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[Eugene Kontorovich, guest-blogging, April 16, 2009 at 10:11am] Trackbacks
Just an Honest Fisherman

A professor of piracy often deals with eye-patch and hook jokes. Many people who find this academic specialty intriguing lose interests when they learn that modern pirates wear jeans, tee-shirts and flip-flops, or when they're feeling natty, fatigues. They certainly don't fly a black flag. They have very bad personal hygiene: forget Johnny Depp and Cary Elwes.

Yet the ordinary appearance of pirates leads to a potentially serious problem in prosecuting them.

Universal jurisdiction only applies to pirates. Captured Somalis are likely to insist in court that they are not pirates but rather simple fishermen, erroneously seized by a foreign navy. What makes the claim compelling is that most pirates are in fact fishermen. Piracy is not a full-time job. Simply having weapons on a boat would not distinguish the pirates from many other Somalis. Establishing the very identity or even nationality of captured individuals will be difficult, as they are unlikely to possess identification. (This will also make it hard to know whether a captured pirate is a minor; or even what nation he comes from, making consular rights and other issues quite difficult to administer.)

Such challenges must be taken seriously, because the alternative is the detention of innocent civilians. To be sure, treating the detainees as civilians would require giving credence to some dubious factual claims. However, the same is true of many Guantanamo detainees captured in Afghanistan and elsewhere. They have claimed that they were innocent passers by, aid workers, tourists, minors, or simply ignorant of the nature and aims of the organization for which they worked. Regardless of their plausibility, these claims won significant sympathy for the detainees. Moreover, U.S. courts have held that because the power to detain depends on the foreigner's status as a combatant, detainees can appear before tribunals to challenge the factual basis for being classified as a combatant even before a full trial for their alleged crimes.

Quite simply, making a criminal case against armed foreigners seized in remote parts of the world is very difficult. These concerns are not speculative. Evidentiary problems have already forced the U.S. Navy to release most of the pirates it seized in the wake of its January 2009 agreement with Kenya. Even though they were caught in response to a distress call from a commercial vessel, the evidence was "not ironclad."

Cornellian (mail):
Many people who find this academic specialty intriguing loose interests when they learn that modern pirates wear jeans, tee-shirts and flip-flops, or when they're feeling natty, fatigues.

Ugh, I never thought I'd see that error from someone with a graduate degree.
4.16.2009 10:15am
Tim in Philly (mail):
Here's a simple solution to the problem. When you boat is attacked, repel boarders with EXTREME Prejudice. Then you don't have to ascertain any info. Just dump the chum overboard and go about your business. If this happens often enough, no more pirates, problem solved.
4.16.2009 10:23am
enjointhis:
Hm. Is piracy sui generis? I'm not convinced that "ironclad" evidence should be the proper standard. Isn't "more likely than not" a more reasonable evaluative standard?

With respect to the Guantanamo detainees, it requires little effort to contemplate a situation where nominally non-culpable individuals might have been caught in a dragnet. Clan affiliations, and all that. But individuals in motorboats armed with automatic weapons - that tends to mitigate the innocent explanation defense.

Even if the pirates have excuses (i.e., impoverished life, fishing boundaries, etc.) I feel like statewide norms necessarily supersede them. Go to the ocean with RPGs, live with the consequences.
4.16.2009 10:27am
Philistine (mail):

But individuals in motorboats armed with automatic weapons - that tends to mitigate the innocent explanation defense.



I don't know--the problem is, there really is quite a lot of fishing going on. As Professor Kontorovich points out, it's likely that most of the pirates are also actually fishermen.

Given that--it doesn't seem to stretch credulity too much to think that, given the ubiquity of automatic weapons and RPG's in Somalisa, actual honest fishermen would want to go to sea heavily armed to fend off their less honorably inclined neighbors.

Assuming they are caught in the act or aftermath of attacking a ship, presumably their argument will be along the lines of "I didn't realize the others were going to do this when I got on the boat, and when it became clear, I was afraid they'd kill me if I didn't go along." Which, of course, is not an unknown type of defense in general criminal law.
4.16.2009 10:40am
Tom952 (mail):
Well, the matter of the disposition of of the three suspected fishermen who appeared to be threatening Captain Phillips is certainly settled.
4.16.2009 10:41am
Dan Schmutter:
Isn't this the reason that the best approach to piracy is simply to let the ships defend themselves when attacked?

Dan
4.16.2009 10:44am
Oren:
Federal Courts have exclusive jurisdiction in Admiralty trials, so can Congress create a "District Court of Diego Garcia" that can deal with these things? The Brits won't mind (I'm sure we could convince them to cede 500 sq ft of the island to the US, if that formality were necessary).

Just a random thought . . .
4.16.2009 10:49am
Harry Eagar (mail):
Some things are not legal matters, and this is one of them. As Julius, later to be caesar, recognized 2,084 years ago.
4.16.2009 10:51am
Cornellian (mail):
Julius was always Caesar. Caesar was his name.
4.16.2009 10:58am
Richard Aubrey (mail):
So if we can't tell for sure that a guy who shoots at a passing merchie is really a pirate, or when a guy gets on a passing merchie and facilitates its movement to a pirate base is really a pirate, how about the guys at the base who are guarding the ships? Who are dealing with the money transactions? Somebody someplace might be reasonably described as a full-timer. He'll be on shore most of the time. Arresting him might be exciting. Somebody get Martinned the Orbitz website so he can save money on the way to Mogadishu.

I should suggest again that torquing the law and lying about circumstances to get these guys off is no longer a stick in George Bush's eye. We can get back to real-world law.
4.16.2009 11:01am
Steve:
This situation is completely unlike the Guantanamo detainees in that we have no reason to worry about credible allegations of torture and no concern about keeping secrets regarding the factual circumstances of the pirate's capture. We can have an open hearing and prove his status as a pirate in front of everyone; if a few folks want to cry injustice, let them, as there will be considerably less sympathy than if it were a secret military tribunal where no one saw the evidence.

Given physical control over the person, a court always has power to determine its own jurisdiction. God, imagine if our judicial system were this hesitant about trying run-of-the-mill killers. "But, but, but, he might get off, maybe we should look for another solution..."
4.16.2009 11:09am
The State (mail) (www):
thought you might enjoy this twitter

http://twitter.com/ourenemy

it's from the point of view of the state

thanks man!
4.16.2009 11:15am
Glen Alexander (mail):
The latest instance of mass cognitive dissonance:

The ease with which so many commenters dismiss the similarities between the capture, containment and (ultimate) prosecution of pirates acting in the waters off the Horn of Africa vs. similar actions against "enemy combatants" in the "War on Terror" held at Guantanamo Bay, Bagram Air Base, and other U.S. installations.
4.16.2009 11:25am
MartyA:
The part of the piracy issue that puzzles me is "how do the pirates physically get on board?" The sides of a tanker or container ship are 30 to 50 feet high. At some point in the taking, the fishermen have, in effect, shout "pull over" and then try to board. Wouldn't a camera/recording/broadcasting system remove any doubt about the pirates' intent? And, wouldn't the piratical declaration be the point to trigger a deadly force response?
4.16.2009 11:28am
trad and anon (mail):
I don't quite follow why the ordinary appearance of pirates leads to such problems in prosecuting them. Most ordinary criminals look like normal people, yet we manage to prosecute them anyway. Why can't you just put the various witnesses on the stand and let the factfinder judge their credibility?
4.16.2009 11:30am
Mike Brown (mail):

... they are unlikely to possess identification. (This will also make it hard to know whether a captured pirate is a minor ...)


Just out of curiosity, what is the age of majority for piracy? Eighteen? Twenty-one? Old enough to see over the gunwales of a pirate ship?

Whose law determines the age of majority? Somalia? The country whose Navy holds the pirate?

And why does it matter? Is there something in the law of piracy which exempts minors? If the Somalis fill all of the advance boats with seventeen-year-olds, are they not pirates?
4.16.2009 11:37am
Anderson (mail):
Regardless of their plausibility, these claims won significant sympathy for the detainees.

Or perhaps "because" of their plausibility?

