Piracy, terrorism and the wider view
The following is a personal outlook paper of The Jacksonian Party originally posted at Dumb Looks Still Free.
It gets immoderate, be warned!
The argument I am making to treat terrorism as piracy is not new, and thank you to Eagle for sending me a couple of links! One is to an article by Douglas R. Burgess Jr at Legal Affairs Magazine (July/August 2005): The Dread Pirate Bin Laden. I read that with interest as it goes through legal processes in an attempt to dig up and create a framework for prosecuting terrorism. He cites the problem the UN is having with creating such a thing, due to the political problems of Nations and 'terrorism'. From there he moves a bit further on to start digging into piracy and the framework around it. Later in Legal Affairs Magazine would be a debate between Michael Byers and Mr. Burgess on this: Can laws against piracy help stop terrorism?
With that I will try to present a wider view of piracy, civil law, military law and this last law that remains unaddressed: the law of nations.
In Mr. Burgess' article, he traces the movement of piracy as a concept from ancient times and its re-emergence after the fall of the Empire. By the 16th and 17th century piracy had returned along with trade, and so had the concept of 'privateers', which gave sanction to owned ships by merchants to be outfitted with war making ability to combat pirates. Under National sanction, flying the colors of that Nation, privateering allowed for Nations to engage each other on the high seas not only to combat pirates, but to be an auxiliary of the Navy of the Nation involved.
Now I will digress from the analysis of the article, some, to give some background. This concept of warfare is still enshrined in the US Constitution under the Letters of Marque and Reprisal language for Congressional war making capability and in the US Code giving the President a procedure to call upon Privateers to respond to National needs. The United States has a very different view of these things that cannot, ever, be wished away by treaty: these are specific powers granted to government by the People and only the People may amend the US Constitution. The US cannot sign onto anything that would limit its privateer power granted to the government, save to regularize them. For the US this means that piracy has a view to it that does not rapidly evolve, and that the ability to deem individuals and organizations as acting as pirates is one of the few things that has been stable on the landscape since the founding. Privateers act under US legal sanction, fly colors and are accountable to the Nation for their actions. Pirates are out for their own purposes, without sanction and unwarranted.
Thus when Mr. Burgess makes the statement of the 1856 Treaty of Paris outlawing privateers, which it did, even with signing it the US must consider those sections regarding privateers to be ineffectual and null. The US has established rules for this, from time to time, and the last time that privateers were used was in the US Civil War, and since then we have told most Nations we go to war with that we will not be using privateers against them. That is courtesy, not mandate.
His course of the evolution of piracy is good founding for it, but the depth of humanity's detesting of them really could be expanded a bit. From there, however, he shifts to National domestic laws and out of the law of nations concept, which looks not only at the domestic portion of piracy, but the overarching sovereignty of individual nations to conduct affairs in agreed-upon orderly fashion. To me the citing of the terrorist aspects of Blackbeard and other individuals is interesting, but not to the point: these organizations, which ships are, were acting as independent sovereigns to wage war for their own gain or purposes. Civil law must take that into account, but the waging of war via utilization of war like means (in the old days with 'wooden ships and iron men') meant that such organizations had no law over them. They had, literally, stepped away from the civilized law of nations and put themselves outside the law. It is not the form of the attack(s), or the view towards creating terror, it is the utilization of war outside the strictures of the nation state that is the crime.
Now, Mr. Burgess comes back to this, with this lovely paragraph:
TO UNDERSTAND THE POTENTIAL OF DEFINING TERRORISM as a species of piracy, consider the words of the 16th-century jurist Alberico Gentili's De jure belli: "Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law." Gentili, and many people who came after him, recognized piracy as a threat, not merely to the state but to the idea of statehood itself. All states were equally obligated to stamp out this menace, whether or not they had been a victim of piracy. This was codified explicitly in the 1856 Declaration of Paris, and it has been reiterated as a guiding principle of piracy law ever since. Ironically, it is the very effectiveness of this criminalization that has marginalized piracy and made it seem an arcane and almost romantic offense. Pirates no longer terrorize the seas because a concerted effort among the European states in the 19th century almost eradicated them. It is just such a concerted effort that all states must now undertake against terrorists, until the crime of terrorism becomes as remote and obsolete as piracy.That codified effort did work wonders during the 19th century and drove piracy to the further reaches of Africa, Asia and other places also remote from the easy reach of the Naval forces in those days. The US could not sign the treaty, but did work to remove piracy from the seas in accordance with other Nations. That old fashioned form of high seas piracy still exists in those places, to this day, and there are reports of smaller forms of it returning in the Caribbean. For the most part these are true independent actors out for their own gain in the old fashioned way of robbery on the high seas.
