Given that the bombers of the U.S. embassy in Kenya were brought here for trial - at great expense - sending this pirate to Kenya, with which he has no connection, would be a great admission of defeat for the U.S. legal system. It would be particularly ironic at a time when Guantanamo terrorists are being transferred for to U.S. civilian courts for trial.

The fact that the Administration is entertaining the possibility of deferring this prosecution to Kenya seems to confirm my view that the no one has any appetite for such cases because of their difficulty. Yet even I am surprised that Kenya is entertained as a possibility here. It is one thing to be deterred by high costs when the case does not involve ones own nationals -- there, the direct benefits are low. But here, it is hard to imagine the Attorney General passing on such a case. Indeed, France and Holland have brought pirates that attacked their vessels for trial in their domestic court.

Still, one can imagine the concerns Attorney General Holder has. Surely the young pirate will say -- like many captured Guantanamo detainees -- that he knew nothing of his shipmates plan; he thought they were just going fishing. In the few cases that have already begun in Kenya, pirates have claimed they have been tortured, and that their Islamic rites have been disrespected. With a good U.S. defense attorney, a pirate brought to America could really refine this pitch. (The forthcoming essay discusses these and other difficulties at much greater length).

In any case, where will one find a lawyer or translators who speak the defendant's Somali dialect? Will the officers of the U.S.S. Bainbridge, the crew of the Alabama, and the Navy SEALS have to be brought in as witnesses? If so, it will interfere both with the policing of the seas and the Alabama's mission of providing relief supplies.

NOTE: I will not be able to respond to posts or emails until Thursday night.

Related Posts (on one page):

  1. Somali Pirate in New York on Tuesday
  2. Pirate Prosecution NIMBY: Catch-and-Release or the Kenya Option
einhverfr (mail) (www):
In the Barbary War, didn't the US take the point of view that the Barbary pirates were legitimate privateers and thus to be treated as prisoners of war? Seems that this may not be a new problem.

It seem to me that the only solution to this issue is a robust response to lawlessness in Southern Somalia generally. This means an international occupying force on the ground. The foot of the problem and the head of the dragon are on the land, not on the sea.
4.14.2009 6:34pm
More Importantly . . .:
I don't agree that an occupying force is necessary for a robust response to lawlessness. Our only concern here is lawlessness that extends out to sea. Thus, summary destruction of any port or costal city found to have harbored pirates would solve the problem--as would a prohibition on any Somalian craft capable of serving as a pirate craft. Fishing boats need not be speed boats.
4.14.2009 6:46pm
geokstr:

Still, one can imagine the concerns Attorney General Holder has. Surely the young pirate will say – like many captured Guantanamo detainees – that he knew nothing of his shipmates plan; he thought they were just going fishing.

With AK-47s and rocket grenade launchers? Must have been some big honkin' fish.

In the few cases that have already begun in Kenya, pirates have claimed they have been tortured, and that their Islamic rites have been disrespected.

It's taqqiyah, the command in the Koran to lie and use the infidel's own rules against him. Like that Canadian deported from Guantanamo to Syria, where he claimed to have been beaten constantly with electical cord, but no one, not even his supporters, ever saw a mark on him. Got him 10 million in reparations, too, but it was only Canadian dollars.

But we buy into it every time because otherwise we might be accused of Islamophobia. If I didn't know the time line was off, I'd think that Mohammed and Alinsky co-authored those rules.
4.14.2009 7:11pm
Sarcastro (www):
Yes, geokstr, every time a Muslim lies it's totally cause of this doctrine! And no one lies for any other reason. Really, one can never trust a Muslim. They're shifty and grasping and have such big noses. And cheap!

I've been working on a final solution to the Muslim-Pirate-Liberal problem. I'll let you know what I come up with. SO far all I know is that it will involve lots of boxcars.
4.14.2009 7:23pm
John Moore (www):

Given that the bombers of the U.S. embassy in Kenya were brought here for trial - at great expense - sending this pirate to Kenya, with which he has no connection, would be a great admission of defeat for the U.S. legal system. It would be particularly ironic at a time when Guantanamo terrorists are being transferred for to U.S. civilian courts for trial.


As we may soon see with the GITMO inhabitants, our legal system probably is no longer suitable for dealing with barbarians.
4.14.2009 7:37pm
thatguy (mail):
There's nothing wrong with catch-and-release, but their boats should be destroyed, and of course there's no reason for our ships to ever enter a Somali port.
4.14.2009 7:44pm
My Middle Name Is Ralph:

Still, one can imagine the concerns Attorney General Holder has. Surely the young pirate will say – like many captured Guantanamo detainees – that he knew nothing of his shipmates plan; he thought they were just going fishing. In the few cases that have already begun in Kenya, pirates have claimed they have been tortured, and that their Islamic rites have been disrespected. With a good U.S. defense attorney, a pirate brought to America could really refine this pitch.


You mean a criminal might lie about his crime or claim abuse or that his lawyer might do his best within the rules to defend him? It hardly seems like any of these are insurmountable hurdles to getting convictions each and every day in the USA.
4.14.2009 7:47pm
Captain Ned:
WRT pirates I have no issues whatsoever with calling them outlaw according to the ancient English concept of outlawry.

If one decides to be a pirate, one has forfeited any protection of law. It'll shock many here, but some actions should not benefit from due process. Piracy is the poster child for this concept. It's also the only effective method to dissuade potential pirates from signing on. They need to know that agreeing to join up is a death sentence, executable by the first regular Navy ship to come across them.
4.14.2009 7:49pm
My Middle Name Is Ralph:

In any case, where will one find a lawyer or translators who speak the defendant’s Somali dialect? Will the officers of the U.S.S. Bainbridge, the crew of the Alabama, and the Navy SEALS have to be brought in as witnesses?


Is it really impossible to find a Somali translator? Aren't there at least thousands of first or second generation Somali-Americans?

Being informed that witnesses generally must appear in court rather than by video deposition, presumably at least some of the Alabama crew and Navy personnel would need to be brought in. Not ideal, but certainly doable.

Alternatively, if I wonder whether alternative procedures such as military courts allowing for some relaxation of criminal procedure rules (e.g. video depositions) would be legal and feasible.
4.14.2009 8:02pm
Abdul Abulbul Amir (mail):

Why not courts martial aboard the capturing Navy vessle the following morning? Courts martial in the morning, hanging in the afternoon, and fed to the fish before the dog watch.
4.14.2009 8:03pm
martinned (mail) (www):

hanging in the afternoon

Who did they murder?
4.14.2009 8:05pm
Sebastian the Ibis (mail):

Why does it matter if they murdered anyone?

Lynch Pirates!

This whole debate just demonstrates why Modern Nation States cannot combat piracy effectively and shipping companies ought to arm their crews and do it themselves.
4.14.2009 8:10pm
Cityduck (mail):

Still, one can imagine the concerns Attorney General Holder has. Surely the young pirate will say – like many captured Guantanamo detainees – that he knew nothing of his shipmates plan; he thought they were just going fishing.


Based on this statement, I find it hard to believe that the author of this post has any trial court experience. I really wish academics would talk to a trial attorney before they make these kind of statements. The facts here are a Prosecutor's wet dream. Numerous eye witnesses, no identification problems, clear facts showing an attempt at armed takeover of the ship followed by no dispute over the hostage taking, and the perp clearly was not being compelled by his fellows because he was released to the Navy ship.

A good U.S. defense attorney isn't going to risk this case going to the jury, he will be seeking a plea bargain.
4.14.2009 8:12pm
Benjamin Davis (mail):
Yes, we would have jurisdiction in the United States. And we can try them for piracy, they can raise a defense, and there will be a conviction. Non-English speaking defendants in US courts is nothing new (think of the generations of legal and illegal immigrants to the United States who have been charged with crimes).

Kenya' is not rendition of the kind we have described as extraordinary rendition for interrogation and torture. Here it is rendition to be tried in a court under the universal jurisdiction idea on piracy (or some argue it is the piracy law that forms the law of every country in the world - it's all domestic law).

Catch and release reminds me of prosecutoral discretion not to charge. Crimes are not charged all the time for various reasons. It use to be called "I'll let you go this time, if you promise to be a good boy."

I just hope that this pirate who I believe is 16 years of age is treated as a juvenile and not as an adult - there are 73 persons (most of them black) serving life sentences without parole I saw recently for crimes they committed as juveniles - harsher than what Charles Manson or David Berkowitz got.

As to those who want an armed conflict in Somalia, how can anyone have a stomach for a third armed conflict for the United States at this time? I heard a more elegant and cheap solution would be simply to put armed marshals (like on airplanes) on the boats. No guns for the crew but armed marshals whose duty is to protect against pirates and may use deadly force. The pirates would never know which boat on which were the armed marshals and this creates a lottery effect that dissuades piracy.

Back in the 1960s when pirates use to sneak on ships in Lagos, Nigeria's harbor, the Japanese and Russian ships were not picked on. Why? Because the armed guards on those ships started shooting down the anchor line whenever they heard anything.

Permitting such a possibility would require changing some of the rules of the International Maritime Organization I would imagine, but I think that is very likely a possibility.

By the way, I saw something also about the need to not look at this as terrorists, but as piracy. A pecuniary reason. Insurance will pay for the piracy risk but not for the terrorism risk.

Best,
Ben
4.14.2009 8:20pm
Benjamin Davis (mail):
Yes, we would have jurisdiction in the United States. And we can try them for piracy, they can raise a defense, and there will be a conviction. Non-English speaking defendants in US courts is nothing new (think of the generations of legal and illegal immigrants to the United States who have been charged with crimes).

Kenya' is not rendition of the kind we have described as extraordinary rendition for interrogation and torture. Here it is rendition to be tried in a court under the universal jurisdiction idea on piracy (or some argue it is the piracy law that forms the law of every country in the world - it's all domestic law).

Catch and release reminds me of prosecutoral discretion not to charge. Crimes are not charged all the time for various reasons. It use to be called "I'll let you go this time, if you promise to be a good boy."

I just hope that this pirate who I believe is 16 years of age is treated as a juvenile and not as an adult - there are 73 persons (most of them black) serving life sentences without parole I saw recently for crimes they committed as juveniles - harsher than what Charles Manson or David Berkowitz got.

As to those who want an armed conflict in Somalia, how can anyone have a stomach for a third armed conflict for the United States at this time? I heard a more elegant and cheap solution would be simply to put armed marshals (like on airplanes) on the boats. No guns for the crew but armed marshals whose duty is to protect against pirates and may use deadly force. The pirates would never know which boat on which were the armed marshals and this creates a lottery effect that dissuades piracy.

Back in the 1960s when pirates use to sneak on ships in Lagos, Nigeria's harbor, the Japanese and Russian ships were not picked on. Why? Because the armed guards on those ships started shooting down the anchor line whenever they heard anything.

Permitting such a possibility would require changing some of the rules of the International Maritime Organization I would imagine, but I think that is very likely a possibility.

By the way, I saw something also about the need to not look at this as terrorists, but as piracy. A pecuniary reason. Insurance will pay for the piracy risk but not for the terrorism risk.

Best,
Ben
4.14.2009 8:20pm
Benjamin Davis (mail):
Yes, we would have jurisdiction in the United States. And we can try them for piracy, they can raise a defense, and there will be a conviction. Non-English speaking defendants in US courts is nothing new (think of the generations of legal and illegal immigrants to the United States who have been charged with crimes).

Kenya' is not rendition of the kind we have described as extraordinary rendition for interrogation and torture. Here it is rendition to be tried in a court under the universal jurisdiction idea on piracy (or some argue it is the piracy law that forms the law of every country in the world - it's all domestic law).

Catch and release reminds me of prosecutoral discretion not to charge. Crimes are not charged all the time for various reasons. It use to be called "I'll let you go this time, if you promise to be a good boy."

I just hope that this pirate who I believe is 16 years of age is treated as a juvenile and not as an adult - there are 73 persons (most of them black) serving life sentences without parole I saw recently for crimes they committed as juveniles - harsher than what Charles Manson or David Berkowitz got.

As to those who want an armed conflict in Somalia, how can anyone have a stomach for a third armed conflict for the United States at this time? I heard a more elegant and cheap solution would be simply to put armed marshals (like on airplanes) on the boats. No guns for the crew but armed marshals whose duty is to protect against pirates and may use deadly force. The pirates would never know which boat on which were the armed marshals and this creates a lottery effect that dissuades piracy.

Back in the 1960s when pirates use to sneak on ships in Lagos, Nigeria's harbor, the Japanese and Russian ships were not picked on. Why? Because the armed guards on those ships started shooting down the anchor line whenever they heard anything.

Permitting such a possibility would require changing some of the rules of the International Maritime Organization I would imagine, but I think that is very likely a possibility.

By the way, I saw something also about the need to not look at this as terrorists, but as piracy. A pecuniary reason. Insurance will pay for the piracy risk but not for the terrorism risk.

Best,
Ben
4.14.2009 8:20pm
Moneyrunner43 (www):
Ben,

We got you the first time.