It would be easier to consider Prof. Kontorovich's arguments on their merits if he did not imply, inadvertently or otherwise, that they're a stalking horse for rationalizing Gitmo.
4.16.2009 11:38am
Vermando (mail) (www):
I also don't understand why evidentiary issues are such a problem, at least for detention if not prosecution. You respond to a distress signal, you take an affidavit from the people who were attacked, and you detain the pirates. If there is a challenge on habeas grounds, you present the affidavit you took there and an affidavit from the capturer as your evidence. I can see why this would not be sufficient for prosecution. However, for classification for detention purposes, I don't see why this is a problem, either for the pirates or those prisoners at Guantanamo whom we have captured ourselves.
4.16.2009 11:41am
trad and anon (mail):
This situation is completely unlike the Guantanamo detainees in that we have no reason to worry about credible allegations of torture and no concern about keeping secrets regarding the factual circumstances of the pirate's capture. We can have an open hearing and prove his status as a pirate in front of everyone; if a few folks want to cry injustice, let them, as there will be considerably less sympathy than if it were a secret military tribunal where no one saw the evidence.



And nobody, so far as I know, has ever expressed an interest in "detaining" them indefinitely (i.e. forever) without any kind of charges or hearing. Remember that the Bush administration was doing just that until SCOTUS smacked them down. Even if they use tribunals other than the civilian courts (I know nothing about piracy prosecutions) no state secrets are involved so there would be absolutely no justification for using the same rules of secrecy and evidence that are used in the existing system of military commissions. I would be strongly opposed if the current administration wanted to imprison the pirates forever without a hearing or hold the prosecutions in secret but as far as I know they aren't trying to do either.
4.16.2009 11:45am
TCtheO wants to be allowed back:
Proof beyond a reasonable doubt is required for conviction, NOT for decisions on initial disposition.

Warning: IANAL.
4.16.2009 11:48am
Monty:
1. As mentioned by other posters, your ship participates in an act of piracy while you are on it? Then your a pirate. Other tell tale signs your a pirate is if your small boat full of guns has no fishing equipment. Or if you have 8 people on a boat that would be better suited to 2 fishing from it...

2. 'or even what nation he comes from, making consular rights and other issues quite difficult to administer.' I don't know what the law says, but wouldn't the solution ot nationality/consular rights be to ask the pirate what nation they are from, and grant that nation consular rights? Are they going to admit they lied, where therefor denied consular access and should get redress?

3. Minors are a problem only if we want to execute the pirate. We can still charge a minor can't we?
4.16.2009 11:48am
trad and anon (mail):
I also don't understand why evidentiary issues are such a problem, at least for detention if not prosecution. You respond to a distress signal, you take an affidavit from the people who were attacked, and you detain the pirates. If there is a challenge on habeas grounds, you present the affidavit you took there and an affidavit from the capturer as your evidence. I can see why this would not be sufficient for prosecution.
Agreed. Aren't people arrested and held on equivalent evidence all the time?
4.16.2009 11:50am
einhverfr (mail) (www):
Additinal incentives to engange in piracy:

1) Get captured.
2) Get prosecuted. Make your defence. Hope on an acquittal or a short sentence.
3) Apply for assylum. If in the US, try to argue that Southern Somalia is not a country for purposes of deportation and therefore, they can't deport you unless they can find a third country willing to take you!

Maybe piracy will be at least a short term ticket to a foreign work permit?
4.16.2009 11:51am
Bart (mail):
The military needs to set standards for evaluating the status of unlawful combatants such as terrorists and pirates and then set up a body of precedent in status hearings applying these standards.

If the detainee is found in the company of, in communication with or supplying assistance to unlawful combatants like terrorists or pirates, there should be a rebuttable presumption that the detainee is an unlawful combatant. The burden would then shift to the detainee to provide an innocent explanation of his activities.

The burden of evidence should remain with the military to prove unlawful combatant status, but that burden should only be a preponderance of the evidence. Foreign personnel captured overseas do not have any constitutional rights, including a right to proof beyond a reasonable doubt.
4.16.2009 11:53am
einhverfr (mail) (www):
(after all, I can't imagine that life in an American prison would be that much worse than life in lawless regions of Somalia)

There was actually a case in Canada a number of years ago of an Eskimo man who was convicted of murder in an escallating feud between families. IIRC, his father had a different take on the whole thing:

"My son was a good warrior, and the Canadian Government was so proud of him that they took him away to a place where they even fed him three times a day!"
4.16.2009 11:54am
Richard Aubrey (mail):
vermando. That would work, if you got the pirates while they were on the ship.
The question is what happens if you get to the area and find two or three boats stooging around pretending to fish.
I suppose you could stop all the boats, get pix of all the crews, get their home addresses and a promise to show up if they're picked out of a line up.
Or you could line them all up on the deck of the merchie and have the crew pick them out. But you'd need five fillers per alleged bad guy. So you get one Somali standing there among four or five American sailors. No problem there. Or you could go to the Somali coast and offer to pay a few bucks to anybody who'd go out to the ship to be the fillers.
Or you could arrest them all and bring them to the States.... Nope. Probably not. They wouldn't want to leave if acquitted and we'd see them on welfare like the Uighurs.

The problem here is that we have western law and military doctrine under the control of underemployed lawyers afflicted with OCD meeting anarchy and barbarism. There are gaps, to put it mildly, where the two don't actually mesh.
It's the same with assymetrical warfare.
4.16.2009 11:55am
einhverfr (mail) (www):
Cornellian:

I have seen that error from a lot of people who learned English as a second language (in the case I am thinking of, the man's first language was German) and were quite well educated. I don't know if English was Eugene's native language, but if not, the error is entirely excusable.
4.16.2009 11:58am
lurker-999 (mail):
If dealing with prisoners is such a hassle, then don't take prisoners.

If the US government had any cojones, they would authorize Navy captains to conduct on-board court martials of suspected pirates, release the ones that were acquitted, and immediately hang the ones that were found guilty beyond a reasonable doubt.

Then the whole problem would go away after a few months.
4.16.2009 12:01pm
Oren:

The military needs to set standards for evaluating the status of unlawful combatants such as terrorists and pirates and then set up a body of precedent in status hearings applying these standards.

Indeed, I read Boumedienne as not mandating Federal habeas but threatening that Federal habeas will issue unless Congress and the military implement a CSRT that provides substantial fairness.
4.16.2009 12:02pm
Connecticut Lawyer (mail):
Please note that a group of seven international criminal lawyers from Germany have volunteered pro bono to defend several Somali pirates currently being held for trial in Kenya. http://www.csmonitor.com/2009/0416/p06s01-wogn.html

The world has truly gone mad.

My solution: armed merchantmen, armed decoy ships, and summary execution for pirates caught in the act.
4.16.2009 12:03pm
Oren:

they would authorize Navy captains to conduct on-board court martials of suspected pirates

Courts martial require a military judge and a JAG, both of which are not stationed onboard.
4.16.2009 12:07pm
David Drake:
Steve, I think this problem is very much like the problem with the Guantanamo detainees: how to tell the bad guys from the innocent, given that the "fisherman pirate" will simply throw his weapons over the side of the boat when he sees the navy coming and claim he had just gone fishing.

Since these people are not plotting mass murder, there is no need to resort to interrogation or informants who fear for their lives.

IMHO, the best approach to this is prevention, and one method that seems promising would be to start a convoy system that worked in WW11 in defeating the U-Boats.
Here, the problem would seem somewhat simpler because we're dealing with surface ships and boats.
4.16.2009 12:07pm
Oren:
CL, don't murderers and rapists usually get defense counsel? Even Eichmann got a lawyer (not that it prevented it from hanging) and surely the pirates aren't as evil as Eichmann!
4.16.2009 12:08pm
Oren:
David, in shipping, time is money and waiting for the rest of the convoy (and sailing at a speed of the slowest boat, when ships are designed for maximum fuel efficiency at a very narrow range) would be prohibitively expensive.
4.16.2009 12:09pm
PatHMV (mail) (www):
The folks who don't see the evidentiary problems aren't looking very closely or considering all the scenarios.