- Before heading into the international aspects of this and yet more civil law, it is time to backtrack to earlier days of warfare and forces on land that operated in ways like this. One can start with the bandit army raised by Josephus against Rome in 66-73 AD and identify it as such and the Roman attitude towards such a thing. Mind you Josephus *did* switch sides, so the history may be a bit shaky, but the concept was quite clear: bringing down an army that was fanatically inspired by their religion. Still called a 'bandit army' however.
- Henry Morgan was a privateer but became a designated pirate after a land attack on panama, in 1671, that violated the peace that existed between England and Spain. Yes, one of the best known pirates became that way by waging illegal war on his own. He did have no knowledge of the treaty, however, and *proved* that and had the label of pirate removed. That is the aspect of where the civil law, under the Admiralty Court, plays a role: to determine *if* an individual had *reason* under lawful war to do the acts that he did.
- And while someone like Grace O'Malley could be seen as fighting for independence, the form of that by having no Nation nor government backing her did make her an "enemy of England". A freedom fighter that would not put herself to the accountability of standing up something better, and so fought a private war against England, something that was not appreciated in the 16th century.
- Some mention should also go to Bartholomew Roberts or "Black Bart" as he was later known, who's first act as a pirate was not for booty, as such, but to revenge himself upon the Principe of Princes Island. While ships and treasure were his long term aim, being on land or sea to work his ways did not matter much to Roberts, who would ensure that his honor and that of his ships was kept, all the way to the end of his life.
- Moving to the 1850's we find the bandit army of Joaquin Murrieta in California, and his gang The Five Joaquins were hunted down and killed in 1853, with trophies being taken from the bodies of the leaders in the way of a hand and a head. That would be absolutely uncivilized for treatment of those not obeying civil law, although far more in accord with military justice of that era. Indeed the list of worldwide banditti is a long one, with various types and outlooks from mere criminal robbers to individuals on the run from the law to those opposing the law.
- Even more recently one of the first paratroop drops conducted by the USSR in 1929 was against a 'bandit army' or anti-communist army in 1929 as described in Peter Harclerode in Wings of War, and by the designers of a Play by Email game Fire in the East. The use of regular military against roving arms of bandits is not unknown in history, and this would be the first use of, yes, paratroops against such. Yes, roving bandits in the 20th century!
These have been characterized by others before the modern times, and as the United States was born before the modern times and rests upon these things and grew up with their understanding, the basis for addressing them fall into how they were addressed and what, if any, treaties and obligations regularize these things. Do note that treaties can only allow the US Congress to regularize upon established points and none of those may contravene the Constitution which is the basis for the Nation. Only the People can do that, not a treaty.
For this the immediate precedent is Blackstone's Commentaries, in particular from Book 4, Chapter 5 on pp. 72-74, published 1765-9:
III. LASTLY, the crime of piracy, or robbery and depredation upon the high feas, is an offence againft the univerfal law of fociety ; a pirate being, according to fir Edward Coke k, boftis humani generis. As therefore he has renounced all the benefits of fociety and government, and has reduced himfelf afrefh to the favage ftate of nature, by declaring war againft all mankind, all mankind muft declare war againft him : fo that every community hath a right, by the rule of felf-defence, to inflict that punifhment upon him, which every individual would in a ftate of nature have been otherwife entitled to do, any invafion of his perfon or perfonal property.This is under the chapter "Of the law of nations" and this is offense #3 that is commonly noted as being against the law of nations. Blackstone is succinct that anything that would be an act of war in a subject of a Nation is, when done without warrant or National backing, piracy. The United States was fully cognizant of this, and had Vice Admiralty Courts in some of the colonies (the Massachusetts colony, as an example), so when the Revolution came, the idea of having such a concept embedded in the new Nation would have been present. Indeed, in the long list of the bill of particulars of the Declaration of Independence, there are some items dealing with the laws of the sea and the laws of nations:
BY the antient common law, piracy, if committed by a fubject, was held to be a fpecies of treafon, being contrary to his natural allegiance ; and by an alien to be felony only : but now, fince tha ftatute of treafons, 25 Edw. III. c.2. it is held to be only felony in a fubject l. Formerly it was only cognizable by the admiralty courts, which proceed by the rule of the civil law m. But, it being inconfiftent with the liberties of the nation, that any man's life fhould be taken away, unlefs by the judgment of his peers, or the common law of the land, the ftatute 28 Hen.VIII. c.15. eftablifhed a new jurifdiction for this purpofe ; which proceeds according to the courfe of the common law, and of which we fhall fay more hereafter.