Best,
Moneyrunner
4.14.2009 8:45pm
Captain Ned:
If you want to eliminate piracy the only solution that will dissuade potential pirates is to remove them from the realm of due process. I understand it's not a popular opinion on a lawyer blog, but the truth is sometimes uncomfortable.
4.14.2009 8:51pm
Moneyrunner43 (www):
As we discuss the status of the "pirate" regarding his age, the crime he is accused of, the rules of trying pirates, whether we should farm out piracy trials as we do call centers, and other fascinating legalisms, I found Steyn's comment funny ... in a "decline of the west" way:

Meanwhile, the Royal Navy, which over the centuries did more than anyone to rid the civilized world of the menace of piracy, now declines even to risk capturing their Somali successors, having been advised by Her Majesty’s Government that, under the European Human Rights Act, any pirate taken into custody would be entitled to claim refugee status in the United Kingdom and live on welfare for the rest of his life.
4.14.2009 8:51pm
Moneyrunner43 (www):
Captain Ned,

I hope you didn't come here for anything but a learned dicussion of Kenya's legal system and it's role as the acknowledged center of universal jurisdition for the crime of piracy by teens.

I wonder that Ginsberg has not mentioned Kenyan judicial precedents favorably in her dicta.
4.14.2009 8:56pm
PatHMV (mail) (www):
As the original poster notes, there are very few commercial U.S.-flagged vessels today, I presume because we have much more stringent laws protecting crews and working conditions and the like than other nations, placing us at a competitive disadvantage with other nations. Wouldn't this be an excellent opportunity to encourage more commercial vessels to become U.S.-flagged? We simply announce a policy of providing immediate naval aid to any U.S.-flagged vessel which is attacked by pirates, perhaps even a military escort for coordinated shipping schedules... or a small contingent of Marines, equipped with air drones or something. Would that be enough value to encourage shipping companies to U.S.-flag their vessels?
4.14.2009 9:15pm
11-B/2O.B4:

This means an international occupying force on the ground.



AHAHAHHAHAHAHHAHAHAHAHAHAHA!!!!!!!!!1



Oh, I'm sorry, were you serious? Surely you don't believe that any other country would send troops on this snipe hunt? I can see it now, first and second brigades of the eighty-deuce, 178th Airborne, the second Marine Expeditionary Force, a few air force units for cover, the 5th fleet and a couple special forces groups. Wait for it, wait for it.......here come our "international" troops! Six danish radio operators, a solo Italian colonel and a british platoon of MPs.

Come on, the next time any of you feel the need to say "international forces", just stop, think what it makes you look like, and revise your statement to read "US military".
4.14.2009 9:15pm
Richard Aubrey (mail):
Le'em boo.
They know. They just hope others don't.
4.14.2009 9:23pm
markm (mail):
Why Kenya? It contains the nearest port where some approximation of the rule of law holds. Not that I recall that in previous periods of piracy, navies felt any obligation to turn captured pirates in at the nearest port; rather, the Royal Navy quite often hauled accused pirates all the way from the Caribean or the Indian Ocean back to England for their trial and hanging.
4.14.2009 9:25pm
Richard Aubrey (mail):
Couple of problems: The defense calls as witnesses somebody who isn't an American, isn't shipping on US flagged ships, might be a money-man in Somalia. Can't get them? Case dropped. Somebody mentioned a "good defense attorney". Think a "good defense attorney" would miss this?

There is another issue, which needs to be addressed.
Since the election, the likelihood that such trials might be successful has increased markedly.

For example, Jose Padilla, trained to blow up US apartment buildings by use of their own natural gas systems, or by bringing tanks of the stuff, was not tried in a case because Uncle figured some secret stuff might come to light.
Lefties and lawyers all howled with delight that an innocent human is let off by the evil Bushies after being tortured and accused of all kinds of crimes of which he was clearly innocent.. It was a terrific stick in George Bush's eye. And, in fact, the sole reason for defending the guy.

Since that dynamic is no longer in force, we might see a more measured approach to trying those who would harm us.

Somebody over at NRO said years ago that if we'd had a barely competent dem as POTUS since 9-11, the WOT would have gone better since the dems and left wouldn't have felt reflexively required to obstruct it.
4.14.2009 9:33pm
Siskiyou (mail):
Though John Moore beat me to it, it is worth repeating that "...would be a great admission of defeat for the U. S. legal system..." is bit of marvellous, though apparently unintentional, irony.

We have become so enchanted by the notion of process--as several of the foregoing comments show--that the chances of survival of our cultural are significantly reduced. Yes, I given thought to matters of human rights, know a little history (constitutional and other), have read the most commonly quoted line of John Donne. And yes, IAAL (sic), for a long time, at that. Nevertheless, it is clear to me that a people or nation or state (obsolete concepts, these?) can destroy itself or precipitate its own destruction by many means, including self-inflicted paralysis.

By the way, and not by way of discursion, have you ever heard a lawyer argue for a result that would employ fewer lawyers?
4.14.2009 9:41pm
Siskiyou (mail):
Sorry, "...of our culture...."
4.14.2009 9:45pm
Steve:
Couple of problems: The defense calls as witnesses somebody who isn't an American, isn't shipping on US flagged ships, might be a money-man in Somalia. Can't get them? Case dropped. Somebody mentioned a "good defense attorney". Think a "good defense attorney" would miss this?

Yeah, that seems like a flawless defense strategy. Can't imagine how the prosecution could ever manage to overcome that stroke of brilliance.

I still retain the capacity to be surprised at the feeble caricature of our legal system that some conservatives buy into.
4.14.2009 9:58pm
Richard Aubrey (mail):
Steve,
I don't make law. I just watch and keep score.
Question is what happens when some Ramsey Clark wannabe tries it.
Two possibilities. One is the judge throws out the case because defense witnesses aren't available. You win. The other is the judge insists the trial go ahead without Jose Lunchbucket last seen as second cook on a tramp bound for Shangri-La. Pirate loses. You win. The US justice system has just perpetrated a horrid miscarriage.
4.14.2009 10:14pm
Steve:
Right, so if you watch and keep score, can you cite me even one example in American history where a court has thrown out a prosecution because the defendant claimed it was the State's obligation to dredge up some random witness from the Third World?

Perhaps this happens all the time in the alternate world you seem to inhabit, the one where Bush only fired 8 of Clinton's US attorneys, but not so much in the real world.
4.14.2009 10:31pm
PatHMV (mail) (www):
Well, Steve, how exactly do you think the prosecution would overcome that tactic, assuming the defense offers a proffer of the witness' testimony, and the proposed testimony would indeed be relevant to the issues at hand.

More to the point, though, imagine the difficulties even BEFORE the case goes to the defense. Again, the scenario is a non-U.S.-flagged vessel. Pirates are captured by the non-U.S. crew in the act of trying to board the ship. The sailors don't live in the U.S., and in fact spend most of their year in international waters, sailing from port to port. Are we going to pay to fly them to the U.S.? House them for a week or two of trial, then fly them home? What if they don't want to come, because they'd lose out on a 2-month cruise paying them many thousands of dollars? Do we pay their salary for the whole time? If they refuse to come even if we pay them enough, how does the prosecution make them? They can't.
4.14.2009 10:34pm
corneille1640 (mail):

If you want to eliminate piracy the only solution that will dissuade potential pirates is to remove them from the realm of due process. I understand it's not a popular opinion on a lawyer blog, but the truth is sometimes uncomfortable.

Would you at least allow for enough process to determine whether the accused pirate is really a pirate? What's to stop a real pirate from claiming that the legitimate captain of a merchant vessel is a pirate and issuing execution orders?
4.14.2009 10:46pm
corneille1640 (mail):

have read the most commonly quoted line of John Donne

"'Twere profanation of our joy to tell the laity our love"?
4.14.2009 10:48pm
Psalm91 (mail):
RA and PatMHV:

Do you guys have any clue as to how real trials work? What proffer? Pretty silly to construct these absurd hypotheticals as if they reflect any kind of reality.
4.14.2009 10:50pm
Richard Aubrey (mail):
Steve.
Well, there's OJ. I think that has been referred to as a real trial.
Mary Winkler got time served plus the kids.
Ted Stevens got off because some officers of the court got caught lying like rugs.
The question is not trying to convince a bunch of IANALs that a defense attorney would have some kind of honor which would preclude him from trying it.
You would win under almost any resulting scenario.
1. Judge throws the case out due to lack of defense witnesses. Pirate walks. You win.
2. Case goes to trial, defense attorney makes a big deal out of the mean ol' persecutor and judge not allowing important character witnesses to testify--since the trial won't be delayed until they're rounded up. OJ-type jury buys it, pirate walks. You win.
3. Pirate is convicted sans overseas character witnesses. US justice perpetrated an atrocity against some innocent brown person from the Third World. You win.
4.14.2009 11:04pm
Le Messurier (mail):
Take a look at Beldar's Blog here:
Beldar
for what the option might be for this fellow.

"I think that if he's brought back to the U.S. for punishment under our criminal justice system, then the surviving pirate could be, and should be, charged with and found guilty of a capital crime punishable by death."

Go to the blog for his reasoning.
4.14.2009 11:11pm
Interlocutor (mail):
Well this has been entertaining, if not enlightening.

Richard Aubrey:

I have never heard of your first scenario ever happening, and cannot think what rule of law it would be based on. If you have cites for that (which is I think what Steve wanted), I'm very interested.

Scenario 2 - I just can't imagine an American jury being so concerned about the Somali pirate. Just on the terms of your example, I'm sure you realize that OJ was a pretty unique figure against a salient cultural backdrop. I mean, is the pirate one of the greatest running backs of all time, a movie star, and rich?
4.14.2009 11:12pm
Bill Poser (mail) (www):
The suggestion that Maher Arar lied about being tortured in Syria after his kidnapping by the US is outrageous. Pace geokstr, his claim is quite credible, and the lack of long-term marks of the torture is fully consistent with his account. This is the conclusion of the Commission of Inquiry, headed by Dennis O'Connor, Associate Chief Justice of Ontario, whose detailed report you may download from http://www.sirc-csars.gc.ca/pdfs/cm_arar_rec-eng.pdf The fact finder for the Commission, Stephen Toope, currently president of the University of British Columbia, explicitly concluded that Arar was tortured.
4.14.2009 11:37pm
Siskiyou (mail):
Nah. It's a seagoing thing. Something about an island.
4.14.2009 11:45pm
zuch (mail) (www):
The "I was just along for the ride" defence doesn't fare too well for bank robbery accomplices.

Cheers,
4.15.2009 12:02am
zuch (mail) (www):
geokstr:
Like that Canadian deported from Guantanamo to Syria, where he claimed to have been beaten constantly with electical cord, but no one, not even his supporters, ever saw a mark on him.
Some of the detainees/renditionees have done a very convincing act of "playing dead". So let's not pretend we sent Maher Arar (not from Guantánamo, but from a stopover at JFK) to Syria for tea and crumpets. Particularly when the top ranks of the Dubya maladministration had regular sit-downs to discuss exactly what would be done to whom (as has been reported).

Cheers,
4.15.2009 12:07am
zuch (mail) (www):
John Moore:As we may soon see with the GITMO inhabitants, our legal system probably is no longer suitable for dealing with barbarians.It did all right with Timothy McVeigh.

Cheers,
4.15.2009 12:09am
PatHMV (mail) (www):
Psalm 91... having spent 5 years as an asst. D.A., yes, I have some idea how trials really work. Would you care to explain exactly how you think I'm wrong? What is it about my scenario that you find absurd? Or do you find it easier to merely assert such, without further explanation?

As for the defense witnesses, here's a plausible scenario. The pirates have been known to capture legitimate fishing vessels and use them to approach the large commercial freighters. The crew on the fishing vessel is innocent, and acting under duress. Suppose the captured pirate claims that he was just a crewman on the fishing vessel, and the pirates threatened to kill his buddies on that boat if he didn't help them with the actual boarding. Do we send a process server to Somalia to find one of his buddies on the boat to confirm the story?
4.15.2009 12:37am
Dan Simon (mail) (www):
I seem to recall that one of the worries about trying the Guantanamo detainees in criminal courts was that they'd be able to invoke all the technical defenses available to standard criminals: Fourth Amendment violations, Miranda violations, etc. etc. Anyone care to reassure us all that the remaining pirate from the Maersk Alabama incident was properly Mirandized, not interrogated without getting a chance to speak with a lawyer, and so on?
4.15.2009 12:40am
A. Zarkov (mail):
Bill Poser:

I looked at Report of the Events Relating to Maher Arar and could find no direct evidence or physical evidence that he was tortured. The torture conclusion is based on his being sent to Syria and misreporting of dates by Syrian authorities. The document author believes that Syria tortures people, thus he must have been tortured. Statements about this occur in the passive voice. For example
In particular, these reports state that Syrian intelligence agencies such as the SMI are known to hold prisoners incommunicado at the beginning of their imprisonment for purposes of interrogation using torture.
Other than Arar's statements and somewhat weak inference from circumstances, the report fails to provide strong evidence that Syria tortured him.

What do I personally believe? He was tortured. But that largely comes from my low opinion of Syria and other Arab states. It also comes from my low opinion of the way governments act, including ours. I would put his probability of being tortured at greater than 50% but less than 90%, for whatever that's worth.
4.15.2009 1:05am
Sarcastro (www):

Why does it matter if they murdered anyone?

Lynch Pirates!