Pirate ships don't fly the Jolly Roger, you understand. Sometimes they're in skiffs, other times they're in actual fishing boats. According to some reports I've read, sometimes the pirates have hijacked those fishing boats, and most of the crew on the boat are innocent. Other times, the fishing boat is entirely crewed by pirates (who may also be part-time fishermen).

What they do is sail very close to the target ship before pulling out their RPGs and AK-47s. Once they pull out those weapons, resistance is much more dangerous, because they are within firing range of those weapons. Ideally, the defending ships would announce a "no-go" perimeter of, say, half a mile around the ship, and just shoot anybody who comes within that circle. But that's unlikely to happen, alas, so the reality is that it's hard and very dangerous for the target ship to defend itself once the pirate boat comes close enough.

There's 3 potential places we can arrest the pirates. Before the raid, while they're on the target ship, and after they plunder the ship and have left. Let's look at each of those scenarios in turn. Let's assume the pirates are using a fishing boat.

ONE. Arrest presumed pirates when they are a quarter mile from a target ship. What's the proof that they intended piracy? That they have AK-47s and RPGs? Heck, these are dangerous waters, everybody knows that; those fisherman were just carrying the weapons for self-defense. What witnesses do you call to demonstrate that those men intended to commit an act of piracy?

TWO. Arrest presumed pirates after the crew of the target ship has subdued them. This is the easiest potential case for prosecution, but still is fraught with problems. In a criminal trial, you can't rely on videotaped depositions, you need actual, in-person trial testimony from a real human being. It's expensive and difficult to fly in 3 or 4 or 10 witnesses, none of whom are likely U.S. citizens (assuming a non-U.S.-flagged vessel) for a trial. Doable, but expensive. Plus, there's a risk that the defense will try to subpoena some relevant witness who just can't be found, and that might hinder the prosecution, because the defendant is functionally denied a chance to present his defense. If there are additional charges beyond piracy (if, say, one of the pirates threatened to kill one of the crew, or did actually kill the crew), then more witnesses from the ship would probably be needed to establish those elements.

THREE. Pirates arrested in the fishing boat after the piracy. First, this is probably difficult, because the pirates demanded that a certain area be clear of ships and aircraft before the ransom drop. Assuming they are caught, however, there's still plenty of proof problems. Was THIS fishing boat the one which actually attacked the target ship? How do you know? Was it under direct observance of somebody at all times after it fled? Did it have distinct markings noted by the crew as they were being taken hostage? Assuming you do establish this was the pirate ship, which of the people on board are actually pirates? Some of them claim, naturally, to be innocent fishermen who were hijacked by these evil pirates. Again, the crew will have to be called to testify. But now they'll need to do a line-up, to avoid suggestive identifications. Now you've got some Ukranian white, un-educated deckhand trying to identify which of a bunch of 10 or 12 Somali-looking guys was the one who boarded the target ship. And what if the pirates wore masks? Then we start having to go CSI, fingerprinting the weapons and the ransom, etc. That requires trained personnel on-scene.

Getting the picture, folks?

This is not a problem which is easily resolvable by treating it as a criminal matter. The prevention solution is extensive military patrols with helicopters. You see one boat get within a mile of a potential target (but before it's in firing range of the ship itself), you send the helicopter over the small boat ordering it to turn around. If it doesn't turn around after several requests and warnings, you sink it, with the helicopter. Or, if you don't have that kind of chopper-power to put into the area (it's a lot of space to cover), you scramble the F-18s from the nearby aircraft carrier as the pirates are about to depart. They keep them on the scope, and take them out. Too bad for innocent hijacked fishermen, but pretty soon, the piracy stops, because the ransom money keeps ending up at the bottom of the ocean.
4.16.2009 12:20pm
DennisN (mail):
@MartyA:
The part of the piracy issue that puzzles me is "how do the pirates physically get on board?" The sides of a tanker or container ship are 30 to 50 feet high.


They often come over the stern with a grapnel and line. Watchkeeping is so atrocious on most merchies that the first warning they usually get, is a Kalashnikov in the ear. Most boardings could be prevented by adequate watchkeeping and firing small arms into the motor speedboat. Three rifle caliber machinguns would be enough to give the typical ship all-around protection.

Better watchkeeping and machineguns would add to the cost of running the ship. The economics of Pirate Roulette has already beed argued here.

Ships are often betrayed to pirates by insiders in the pay of the pirates. This makes defense very difficult, when your own shipmates let them aboard.

wouldn't the piratical declaration be the point to trigger a deadly force response?


Just approaching too close or steering an intercept course should be enough. A burst of machinegun fire into the water, the proverbial shot across their bow, is an unmistakable signal to come no closer. Any vessel approaching more closely after that should be fair game for target practice.

@ trad and anon

And nobody, so far as I know, has ever expressed an interest in "detaining" them indefinitely (i.e. forever) without any kind of charges or hearing.


The parallels between Unlawful Combatants and Pirates are limited. Captured combatants, lawful or otherwise, can be held "for the duration." In an open ended conflict, no one really knows what that means. The historical examples tend to date from the 19C and earlier, when the laws were different, and terrorists were often dispatched on the spot.

Piracy has been a criminal matter since at least Roman times. They have typically been tried by the courts of the capturing nation. Their capture typically does not involve the use or potential compromise of national security assets, so the secret courts arguably necessary to protect State Secrets wouldn't be necessary. In the few instances where national security assets were used, e.g. using the CIA to take down a pirate leader, the situation would be different. I would prefer to use military assets to destroy those individuals or groups and dodge the court issue entirely.

At a certain scale of organization, piracy becomes state sponsored warfare. The Barbary Pirates would be an example. In that case, they can be dealt with as terrorists or other unlawful combatants, or as lawful combatants if the meet the tests. At the present scale of operations, I see nothing to classify pirates as combatants.
4.16.2009 12:24pm
lurker-999 (mail):
" ... the "fisherman pirate" will simply throw his weapons over the side of the boat when he sees the navy coming and claim he had just gone fishing. ..."

OK, fine so the guy who does that gets off scot-free -- that time!! But still, you have significantly raised his cost of doing business if he has to buy new weapons when he gets home.

You don't have to capture and execute all of them. You just have to execute a few of the worst cases and thereby put 'fear of the lord' into the rest --- just execute the ones who were actually caught red-handed.

But the point is: The justice (or 'retribution' if you'd rather call it that) has to be swift &certain. Otherwise it is a waste of time.
4.16.2009 12:25pm
DennisN (mail):
@ David Drake:

I think this problem is very much like the problem with the Guantanamo detainees: how to tell the bad guys from the innocent, given that the "fisherman pirate" will simply throw his weapons over the side of the boat when he sees the navy coming and claim he had just gone fishing.


Actually, a program of stopping and inspecting suspicious vessels would be a good way to suppress piracy. If they throw their weapons over the side, they are out of business for a while. Even in the turd world, awash with Soviet weaponry, the stuff is expensive.

You can build a database of piratical suspects by fingerprinting and photographing the crew. Illicit cargoes could be seized as well as the vessels. Revive the Prize Courts.

Even better, they brandish weapons and threaten the stopping vessel. You back off and hose them with automatic cannon fire. Naval vessels have stop and inspect rights on the high seas, and there would be little to stop a navy from assuming that power in Somali territorial waters, particularly as there is a UN resolution that allows just that.

All of this is expensive. Who will pay for it? Considering the small number of US Flagged vessels, who else is going to contribute, and how?
4.16.2009 12:38pm
Steve:
The parade of horribles regarding how incredibly impossible it would be to convict a pirate makes me wonder how we ever manage to convict anyone of anything. Oh no, the bank robber might throw down his weapons and claim they belonged to someone else, how ever will we overcome that staggering problem of proof?!? Come on. People get convicted on eyewitness testimony every day.

I have trouble imagining a world where we're confident enough in the guilt of pirates to let them dangle from the yardarm, but somehow we're unable to satisfactorily prove their guilt to anyone else. Something's wrong there.
4.16.2009 12:40pm
David Drake:
Oren--

Those are both problems with the use of a convoy, as is the need to spread the ships out in the water enough to avoid collision, thereby opening up room to attack.