THE offence of piracy, by common law, confifts in committing thofe act of robbery and depredation upon the high feas, which, if committed upon land, would have amounted to felony there n. as, by ftatute 11&12 W.III.c.7. if any natural born fubjeft commits any act of hoftility upon the high feas, againft others of his majefty's fubjefts, under colour of a commiffion from any foreign power ; this, though it would only be an act of war in an alien, fhall be conftrued piracy in a fubject. And farther, any commander, or other feafaring perfon, betraying his truft, and running away with any fhip, boat, ordnance, ammunition, or goods ; or yielding them up voluntarily to a pirate ; or confpiring to do thefe acts ; or any perfon confing the commander of a veffel, to hinder him from fighting in defence his fhip, or to caufe a revolt on board ; fhall, for each of thefe offences, be adjudged a pirate, felon, and robber, and fhall fuffer death, whether he be principal or acceffory. By the ftatute 8 Geo. I. c.24. the trading with known pirates, or furnifhing them with ftores or ammunition, or fitting out any veffel for that purpofe, or in any wife confulting, combining, confederating, or correfponding with them ; or the forcibly boarding any merchant veffel, though without feifing or carrying her off, and deftroying or throwing any of the goods overboard ; fhall be keemed piracy : and all acceffories to piracy, are declared to be principal pirates, and felons without benefit of clergy. By the fame ftyatutes alfo, (to encourage the defence of merchant veffels againft pirates) the commanders or feamen qounded, and the widows of fuch feamen as are flain, in any piratical engagement, fhall be entitled to a bounty, to be divided among them, not exceeding one fiftieth part of the value of the cargo on board : and fuch wounded feamen fhall entitled to the penfion of Greenwich hofpital ; which no other feamen are, except only fuch as have ferved in a fhip of war. And if the commander fhall behave cowardly, by not defending the fhip, if fhe carries guns or arms, or fhall difcharge the mariners from fighting, fo that the fhip falls into the hands of pirates, fuch commander fhall forfeit all his wages, and fuffer fix months imprifonment.
[..]And this was followed up with:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.As part of that long list were things that established Nations did in the Admiralty realm that were being neglected or even transgressed against the People of the colonies. The Crown was going *against* the laws of the high seas as it existed, and was seen as illegitimate for that. By not hearing the pleas of subjects, by ruling without regard to established law and by going against the most basic sea rights of the colonies and even suspending or abolishing established courts, the Crown was seen, itself, as violating its compacts with its colonies. Further, the Crown then waged illegitimate war on its subjects, attacked coastlines and shipping and impressed individuals to fight against their own people in the colonies.
This was seen as unlawful under common law and even under the basics of the law of nations: not only was the Crown waging war and transgressing against its own people, but by doing so without giving them any ability to be heard in parliament. This was seen as illegitimate warfare to suppress the colonies and they revolted. The Declaration of Independence serves as a touchstone of what, to the US, is and is not legitimate in the way of the use of force by a sovereign power over its own people when said people are would normally have rights of redress via the courts and legislature. George III had gone piratical against the colonies at sea and on land and waged illegitimate war because he refused to uphold his own laws to hear grievances and have parliament address them. That was an act of an outlaw, stepping beyond the law. A Sovereign Nation may do that to enemy Nations, once declared, but to do that to one's own people when they have right of redress that is suspended from them is not legitimate.