Now THAT's the mob mentality I'm looking for. WHo else can we lash out blindly at? Brown people has so been done. What about Tapirs? They're creepy! Or lets go conceptual and lynch Ennui!
4.15.2009 1:06am
Geff (mail):
Apparently the French are able to prosecute Somali pirates. The three Somalis captured last week on a pirated French yacht are going to prison in western France where they will be prosecuted. They aren't the first either: two groups of Somalis were taken to France last year for prosecution as pirates.

According to a French defense attorney for one of the accused, those defendants "not able to speak with anyone who knows their language, except when their lawyer meets them with a translator, they are all plunged into a profound depression."

If the French can do it, why not the U.S.?

See: Bientôt 15 pirates somaliens dans les prisons françaises in Le Figaro.
4.15.2009 1:32am
John 2000 (mail):
I'm thinking that it would be cost effective as well as fun to swap lawyers for pirates.
4.15.2009 1:36am
unhyphenatedconservative (mail):
Benjamin Davis.

Just a minor point but Manson was originally sentenced to the death penalty before the Supreme Court found a magical prohibition that escaped the Founders.

But hey, let's not let facts get in the way of a rousing story of oppressed brown people being reason to coddle pirates.

Fight the power!
4.15.2009 1:43am
Ken Arromdee:
If the French can do it, why not the U.S.?


France is a much smaller target in a diplomatic and public relations sense. The only thing you can get from complaining about how France treats prisoners is to change how France treats prisoners; there are no geopolitical gains and it doesn't improve your street cred with the left or with the Arabs.
4.15.2009 2:21am
CurlyDave (mail):
Such piracy cases are quite rare because there are very few U.S. flagged commercial vessels.


An awful lot of ships are registered with a flag of convenience due to more lax regulation.

If the US keeps following through on zapping pirates who attack US flagged vessels, there may be a trend to registering ships in the US.

This would have some economic benefit to the US.
4.15.2009 2:27am
Steve:
Well, there's OJ. I think that has been referred to as a real trial.

To be clear, I did not ask for an example of someone who committed a crime and was let off by the jury. I think this is what people refer to as "goalpost-shifting." What I asked for was an example of the scenario you actually described, where a judge throws the case out because the prosecution is unable to compel the attendance of some alleged defense witness from Somalia.

There are plenty of accused defendants who would love to say, "Hey, I have this great witness who will get me off, but he happens to be in Outer Mongolia right now, so you have to let me go." Somehow this never seems to work in the real world. You're taking a big leap from the criminal justice system that actually exists - where, yes, a few criminals like OJ do manage to escape justice - to a caricature where the system is so feeble that all someone has to do is raise a lunatic argument like "there's a witness somewhere in Somalia who will help me" and suddenly the court has no choice but to dismiss the case.

Pirate is convicted sans overseas character witnesses. US justice perpetrated an atrocity against some innocent brown person from the Third World. You win.

I don't even understand what you're arguing here. If somewhere in the world, there is some individual who is stupid enough to believe a miscarriage of justice occurred because the US Government would not locate an alleged defense witness somewhere in Somalia, that means "I win"? Look, I don't know much about the cases of Mumia, Leonard Peltier, or whoever, but I know those people have stories that are a LOT better than "the government failed to locate my witness from Somalia, who would have gotten me off, I swear!"

I actually have no problem at all with the concept of summary execution of pirates, but if the imagined outrage of third parties is going to be our standard, I'm fairly certain that a lot more people will be outraged by a summary execution than would be outraged by a fair and public trial where the guy claims the government screwed him by failing to produce an alleged witness from Somalia.
4.15.2009 4:42am
NickM (mail) (www):
I favor putting pirates back into the water once caught. Not into a boat or ship; into the water.

Nick
4.15.2009 4:42am
Richard Aubrey (mail):
You asked if I knew how a real trial worked. I mentioned OJ, because he'd had a real trial. And it wasn't his star power, it was the switch to racism as the issue that got him off.
I'm sure a criminal would love to claim to have a witness in Lower Slobbovia. Problem is, the pirates may well be right about that. A pickpocket who's never left town and hangs out at a flophouse can't likely make up such a witness. A pirate can point to a real person who was really there and could really know something--or not--which would have a bearing--or not, and is ten time zones away last we knew. Or he could just make up a name and there'd be no way we'd know the difference. Or there could be a real person who was really there who, though, knows nothing but can be shown to have been there.
But the question is what will the court do when a defense attorney tries it?
In addition, the pirates will be proxies for the Gitmo Goons and any other anti-American actors and will get the reflexive sympathy and support from American liberals.

The French can do this kind of prosecution because their government and their chattering classes are quite chauvinistic. They don't give a damn what anybody else thinks. We, on the other hand, are supposed to be passing global tests, at least when convenient for the left.
4.15.2009 7:50am
aloysiusmiller (mail):
I support a court martial on board the capturing ship. Guilty gets hung and innocent goes over the side with a rubber dinghy and a broken paddle.
4.15.2009 8:04am
John Steele (mail):


Why not courts martial aboard the capturing Navy vessle the following morning? Courts martial in the morning, hanging in the afternoon, and fed to the fish before the dog watch.
The traditional, and only truuly effective, solution to piracy. Capture aboard a pirated vessel was, in less enlightened but more effective days, considered prima facie evidence of the crime of piracy. Execution from the yardarm followed immediately and the world was none the worse for it.

But the days when western civilization was actually prepared to defend itself are long gone; we are far more enlightened now, we reward the bad guys for attacking us.

Shakespeare was right.
4.15.2009 8:10am
Order of the Coif:
There are 50,000 Samolis living in the Metro area of Minnesota (brought here by the Lutheran Church - how Christian of them).

Almost all of these people now speak English. Certainly one of these 50,000 speaks the proper dialect and would welcome a GS-14 salary for a three five year trial. They might even enjoy an all-expense-paid trip to Washington, DC for the pre-trial, trial, and post-conviction proceedings.

If the USA can bail out Big Banks, certainly it can try, convict, and imprison a Samoli pirate.

Eh?,"Commander-in-Chief" Obama.
4.15.2009 8:59am
RPT (mail):
Here's your conservative "defense attorney" at work; from the Rush Limbaugh website posted transcript, 4.14.09:

"They were kids. The story is out, I don't know if it's true or not, but apparently the hijackers, these kids, the merchant marine organizers, Muslim kids, were upset, they wanted to just give the captain back and head home because they were running out of food, they were running out of fuel, they were surrounded by all these US Navy ships, big ships, and they just wanted out of there. That's the story, but then when one of them put a gun to the back of the captain, Mr. Phillips, then bam, bam, bam. There you have it, and three teenagers shot on the high seas at the order of President Obama."

Wow. with arguments like that, anything is possible. The "Blame America First" crowd in full flower.

Re the Simpson trial comments, as a peripheral participant in part of the case, they are completely irrelevant.

Re the alleged "unavailable" defense witnesses, we still need to hear the proffer. What facts and as to what element of the defense to what charge?
4.15.2009 9:09am
geokstr:
We are not talking about "long term" signs of torture. There were never even any "short term" signs.

...in his Nov. 4, 2004, statement to the press, Arar told of being whipped with a two-inch-thick electrical cable. "They hit me with it everywhere on my body. They mostly aimed for my palms, but sometimes missed and hit my wrists; they were sore and red for three weeks," Arar states. Arar alleges his interrogators also hit him on his hips and lower back. "They used the cable on the second and third day, and after that mostly beat me with their hands, hitting me in the stomach and on the back of my neck, and slapping me on the face. Where they hit me with the cables, my skin turned blue for two or three weeks, but there was no bleeding," Arar stated. According to his own timeline, these horrors occurred between Oct. 11 and Oct. 16, 2002.

Yet the entire time he was in the Syrian prison, the Canadian officials who visited with Arar saw no signs of physical abuse. As for his condition when he got out, one Canadian eyewitness-- speaking to the Western Standard on condition of anonymity--who saw Arar in Syria only moments after his release from jail, put it this way: "If you call not being able to shower for 10 months torture, then I guess he was tortured. But from what I saw, he didn't look like he had been tortured."

Arar received a total of nine consular visits during his 10-month ordeal. The first of these was only one week after the alleged beatings stopped, so that would have been well before Arar, in his own words, says his injuries healed. On Oct. 23, 2002, Leo Martel, an experienced consular official, met with Arar. The diplomat described the visit in a note to his superiors written immediately afterward. The Syrians were present at all times and obligated everyone to speak in Arabic. He reported that Arar walked normally; the two men shook hands and Martel described the handshake as "normal" and stated that Arar did not withdraw his hand. The meeting lasted a half-hour. Martel wrote that Arar "looked like a frightened person," yet appeared otherwise healthy, but added, "Of course, it is difficult to assess." He saw no bruising. The commission report states, "Mr. Martel saw no apparent signs of sore or red wrists or palms, and no blue skin around Mr. Arar's face or neck."

Martel would visit Arar eight more times, sometimes alone, sometimes in the company of others. All his consular reports were made public at the Arar commission. No signs of physical abuse were ever observed. Even after Arar was released, he did not speak of beatings. On the plane returning to Canada, when Martel asked Arar about physical torture, all he would say was, "They have other means."

...when training its recruits, al Qaeda teaches them to make a claim of torture as soon as they are put before a magistrate, or the media.


There's lots more on this story too:
What really happened to Maher Arar?

Of course, the left will try to impeach the source, but since every one of their own media was after BusHitler's hide, none of them really looked to see if there was another side of the story, so you have to go elsewhere. When it comes to getting back at him for "stealing" the election from Gore, the MSM takes anything critical of Bush or the right as gospel.

So what else is new?
4.15.2009 9:11am
pst314 (mail):
There's nothing wrong with a catch and release policy, as long as the pirates are released at an altitude of 1000 feet.
4.15.2009 9:12am
enjointhis:

WRT pirates I have no issues whatsoever with calling them outlaw according to the ancient English concept of outlawry.

If one decides to be a pirate, one has forfeited any protection of law. It'll shock many here, but some actions should not benefit from due process. Piracy is the poster child for this concept. It's also the only effective method to dissuade potential pirates from signing on. They need to know that agreeing to join up is a death sentence, executable by the first regular Navy ship to come across them.


Even though I am a big fan of procedural due process, I find myself agreeing w/Capt. Ned. Thanks for concisely summarizing an approach to the problem which I share.
4.15.2009 9:33am
enjointhis:
In the "Enjointhis Rules The World" world, I would probably proceed as follows: Summary trial &execution for the pirates, with the commanding ship's captain being liable if the pirates' kin successfully argued that the decedent wasn't a pirate. Kin's burden of proof would be clear-and-convincing evidence.
4.15.2009 9:42am
FE:
I call b.s. Does anyone really think that the "just going fishing" defense is going to fly with an American jury? That claims that the pirate was tortured aboard the Bainbridge will be taken seriously? That it will strain the Department of Justice's resources to find a Somali interpreter? There may indeed be hard cases that will be discussed in Professor Kontorovich's forthcoming article, but this isn't one of them.
4.15.2009 9:45am
Mark Buehner (mail):
These guys aren't so bad. A number of them have reached out to me offering a generous reward for helping them move millions of dollars around the world for various reasons.
4.15.2009 10:06am
Richard Aubrey (mail):
RPT.
Sounds like Limbaugh was successfully parodying the left and their views of anybody who likes killing Americans.

The request for unavailable witnesses will not happen until we have a trial here. Since we haven't had such a trial here, we don't have a record. Try to keep up.

My question is how the court would respond if an attorney, zealously defending his client, tried it. And what the reactions would be to the various responses the court could possibly make.

IMO, the whole thing would have to be dropped--the left wins--or go without the witness and the pirate is convicted--the left has another Mumia.

There are two points. What will the court do and how will the dems and the left react?

Guys, we had an election. Torquing the law and mispresenting issues to get terrorists off is no longer a stick in George Bush's eye. Can we get back to business now?
4.15.2009 10:23am
Ken Arromdee:
If one decides to be a pirate, one has forfeited any protection of law.

That's like saying that if you're a mugger, you've forfeited your right to freedom. It's true, but it doesn't help in dealing with crime because it just pushes the question back to how you can determine that someone is a mugger in the first place.

How do you know that someone "decides to be a pirate", without a trial first to determine that they're really a pirate, if they claim their innocence?
4.15.2009 10:27am
wfjag:

aloysiusmiller wrote:
I support a court martial on board the capturing ship. Guilty gets hung and innocent goes over the side with a rubber dinghy and a broken paddle.