Organizing the convoys by using telecommunications could eliminate the "waiting around" time and could probably deal with the "slowest vessel" problem. The latter either by organizing convoys by equivalent speed or by giving the slower ships a head start. BTW I am not a sailor so I don't know if any of this would work--but it seems to be one promising solution.

If no potential solution to this problem is "cost effective," then why not let the shipowners continue to do what they've been doing: accept the ransom as a cost of doing business and simply let the pirates go on lifting themselves out of poverty through private enterprise?
4.16.2009 12:44pm
Richard Aubrey (mail):
Steve,
You're smarter than that.
The unique difficulties and differences have been spelled out until even you can't have missed them.
To reiterate one point. In a murder case, the requested witnesses are almost always within CONUS.
In a piracy case, none are, because that would be the defense's point in requesting them.
In addition, of course, we'd have domestic political pressure (ACLU, CAIR, etc.) misrepesenting the case publically and/or filing as amicus with additional bumf to screw the thing up.
I am not saying I know what is the best answer. I do think pretending it's just like any other felony trial is getting pretty lame.
4.16.2009 12:50pm
Oren:

Organizing the convoys by using telecommunications could eliminate the "waiting around" time and could probably deal with the "slowest vessel" problem. The latter either by organizing convoys by equivalent speed or by giving the slower ships a head start. BTW I am not a sailor so I don't know if any of this would work--but it seems to be one promising solution.

I've worked logistics for trucking, and generally the owners were loath to have any truck waiting anywhere for any longer than necessary. Having to wait for a convoy (even worse, having to wait for a convoy of appropriate speed ships, which will take MUCH longer) is just not acceptable.



If no potential solution to this problem is "cost effective," then why not let the shipowners continue to do what they've been doing: accept the ransom as a cost of doing business and simply let the pirates go on lifting themselves out of poverty through private enterprise?

This was my original proposition, actually. I'm done defending it (I've said my peace, that's all I can do), so you can read my (many) posts about it.

I have to admit, now that the pirates are out for blood (instead of generally being rather cordial so long as they got paid promptly) that changes the calculus considerably.
4.16.2009 1:17pm
My Middle Name Is Ralph:
First, I'm pretty skeptical of all these supposed logistical or proof problems, since none of them seem to stop us from getting convictions in the US. The only legitimate one I've heard so far is securing the witnesses necessary to prove the prosecution's case. This would be a hassel for US military personnel, but hardly insurmountable. More difficult would be merchant crewmen from other countries. If some military tribunal were established specifically to try pirates (and perhaps terorists), would it pass constituional muster to permit the use of video deposition testimony, provided the accused lawyers had the right to cross examine? Also, the court could be overseas such that it would be less burdensome to secure witnesses and trials could take place much quicker.

Second, if problems in proving someone is actually a pirate is truly that difficult, why not a UN resolution allowing some sort of UN mandate over the international waters where the piracy is taking place whereby only certain ships are permitted within the waters? All other ships and persons would be subject to search and seizure and penalties of some sort.
4.16.2009 1:22pm
lurker-999 (mail):
" ...why not let the shipowners continue to do what they've been doing: accept the ransom as a cost of doing business and simply let the pirates go on lifting themselves out of poverty through private enterprise?..."

Probably because of something like the "broken windows" theory: If you allow lawless elements to get away with collecting small ransoms, (Danegelt??) then sooner or later somebody will get the bright idea of why not load up one of these captured vessels with a tactical nuke, sail it into somebody's port, and demand a really big ransom.

And then there's the whole R.E.S.P.E.C.T. thing. It is in our long-term self-interest to make sure that all the world's barbarians clearly understand that spitting on Superman's cape is a very dumb idea -- and likely to be fatal.
4.16.2009 1:33pm
Michael Ejercito (mail) (www):
How did the U.S. deal with captured pirates back during the Washington administration?
4.16.2009 1:40pm
Bob from Ohio (mail):

Courts martial require a military judge and a JAG, both of which are not stationed onboard.


They have not always required such creatures. I don't know when it changed exactly (UCMJ certainly but perhaps before) but court maritals used to consist of officers only without a judge and often a line officer as defense "counsel".

The use of professional judges and lawyers does not have to be the case, Congress could streamline it for pirates if they want.

Three ship officers as the court with other officers as both defense and prosecution counsel or something similar. (You would also need one Somali speaker as translator.)

Appeal to the admiral in command and then some civilian in Washington or something similar.

Now, whether Congress should do such a thing is a different matter.
4.16.2009 1:43pm
Steve:
To reiterate one point. In a murder case, the requested witnesses are almost always within CONUS. In a piracy case, none are, because that would be the defense's point in requesting them.

We went through this ad nauseum in the other thread. To recapitulate, there is absolutely no constitutional principle that says the US Government is under an obligation to fetch any and all potential witnesses for the defense from anywhere in the world under penalty of dismissal. The government has the obligation to make process available, and if the defendant claims he can only be cleared through the testimony of some random Somali who is beyond the reach of process and won't appear voluntarily, that's his problem and not a problem of proof at all.

You haven't been able to cite a single actual case that was dismissed by an American court on this crazy theory, but you keep asserting that it's a huge problem. In the other thread when I asked you to show me where it has ever happened your answer was the OJ trial. Again, just because something sounds to you like a really clever defense that would be accepted by courts doesn't make it true.
4.16.2009 1:49pm
ASlyJD (mail):
Of course, there's always the option of hiring the glut of law school grads, making them JAGs, and stationing them on the ship to be prepared for this field trials.

Solve a couple problems at once!
4.16.2009 2:01pm
Joe T Guest:
I fail to see what the problem is. Doesn't everybody fish using a Zodiac boat, an AK-47, and an RPG and zip ties? What's up with you people?


BTW, on this point:

Having to wait for a convoy (even worse, having to wait for a convoy of appropriate speed ships, which will take MUCH longer) is just not acceptable.


Think a million dollars a day if they sit still for some loads, and understand that a port call may only take 3 hours because the containerized cargo is loaded so carefully and in perfectly logical sequence for fast unloading, and you'll understand why they don't do convoys normally. Understand also that the logistics companies consider two or three hundred thousand dollars in fees per trip through the Panama Canal (because it's *so* much cheaper than the 8 day longer Southern route) and it might make sense why they don't want to stick around for a day or three to build up numbers. The numbers involved are so large it's hard to get your head around them.
4.16.2009 2:04pm
Adam J:
Steve-

We went through this ad nauseum in the other thread. To recapitulate, there is absolutely no constitutional principle that says the US Government is under an obligation to fetch any and all potential witnesses for the defense from anywhere in the world under penalty of dismissal. The government has the obligation to make process available, and if the defendant claims he can only be cleared through the testimony of some random Somali who is beyond the reach of process and won't appear voluntarily, that's his problem and not a problem of proof at all.
Not that I agree with Aubrey's conclusions, but I think you're a bit confused- the government won't be "fetching" witnesses for the defense, it will be "fetching" witnesses for the prosecution- it needs to put up sailors who can finger the defendant and say he's a pirate in order to prove that the defendant is indeed a pirate. There are indeed obvious logistical problems for the prosecution with chasing down said sailor for a trial.
4.16.2009 2:06pm
cognitis:
Defect in jurisdiction separates piracy from common crimes of property or persons, which defect also affects the interception of smugglers. Why wouldn't legal arguments permitting interception of smugglers also permit capture of pirates? Coast Guard has for decades intercepted drug dealers in International Waters, so why shouldn't US Navy capture pirates?
4.16.2009 2:08pm
DennisN (mail):
There's no problem with intercepting and searching vessels. The problem is with proving the intercepted vessel is a pirate. Drug smugglers are captured with damnear ironclad evidence onboard - Drugs. There is no international law against carrying armaments at sea, hell we've been arguing about arming our own vessels as protection against piracy.