Yes, the US is founded in a fight against an illegitimate war against its own people. That *was* what it was about about and it was war not waged for booty or personal gain, but as an act to suppress subjects of a Sovereign who was abusing said subjects and not giving them the rights that had been given mandate by the Magna Carta, and following laws, and by the concept of the Westphalian Nation State. (also text of Magna Carta here)
To run the Revolution and the Nation immediately after the Revolutionary War, the Articles of Confederation were established. This document was a relatively loose framework between the States so as to allow each to be Sovereign and yet have Confederated powers between them. One of these was addressing piracy:
IX.Here the Congress reserves for itself the right of creating the courts that will oversee all the interactions of the States with foreign powers, and will include determinations on piracy. The United States was not born into the modern era of grand Nation State warfare, but into the rough and tumble of those waging war on land and sea that are no Nation. The Letters language, here, indicates that such in time of peace is only done by Congress, and that all felonies on the high seas is amenable only to the courts set by Congress for the Confederation. That said, as each State is a true Sovereign, they also get their territorial or near sea jurisdiction, but it must conform with Confederal laws in that realm. This era of the 'prize capture' was one when smaller Nations often could not raise or keep a Navy and depended upon their merchantmen for defense. By outfitting merchant ships with arms, the Nation could be defended and the right to captured material and goods was a form of payment done, usually via auction. The system of Prize Courts is one in which acts of war and piracy are determined and the legitimacy of prizes is sustained when merchantmen fight for their Nation. Also note that this system of warfare is NOT limited to the seas and that captures on land or 'reprisals' against Nations at war or against those waging illegitimate war are fully upheld.
The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article -- of sending and receiving ambassadors -- entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever -- of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated -- of granting letters of marque and reprisal in times of peace -- appointing courts for the trial of piracies and felonies commited on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.
Prize Courts are of the Admiralty Jurisdiction, but civil in Nature, but often had naval officers or tribunals to determine the state of the law. A 'rough and ready' era of warfare and civil law, to be sure, and as later treaties would outlaw the use of privateers and codify everything to military jurisdiction, most of the piracy laws would fall, by default in the US and UK, into the civil realm. As it was civilian control of the military, so it was civilian control over the courts overseeing the Admiralty jurisdiction. And it is a separate jurisdiction *within* our current federal law, even though it falls under the US Code, and is heard by the Federal Courts. The reason this was done in the Articles of Confederation is that there was no Executive to serve as Head of State for the Confederacy: Congress had EVERYTHING that concerned the overall operation of the Confederacy under its power. That was the operation of the Confederation, which would give the States great say, except over all things foreign which was held as a common cause amongst them.
In the US the first Congress with the Judiciary Act of 1789 would further that, to remove any Naval input into the procedure, with this:
SEC . 9. And be it further enacted, That the district courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. And shall also have cognizance, concurrent as last mentioned, of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And shall also have jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offences above the description aforesaid. And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.Do note, however, that in admiralty and maritime jurisdictions trial by jury is not necessary. I do love those minimums that are allowed for others to decide upon! 30 lashes, $100 fine or 6 months or less imprisonment! Those were the days of real maritime jurisdiction. It is here that the Federal Courts get the law of nations jurisdiction from, also. That was more than reasonable at the time, as most of the admiralty and maritime cases, even then, dealt with navigation, safety and contracted payments. That remains the case to this day.
[..]
SEC . 19. And be it further enacted, That it shall be the duty of circuit courts, in causes in equity and of admiralty and maritime jurisdiction, to cause the facts on which they found their sentence or decree, fully to appear upon the record either from the pleadings and decree itself, or a state of the case agreed by the parties, or their counsel, or if they disagree by a stating of the case by the court.
SEC . 21. And be it further enacted, That from final decrees in a district court in causes of admiralty and maritime jurisdiction, where the matter in dispute exceeds the sum or value of three hundred dollars, exclusive of costs, an appeal shall be allowed to the next circuit court, to be held in such district. Provided nevertheless, That all such appeals from final decrees as aforesaid, from the district court of Maine, shall be made to the circuit court, next to be holden after each appeal in the district of Massachusetts.
[..]
SEC . 32. And be it further enacted, That no summons, writ, declaration, return, process, judgment, or other proceedings in civil causes in any of the courts of the United States, shall be abated, arrested, quashed or reversed, for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleading, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall specially sit down and express together with his demurrer as the cause thereof. And the said courts respectively shall and may, by virtue of this act, from time to time, amend all and every such imperfections, defects and wants of form, other than those only which the party demurring shall express as aforesaid, and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts respectively shall in their discretion, and by their rules prescribe.
[..]