1. There is no jurisdiction under the UCMJ to try someone for being a pirate (unless you accord him some sort of Prisoner of War status, and only then can he be tried for offense that occur after capture). See Arts. 2 &3, UCMJ, 10 USC 802 &803. Accordingly, if you grant him status so that you can apply the UCMJ, you've thereby also conferred immunity for pre-capture actions for court martial under the UCMJ. So, if you want to try him for piracy, you're still left with the options explained in the blog;

2. Since no one was killed, even if you could try him for piracy by court martial, there is no capital offense under the sentencing provisions of the Manual for Courts Martial;

3. Further, while it has not been decided in this context yet, the issue of 8th Amendment limitations on the death penalty applying to court martial sentences comes into play. This was discussed a few months back in the context of the SCOTUS holding unconstitutional the death penalty for child rapes in which the victim is not killed (and erroneously reasoning that Congress had not spoken on the issue, overlooking that Congress had recently amended Art. 121, UCMJ, 10 USC 921, to allow the death penalty in court martials under such facts). Here the pirate may be less than 18 (he claims to be, and proving it one way or another is likely to be impossible). The SCOTUS has held that persons who commit capital crimes before they reach the age of majority cannot be sentenced to death under its intrepretation of the 8th Amendment (see also discussions on whether the SCOTUS should rely on foreign law in intrepreting the Constitution, as that was part of the SCOTUS's reasoning in that decision). Why would the military would want to address that issue in this case? With parental waivers, people age 17 can enlist, and at least some of them commit crimes. It's better from DoD's perspective to await a grisly crime by a 17 year old which will violate basic PC norms and not find sympathy in the pages of the NYT or WaPo -- say a rape/torture/murder of a Medea Benjamin, Jr. who was taking her mother milk and cookies when it happened -- rather than having the federal courts on habeas corpus review looking at a "kid" who was trying to surrender when his buds had their heads blown off by SEAL snipers, and Captain Phillips was not physically harmed. You'll be lucky if the defense doesn't get a shrink getting the court members crying when describing the kid's PTSD due to the trauma of thinking about what happened to his co-fishermen. There is absolutely no reason any of the JAG corps of any of the uniformed services would want to try this kid. Let Mr. Holder's DOJ worry about the case, and facing any blowback if the kid isn't severely punished for being a pirate.
4.15.2009 10:48am
Mark Buehner (mail):

How do you know that someone "decides to be a pirate", without a trial first to determine that they're really a pirate, if they claim their innocence?

How do you decide if someone decides to be an enemy soldier during wartime, just because he is wearing an outfit and shooting at you? Shouldn't we require some sort of judicial oversight before opening fire across no-man's-land?

This is a military issue, not a civil issue, which has been the misconception all along. If a ship is caught off the Somali coast with assault rifles and rpgs, they are pirates and can be treated as such.
4.15.2009 10:53am
martinned (mail) (www):

This is a military issue, not a civil issue.

ipse dixit
4.15.2009 10:57am
Steve:
But the question is what will the court do when a defense attorney tries it?

I believe the answer is that the U.S. courts have a constitutional obligation to provide the defendant with legal process to secure witnesses for his defense. But if a witness is beyond the territorial reach of U.S. process, and won't appear voluntarily, as far as I know the government has no further obligation to assist the accused.

What we're really arguing about is whether we have a criminal justice system that is so defunct that it's an everyday occurrence for murderers and pirates to walk based on technicalities, thanks to liberal judges and their made-up rules. I suggest that the OJ trial was something of an outlier in our system (and, by the way, I wasn't the one who asked you if you knew how a real trial works, but if your knowledge of the court system comes from watching the OJ trial then that explains a lot).

You appear to be convinced that all the pirate has to do is say "hey, there's some witness I need in Somalia," and it's an even-money proposition that the judge will simply dismiss the case. But you cannot cite me a single example where this argument has ever worked in the past. It's a cartoonish view of our legal system.
4.15.2009 10:58am
jalrin (mail):
You might want to look up 28 U.S.C. 1783, for an answer to what would happen if a Defendant wanted a witness who is not a resident or citizen of the United States and was not in the country. Short answer: unless the government caused the purported witness to not be in the country, then comppulsory process does not lie and there is no issue with their unavilability.
4.15.2009 11:01am
Richard Aubrey (mail):
jalrin &steve.

Let's presume the desired witness does not show. Then the pirate is convicted.

What does the left and the dems say about the case? What pressures are brought on the next one?

Since it hasn't yet happened, we can't say. My point is that bringing a pirate here for trial would be a good thing for the left as a tool by which to beat up on the US justice system beyond those tools provided by the US justice system itself.

The reason the OJ trial is important, IMO, is that a meathead jury allowed itself to be distracted by an irrelevancy dramatized by the Dream Team. Not to mention the Rodney King riots. As Tammy Bruce said of NOW, the thing should have been about a murdered woman, not a case of a black man brought down for daring to touch white flesh. But NOW and the progressives weren't having any of that.


I see the same thing happening if a pirate is brought here. Whether the supposed witness at a distance actually shows up is not the point. The point is what is made out of it and what that means to subsequent trials here.
4.15.2009 11:13am
Steve:
We won't agree, Richard, because in my world the mainstream left will be thrilled to see the pirate convicted and sentenced according to our principles of due process, and maybe there will be a few fringe ranters who think that he was just a poor misguided kid who should be given a shave and a hot meal. Whereas in your world, the fringe ranters ARE the mainstream left and their reaction is how you define liberals in general.

I don't really understand how you can characterize liberals as bad people who are just looking for an excuse to "beat up on the US justice system" when you, yourself, have such a pathetically low opinion of the US justice system that you think we let dangerous criminals go simply because they argue we haven't produced their mystery witness in Somalia.
4.15.2009 11:21am
RPT (mail):
RA:

-It is impossible to parody Limbaugh. He said what he said. He cares more about his own importance than hostages, SEALS, or the country's interests. If something goes well, he will attack it.

-Tammy Bruce and NOW were not a part of the Simpson trial and had no effect on the result. The defense lawyers clearly outlawyered the prosecutors, intimidated the court, and Clark did not properly prepare her witnesses.
4.15.2009 11:24am
Harry Eagar (mail):
FE asks: 'That claims that the pirate was tortured aboard the Bainbridge will be taken seriously?'

If FE meqans, by the courts, depends which court.

If FE means, opinion at large, yes, of course.
4.15.2009 11:30am
zuch (mail) (www):
geokstr:
...when training its recruits, al Qaeda teaches them to make a claim of torture as soon as they are put before a magistrate, or the media.
Only fly in the ointment here: Arar was not al Qaeda.

Cheers,
4.15.2009 11:36am
zuch (mail) (www):
pst314:
There's nothing wrong with a catch and release policy, as long as the pirates are released at an altitude of 1000 feet.
Why, that's just what we did in Operation Phoenix. No muss, no fuss, no trial ... except the square metre of jungle where touchdown occurs.

Cheers,
4.15.2009 11:39am
Mark Buehner (mail):

This is a military issue, not a civil issue.


ipse dixit

aut pax aut bellum.

"But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents, claims sovereign rights as against the other."
...
He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.'
Prize Cases (1862)
4.15.2009 11:42am
RPT (mail):
It is a continual surprise how many of the anti-prosecution commenters seem unaware of how the real justice system world works. Hypothetical claims of "defense witnesses" or "torture on the Bainbridge", as compared to Guantanamo detainees, may be raised but will get nowhere because (1) the acts of the pirates are captured on camera (unlike the GD's, where there were usually no acts at all), and (2) the Navy will not use illegal "interrogation techniques" and will keep a record of what happens to the pirate in custody (unlike the GD's; no files maintained, no evidence maintained, and interrogation tape destruction by the CIA), and (3) general principles of evidence handling will be followed.

Why don't you want the pirates prosecuted? Why are you on the side of Limbaugh and the pirates?
4.15.2009 11:47am
Richard Aubrey (mail):
RPT.
YMBAL (You Must Be A Lawyer) to deliberately miss so many points.

The likelihood that Limbaugh was parodying what the left would say if Bush were president and the pirates had been killed exceeds 99%. Now, if you think he was being straight, you have no complaint, since that's the sort of thing the left and the dems were doing when Bush was president.

I didn't say Bruce &NOW and the others had any influence on the trial. You made that up. You're a lawyer, right? I was using them to point out how the left and the progressives saw the situation. When they had an opportunity to stand up for a murdered woman, the feminists instead did as progressives insisted. Ditto in the Duke Lax case. The real rape went unlamented by any of the usual suspects, except, as the victim said, for giving her some crap by e-mail.

And, yes, the ranting fringes are the left. Those not ranting loudly merely do as the ranters tell them. The ranters told the rest of you to keep quiet about the actual murder in the OJ case and you did. The ranters told you to get all exercised about a rape that didn't happen and you did. The ranters made it clear that the real rape at Duke was not helpful to the narrative and you'd better keep your mouths shut about it, and you did.
4.15.2009 11:48am
Steve:
And, yes, the ranting fringes are the left. Those not ranting loudly merely do as the ranters tell them.

Yeah, mainstream Democrats don't care about Nicole Simpson. You sure have us all figured out.
4.15.2009 11:53am
martinned (mail) (www):
@Mark Buehner: Thanks. Now at least you're offering an argument that I might care to refute. (And I do.)

I'm not necessarily thrilled by your choice of quotes from that case, but even under the language you quote, I would offer that by no stretch of the imagination is this piracy problem a war.

When Justice Grier talks about "claim[ing] sovereign rights", presumably he means something different than the sovereign right the state claims when it convicts a criminal and carries out the sentence. Otherwise, every state response against crime would be war.

The key, as far as your quote goes, must therefore be in this "hostile party". The examples given include a "foreign invader" and a "rebellion". Extrapolating from these examples, I don't see how a bunch of pirates capturing ships, some of which American, ever qualify as a "hostile party".

Let's look at some more language from that case.

WAR is simply the exercise of force by bodies politic, or bodies assuming to be bodies politic, against each other, for the purpose of coercion.
How are these pirates a "body politic"?

First. What is the rule in the case of external wars?

It is not necessary that the residence should be within the regular dominions of the enemy, as they were when the war began, or as they shall have since been established by treaty or public law.

It is sufficient if the territory is in the permanent occupation [67 U.S. 635, 658] of the enemy, who has established himself there, not avowedly for temporary purposes, but to hold so long as war shall enable him to hold it.

What territory do these pirates hold or attempt to hold?

You will note that the Barbary Wars were not fought against normal pirates, but against the "states" that they controlled or that sheltered them. In the present situation, it might be defensible, given sufficient provocation or a Security Council resolution, to commence military operations against Somalia. (Defenisble, but not very likely as a practical matter.) Such operations would certainly be a "military issue".

For now, however, the situation is that private property is being stolen by private citizens of Somalia, where the US Navy is trying to offer assistance. Pirates so captured are private citizens, not prisoners of war, and to the extent that they have committed crimes, they should be given a fair trial before being punished.
4.15.2009 12:09pm
Mark Buehner (mail):


When Justice Grier talks about "claim[ing] sovereign rights", presumably he means something different than the sovereign right the state claims when it convicts a criminal and carries out the sentence. Otherwise, every state response against crime would be war.

You are claiming these acts of piracy are crimes, isn't that assuming your own conclusion?

The key, as far as your quote goes, must therefore be in this "hostile party". The examples given include a "foreign invader" and a "rebellion". Extrapolating from these examples, I don't see how a bunch of pirates capturing ships, some of which American, ever qualify as a "hostile party".

Here's the part of my argument I think hasn't been talked about: these aren't 'random' acts of piracy committed by random criminals. IE- these are organized acts by a society of people. They are now making specific threats against American citizens. They even use political grievances to justify their actions. I don't think you can consider these pirates as simple individuals subject to civilian law as you might a group of Norwegians or Koreans or Virginians who decided to take to piracy. This is essentially a break-away part of a nation committing acts of war, is it not?

And if not, how would you define them? And how would you ultimately define an entity capable of conducting war as opposed to a group of individuals that happen to be engaging in coordinated activity that amounts to acts of war?

What territory do these pirates hold or attempt to hold?

Clearly, as they apparently don't hold themselves subject to any Somalian federal power, their homes and villages from which they are striking American (and world) shipping.


You will note that the Barbary Wars were not fought against normal pirates, but against the "states" that they controlled or that sheltered them

Ah, but not exactly! The Barbaries were technically under the ownership if the Ottoman Empire, however they were acting as independently sovereign. A very similar situation in a way.


Pirates so captured are private citizens, not prisoners of war, and to the extent that they have committed crimes, they should be given a fair trial before being punished.

But a fair trial is a necessity when captured whether through civil or military law. My point is that if these are acts of war the military can conduct military trials or at least hold the pirates as POWs until some sustainable peace can somehow be reached.
4.15.2009 12:30pm
martinned (mail) (www):
@Mark Buehner: I don't think we disagree very much. We just have a different way of getting there. How do I know? Because you wrote this:


But a fair trial is a necessity when captured whether through civil or military law.

That already puts you apart from all those wingnuts who have advocated various forms of summary execution.

Let's focus on the core of what you wrote:

Here's the part of my argument I think hasn't been talked about: these aren't 'random' acts of piracy committed by random criminals. IE- these are organized acts by a society of people. They are now making specific threats against American citizens. They even use political grievances to justify their actions. I don't think you can consider these pirates as simple individuals subject to civilian law as you might a group of Norwegians or Koreans or Virginians who decided to take to piracy. This is essentially a break-away part of a nation committing acts of war, is it not?

Yes, that's one of the two ways that you can go from a crime spree to a war. (The other one is unwillingness by Somalia to enforce the law.) As outlined in the Prize cases you quoted, what is necessary in order to make this step is for these pirates to be in some sense a "body politic", meaning at the very least that they enjoy a degree of independence of action, presumably that they aspire to sovereignity in some form, and that they are organised enough to form a single "body". At to that a clear and present threat against the US or against US interests, and you've got yourself a war. On the facts of the case, though, I don't think we're there (yet).

