Wednesday, November 19, 2008

Piracy and the Gitmo dilemma 

Piracy is very much in the news.

FP Passport links to a cool "live" map that shows where there have been pirate attacks this year. The Times of London has a widely-linked article that considers some of the legal problems in going after pirates. Back in April I wrote a post on the same topic, noting that the British Foreign Office had told the Royal Navy to avoid capturing pirates for fear they would demand asylum in the United Kingdom.

The basic problem is that international law forbids (i) summarily killing them because, well, they are farooking pirate bastards, (ii) returning them to any country that might disrespect their human rights, a list that includes essentially any country that harbors pirates, and (iii) imprisoning them without due process. So if you go after pirates, you need to be willing to bring them back to your own country and, further, instruct your navy or special forces to gather probative evidence that can be used to prosecute them in a trial, being careful, of course, to secure that evidence in a proper chain of custody. Which is, well, asinine.

Americans are familiar with this problem. It is why we hold prisoners at Guantanamo Bay.

The ugly truth is that the world has not developed a practical legal process for dealing with stateless murdering scumbags, whether their motivation is lucre or service to Allah. These bastards -- pirates, jihadis, and so forth -- are going to plague us until we do.

CWCID: Glenn Reynolds.


By Anonymous Anonymous, at Wed Nov 19, 10:42:00 AM:

The world very definitely has a legal well-established means of dealing with these dead men walking, though it's a method not in regular use sionce the end of the Napoleanic wars. I'm referring to Letters of Marque, specifically authorized in our Constitution (Article 1, Section 8)and not amended away, a concept well defined and honed by centuries of litigation in English common law, ie, still viable, and also described in French code. If the lame duck Congress wants to get rid of this problem easily, grant some Letters and watch the problems go away.  

By Blogger Escort81, at Wed Nov 19, 11:55:00 AM:

Sure, Anon, Congress can grant Letters of Marque and Reprisal (Art.I, Sec.8, paragraph 11), but who will execute them? Where is the financial incentive for a private entity to hunt down Somali pirates? There's no real prize money in it. Perhaps they'll make a reality TV show out of it, or just do it for pure recreational purposes. But people who would do that may not really care if they are acting under the color of law -- they don't need no stinkin' Letters.

No, unfortunately, this has become a job for the U.S. Navy. Anyone who has been aboard a modern U.S. Navy warship command and control center might appreciate that the pirates won't have much of a chance to survive, not even if Johnny Depp is with them and wearing eyeliner. It might be nice to assign this task to the newly armed Chinese Navy, just to kind of see where they are at, but they have no skin in the game, since their oil doesn't pass through the Suez.  

By Blogger Viking Kaj, at Wed Nov 19, 12:27:00 PM:

Even though I am a little rusty on this I think Admiralty law applies which is extraterratorial in its jurisdiction. The traditional limit for the application of national laws is 3 miles offshore, I think this was extended to 12 miles by the 1958 Geneva convention on the high seas. Therefore US law would not apply in cases of piracy outside the 12 mile limit. Also, even within US territoral waters there is no right to a jury trial in Admiralty law (7th Amendment).

My understanding in this case is that the seizure of the ship occured well outside the 12 mile limit.

Traditionally, Admiralty law allows for the execution of pirates without trial, ie. summary judgment, with the captain of the apprehending ship given the power of judge and jury. If it were up to me I would let the Navy interdict the buggers and hang them from the yard arm.

Any Jags out there with more info?  

By Blogger Dawnfire82, at Wed Nov 19, 12:36:00 PM:

Pirates are considered 'enemies of humanity.'

Sink 'em or hang 'em.  

By Anonymous Anonymous, at Wed Nov 19, 01:08:00 PM:

My best guess is that since the Constitution gives Congress the unlimited right to grant and define Letters of Marque, Admiralty law is trumped, as is any international law not in treaty form. But, hey, I'm no lawyer.

As far as "who will want letter of marque" I rather suspect the slavage value of a fully loaded supertanker will motivate other pirates to take out the problem for us. Money works, and I'd love to watch Prize Courts go into operation.  