Still, I think stop and search to be a good thing, albeit expensive.
4.16.2009 2:19pm
Avatar (mail):
Whose flag are these "fishing vessels" flying under, anyway? Has the Somali government explicitly authorized their fishing vessels to go armed? Of course not - there's no national authority there to flag those vessels. In which case, aren't they outside the relevant treaties anyway?

Seriously, what is the law, with respect to unflagged vessels?
4.16.2009 2:21pm
Oren:

How did the U.S. deal with captured pirates back during the Washington administration?

They were transported from the Caribbean to Key West, Florida and judged in Admiralty in an Art-III Court.
4.16.2009 2:22pm
Sean O'Hara (mail) (www):

Actually, a program of stopping and inspecting suspicious vessels would be a good way to suppress piracy. If they throw their weapons over the side, they are out of business for a while. Even in the turd world, awash with Soviet weaponry, the stuff is expensive.


Why would they throw weapons overboard? There's no law against possessing RPGs in international waters, and given the nature of Somalia, people have non-piratical excuses for carrying them. Does the US have any right to stop ships and confiscate property?
4.16.2009 2:25pm
David Drake:
A list of previous posts on this topic is at the end of the post. They all have interesting info on this topic. It would probably be a good idea for all of us to go read them and the accompanying links to get a grounding for these discussions. Otherwise, we're just talking past each other.
4.16.2009 2:30pm
cjwynes (mail):
Since pirates have no rights, why worry about what process to give them? They aren't due ANY process at all. They can just be shot on sight out at sea, and there's no state which can complain so we're free of restrcition or fear of reprisal. That's what being a pirate is, you're just a stateless criminal with a mark on your head. To what principle or governing document can you point and claim it grants you rights if you're a pirate?

Detecting and confronting them would be the harder part, not what to do with them when they were found.
4.16.2009 2:34pm
David Drake:
In light of all the pirate posts this week, I suggest the appropriate Sunday song lyric:

Beastie Boys "Rhymin and Stealin"
4.16.2009 2:35pm
SC Public Defender:
I was hoping Monty's post would start a Foxworthyesque new thread on "you might be a pirate if......."
4.16.2009 2:37pm
einhverfr (mail) (www):
Sean O'Hara:

Additionally how much does an AK47 cost in Somalia? $15? $20? What percentage of weapons are on the boat and what percentage are on shore? Sure they are out of business for a while-- the time it takes to go back to shore and return. Also, would it make our guys subject to attacks from terrorist pretending to be pirates (methodology similar to the Cole incident)?

The problem is that people attack this issue as if tactics are not going to evolve to get around the problems posed.
4.16.2009 2:39pm
Cityduck (mail):
I am appalled by the lack of trial experience betrayed by many of the posts on this site.

As an example, Richard Aubrey says:


The unique difficulties and differences have been spelled out until even you can't have missed them. To reiterate one point. In a murder case, the requested witnesses are almost always within CONUS. In a piracy case, none are, because that would be the defense's point in requesting them.


Huh? A defendant cannot avoid prosecution by desiring to have a witness testify who is not subject to US jurisdiction. And the government is under no obligation to obtain such witnesses.

Let's look at the real world scenario we have here. The U.S. based captain and crew of the US flagged ship, who are all now in the states, are witnesses to the act of piracy and abduction. Certain military personnel are witnesses to the continued kidnapping, and the arrest of the perpetrator. The Prosecution will have no problem obtaining those witnesses it feels it needs for trial.

The ignorance here is astounding.

Anyone who thinks that on the present facts the perp is going to be able to avoid prosecution, or even conviction, by claiming that Somali folks can confirm he's a fisherman are not in touch with the reality of the practice (not theory or opinion) of law. Here, the eyewitness, direct and circumstantial evidence is going to be overwhelming. No good defense counsel will take this case to trial. The best this perp can hope for is a good plea bargain.

I do agree that a different case may have a different result. For example, there might be reasonable doubt that just because Somalis are in a fishing boat with small arms they are pirates. [Of course, if it is true that Somali fishermen do carry small arms, and they didn't try to seize a ship, then I'm not sure why'd you think they were pirates under that scenario anyway.] But that does not mean you throw the baby out with the bathwater. Where you have witnesses, circumstances where identification is clear, and immediate capture, the chance of avoiding conviction would seem extremely slim. The criminal courts deal with these situations every day.
4.16.2009 2:55pm
Chicago:
Steve:

I have trouble imagining a world where we're confident enough in the guilt of pirates to let them dangle from the yardarm, but somehow we're unable to satisfactorily prove their guilt to anyone else. Something's wrong there.

Yardarm? Sherby, does the Navy still hang people from Yardarms?
4.16.2009 3:01pm
Oren:

Since pirates have no rights, why worry about what process to give them? They aren't due ANY process at all. They can just be shot on sight out at sea, and there's no state which can complain so we're free of restrcition or fear of reprisal.

The problem is not that pirates have rights, the problem is establishing if person X is a pirate and therefore deserves no rights.
4.16.2009 3:07pm
Richard Aubrey (mail):
Steve et al.
I didn't say the prosecution would be automatically dismissed.
It's possible, given some of the judges we've seen in action.
The point is whether, if the trail goes forward, the zealous defense attorney makes the case to an OJ-level jury that without the requested witnesses, the accused can't get a fair trial.
Does the guy get off?
If he's convicted, do Al Sharpton and his ilk, the ACLU, Harry Reid, Mad Maxine Waters, and sympathetic journos go along with the railroaded theme? If so, what happens in the next trial?
4.16.2009 3:24pm
Michael Ejercito (mail) (www):

They were transported from the Caribbean to Key West, Florida and judged in Admiralty in an Art-III Court.

No reason why we should abandon that tradition.
4.16.2009 3:32pm
Curious Passerby (mail):
If no potential solution to this problem is "cost effective," then why not let the shipowners continue to do what they've been doing: accept the ransom as a cost of doing business and simply let the pirates go on lifting themselves out of poverty through private enterprise?

Because appeasement of evil begets more evil. Our forefathers knew best: Millions for defense but not one cent for tribute." We could learn a lot from them. Too bad our world is run by such spineless obsequious weenies.
4.16.2009 3:33pm
Michael Ejercito (mail) (www):


The problem is not that pirates have rights, the problem is establishing if person X is a pirate and therefore deserves no rights.

Being caught in the act pretty much establishes proof beyond a reasonable doubt.

Prosecuting those who fund piracy is a little bit trickier.
4.16.2009 3:33pm
Richard Aubrey (mail):
Michael.
Being caught in the act, given the post's descriptions of the difficulties, means being caught on board the ship and being unable to make the case you were forced by these other guys to switch from fishing to reluctantly going along.
IOW, practically every Somali holding a weapon on the merchie. Of the days and works of the pirates, the likelihood of getting them in this window is pretty slim.
Recall that "in the act" means motoring along in the highjacked ship with the crew's lives depending on there being no rescue or other operation going forward. Then they get to shore and disperse while the ship chandlers and the prize courts--so to speak--take over.
You really have about ten minutes, probably less, when it could be done. Before--they're fisherman. After--they're shielded by the merchant crew's lives.
4.16.2009 3:46pm
einhverfr (mail) (www):
Curious Passerby:

Ok, then wny not let foreign shipowners do what they are doing and let Walmart customers indirectly fund piracy?
4.16.2009 3:52pm
DennisN (mail):
@ Sean O'Hara

Why would they throw weapons overboard? There's no law against possessing RPGs in international waters, and given the nature of Somalia, people have non-piratical excuses for carrying them. Does the US have any right to stop ships and confiscate property?


I think we could make up any rules we wanted to on the spot. In Iraq, which admittedly has a different set of rules, we allow individuals to retain AK47s and the like but confiscate crew served weapons, RPGs, explosives, etc. We could do that. Let them sue is if they want to challenge the seizures.

The objective of the game is to harass them to the point they either go home or give us justification to kill them.

@ cjwynes
Since pirates have no rights, why worry about what process to give them?


Who says they have no riughts? And who says they're pirates? "I'm just an honest fisherman, M'Lord. I carry an AK47 because there are pirates out here."