I see no indication that these guys are about anything more than money, occasional complaints about "American Imperialism" notwithstanding. I also see no indication that they are really organised above the level of operations. (It takes a number of guys and a few boats to carry out such a hijacking, but AFAIK that is as organised as they get.) Finally, I see no indication that the freedom of manoeuvre they enjoy on the Somali mainland is more than incidental to their operation. That freedom is convenient, to be sure, but not a goal in itself. If the Somali government were stronger, they'd have to be more careful, but it wouldn't fundamentally affect their operations.


And if not, how would you define them?

I would say this is a crime spree, which happens to take place mostly in international waters, and has its roots in a failed state. To fix this, the kind of navy action we've seen so far is a good start. A more structural solution would require UN Security Council action (eg. Resolution 1851), but is probably politically unfeasible.
4.15.2009 12:54pm
Richard Aubrey (mail):
Steve. I have no idea what mainstream lefties think about Nicole. I found that trying to predict what mainstream lefties think about things by using normal human sentiments got me nowhere.
But, even if we stipulate that you "care", that wasn't the point. If you cared, you suppressed it for the Cause.
Good party guys.
4.15.2009 12:56pm
Mark Buehner (mail):
"Sovereignty." A government which exercises de facto administrative control over a country and is not subordinate to any other government in that country is a foreign sovereign state. ”

— (The Arantzazu Mendi, [1939] A.C. 256), Strouds Judicial Dictionary, British Law


- This 'pirate society' is demonstrably not under the effective authority of any other entity.
- The de facto authority is an oligarchy of village elders that have negotiated on the pirates behalf. Essentially engaging in diplomacy.
- The pirates have acted in concert toward their common defense.
- The pirates have argued political grievances to justify their attacks, not simple profit motive.

Is all this not enough to consider this collection of villages a de facto sovereign entity collectively engaged in acts of war?

And if not, what would be required? Justice Grier is explicit that international acknowledgment as a nation-state is not the standard. What is?
4.15.2009 12:59pm
martinned (mail) (www):
Update:


French warship captures pirates
A French warship has captured 11 pirates off the coast of Kenya, amid calls for the international community to deal with the problem of piracy.

The pirates were captured by a warship from an EU piracy patrol, French officials said, hours after a failed attack on a US ship.

Other pirates released a Greek ship and its 24 crew held since mid-March.

News of the incidents came as the UN special envoy for Somalia said the attacks threatened international peace.

The latest attack involved pirates firing rocket-propelled grenades and automatic weapons at a US-flagged cargo ship, the Liberty Sun, which was carrying food aid for Africa.


'Mother ship'

The French Defence Ministry said the warship Nivose captured the pirates about 550 miles (900km) east of the Kenyan port of Mombasa.

It had detected a "mother ship", or command vessel, on Tuesday, and observed it overnight before launching an assault early on Wednesday, the ministry said.

An attack on a Liberian-registered vessel was also thwarted, the ministry added.

The Nivose is part of the European Union's operation to protect shipping in the Gulf of Aden.

Meanwhile, a Greek-owned merchant vessel taken on 19 March was released by pirates, but there were no details of whether a ransom was paid.

The St Vincent-flagged Titan, with its 24 crew members all well, was now heading to its original destination of South Korea, the Greek maritime ministry said.

Despite several anti-piracy patrols, there has been an increase in attacks in the past few days, with four ships seized and others attacked.

The United Nations special envoy for Somalia, Ahmedou Ould-Abdallah, said the attacks were threatening international peace.

In a BBC interview, he also called for help for poor Somalis themselves, many of whom were being exploited by the pirates.

"As everyone knows force is a last resort, but at the same time self-defence is legitimate. But we should not go there for the time being.

"What is important is to show determination as the international naval presence is doing. You will see in the next few weeks a sharp decrease in piracy.

"They already are going further south and at the same time we should do something inland, trying to provide more jobs for these unfortunate youngsters who are exploited by the financiers who are backing piracy."


'Revenge attack'

Pirates have vowed to avenge the deaths of those killed in recent rescue operations by US and French forces.

After the attack on Liberty Sun, one pirate told AFP news agency they had intended to destroy the ship and its crew.

Abdi Garad said: "The aim of this attack was totally different. We were not after a ransom.

"We also assigned a team with special equipment to chase and destroy any ship flying the American flag in retaliation for the brutal killing of our friends."

One pirate was killed in the rescue attempt of Captain Richard Philips of the Maersk Alabama, who had been held captive for several days after being taken hostage from his ship.

Two more Somali pirates were killed in a French operation to free five hostages from a yacht they had taken over.

Marines managed to free four hostages but the yacht owner, Florent Lemacon, was killed.

A post-mortem examination will be carried out on Mr Lemacon later this week to try to determine whether he was killed by the pirates or by a stray French bullet.

Three other pirates captured in that operation have arrived in France for questioning. The trio were in custody at a police facility in the north-western French town of Rennes.

It is understood the pirates, who are aged between 20 and 25 years, have spent the day being questioned by French investigators.

At least six other pirates are already in French custody after being captured by French marines last year.

In recent months Britain, the US, and the European Union have signed memorandums of understanding with Nairobi that Kenya will act as a kind of international tribunal for pirate crimes.

Several Somali pirates turned over by the US and Germany are already undergoing legal action there but, so far, Paris prefers to try captured pirates in French courts.


Conclusion:
- Legal action is under way in several places.
- I'm not sure if this talk about a "mother ship" implies a degree of organisation above what is necessary to attack a single ship.
- To the extent that threats against the US have been made, they were more of the nature of revenge/vendetta than anything politically motivated.
4.15.2009 1:02pm
Steve:
But, even if we stipulate that you "care", that wasn't the point. If you cared, you suppressed it for the Cause. Good party guys.

You really need to see someone about that fever.
4.15.2009 1:04pm
martinned (mail) (www):
@Mark Buehner: Given the facts as you state them, I'd say the pirates are an entity against which a war can be fought.

That still leaves the question of whether that is the most productive way to deal with this problem. For one thing, a war means that those captured become POWs, meaning that they can be held for the duration of hostilities but not tried for their piracy. Calling this a war might also give these guys too much credit. Calling it a crime spree instead at least allows us to try to stick them in prison for a couple of decades.
4.15.2009 1:05pm
ArthurKirkland:
I believe the best approach is to give a new administration a chance to learn from and avoid the comprehensive failures -- picking the wrong targets, engaging in torture, kidnapping, apprehending the wrong people, botching prosecutions, sending inadequate equipment, establishing the wrong tone, etc. -- of the United States' recent misadventures before declaring the system irretrievably broken.

If properly deployed -- as in "Defense" rather than settling petty ideological scores or lashing out blindly from fear -- the American armed forces can be a brilliantly effective, leadership-by-example force for good. (The world exhibited support with respect to the 9/11 attacks until our misfires and bullying generated understandable skepticism and then hostility.) If the United States undertakes legitimate anti-piracy actions -- identify, track, destroy -- in good faith, I doubt nations or men of good will would interfere with our effectiveness. So far, the record includes effectiveness and non-interference with respect to piracy involving U.S.-flagged vessels. (I believe the U.S. should refrain from operating as the world's navy unless compensated for the expense and risks; at the moment, U.S.-flagged vessels appear to be the only ones U.S. forces should be rescuing.)

If a new approach fails, it will be time for opprobrium and hand-wringing. Until then, I see no reason for either.
4.15.2009 1:08pm
wfjag:
Dear Mark:

As sympathetic as I am to your assertion that piracy ought to be handled as a military matter, martinned is correct that it is a civil matter to be handled by the criminal justice system, and not a military matter.

Under US law, who is subject to trial under the UCMJ is governed by Arts. 2 &3, UCMJ. You aren't going to get a pirate under that definition. There are attempts to expand court-martial jurisdiction to include civilians "accompanying the force" to include dependents and contractors. Whether those efforts will be successful depends on the resolution of some constitutional issues. When someone enlists, their citizenship status changes from civilian to military. This change in citizenship status is fundamental to applying the UCMJ. Whether Congress can constitutionally extend UCMJ jurisdiction to civilians accompanying the force is unresolved.

The UCMJ also applies to persons who have some sort of PW-type status for crimes committed after they are detained. Here the acts of piracy occurred before any detention of the kid. Effectively, if he is accorded some sort of PW-type status to make the UCMJ applicable, then effectively you've granted immunity to pre-detention acts as far as using the UCMJ.

For the Gitmo detainees, Congress has tried to enact constitutional laws allowing some sort of military tribunal to try them for pre-detention acts. That has not been a happy experience thus far for the military. I don't see DoD wanting to court-martial any pirate until and unless Congress enacts very clear standards -- substantive, procedural and jurisdictional -- providing for application of the UCMJ or some other sort of military tribunal.

Your argument that

these aren't 'random' acts of piracy committed by random criminals. IE- these are organized acts by a society of people. They are now making specific threats against American citizens

applies with equal force to the mafia. However, RICO charges are tried in the USDC and not by court-martial.

My cynical response to allegations that the pirate was tortured on the USS Bainbridge is to take the kid to Spain and dump him there. Let's see if the Spanish would be eager to indict Obama Administration officials, or is what's going on there simply the Spanish version of partisan politics. And, if the Spanish decide to return him to Somolia or even release him without supervision, then we should indict some Spanish legal advisors for advising that it was permissible to return or release a known pirate so that he could endanger others in the future. I suspect that somewhere in some UN resolution or some treaty there's some overly broad and vague standard that would violate. It might be interesting so see how Spain responds to returning the favor using "universal jurisdiction." (But, I know that won't happen. In addition to not being politically PC, the US is still a nation governed by laws and not men and their passions. As a result we are restrained by our laws. In this sense martinned, the US is way ahead of the hypocracy typical of European "just us".)
4.15.2009 1:13pm
martinned (mail) (www):
@wfjag: While I'd always appreciate the support, I have to ask. What did you have in mind when you wrote this: "In this sense martinned, the US is way ahead of the hypocracy typical of European "just us"."? The differences in legal and constitutional systems between the US and most European countries means that the ideal of "government of laws" is approximated more in some areas than others, but on the whole I'd say that the US and Europe come about equally close to the ideal. So hypocracy?
4.15.2009 1:20pm
Mark Buehner (mail):

That still leaves the question of whether that is the most productive way to deal with this problem.

That's the million dollar question.


For one thing, a war means that those captured become POWs, meaning that they can be held for the duration of hostilities but not tried for their piracy. Calling this a war might also give these guys too much credit. Calling it a crime spree instead at least allows us to try to stick them in prison for a couple of decades.

I think we'd do well to take the assumption that there is a political/socio-economic facet to this to its ultimate conclusion. As we said, these aren't random criminals out for a buck. Even wheresofar they are out for money (surely their main motivation) that must be tied to the lack of a legitimate state which can protect an economy, especially against the types of over-fishing and illegal dumping these people are claiming have ruined their livelihoods forcing them into piracy.

So... treating this as a criminal matter will do nothing to address these grievances, and worse they tend to handcuff the international powers from decisively defeating the threat. American or French ships picking off one or two crews here and there will do little to stem what we must remember is a rising tide of attack.

I'm thinking if we treat this as an act of war we can dispatch with international hand-wringing over violating territorial waters (which don't exist) and boarding and searching any Somali vessels we so desire- even declaring Maritime Exclusion across the coastline in question if necessary. These are authorities we will NEVER win at the UN, however by treating these as acts of war by breakaway provinces we will have the necessary authority to act aggressively independently of any UN authorization.

In other words- a decisively effect result, whereby we can actually prevent these acts physically as opposed to hoping to intercept them. Moreover, this leverage might present an opportunity to negotiate some sort of larger peace that might provide some stability for the region.
4.15.2009 1:24pm
einhverfr (mail) (www):
More Importantly wrote:

I don't agree that an occupying force is necessary for a robust response to lawlessness. Our only concern here is lawlessness that extends out to sea. Thus, summary destruction of any port or costal city found to have harbored pirates would solve the problem--as would a prohibition on any Somalian craft capable of serving as a pirate craft. Fishing boats need not be speed boats.


Hmmm... So villiagers and fishermen are criminals just because they are outgunned by pirates?

On any ship capable of serving as a pirate craft, I assume you are suggesting that Somalia should give up all of their naval forces?

The current modus operandi is to use inflatable speedboats from fishing boat motherships. So you don't see the speedboats until it is usually too late......
4.15.2009 1:28pm
Mark Buehner (mail):
Wfjag- if you consider i'm approaching this as an act of war, punishment and incarceration aren't really high on my list of goals.

If we can either deprive the pirates of the physical ability to commit piracy (by sinking their ships and blockading their shoreline) or (far better) leverage some sort of peace deal probably by negotiating with the tribal authorities (on our terms, considering they will be on the losing end of a military conflict and assuming they will be eager to have access to the sea again in their lifetime).