Part of the modern day haziness on piracy is due to this era of warfare, before the modern, having captures of prizes serving as payment to merchantmen and other companies serving under the banner of the Nation. There is a linkage between these things, but they are NOT concurrent: the activity of waging war illegitimately is, separately, seen as an offense against the law of nations. The activity of taking prizes for auction, as part of that era of warfare, comes UNDER the heading of it and when done illegitimately then falls under that broader concept of wars waged against the law of nations. The heading of that is given many names, but piracy has stuck the hardest in the mind due to a certain romance of those casting off all connections with civilization and then preying upon civilization for sustainment.
The law of nations did proceed as a concept from the founding of the United States, and as a full Sovereign Nation, we had input to that outlook. One of the writers of that era was Monsieur Vattel who would dedicate a series of books to defining the law of nations and giving voice to the common framework of the nation state system. Book 4, in particular, deals with the pointy end of State to State conduct, and would seek to give deeper outlook into what is and is not allowable under that system of the law of nations. The following is from paragraph 67:
Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.Again, the declaration is precedential in typification: legitimate warfare is taken up by Nations while predatory wars are taken up by groups and individuals with no lawful backing. This is a hard and fast distinction between what is and is not seen as lawful by the law of nations, and without any Nation State backing, warfare is illegitimate. This is extended in paragraph 68:
In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.The actual things that Nations may do to those waging illegitimate warfare is to treat them as robbers, which on the battlefield was due some of the harshest penalties including summary execution. Here the concept of 'depredation' is used to characterize this unlawful warfare and that piracy falls into the category of 'predatory warfare', which also includes bandits and such behavior. As this goes against the law of nations and, indeed, is a threat to all nations, 'predatory warfare' is a scourge of mankind as it seeks to bring down civilization by holding to no strictures of the nation state concept.
With this we hit the hardest and fastest problem with those wishing to make terrorism something that is fit only for the courts: it is an offense against the very nation state system which makes such courts possible. This is mankind at its basest form in which individuals and groups of them declare that there is no law over them save what they set for themselves, and then wage war on humanity. In past the piracy laws have dealt with the sub-species which plunders, but not entirely and not all the time. We actually have laws on the books against piracy, but we have NONE on 'predatory warfare'.
Yes, coming from the era of the Hague and Geneva conventions, after the Treaty of Paris outlawing privateers, it was thought that no one would do that! Indeed, piracy laws on the books were thought to cover the various species of 'predatory warfare' and yet, today, in this highly and extremely legalistic environment, we find that those exact, same laws do NOT do so. Instead there is this running around trying to make some brand, spanking new term of 'terrorism', which was USED by pirates to attack folks and appear horrific and horrible, but to call that same activity today, shorn of booty, rum and parrot, now has all sorts of folks going all colly-wobble. Apparently trying to define a tactic used in 'predatory warfare' is NOT addressing 'predatory warfare'.
Even more fun, since the US does NOT define privateering and piracy as the same thing, and cannot because of the US Constitution, we come to the glorious conclusion that all those lovely treaties on warfare, necessary to restrict and humanize it as best as can be done for Nations have ZERO applicability to those waging 'predatory warfare'. When sending soldiers out to fight such critters, and when they are captured and found to be 'illegal enemy combatants' you have just defined 'predatory warfare'. It is a crime, and indeed the HIGHEST CRIME, against the law of nations as it seeks to remove the entirety of the Nation State system from this planet and replace it with personal warfare waged by unaccountable warlords. These individuals see no need to follow any law or be held accountable to it, not *just* robbery... although a number of them still do *that* too. Nor *just* robbery by attack on the high seas, although that still goes on to this day off of the eastern coast of Africa, in the near Asiatic waters, and even, if reports be heard about Jamaat al Muslimeen and the such, in the Caribbean. Apparently the way to get money is no longer *just* on the high seas or even primarily from it. Far easier to be a 'terrorist' extract funds from people too afraid to attack you, set up lawless camps in the high mountain regions or in jungle areas that can't be easily controlled or to exploit Nations too weak to fend off such outlaws, and then with those funds to work your will upon the world at large.
And yet we dare not call it 'warfare' nor codify it because that would give 'legitimacy' to such actors! Yes, calling them 'predators' and sentencing them to, say, life imprisonment as is done for pirates, is just far too much for the sensitive stomachs of the legal profession and the international law folks. There is a large portion of the legal community that wants to make damned near everything 'civil law', but they are stuck because they want to define a stinking TACTIC as illegal.