@ einhverfr
how much does an AK47 cost in Somalia? $15? $20?


That's a lot of money in Somalia.

would it make our guys subject to attacks from terrorist pretending to be pirates (methodology similar to the Cole incident)?


You don't allow their vessels to approach ours. They are blown out of the water if they try. We do that now. We board and search from small boats. If that gets too dangerous, we make them get out into a raft. We can evolve tactics, too.

My solution is still to depopulate the coastline, sink everything that floats and burn everything ashore. Somehow, I don't see us doing that, though.
4.16.2009 4:00pm
Cityduck (mail):

The point is whether, if the trail goes forward, the zealous defense attorney makes the case to an OJ-level jury that without the requested witnesses, the accused can't get a fair trial. Does the guy get off?


Again, are you a trial laywer?

First, the defense attorney is not going to be able to argue to the jury that "without the requested witnesses, the accused can't get a fair trial." The defense attorney has to get his own ducks in a row, and if he can't, he can't just make up stories. Your assumption appear to be that the defense has a right to "request witnesses" from foreign lands. That's not correct.

Second, your reference to "OJ-level jury" tells me you didn't watch the trial or understand what happened. Frankly, based on the evidence before it, that jury made the right decision. The Prosecution consistently screwed up its case, most notably with the glove that didn't fit, and I think it would have been a real miscarriage if the jury had convicted OJ based on the presentation of the evidence I saw. Which is not to say OJ didn't commit the murder, I think he did, but that the prosecution didn't make an adequate case. And guess what? That's the way our system works.


If he's convicted, do Al Sharpton and his ilk, the ACLU, Harry Reid, Mad Maxine Waters, and sympathetic journos go along with the railroaded theme? If so, what happens in the next trial?


This comment just tells me that you are an ideologue who is offering the opinions you are due to some sort of preconceived agenda. I don't see any grounding in reality for whatever point you are trying to make here.
4.16.2009 4:01pm
CarLitGuy:
With all this talk of piracy and international waters, with concern for the courts, the costs, the rights of the possibly pirates, and the like - I'd like to put forth a two fold proposition:

1.) Those persons who, for reasons of their own, wish to simply purchase insurance (or not), take their chances, and pay the ransoms when required should certainly be free to do so.

2.) Those boat captains and owners prefering a more permanent defense of their lives and the property entrusted to their care should enjoy the naval equivalent of what is commonly referred to as "the castle doctrine". Should they catch someone in the act of boarding, actually on their vessel, or in process of escaping with their proprty, they simply kill the perpetrator(s) and let the evidence of the deed sink to the bottom of the sea. Captains and crew need be presumed to have acted in lawful defense of their lives and vessels in such situation. No muss, no fuss, no media.


Some potential pirates may be dissuaded from piratical acts by not knowing which kind of captain might be aboard (see lurker-999 above, though I would observe that deterence of such sort does not keep US Citizens from killing one another. I have no reason to suspect it would be more effective than our own example when applied in this situation). Some pirates would be dissuaded from *further* piratical acts by being dead. A condition observed to be a remarkably effective prophylactic against further criminal activity.

In either case, costs are born by the captains and crew, without further expense to society at large.
4.16.2009 4:09pm
Richard Aubrey (mail):
City.
A defense attorney can't make up stories.... I sat for a jury pool--wasn't called on--and watched the defense attorney making up stories in the questioning of potential jurors.
The judge rebuked him eventually, but that's like telling a jury to disregard something. Point was made.
And what would be "made up" if the defense attorney said he couldn't get certain witnesses if he had actually tried? Nothing made up about that. The jury gets to consider that, whatever the judge says.

As to OJ, having a plastic glove on before he tried on his own glove should have been noted by the jury--hence the pejoratives. Yeah, the prosecution was outlawyered. They allowed the defense to make up stuff, and change the topic to racism. The point is not that the prosecution failed in some standard situation. The point is that the prosecution failed to keep the defense from spinning bullshit.
Is the dream team the only one who can spin bullshit? Come on. You're presuming a prosecutor's dream of a defense attorney.
4.16.2009 4:12pm
mariner:
DennisN:
They often come over the stern with a grapnel and line. Watchkeeping is so atrocious on most merchies that the first warning they usually get, is a Kalashnikov in the ear. Most boardings could be prevented by adequate watchkeeping and firing small arms into the motor speedboat. Three rifle caliber machinguns would be enough to give the typical ship all-around protection.

Better watchkeeping and machineguns would add to the cost of running the ship. The economics of Pirate Roulette has already beed argued here.

Ships are often betrayed to pirates by insiders in the pay of the pirates. This makes defense very difficult, when your own shipmates let them aboard.

There is no polite way to put this: you sir, are full of shit. The grapnel is about the only thing you got right.

I can't speak for watchkeeping on all merchant ships. On American-flag ships watchkeeping is fine, but watchkeeping is about navigation and collision avoidance, not defense against attack by pirates armed with automatic weapons.

Merchant vessel crewing is predicated on the absolute minimum number of people required to get the ship safely from point A to point B, not for combat operations along the way. We have neither the manpower, the equipment nor the skills to keep pirates off our ships, or to resist them effectively once on board. "Atrocious watchkeeping" is not the problem.

Pirates don't need to get information from ships' crewmembers -- that information is available ashore.

I was Chief Officer on a ~1000-ft container ship that transited the Strait of Malacca about twice every five months. The trip before mine, thieves had boarded the ship at night, broken into containers containing consumer electronic equipment, and left the ship without being detected. My counterpart discovered the intrusion on his rounds the next morning.

The theives knew exactly which ship to board, which containers to break into, and where on the ship to find those containers (which were conveniently stowed right on the deck). They didn't get that information from the crew. No one on the ship knows what's in a particular container, unless the cargo is either hazardous or refrigerated.

The Maersk Alabama is a small ship by today's standards, but even a 500-ft ship is a lot of ship to defend. A guard force would need about a dozen people and a lot more than just three firearms -- not to mention other equipment such as night vision devices and secure communications -- to get the job done. That force would also need to be well-trained in combat operations; just dressing people up and putting firearms in their hands does not make them a credible fighting force.
4.16.2009 4:13pm
cjwynes (mail):

The problem is not that pirates have rights, the problem is establishing if person X is a pirate and therefore deserves no rights.


OK, but if the method selected for establishing whether or not somebody is a pirate turns out to be an adversarial courtroom proceeding with compulsory process, right to counsel, and traditional rules of evidence, then we're basically treating pirates as if they had due process rights. For one thing, the constitution authorizes us to place bounties on their heads, which clearly we couldn't do if we had to have them present for an adversarial legal proceeding before declaring them to be pirates. If the government believes they're pirates, by whatever procedures and whatever burden of proof the government thinks is necessary, then that's enough, and the judiciary has no role in this. Amnesty International will end up calling them all innocent fishermen, of course, but really if the gov't starts declaring people pirates who aren't then people will cry foul and the political process will handle it.
4.16.2009 4:17pm
mariner:
Bob in Ohio:
Courts martial require a military judge and a JAG, both of which are not stationed onboard.
They have not always required such creatures. I don't know when it changed exactly (UCMJ certainly but perhaps before) but court maritals used to consist of officers only without a judge and often a line officer as defense "counsel".

Actually you're both right.

The degree of legal formality required depends on the penalty the court is able to impose.

A summary court-martial requires only a single commissioned officer, but can award only slightly more punishment than a commanding officer can award himself as non-judicial punishment.

A special court-martial requires a military judge and three members (a three-member jury) and can award more drastic punishment, but not the death penalty.

A general court-martial requires a military judge and at least five members, and can award the death penalty, if that penalty is applicable to the crime.
4.16.2009 4:25pm
Oren:

OK, but if the method selected for establishing whether or not somebody is a pirate turns out to be an adversarial courtroom proceeding with compulsory process, right to counsel, and traditional rules of evidence, then we're basically treating pirates as if they had due process rights.

They can have some process less than a full adversarial proceeding that still affords them counsel and an impartial judge. Traditional rules of evidence never applied in courts martial, so they need not apply here.