If we can remove the threat, the actual punishment doesn't mean much to me. Dealing with this in a military manner allows for a decisive decision at the end of which we could release POWs and not worry much about them. On the other hand treating this as a criminal matter and it seems to me this may never end. Where's the light at the end of that tunnel? We could be prosecuting Somalian pirates for decades (when lucky enough to catch them).
4.15.2009 1:31pm
Le Messurier (mail):
Seems to me...

That many are missing the point. There is no question that the pirates must be given a fair trial, as much as we might like to see quick justice. Also, I haven't seen any mention of the applicable law. To wit:

federal laws against piracy — chief among them 18 U.S.C. § 1651 — prescribe life imprisonment as not only the maximum penalty, but the only penalty. But with respect to a federal conviction for hostage-taking, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment."

Congress' use of the word "results" means there must be a causal connection between the hostage-taking and the fatality, but it's a fairly loose one. There is no requirement that it be the defendant hostage-taker who directly inflicted any lethal injuries. And Congress could easily have limited the death penalty to situations where it was the hostage, or perhaps also law enforcement members or innocent bystanders, who were killed. But Congress didn't.

Instead, under the plain language of the statute, Congress instead chose to make the death penalty available when "the death of any person result[ed]" from the hostage-taking. Thus, even the death of one of the hostage-taker's fellow criminals satisfies the literal language of the statute.

The above from BeldarBlog as mentioned earlier; there's more to his analysis, but this pretty well lays it out.
4.15.2009 1:34pm
martinned (mail) (www):
@Mark: I mostly agree, except for this:


These are authorities we will NEVER win at the UN

These pirates are a nuisance to all major nations, and have no friends among the permanent five. The UNSC already voted a number of resolutions on the matter, and if it is shown that more drastic measures are necessary, and if someone is willing to carry out such measures, the UNSC will authorise them.

As usual, the benefit of going through the Security Council is that it demonstrates the existence of an international consensus, and that it makes it clear beyond doubt that the measures in question are lawful. Both these facts will tend to improve the legitimacy of the actions, minimising the chance of any embarrassments down the road.

Also, I wouldn't discount the usefulness of criminal trials, if they can be organised without too much difficulty. A special tribunal of some sort in Kenya would certainly be useful.
4.15.2009 1:39pm
Blue:
Martin, the idea there needs to be an "international consensus" to extirpate piracy is obscene.
4.15.2009 1:43pm
Mark Buehner (mail):
martinned, that's where we disagree. I don't doubt China or Russia would happily stick a thumb in our eye just on general principle if we asked for a resolution authorizing the indiscriminate boarding of Somalian vessels (much less a blockade of any kind). Heck, the French might even block it.

I think we need to recognize that the Security Council has become much more a playground of screwing over your competitors than any sort of collective voice for order or security. Or more precisely, there is much talk about security and modest saber rattling, but when was the last time the SC even authorized the use of force to back up their resolutions?

I'd be happy to give it a try, but the UN is no more likely to stop issuing empty proclamation than the pirates are to listen to them. If we could get something useful out of the UN, I agree, it would be a great thing (might actually make someone take what they say seriously even).
4.15.2009 1:48pm
einhverfr (mail) (www):
A resolution from the UNSC would be nice. But the real key to making this work is going to be involvement from folks like Ethiopia and Kenya. I think we should TRY to go through the UNSC and negotiate a resolution that can reflect a broad consensus. However, if early stage negotiations fail, then it is better not to submit the resolution just for it to be voted down.

Really there needs to be an "international consensus" of regional governments in the area. A consensus of Kenya, Ethiopia, and the Somalian government would be good enough for me....
4.15.2009 1:49pm
Christopher Cooke (mail):

French warship captures pirates



Are the rightwingnuts still going to call those chopped up potatoes "Freedom Fries" or can we now call them French Fries?

This is a silly debate by non-lawyers and a few people who have not tried a case in federal court. Yes, a "pirate" defense attorney (a real, swashbuckling litigator, I am sure), can invent some story; that is their job. But the whole thing was caught on video, and witnessed by many. The argument that Richard raises --unavailability of witnesses will led some "lib" "dem" judge to dismiss the indictment--is procedurally wrong and portrays an ignorance of every federal judge in the country. Bush W appointed many, many of the federal trial judges, and the government can simply bring the pirate to Virginia, which will ensure a right wing venue.
4.15.2009 1:54pm
martinned (mail) (www):
@Blue: It is not necessary, it is just legally and politically preferable.

@Mark Buehner: Please, give me a break. Not everyone is out to get the US. It will require a bit of smart diplomacy, to be sure, but I don't see why it wouldn't be possible to get a UNSC resolution along the lines you propose, if the current level of nuisance continues.

BTW, you may want to consider how much Chinese trade, both import and export, passes by the region in question.
4.15.2009 1:59pm
wfjag:
martinned -- please refer me to a prior example of indicting legal advisors for providing legal opinions to a sovereign government when unsettled issues of international law are the subject of those opinions?

And, please don't try lecturing me on the terms of the Convention on Torture. The US ratified it subject to exercise of the US's exercise of its sovereign authority that the Convention was not self executing. Even assuming arguendo that the legal advisors rendered legal opinions that violated the terms of the US laws that the US enacted to implement the treaty, those would be violations of US domestic criminal law, and not any international legal standards, and certainly not anything over which Spain has jurisdiction.

Hyprcracy -- let's see -- shall we start with the years of hand-wringing over Bosnia. However, under UNPROFOR, the troops weren't allowed to protect people being attacked by the militias. However, although Serbia was an arms exporter (even before the conflict began) and Croatia had a porous border, European nations piously announced an arms embargo. Arms and ammo flowed rather freely into Croatia, HVO controlled areas, and Republica Srpska from EU member nations, it was just the Bosniak areas that were denied any means of self-defense and were not defended by UNPROFOR controlled troops. I find pious statements about human rights deeply hypocritical when made by leaders of nations who are fully aware of rape camps and death camps being operated, which camps could easily have been shut down by their nation's soldiers -- but, those camps were allowed to continue in operation. Or, maybe we can discuss Rawanda. Maybe that's not a good example, since there was plenty US hypocracy, too, since US officials actively avoided talking about what they knew was going on there. Still, given our lack of colonial and post-colonial relationships with central Africa, central Africa is not an area of US concern besides economic and strategic metals interests. How about the Congo? In the last decade approx. 5 million people have reportedly been killed in the Dem. Rep. of the Congo. Despite European ties to the area -- colonial and post-colonial -- I haven't seen much "outrage" (or even meek protests) about the slaughter. Maybe turning a blind eye isn't hypocritcal -- especially when there's someone to criticize when that nation actually attempts something somewhere else. So, let's indict former legal advisors to a former US administration that isn't now and wasn't previously popular among European elites. That's a good way of avoiding discussions of genocides occurring elsewhere, since public discussions like that might, possibly, result in some of your own citizens asking why your own governments, and your own elites, never do anything to protect the human rights they talk about so piously.
4.15.2009 1:59pm
PeterWimsey (mail):
1. As many other posters have pointed out, our justice system is more than capable of trying, convicting, and punishing pirates. Unlike "enemy combatants," who may or may not have broken any specific law, piracy is a clearly defined law, and the type of evidence needed to prove it is very clear. Spurious arguments about unavailable witnesses are just that.

2. Summary process/summary execution was not even practiced by the Royal Navy 200 years ago. In addition to the small matter of it being illegal, it is also counterproductive. Currently, Somali pirates have hundreds of hostages as well as the ability to take new ones almost at will. At least until now, they have been fairly solicitous of the health of the hostages; this should be encouraged. If the reward for being a pirate is instant death, there will be no reason for the pirates to spare the lives of the hostages if there is any possible advantage to killing them.

3. Occupying Somalia is not worth it and not necessary. Indiscriminate bombing is counterproductive. Happily, our goals can be met by just keeping the pirates off of the water. One approach might be to prohibit Somali vessels from leaving the 12 mile territorial limit...or from entering a large interdicted zone...or both. Somali vessels caught outside the limit will be searched; if they are armed (but there is no other evidence of piracy), the vessel will be seized. Perhaps if they are not armed and there is no evidence of piracy, we send them back if it's a first offense and seize the vessel otherwise. The Somalis can use our forfeiture law to get their vessels back if they can prove that they were not involved in piracy - while our forfeiture laws are overkill when applied to the drug war (IMO), this is precisely the type of situation for which they were designed.
4.15.2009 1:59pm
Mark Buehner (mail):

BTW, you may want to consider how much Chinese trade, both import and export, passes by the region in question.

You might consider how tying down US naval assets, much less US diplomatic attention benefits the Chinese and Russians more than the threat to their shipping. Moreover you don't hear much about Chinese or Russian ships being targeted. Undoubtedly not a coincidence. Not everyone respects the niceties of international law even when insisting that others follow them.

Our 'ownership' of this crisis benefits our adversaries. Hence it is in their interest to prolong it.
4.15.2009 2:03pm
martinned (mail) (www):
@wfjag:


please refer me to a prior example of indicting legal advisors for providing legal opinions to a sovereign government when unsettled issues of international law are the subject of those opinions?

So far the Spanish Juge d'Instruction is only considering such an indictment. I don't think it is legally feasible, but it is a good way for him to make a political point.


And, please don't try lecturing me on the terms of the Convention on Torture. The US ratified it subject to exercise of the US's exercise of its sovereign authority that the Convention was not self executing. Even assuming arguendo that the legal advisors rendered legal opinions that violated the terms of the US laws that the US enacted to implement the treaty, those would be violations of US domestic criminal law, and not any international legal standards, and certainly not anything over which Spain has jurisdiction.

To the extent that such an indictment is even possible, the more interesting question is the terms on which Spain ratified the CAT. If this case were to ever make it to a Spanish court (big if), it would be the Spanish interpretation of CAT that would be decisive.

Re Bosnia, I'm wondering why that is European hypocrisy as opposed to hypocrisy of the international community as a whole. I'm also wondering what makes you think that those "camps could easily have been shut down by their nation's soldiers". Not even Hitler could pacify this area.

This is pretty much my answer to all your other examples as well. They all implicate Europe and the US equally, and they are all better approached through the perspective of the serenity prayer:


God grant me the serenity
To accept the things I cannot change;
Courage to change the things I can;
And wisdom to know the difference.


P.S. I'm wondering, to the extent that you disagree with my previous remarks regarding the relative hypocrisy of the US: Do you prefer a government that doesn't even talk about human rights to one that talks the talk without walking the walk? Really?
4.15.2009 2:14pm
Blue:
"@Blue: It is not necessary, it is just legally and politically preferable."

Why? It isn't legally preferable because there exists more than sufficient international law to deal with the situation. I suppose it is politically preferable from your point of view since it would limit the soverignity of the US, however.
4.15.2009 2:20pm
martinned (mail) (www):
@Blue: It is legally preferable because it puts the legality of the measures contemplated beyond doubt. In other words: CYA. (Something similar happened before Desert Storm, when Bush sr. insisted on getting a clearer UNSC resolution based on advice from his lawyers.)

It is politically preferable because it would allow the US to share the stink if the measures backfired. In addition, it would reduce the likelihood of anything backfiring because it would improve the legitimacy of the actions. In other words: PR.
4.15.2009 2:25pm
Blue:
No, the legality of interdicting pirates is already beyond doubt. Asking of UNSC authorization would diminish that existing authority, not enhance it.
4.15.2009 2:47pm
martinned (mail) (www):
@Blue: We weren't talking about "interdicting" pirates, we were talking about things like blocking Somali ports, and other actions aimed at the Somali mainland.
4.15.2009 2:51pm
Connecticut Lawyer (mail):
1) Once upon a time, the law of the sea provided that pirates captured in the act of piracy on the high seas could be summarily executed without trial. It appears that this traditional law has been superceded by various treaties and national statutes, so I'm not sure that it could still be applied. Alas. If Obama really wants to demonstrate the utility of multilateralism, he'll get the other sea-faring powers to agree to reinstate the traditional law.

2) Under current federal law, the pirate captured by the Navy can be tried for piracy and kidnapping. The FBI was on the scene so we can presume that he was Mirandized, etc. The only witness you need to incarcerate him for the next 50-life would be the Captain. If Holder decides not to prosecute, he ought to be fired for gross incompetence.

3) That said, prosecutions by the US are generally problematical because US law is only violated when US flag vessels or US nationals are attacked. The solution to the Somali problem cannot be US law enforcement. My solution is would be to reinstate the traditional law (summary execution) and put lots of heavily armed men on merchant ships traveling the waters off East Africa, along with a bunch of decoy ships with heavily armed sailors on board. Kill enough of the bad guys, and it will turn into a losing proposition for the Somalis trying to decide between life as a fabulously wealthy pirate and a dirt poor farmer or fisherman. We might also try bombing some of the mansions of the clan elders who run this racket.
4.15.2009 2:57pm
Richard Aubrey (mail):
martinned.
Not every one is out to get the US. But those who do from time to time happen to include some on the UNSC. So "not everyone" is one of your obfuscations. As before, and no doubt, to come.