And what does *that* look like? Well, it has 904 Sections to it. Paragraphs and sub-paragraphs galore.
And the Piracy Statutes? A grand total of: 10. And the verbiage is tart and straight to the point.
Do we see a problem here?
So while the military shouldn't be in the business of trying those committing illegitimate acts of war against the US, perhaps civil lawyers shouldn't be influencing the writing of the law for it either. In fact, at this point in time, looking at the Piracy and Terrorism laws, the brevity of the former is something to applaud and heartily and hang my head in shame at the over-lawyered, weasel worded, multi-level, beast that forms the 'anti-terrorism' law in the US. If you can't simply call it a form of predatory warfare under the law of nations and unwarranted by any nation, then why not just SAY SO? Just like is done in 18 USC 1651:
Sec. 1651. Piracy under law of nationsYeah. One sentence. Simple, short and to the point. How about this one, 18 USC 1653:
Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.
Sec. 1653. Aliens as piratesModel of brevity, while giving maximum flexibility. And making war at sea just against the citizens of the US is enough to do it, too... which is very, very strange as these are, by common agreement, 'outlaws', 'bandits' and waging illegitimate warfare... so, if they attack US citizens using warfare on LAND they are SAFE? Let me get this right: you can wage all the unaccountable war you want at sea and be a pirate, but go after citizens of the US via illegitimate warfare on land and we do NOTHING? Remember, piracy is a sub-set of 'predatory warfare' not the other way around. In theory a Nation should do something... but when the Nation is too weak or subverted or those doing this out of the reach of the law?
Whoever, being a citizen or subject of any foreign state, is found and taken on the sea making war upon the United States, or cruising against the vessels and property thereof, or of the citizens of the same, contrary to the provisions of any treaty existing between the United States and the state of which the offender is a citizen or subject, when by such treaty such acts are declared to be piracy, is a pirate, and shall be imprisoned for life.
Thus you have it in the modern world: it is open season on citizens of all Nations by terrorists! Especially those 'terrorists' not of a Nation operating in a Nation too weak to counter them! They are not like pirates at all, right? Not pulling into a safe harbor to threaten the locals or anything, right? Don't mind the terrorist acts committed against the US in Iran, Beirut (three times!), Saudi Arabia (twice), Tanzania, Kenya, Yemen... that is just from two organizations. I mean waging war against the law of nations at sea is far, far different than waging war against the law of nations on land or in the air! And if those Nations can't bring themselves to call the organizations that sponsored and carried out such things as 'outlaws' or 'pirates', well we can't very well use our social values there, now can we? So you terrorists just keep on doing that and no one will really do much of anything to stop you, save put down hundreds of paragraphs of law that no one can read in which, if we can ever catch you, you have a good chance of skipping on it as it is just 'civil law' in support of 'civil administration' and not the Nation as a whole.
Much thanks to the lawyers and legislators and transnationalists of the modern world for signing the death warrant of civilization!
Too bad we can't call predatory warfare for what it is... just like piracy. Or re-examine the laws to see if what we truly were trying to get rid of was all forms of predatory warfare, of which piracy is a noxious sub-species that interbreeds with the main stock pretty often, or just the one type that keeps on cropping up. You are the folks that want to abandon the law of nations and go for some lovely international law that can't even describe predatory warfare. You've only had since the 1960's to do so, and failed mightily at it. Actually counter-productive as the organizations have become more plentiful, have more adherents and attack more brazenly than ever before.
So forgive me if I am not impressed with those who do want to utilize the law to protect those attacking it from the outside.
You know? Outlaws? Terrorists? Bandits? Brigands? Pirates? We are not placing them outside the law... they do that on their own.
hostis humani generis - enemy of mankind?
And the next time we have to go against those waging illegitimate war, can we send the lawyers in FIRST? They are so hot to help out and prosecute things, it is only right to see which is the worst predator of mankind: lawyers or those waging war illegitimately. Because I don't see us being made any safer by putting them in AFTER the hard work is done and then working very hard to LOSE it for us.