Mariner, thanks for the insight!
4.16.2009 4:29pm
mariner:
Chicago:
Yardarm? Sherby, does the Navy still hang people from Yardarms?

Not for dime bags of oregano.

Nice job!
4.16.2009 4:30pm
ParatrooperJJ:
The solution is quite simple, don't take prisoners. Furthermore under the Geneva Convention, unlawful combatants can be summarily executed without any judicial proceeding.
4.16.2009 4:32pm
Cityduck (mail):


And what would be "made up" if the defense attorney said he couldn't get certain witnesses if he had actually tried? Nothing made up about that. The jury gets to consider that, whatever the judge says.


Again, the fact you make the above erroneous statement tells me you are not a trial lawyer.
4.16.2009 5:00pm
Just an Observer:
Mariner,

Given the fact that only a small fraction of vessels transiting the dangerous waters off Somalia are U.S. flagged, can you envision a combination of on-board military guards backed by naval patrols that could reasonably protect these particular ships?

It seems to me that the U.S. Navy probably does not possess the resources to protect every one of the thousands of trips by all vessels. But can we protect our own?
4.16.2009 5:27pm
DennisN (mail):
@mariner:


I can't speak for watchkeeping on all merchant ships. On American-flag ships watchkeeping is fine, but watchkeeping is about navigation and collision avoidance, not defense against attack by pirates armed with automatic weapons.


You've pretty much confirmed what I said. And flag of convenience vessels are notorious. My sailing f(r)iends have reported several incidents of nearly being run down. One involved firing a flare pistol at the bridge, which elicited no response whatever from the merchie. Good watchkeeping, particularly for small craft. Admittedly they can be hard to see, but a 20mm flare sailing across the deck in the night is pretty obvious.

Boarding over the stern is apparently a favorite method, as few ships keep a fantail watch. I would imagine it's a scary thing to do. The rail will do, too. Once you get inside the view arc from the bridge, you are invisible, masked by the hull.


Merchant vessel crewing is predicated on the absolute minimum number of people required to get the ship safely from point A to point B, not for combat operations along the way. We have neither the manpower, the equipment nor the skills to keep pirates off our ships, or to resist them effectively once on board.


Again, you're confirming what I said. The key is not letting them on board while you are underway. Once they are on board, you're more or less screwed. The issue in port, is different. There's a lot of piracy inside the ports. Nigeria has been notorious for years.

You can cover all the aspects of a vessel with a machinegun on each rail and one on the stern, or depending on the layout, on the bridge rail. Two or three on the rail, particularly for a ship of the size you were officering would be better. I agree with you about training, but it's not that great an issue. The real key is seeing the pirates in order to shoot at them. It's not really hard to hit a motorboat at 100 yards with a machinegun, but almost impossible to hit something as large as a freighter from a motorboat at that range.

The issue is not that it would be hard to do. It would be easy to do. The issue is that it is expensive, as you correctly pointed out, and inconvenient, so it is not even considered. The remaining alternative is Pirate Roulette.

From people I've talked with, there is a lot of collaboration with turd world crews. No consideration of defense is worthwhile if the crew is in on the game.
4.16.2009 5:29pm
My Middle Name Is Ralph:

The solution is quite simple, don't take prisoners. Furthermore under the Geneva Convention, unlawful combatants can be summarily executed without any judicial proceeding.


That is simply wrong. The Geneva Convention says no such thing and I challenge you to find it and cite the source if you think otherwise.
4.16.2009 5:42pm
DennisN (mail):
The Geneva and Hague Conventions doesn't allow anything. They prescribe what conditions must be met to be considered a Lawful Combatant, and what protections are given to lawful combatants who are hors de combat. Personnel who are not lawful combatants are not given the protections.

This is to encourage combatants to obey the "Laws and Customs of War," and to protect helpless civilians from combatants.

The conventions are essentially silent about what can be done to illegitimate persons taken under arms. I suppose, from that POV, they allow summary execution.

Our own laws, and those of most civilized countries, do not allow summary execution.
4.16.2009 5:57pm
mariner:
Just an Observer:
Given the fact that only a small fraction of vessels transiting the dangerous waters off Somalia are U.S. flagged, can you envision a combination of on-board military guards backed by naval patrols that could reasonably protect these particular ships?

It seems to me that the U.S. Navy probably does not possess the resources to protect every one of the thousands of trips by all vessels. But can we protect our own?

Yes, I can. I believe onboard private security (e.g. Xe, nee Blackwater) combined with U.S. Naval assets would be another alternative. IMO we have enough shipping in that area to make this viable.

Very expensive, but viable.

I reacted viscerally to Oren's suggestion that we just lie back and enjoy it (I know Oren, that isn't exactly what you wrote), but he has a very good point -- it is not our job and we don't have the scratch to make the whole world safe for everyone.

That said I do NOT agree that we should just pay the ransoms and take chances with the lives of American citizen hostages. When American ships are taken we should kick ass and take names with a vengeance: literally and repeating as necessary.

I believe this would result in pirates leaving American ships alone in favor of softer targets backed by softer governments. When those softer governments get tired of this crap they can join us and once again stamp out piracy on the world's oceans.
4.16.2009 6:16pm
Philistine (mail):
The conventions are essentially silent about what can be done to illegitimate persons taken under arms.


Have you actually read the Geneva Conventions? There are several sections dealing with the precise legal treatment of unlawful combatants.

Indeed, not only are summary executions forbidden, but even after a conviction and sentence of death, the sentence of death cannot be carried out for 6 months.
4.16.2009 6:20pm
eat their fish too!:
have you seen this tripe? nuclear waste? who cares! dump more!

www.youtube.com/watch?v=TjreRSFNLTI
4.16.2009 6:36pm
mariner:
DennisN:

First, I overreacted in my first answer to you. Please accept my apology.

I was careful to limit my comments to American ships and American crews, since they're the ones I know about and I'm most concerned with.

It is true that there are more diligent and less diligent mariners; I myself have maneuvered to avoid ships that failed to give way per the rules of the road and refused to answer repeated radio calls and flashing light signals.

Please pass along to your sailing f(r)iends to make sure they have very good radar reflectors and brighter navigation lights than required.

On my last ship my height of eye was about 100 ft. You'd be surprised how difficult it is to see small vessels at night if they are not well-lighted, even with a good lookout. Close to the bow inside of about 1-1/4 or 1-1/2 miles they're not visible at all from the bridge.

That means that it's possible to board a container ship from well forward, as no crew members go forward at night without good reason (especially in pirate waters).

It would take more manpower and weaponry than you think to keep pirates off the ship -- about the same, I believe, as to fight them once aboard.

I have no desire to test this belief. "A man's got to know his limitations."
4.16.2009 6:44pm
Bart (mail):
Fox News just reported in a larger piece about the attempts to impose habeas review on Bagram that a CIA source confirmed by a second source claims that CIA has stopped attempting to capture high value al Qaeda targets in Pakistan and is instead simply killing them in Predator strikes.
4.16.2009 8:13pm
Richard Aubrey (mail):
city.
I never said I was a trial lawyer.
So let's take this a step at a time.
1. Defense attorney calls for witnesses quite obviously unavailable
2. Doesn't get them. No funds. No government help. No way to know how to get them. But claims they're instrumental in proving his client is, a, a good guy, and, b. forced by pirates to go along.
3. In a trial where the question is whether this guy is a pirate, b is vital.
4. Attorney complains to the judge, publically, and, eventually, in his summing up, about the lack of opportunity to put on the one witness or the witnesses who had the most relevant and direct information about the question at the center of the trial
So. What happens? What does the judge do? What does the jury do? What do learned commentators say?
5. The guy is convicted. What do we hear from the legal profession? Learned commentators? What effect does that have on the next trial.
Or.
5a. The guy is acquitted. What does that mean for the next trial(s)?