I don't say a dem/lib judge would automaticall throw out a case with a witness way over the horizon. I see no guarantee that it wouldn't happen.
My point is that, even if it does not happen, what will the response of the left when the pirate is convicted without said witness?
Right. Slag the justice system and put pressure on the next trial. "working the refs", it's sometimes called.
Stout assurances that we could do it anyway will be down the memory hole.
4.15.2009 2:57pm
Connecticut Lawyer (mail):
I noticed above the beginnings of a debate about Magistrate Garzon. Without getting into the merits of that, let me just suggest that it would be a proper line of questioning for the Senate to ask Dean Koh whether he thinks that it is an infringement of US sovereignty for the Spanish Government to assert the power to try former officials of the United States Government for the advice they gave the American President while in office, and if so, what he thinks the proper response of the United States Government ought to be.
4.15.2009 3:04pm
Christopher Cooke (mail):
Connecticut Lawyer: Was it an infringement of German sovereignity for the US and its WWII Allieds to try German/Nazi lawyers for the advice they gave to the Nazi regime, and to try judges who carried out the Third Reich's laws? Likewise, was it a violation of Chilean sovereignity for the same Spanish court to indict Pinochet for crimes, given that he was the head of state of Chile?

The only difference between now, and the Nazi/Allied prosecutions during Nuremberg is that the USA and its Allieds, who conducted the Nuremberg prosecutions, won WWII. To the victor, go the spoils.

Sovereignity has its limits, which are either self-imposed ---we agree to abide by certain treaties-- or imposed by others by brute force. If the Spanish detain Alberto Gonzalez and try him, what do you think the USA should do? Invade Madrid? Say, "that's not very nice".
4.15.2009 4:13pm
Blue:

The only difference between now, and the Nazi/Allied prosecutions during Nuremberg is that the USA and its Allieds, who conducted the Nuremberg prosecutions, won WWII. To the victor, go the spoils.


Yep, that's the only difference.
4.15.2009 4:28pm
Connecticut Lawyer (mail):
Christopher:

Well, I guess we know what you think Koh ought to say.

To answer your questions: (1) We won WWII. I wasn't aware that Spain had defeated the United States in armed conflict. Why the US would voluntarily surrender sovereignty, power and independence without even asking the US Senate to consent to such a surrender, which is how treaties ordinarily become bindning on the US, well, I don't know. I guess that a lot of people - you may or may not be one - think the US is the primary threat to world peace and thus welcome any attempt to tie it down. Let's ask Dean Koh if that's what he and the President think. (2) Of course it was a violation of Chilean sovereignty, although the then-current regime in Chile may have acquisced for its own internal political reasons (as the Obama Administration may yet do).
4.15.2009 4:30pm
keypusher64 (mail):
Somebody over at NRO said years ago that if we'd had a barely competent dem as POTUS since 9-11, the WOT would have gone better

Indeed, even a barely competent Republican would have helped.
4.15.2009 4:59pm
Christopher Cooke (mail):
Connecticut Lawyer: I don't necessarily disagree with what I assume is your premise in wanting to ask Dean Koh these questions: you think it would be a violation of US sovereignity for Spain to proceed with these prosecutions. I am just pointing out that sovereignity is a self-enforcing concept--it is recognized if you have the means to enforce it or if convenient-- and I am not sure it is a useful one because it is simplistic (it assumes the proper answer). For example, why should sovereignity say that Spain's investigation is wrong, but not our prosecution in Nuremberg of the Nazi lawyers and judges.

I think better way to frame the debate is: the US has adopted certain treaties, that may apply to this conduct by former US government officials. Spain believes it has the right to investigate and, possibly, prosecute these former government officials for violations of these treaties. But, many in the US believe it would be improper --they are our elected officials, they thought they were serving the US national interests in making these decisions, many in the US government are not comfortable with a foreign court assuming jurisdiction over US officials, especially in light of the US's non-acceptance of the Int'l Criminal Court. Therefore, many question why should Spain should be able to decide the fate of these officials for conduct that did not occur in Spain. In light of your previous views of international law, and extensive writings on this subject, one might expect you to be sympathetic to Spain's claim of a right to investigate and prosecute former US officials. Where do you stand on this issue? As a DOJ official, will you hold a different view than what you wrote as a professor? Doesn't allowing Spain to proceed interfere with the ability of future US government officials to do what they think is right, and the rights of US citizens to decide whether and when to punish their own officials?
4.15.2009 5:10pm
Christopher Cooke (mail):
Connecticut Lawyer: I don't necessarily disagree with what I assume is your premise in wanting to ask Dean Koh these questions: you think it would be a violation of US sovereignity for Spain to proceed with these prosecutions. I am just pointing out that sovereignity is a self-enforcing concept--it is recognized if you have the means to enforce it or if convenient-- and I am not sure it is a useful one because it is simplistic (it assumes the proper answer). For example, why should sovereignity say that Spain's investigation is wrong, but not our prosecution in Nuremberg of the Nazi lawyers and judges.

I think better way to frame the debate is: the US has adopted certain treaties, that may apply to this conduct by former US government officials. Spain believes it has the right to investigate and, possibly, prosecute these former government officials for violations of these treaties. But, many in the US believe it would be improper --they are our elected officials, they thought they were serving the US national interests in making these decisions, many in the US government are not comfortable with a foreign court assuming jurisdiction over US officials, especially in light of the US's non-acceptance of the Int'l Criminal Court. Therefore, many question why should Spain should be able to decide the fate of these officials for conduct that did not occur in Spain. In light of your previous views of international law, and extensive writings on this subject, one might expect you to be sympathetic to Spain's claim of a right to investigate and prosecute former US officials. Where do you stand on this issue? As a DOJ official, will you hold a different view than what you wrote as a professor? Doesn't allowing Spain to proceed interfere with the ability of future US government officials to do what they think is right, and the rights of US citizens to decide whether and when to punish their own officials?
4.15.2009 5:10pm
NickM (mail) (www):

In any case, where will one find a lawyer or translators who speak the defendant’s Somali dialect? Will the officers of the U.S.S. Bainbridge, the crew of the Alabama, and the Navy SEALS have to be brought in as witnesses? If so, it will interfere both with the policing of the seas and the Alabama’s mission of providing relief supplies.


A defense lawyer for the captured pirate could subpoena for trial every one of the Alabama's crew, as well as every U.S. Navy sailor involved at all with the rescue mission. He could simultaneously insist on his client's speedy trial rights. Of course this will interfere with the policing of the seas.

Finding a translator is easy, but since you would need to likely have every communication translated for the benefit of the defendant, it's very expensive.

Nick
4.15.2009 6:31pm
Richard Aubrey (mail):
NickM.
Would zealously defending his client mean peenying only the Bainbridge crew? Command and control guys in other areas? The chain of command up to, say, the Pentagon?
How about the surviving pirate's buddies at home to insist he thought he was going fishing?
And, of course, failing to find any of the requested folks would be grounds for an appeal, should the pirate be convicted. And if not appealed, or denied, the left's view would be the guy got railroaded. Not that they'd believe it, of course, any more than they believe Mumia is innocent.
4.15.2009 6:51pm
einhverfr (mail) (www):
Blue:

No, the legality of interdicting pirates is already beyond doubt. Asking of UNSC authorization would diminish that existing authority, not enhance it.


That wasn't what I had in mind....

I was saying that we should try to get a resolution authorizing use of force against lawlessness in Southern Somalia. Long run, the only solution is going to be a land invasion, like it or not. We don't have to go for a resolution until there is a compelling and urgent reason to go in then.

However, we can do as follows:
We can use the SEALS in lieu of ransom of American ships and personnel but let EVERYONE ELSE pay ransoms to the pirates, or we can undertake a serious occupation and nation-building exercise.

Right now, we are opting for the former. At some point in the future, we will have to opt for the latter unless someone else gets there first. However, let's not kid ourselves. We are not going to send in the SEALS when the American interest on the ship is a TFC full of teddy bears. Instead we will let the shipping fees pay the insurance which pays the ransom.
4.15.2009 6:52pm
einhverfr (mail) (www):
Note in my bit about a TFC full of teddy bears, the American who purchased them will be helping to pay the ransom by paying shipping fees. When these are sold at Walmart, the average American is then helping to pay for the shipping fees. But if the ship and crew were not Americans, why should the SEALS get involved?

Hence I am sure a lot more American money ends up going to pay these ransoms that people think.....
4.15.2009 7:36pm
Richard Aubrey (mail):
ein.
Precisely. As with any other cost of doing business, the consumer ultimately pays it.
4.15.2009 7:44pm
Michael Ejercito (mail) (www):
How were pirates treated in the eighteenth century?
4.15.2009 8:37pm
NickM (mail) (www):
Richard - let's stick to real trial practice. Subpoenas for people who weren't present would be quashed. Subpoenas for eyewitnesses won't.

As has been explained by other people, U.S. law says "tough luck" if the people the defendant wants to subpoena, but can't, are foreigners who haev not been in the U.S.

It's not that I'm worried the pirate would be acquitted, or that the Sharptonite left would consider him a victim of an unjust system; it's that in a very real sense, we're talking about a multi-million dollar commitment to have a trial AND significant interference with naval (especially antipiracy) activity. All this will be to the end that the U.S. taxpayers will then be responsible for the care and feeding of a foreign pirate for maybe the next 60 years.

Nick
4.15.2009 8:41pm
Michael Ejercito (mail) (www):

If you want to eliminate piracy the only solution that will dissuade potential pirates is to remove them from the realm of due process. I understand it's not a popular opinion on a lawyer blog, but the truth is sometimes uncomfortable.

If they were captured in international waters, fit them with cement shoes and scuba gear and drop them into the Marianas Trench.
4.15.2009 8:43pm
Christopher Cooke (mail):
I read the Professor's citation to a Ninth Circuit "piracy" case, US v. Lee Shi, and I am not sure it proves his point that pirate prosecutions are particularly difficult. In fact, I would say it shows the opposite, and may serve as a model for prosecuting Somali pirates.

In that case, the defendant, a cook on a Taiwanese crewed vessel operated out of Seychelles, killed the Captain and First Mate, and temporarily seized control of the vessel, after he was demoted to deckhand and, he claims, physically abused. The crew eventually overpowered the defendant and locked him in a makeshift cell. The ship called the Coast Guard for help in international waters near Hawaii. The Coast Guard came aboard, investigated and detained the defendant, and brought him to Hawaii, where he was successfully prosecuted and his conviction survived a constitutional challenge as to the propriety of prosecuting him under this statute, given his utter lack of connection to the US, and more mundane, Miranda=type challenge to the admissibility of his statements to the Coast Guard officer. Very interesting case, at least for a lawyer.
4.15.2009 9:16pm
wfjag:

Wfjag- if you consider i'm approaching this as an act of war, punishment and incarceration aren't really high on my list of goals.

Dear Mark:
Although I totally sympathize with that approach, I have to disagree with it. Being a nation ruled by laws and not one ruled by partisan politics which are masked by pious platitudes, the legal restraints are necessary and, in the long run, better for the US. Accordingly, all military actions, including prosecution by military tribunal, must be authorized by Congress. Unlike many nations -- to their eventual regret -- the US military is remarkably apolitical. I don't subscribe any amount of wisdom to Congress. However, even good military leaders who are not restrained by legal limits will act rashly, and so, to the detriment of the US. This isn't always a satisfactory response -- especially since I really would like to see the buggars summarily blown out of the water -- but, over time it has proven to be the approach that best serves the interests of the US. It best serves the interests of the US because the military remains firmly under civilian control (although service members from time to time chafe at that control).

martinned wrote:

To the extent that such an indictment is even possible, the more interesting question is the terms on which Spain ratified the CAT. If this case were to ever make it to a Spanish court (big if), it would be the Spanish interpretation of CAT that would be decisive.

This "argument", to be very charitable in referring to it as such, falls flat from its own lack of logic. Advisors to an elected US President, the Chief Executive of a sovereign nation that has never waived its sovereignty to have its officials indicted by another nation based upon that other nation's interpretation of the CAT, are subject to the criminal jurisdiction of Spanish courts in accordance with Spanish law, for actions that did not occur on Spanish territory? By what legal authority is Spain again ruler of the New World? The Pope’s Line hasn’t been recognized as a binding legal standard for centuries. All of the acts of the Presidential advisors -- which consisted of issuing opinions -- were based upon US law, in accordance with the US Senate's reservations when it ratified the CAT. And, it isn't as if the US hasn't been willing to indict and convict its own, including politically powerful persons.

IF Spanish authorities really believe that the advice the President Bush received contradicted the CAT, in light of the reservations the US Senate placed on its ratification and under the US domestic laws enacted to implement the CAT under US law, then the Spanish government has a well established option recognized by customary international law -- to file a diplomatic protest. However, to unilaterally assert that it can punish American citizens who, while in the US and while acting as US officials, violated Spanish standards and therefore should be subject to Spanish criminal process and punishment is an act of belligerency.

Be very careful in supporting, howsoever tepidly, the notion of "universal jurisdiction" since the concept will soon devolve into who has the power and will power to impose their will. And, unlike the point I made to Mark, there is no international body that has authority to impose its will by binding legal standards. Any obedience is strictly voluntary. And, as I also noted, military commanders who are not bound by legal standards will eventually act rashly. You don't want to be on the receiving end. Even when the US military has acted with great restraint, as it did against Afghanistan, Iraq and Serbia, the result is still devastating. Accordingly, escalate any confrontation only if you are willing to accept the consequences. And, this is a very practical reason for rejecting the concept of “universal jurisdiction.” Unless you are willing to create a state of belligerency each time it is invoked, and willing to accept the consequences of that, it is an exceedingly foolish approach to resolving international disputes. This is because “universal jurisdiction” starts from the premise that whichever nation invokes “universal jurisdiction” thereby asserts that it may unilaterally exercise punitive measures over the citizens and governments and governmental policies of other nations. So, it starts from the premise of intentionally provoking a confrontation, and so invites punitive responses.