By Anonymous Anonymous, at Wed Nov 19, 01:09:00 PM:

"salvage value", not "slavage value". Sorry, bad typing.  

By Blogger Ray, at Wed Nov 19, 01:33:00 PM:

The question is one of political will. Who will authorize their country's Navy to potentially accept casualties in order to blast the pirates into oblivion on the high seas, track them down to their dens, mount cutting-out expeditions to seize their prizes, and drag them in chains to a trial, a length of rope, and a quick drop?  

By Anonymous Anonymous, at Wed Nov 19, 01:57:00 PM:

Are you seriously suggesting the fat and self-satisfied modern world lacks the "political will" to deal with manifest evil?  

By Anonymous Anonymous, at Wed Nov 19, 02:54:00 PM:

What is "manifest evil"?

Is that some kind of shipping document gone wrong?

You obviously need some kind of Post-Modern re-education. "Evil" is only applied to the historical white patriarchy. This is obviously some kind of multi-cultural mis-understanding, which can be solved with the proper application of UN arbitration.

Couselor Deanna Troi  

By Blogger D.E. Cloutier, at Wed Nov 19, 03:05:00 PM:

As a businessman I get a kick out of the chutzpah of the new Somali "entrepreneurs" of the sea. Everybody's got to earn a living.

Thus far, the pirates haven't seized any American vessels. The pirates haven't taken any of my shipments. And the raiders almost never kill anybody.

It's amusing to watch gangs of ex-fisherman make the governments of the world look silly.  

By Blogger Dawnfire82, at Wed Nov 19, 03:40:00 PM:

"Thus far, the pirates haven't seized any American vessels."

There have been several Somali pirate vessels destroyed by the US Navy in the last few years, but they have all been interventions on behalf of other nations' ships.

Do we not have much traffic in the area? Or do you think they're just afraid of incurring our wrath?  

By Blogger D.E. Cloutier, at Wed Nov 19, 04:06:00 PM:


The last time I checked, the U.S. merchant fleet had only 465 ships. That figure excludes several hundred other ships owned by Americans but registered in other countries.

Occasionally, on a Saturday, I sit at a friend's villa on the Suez Canal, watching the big ships go by. I don't see American vessels very often.

I don't know whether the pirates intentionally avoid American (or, now, French) ships. I would.

There reportedly is some big (Middle Eastern) money backing some of the Somali pirates (equipment, weapons, etc.) these days. So far, the whole thing is about profit, not politics.

However, if Somali pirates can grab a supertanker, terrorists can, too.  

By Anonymous Anonymous, at Wed Nov 19, 04:11:00 PM:

We have the technology! A few drones in the area would solve the problem of these pirate ships, and no one would miss them.  

By Anonymous Anonymous, at Wed Nov 19, 06:06:00 PM:

All a matter of political will. Military power has nothing to do with it.

With the UN harping, international courts always willing to punish the innocent, and innumerable human rights everywhere in unexpected forms, each individual nation has little reason to risk its naval personnel.

They don't mind if another nation does it.

Any naval people involved are as likely to end in prison as the pirates. And the government directing the navy may be guilty of human rights violations.

You can't kill the pirates if they surrender. You can't try them by military tribunal. You can't turn them over to a mean government for trial.

You can't board for inspection if they are at sea and not caught in the act of piracy.

And above all, expensive cargo must not be lost or any crew members hurt.

What a bunch of crap!  

By Anonymous Anonymous, at Wed Nov 19, 07:02:00 PM:

Why not pull our Navy out and just let the world handle their own problems with the pirates. The world hates us anyway and fears our military. Let them handle their own problems. We will get involved only if an American Flagged vessel is taken.  

By Blogger Consul-At-Arms, at Thu Nov 20, 09:16:00 PM:

I've quoted you and linked to you here: http://consul-at-arms.blogspot.com/2008/11/re-piracy-and-gitmo-dilemma.html  

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