Now with that I am done ranting, it is time for the Supreme Court to weigh in, with the case of US v Wiltberger (1820), in which the following is given in the ruling section of the case:
Indeed it has already been, in effect, decided by this Court, that the statutes of Richard are not in force in the United States, as limitations of the admiralty and maritime jurisdiction granted in the constitution. By the judiciary act of 1789, c. 20. s. 9. seizures under laws of impost, navigation, and trade, on waters navigable from the sea by vessels of ten or more tons burthen, as well as seizures on the high seas, are expressly included in the admiralty and maritime jurisdiction of the District Courts. It is evident that Congress could not give the District Courts, acting as Courts of Admiralty, cognizance of any causes which were not 'of admiralty and maritime jurisdiction,' within the true meaning of the constitution; because, it would deprive the parties of their constitutional right of trial by jury. The objection was, therefore, very early taken, that seizures in ports, and in such navigable waters, as above stated, were not causes of admiralty and maritime jurisdiction, because those places were not, according to the common law interpretation in England of the statutes of Richard II. within the jurisdiction of the admiralty. But this Court has repeatedly overruled the objection, (La Vengeance, 3 Dall. 297. The Sally, 2 Cranch, 406. The Betsey and Charlotte, 4 Cranch, 443. The Samuel, Ante, vol. I. p. 9. The Octavia, lb. p. 20.) and thereby established the doctrine that the constitutional admiralty jurisdiction includes ports, arms, and creeks of the sea, as far as the tide ebbs and flows.Now the ability to reach to pirates is, indeed, given here. This does, indeed allow sovereignty to a Nation of its waterways, but a foreign vessel that arrives is *still* on the high seas until it reaches fresh water or inland waterways. This is of particular interest to one attack, in particular that I went through in the previous post: that upon the USS Cole as it was re-fueling in Yemen on a 'good will visit' as an emissary of the United States. The argument is that the attack, taking place in Yemeni waters is under their jurisdiction. That is the case for the attack right up to the point it hits the USS Cole and damages it. Then the US, receiving an attack upon its vessel, while at sea, acting as an emissary above and beyond its normal protections, gives the US the ability to prosecute under the law of nations. That comes from three places:
The learned reader will observe, that this position is not disturbed by the decision of this Court in the case in the text, (The U. S. v. Wiltberger,) or by that of the United States v. Bevans; (Ante, vol. III. p. 336. Bevans; (Ante, vol. III. p. 336. 387.) the only question in those cases being, not what was the constitutional authority of Congress, but how far it had been exercised; not what was the extent of the admiralty and maritime jurisdiction granted in the constitution, but how far it had been conferred by Congress upon any particular Court of the Union.
1) Being in a saltwater environment which, while in Yemeni territory, is still viewed as the high seas by the US. We are there at invitation and protected via treaty and the Sovereign Nation of Yemen, and a vessel of the United States is considered under the laws of same for all activities on board the vessel and happening to it. This is three protections guaranteed by the law of nations: the vessel itself with its on-board law, the right of passage through Yemeni territory and not allowing an emissary to come to harm. Each of those was violated by the warlike attack. An attack upon the high seas that violates the law of nations is: piracy. One count for EACH violation as they are separate guarantees amongst Nations.
2) As being considered an extension of the United States, the USS Cole was attacked without warrant and the attack was disavowed by the Nation of Yemen. The attack was supported and accredited to and admitted by al Qaeda. Being no Nation it has no ability to legitimately wage war upon the US and that is an offense against the law of nations known as: predatory war.
3) By being no sovereign and basing an attack from sovereign waters upon a foreign vessel, al Qaeda violates the freedom of navigation and safety granted by Yemen of its near seas. This is a violation of Yemeni rights more than that of the US, and we suffer the effects of it in (1), but the Nation of Yemen suffers it directly and is a violation of the law of nations.
And as the Supreme Court, in particular, is very jealous of its rulings and precedents, and had already beaten down a number of statutes by Congress on this issue by 1820, it is very hard to believe that the US would sign over the sovereignty of its vessels to foreigners when still in a navigable environment not yet inland from the sea.
It appears that buried within the mass of law and decisions that there is some knowledge of this thing called 'law of nations' in the US and how to apply it. As I have pointed out before, on the military side between 1863 and 1898 the US Army did, indeed, summarily treat those acting like 'terrorists' as 'highway robbers or pirates'. And I place a whole lot more stock in Abraham Lincoln to authorize something that is legal and lawful for the armed forces than I do on the modern day crop of lawyers to make international law.
If 'Honest Abe' can find reason for the Army to throw those who wage illegitimate war into the category of 'pirate', then what is our problem?