I didn't say this would have a deciding effect in the 1L trial-by-numbers remediation tutorial where there isn't even a slot to enter it.
I'm talking about the real world.
4.16.2009 8:48pm
einhverfr (mail) (www):
Bart:

I still think the most damaging thing someone like bin Ladin could do would be to smuggle himself over to the UK and then turn himself in. Such a move could cause lasting damage to US/UK relations due to extradition requirements.
4.16.2009 9:00pm
Richard Aubrey (mail):
ein.
He doesn't have to smuggle himself in. He's under sentence of death at home--wherever that is--or persecution.
He just claims asylum and a dole.
4.16.2009 9:21pm
Just an Observer:
Mariner's professional view of the feasibility of focusing U.S. naval protection on U.S. flagged vessels reinforces my own humble guess. (I've done a bit of blue-water sailing myself as a peaceable amateur, and I find his nautical opinions to be quite knowledgeable.)

In any event, as a geopolitical matter, I think our President would be wise to concentrate on protecting U.S. merchant shipping. Remember, the attempted capture of the Maersk Alabama came late in the recent surge of Somali pirating. Anyone with an interest has known for many months about the alarming trend there, but the attack on a U.S. ship was big news. It was precisely that situtation that implicated presidential and national prestige, not to mention the real danger to Capt. Phillips and his crew.

If encounters can be won before they become hostage situations, we are much better off.

But while encouraging and continuing to aid international anti-piracy efforts, President Obama should avoid taking ownership of the whole world's problem. To do so would be to set him and the nation up for failure.

I feel less invested in protecting vessels flying flags of convenience. Their sponsors -- Liberia, Togo, Panama, etc. -- have primary responsibility for projecting their own considerable naval power to defend "their" ships.
4.16.2009 9:27pm
DennisN (mail):
@mariner:


First, I overreacted in my first answer to you. Please accept my apology.


Aw hell. I suppose we each owe the other a beer. I can see where my language would have been provocative to a real Mariner.


It is true that there are more diligent and less diligent mariners; I myself have maneuvered to avoid ships that failed to give way per the rules of the road and refused to answer repeated radio calls and flashing light signals.


You're absolutely correct. And my definition of "atrocious watchkeeping" is particularly related to defense of the ship. If you are not allowed to defend the ship, or are incapable for any of the reasons we both articulated, then my definition doesn't mean much does it?


On my last ship my height of eye was about 100 ft. You'd be surprised how difficult it is to see small vessels at night if they are not well-lighted, even with a good lookout. Close to the bow inside of about 1-1/4 or 1-1/2 miles they're not visible at all from the bridge.


Having a high eye means the horizon is farther away, so you can spot conventional hazards to navigation at a greater distance, but it means that once you're inside the visual shadow of the hull, hazards are invisible. A container ship, with a tall deck cargo, would be particularly blind, there.


That means that it's possible to board a container ship from well forward, as no crew members go forward at night without good reason (especially in pirate waters).


Damright!. If you don't have the means to protect yourself from a hazard, why expose yourself to it?


It would take more manpower and weaponry than you think to keep pirates off the ship -- about the same, I believe, as to fight them once aboard.


Here, I disagree. If you're being boarded from small, open boats, the boarding party as well as the personnel in the boat are completely vulnerable to machinegun fire. Firing from a stable platform like your 1,000 foot container ship, you can deliver devastating fire into the pirates. They must cross your fixed line of fire to get aboard. That's WW-I style meat grinding.

And, they are essentially unable to respond, even if they have pintle mounted machineguns, which few do. Automatic rifles are hopeless. A small craft is so unsteady they basically can't hit nuthin'. You shoot up the sky and the water. You can't miss quickly enough to make for not hitting. And putting 7.62 and even 14.5mm into the side of a cargo ship, barely damages the paint. You need to hit people. I have this from a retired Senior Chief who cut his teeth in the brown water navy. To shoot accurately from a small boat, you need gyrostabilized mounts.

As long as the pirates are on the other side of the rail, they're your lunch. Once they are on board, you need to hunt them down one by one and kill them. That means you'll take serious casualties.


I have no desire to test this belief. "A man's got to know his limitations."


I'll drink to that.

Anyway, this is all posturing and mental wanking. It is too expensive to put a party of Marines (or rent-a-wannabee-Marines) on board. So it ain't gonna be done. We're back to Pirate Roulette.

Fair winds and following seas, Mate.
4.16.2009 10:41pm
Richard Aubrey (mail):
I think the Maersk had about twenty guys. How would you break that number up to be wandering about, watching in close and still run the ship and get some sleep?
4.16.2009 10:47pm
DennisN (mail):
@ Bart


Fox News just reported in a larger piece about the attempts to impose habeas review on Bagram that a CIA source confirmed by a second source claims that CIA has stopped attempting to capture high value al Qaeda targets in Pakistan and is instead simply killing them in Predator strikes.


This is a serious side effect of trying to apply civilian law to military matters. You're comparing chalk and cheese. They don't go together. In the military, we kill on suspicion. (Look up "reconnaissance by fire.") If you make it more difficult to deal with prisoners, there will be fewer of them. PFC Justice is harsh.

My only semi facetious solution to the Gitmo situation is to simply release them. They revert to their former status as combatants, and we can immediately kill them. If combat is fair, then you haven't prepared properly (Patton). You wanna be the first one out the gate? ;-)
4.16.2009 10:47pm
DennisN (mail):
@ Just an Observer:


In any event, as a geopolitical matter, I think our President would be wise to concentrate on protecting U.S. merchant shipping.


I agree. There ought to be some benefit to glying the US flag. Let the Liberian Navy rescue Liberian flagged vessels. Or they can subcontract it out to Bluewater. Hell, we'll even give them a letter of marque! ;-)
4.16.2009 10:51pm
Just an Observer:
DennisN,

I am not saying we should never go to the aid of a Liberian-flagged ship. And I still think the U.S. Navy will end up as the backbone of the multinational anti-piracy mission in the area.

But as a matter of priorities and resources -- where a hugely significant cost would be that of deploying onboard defensive details -- I think the United States needs to invest in protecting its own merchant fleet. I tend to estimate, like Mariner, that such deployment in conjunction with naval backup would be expensive but viable.

From the standpoint of the occupant of the Oval Office, I should think that investing in such preventive measures would be worthwhile insurance. Imagine, quite easily, that the Maersk Alabama incident had gone differently at the outset. The President would have found himself with a hostage situation much less amenable to remedial military action. Both he (and George W. Bush) must feel like they got lucky so far.
4.16.2009 11:23pm
DennisN (mail):
@Just an Observer

I think we're in substantial agreement.
4.16.2009 11:27pm
ReaderY:
Congress has power to set rules for captures. Those rules may, but need not, involve courts.
4.17.2009 1:14am
Eric Jablow (mail):
W. S. Gilbert and Arthur Sullivan anticipated these issues long ago:

Sergeant.
-- When a felon's not engaged in his employment --
Police.
-- His employment,
Sergeant.
-- Or maturing his felonious little plans --
Police.
-- Little plans,
Sergeant.
-- His capacity for innocent enjoyment --
Police.
-- 'Cent enjoyment
Sergeant.
-- Is just as great as any honest man's --
Police.
-- Honest man's.

Sergeant.
-- Our feelings we with difficulty smother --
Police.
-- 'Culty smother,
Sergeant.
-- When constabulary duty's to be done --
Police.
-- To be done.
Sergeant.
-- Ah, take one consideration with another --
Police.
-- With another,
Sergeant.
-- A policeman's lot is not a happy one.
Police.
-- Ah!
4.17.2009 9:22am
Johnn Ballard (mail) (www):
I'm late to the party but still have something to add.
VC posts have too many comments for me to read, but I scanned the thread for the word "insurance" and it only turned up twice. Neither mentioned K &R Insurance (kidnap and ransom) which has been around for some time now.

It doesn't take much imagination to see that kidnap and ransom insurance feeds a flourishing worldwide enterprise in criminal activity. It's the insurance equivalent of derivatives in the securities trading market. There's no stated law against it, so it must be okay.
Having K &R insurance for piracy is like pouring gas on a fire but no one seems to notice.

When money, law, politics and morality converge money trumps the other three.
4.17.2009 6:44pm

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