Re Bosnia, I'm wondering why that is European hypocrisy as opposed to hypocrisy of the international community as a whole. I'm also wondering what makes you think that those "camps could easily have been shut down by their nation's soldiers".

As opposed to the ethnic cleansing in its many forms that was tolerated while the UNPROFOR forces looked on for some 5 years, when IFOR -- NATO and Partnership for Peace forces under US command -- took action, the conflict ended in a matter of weeks, the camps were shut down, the efforts to arrest persons indicted for war crimes began, and IFOR (and later SFOR) forces began delivering them to the Hague for trial. Later, even a democraticly elected government in Serbia delivered one -- Milosovic - to the Hague for trial. So "why that is European hypocrisy" -- because it was in your back yard and during the 5 years of slaughter it was well reported in the German, Italian and British press. You knew and stood by.


P.S. I'm wondering, to the extent that you disagree with my previous remarks regarding the relative hypocrisy of the US: Do you prefer a government that doesn't even talk about human rights to one that talks the talk without walking the walk? Really?

We aren't discussing whether or not to talk about human rights. We are discussing the failure to act in accordance with your words as being hypocracy.
4.15.2009 9:32pm
martinned (mail) (www):
@wfjag: Bulletpointed, if you don't mind:

- Sorry, there's no such thing as sovereign immunity in civil law countries. Whether or not foreign governments or the people working for them can be sued in European courts is a question of comity, of jurisdiction, and of the ability to make any ruling stick (= interest in action).

- In this case, the idea is that torture is a crime of universal jurisdiction, just like genocide, on the theory that they are crimes against all humans/against humanity. The fact that Spain doesn't rule any part of America is irrelevant.

- The problem is one of causation: the lawyers aren't responsible for any torture that allegedly took place. Anyone who ordered torture can be prosecuted in Spain, regardless of whether such an order might have been lawful under US law. (Despite Godwin's Law, the analogy is with Nazi Germany: The Holocaust was lawful under German law, but that doesn't mean the purpetrators couldn't be prosecuted.)

- Act of belligerency? Really? You do realise that, if an indictment follows in this case, no violence will follow? The Spanish will simply ask for extradition whenever one of the accused is found in a state that might grant such a request, just like they did with Pinochet.

- Have the US repealed that dumb "invade The Hague" law yet?

- We knew and stood by, as opposed to doing what? Do you think US military might ended the war in Bosnia? If so, you may want to check your wikipedia. As for Milosevic being sent to The Hague, welcome to the wonderful world of Olli Rehn.

- And finally, do you seriously prefer the US approach of ignoring the war in Bosnia altogether over the EU approach of trying to resolve the conflict through diplomacy? If the latter is hypocrisy, what is the former? And, while we're at it, how come there aren't any US marines in Darfur yet? Everybody's talking, but no one's doing anything. That's not hypocrisy, that's simply an inability to help.
4.15.2009 9:56pm
Richard Aubrey (mail):
Nick. You're the one who said "...every...involved at all..." Navy personnel involved in the incident. "Every" means something different from those who pulled the triggers and those who ordered the triggers pulled and those who set up the shooting situation (probably three shifts) and those who gave or passed on guidance from higher and those who decided the shoot/don't shoot orders. You said "every".
However, if you want to restrict it to "involved", it's still a lot of folks.
And who decides when it gets excessive? You or the judge? Do you think the judge would think as you do?
Suppose you got another Lance Ito, or Mary Rose Bird?
I am concerned about Sharptonite tactics because of their effect on subsequent trials.
4.15.2009 10:30pm
Blue:
"torture is a crime of universal jurisdiction"

Oh, really? Because a two-bit publicity hound in Spain says it is? So universal jurisdiction is whatever any country says it is?
4.15.2009 10:46pm
einhverfr (mail) (www):
martinned:

While I think that in theory, folks could get arrested in Europe and tried there, I think in practice it would be difficult. Certainly you don't expect the US to extradite, do you?

Typically the way crimes of universal jurisdiction work is that if the host country refuses to prosecute, then other countries may do so. Certainly I think there might be a case in these cases (maybe not under CAT but maybe on other bases). In the end, I don't think such prosecutions are likely for political as well as logistical reasons.
4.16.2009 1:02am
martinned (mail) (www):
@Blue: In this hypothetical (= the hypothetical where someone actually gets convicted in Spain under this theory), the defendant could appeal to Strasbourg to get the final answer. If the ECHR agree with the claim that Spain has jurisdiction, that represents a statement on the law of countries adding up to 800 million inhabitants. Getting such a supranational extra appeal is a privilige not extended to anyone caught in the US legal system. (Like this guy.)

@einhverfr: The official theory is that this becomes an issue only when the accesed persons would travel outside the US. Within the EU, they could be arrested based on a European Arrest Warrant, meaning that there would be much less procedure involved than in the Pinochet case.

And no, I don't think anyone is actually going to get prosecuted either.
4.16.2009 5:45am
Michael Ejercito (mail) (www):

In this case, the idea is that torture is a crime of universal jurisdiction, just like genocide, on the theory that they are crimes against all humans/against humanity.

So then Spain would have jurisdiction to try American police officers who torture American criminal suspects?
4.16.2009 5:56am
martinned (mail) (www):
@Michael Ejercito: To reiterate, I'm not saying I agree with this theory, but yes, if Spain has jurisdiction over Americans torturing Iraqis in Iraq, they also have jurisdiction over Americans torturing Americans in the US.

Under CAT, there is no universal jurisdiction over torture, though it is not forbidden either. Here's what it says:


Article 5
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.


Article 7
1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article

4 shall be guaranteed fair treatment at all stages of the proceedings.

As you can see, CAT does give Spain jurisdiction to prosecute torture even in the absence of any other grounds for jurisdiction, but only if the accused happens to be caught there. Using an EAW to bring to accused to Spain for trial would require a separate legal basis, which I'm not sure exists.
4.16.2009 7:51am
Richard Aubrey (mail):
I don't imagine Spain's cops are entirely clean.
Would they like to have dueling prosecutions under universal jurisdiction?
Of course, Spanish cops probably don't make enough money to travel here.
Still, a senior cop 'crat would plausibly be considered sufficiently involved. Hell, if they think Bush could be arrested, so, at least, could be the Spanish Minister of Justice or whoever's the top cop there.
I believe there was a separate indictment of some American tankers on account of a matter of what might be considered "social cleansing" at a hotel in Baghdad. And the judge's source was a hack journo's fictional account. Great.
4.16.2009 8:06am
martinned (mail) (www):
Since the topic of this thread has temporarily turned to Spanish torture prosecutions, allow me to report the latest news:


Spain rejects US 'torture' probe
Spain's attorney general has rejected an attempt to bring a criminal case against six former US officials over torture allegations at Guantanamo Bay.

The officials, including former US attorney general Alberto Gonzalez, were accused of giving a legal justification for torture at the US detention centre.

But Candido Conde-Pumpido said the case had "no merit" as they were not present when the alleged abuse took place.

Spanish courts can prosecute people for crimes committed outside Spain.

Using the principle of "universal justice", they have also investigated alleged crimes in Argentina, Tibet, El Salvador and Rwanda.


'Plaything'

The Spanish judge, Baltasar Garzon, who is best known for issuing an arrest warrant for former Chilean military leader Augusto Pinochet in 1998, had requested the attorney general's advice last month on whether to investigate the six former US officials following a complaint from human-rights lawyers.

"We cannot support that action," Mr Conde-Pumpido told reporters.

"If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out."

He said a trial of the men would have turned Spain's National Court "into a plaything" to be used for political ends.

While saying his office supported the principal of universal justice, Mr Conde-Pumpido said that if there was a legitimate reason to file a complaint against the six accused, "it should be done before local courts with jurisdiction, in other words in the United States".

Correspondents say that while Mr Conde-Pumpido's recommendation reduces the chances of Judge Garzon launching an investigation, he could still do so anyway.

Gonzalo Boye, one of the lawyers who filed the complaint, said the decision was politically motivated and set a "terrible precedent".

"The attorney general speaks of the court being turned into a plaything. Well, I don't think the attorney-general's office should be turned into a plaything for politicians," he told the Associated Press news agency.

In addition to Mr Gonzales, the complaint named former Undersecretary of Defence Douglas Feith; former Vice-President Dick Cheney's chief of staff, David Addington; Justice Department officials John Yoo and Jay Bybee; and Pentagon lawyer William Haynes.

It is alleged the men advised former President George W Bush that he could ignore the Geneva Conventions, and provided legal cover to allow interrogators to use techniques such as "water-boarding".

Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/8002262.stm

Published: 2009/04/16 12:23:52 GMT

© BBC MMIX

So no torture prosecution. Sorry...
4.16.2009 8:43am
martinned (mail) (www):
Continuing from my previous comment: The full story in spanish is here in El Pais.
4.16.2009 8:46am
einhverfr (mail) (www):
If someone is brought into this country and tried in civil criminal courts, after time served, would that individual then be subject to deportation procedings?

I guess what I am wondering is, if there is any possibility at all that Jama v. ICE could be overturned or even limited in application, do people really want to be bringing teenagers here to be tried as adults? Maybe their sentences will be reduced on appeal. Maybe they will get a free pass to a sort of temporary refugee status and get out on our streets.
4.16.2009 10:39am
martinned (mail) (www):
@einhverfr: Yes, that is what the British Foreign Office were worried about. Under Dutch law, for example, up to yesterday all asylum seekers from central and southern Somalia were automatically accepted, because their home land was considered too dangerous for them to return. Quoting the newspaper article I linked to:


People from central and southern Somalia benefit from what is known as "categorical protection": these parts of Somalia are so dangerous that its entire population is considered at risk. Somalia has been involved in a civil war since 1991 and there has been no effective central government since. As a result, several European countries - the Netherlands, Belgium, Norway, Hungary and Luxembourg - made asylum for people from Somalis virtually automatic.

The Dutch government has now abolished this practice because of excessive fraud among applicants.

Anyway, this policy would apply equally to any convicted "pirates" once they have served their prison sentences. They, too, can ask for asylum.
4.16.2009 10:47am
Oren:

As a result, several European countries - the Netherlands, Belgium, Norway, Hungary and Luxembourg - made asylum for people from Somalis virtually automatic.

Wait, so why didn't every Somali pick up a plane and move? Or is this a wet feet / dry feet thing?
4.16.2009 10:52am
einhverfr (mail) (www):
Geokstr hasn't been to Canada recently, given his comments about the Canadian exchange rate......

Last time I went, the Canadian dollar was worth more than the US Dollar. $1CAD is still worth $0.83 USD and this depressed value on the part of the CAD is just due to falling oil prices.
4.16.2009 10:52am
einhverfr (mail) (www):
Oren:

Wait, so why didn't every Somali pick up a plane and move? Or is this a wet feet / dry feet thing?


How much does a plane ticket cost? How much discretionary income does the average Somali have, especially those in the war zones? How do they get to the air port? How do they get passports? etc.....
4.16.2009 10:56am
Richard Aubrey (mail):
ein.
See a novel called, I think, "The Saints". A boatload, a huge boatload, of refugees from someplace terrible lands on the Med coast of France.
The novel is all about what to do with them.
Somebody who was interested in seeing how that works out could pop for an unused cargo ship all of whose accomodations were bilge class and bring ten thousand Somalis to...someplace. If he had the money and the fun-loving spirit that would require.
Then what?
Your question about passports would be way down on the "host" country's to-do list.
4.16.2009 11:21am
FE:
Multi-million dollar commitment? Significant interference with naval operations? I don't think so. Why wouldn't this be a two-day trial that can be scheduled to coincide with shore leave? People who hypothesize a long, drawn-out trial need to explain their thinking.
4.16.2009 12:23pm
Richard Aubrey (mail):
FE. Shore leave? If the ship is homeported in, say, Japan? San Diego? Naples? You know, when the 173d Airborne Brigade comes off deployment, they go home to Avicenna. That's in Italy. So, unless the court can wait until the guy gets home leave, they fly him from whereever. I believe Rota is still an active USN base, but not as busy as before.
Just what the unit needs. Mid-level NCO and two sailors gone for ten days. To sit around waiting for continuances to run out.
4.16.2009 1:08pm
Oren:

Just what the unit needs. Mid-level NCO and two sailors gone for ten days. To sit around waiting for continuances to run out.

That's why we need a Federal District Court of the Oceans. The court can come to the naval base where the perps and almost all of the witness are like the old circuit-ridings.
4.16.2009 1:18pm
ReaderY:
The only pirate whose constitutional rights can't be violated is a dead pirate.
4.17.2009 1:58am
Richard Aubrey (mail):
Oren. Which would claim jurisdiction over all the oceans.
Works for me.
4.17.2009 3:03pm

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