Will Obama Prosecute the Captured Somali 'Pirate' in a US Court?
Habeas rights have been trashed, prisoners have been tortured and held without trial for years at Gitmo and Bagram. Obama should finally show respect for the legal rights of prisoners held by the US.
The airwaves, newspapers and websites have been saturated with coverage of the rescue of Captain Richard Phillips, the US citizen who was being held by four Somali "pirates" on a small lifeboat in the Indian Ocean, following the unsuccessful attempt by the Somalis to take control of the US-flagged vessel, the Maersk Alabama, a ship owned by a Pentagon contractor.
While details are still emerging, there are definitely some serious questions looming about how the decision to use lethal military force was put into play--in particular three key questions: 1. The legality of the killing of the three Somali men; 2. The political decision to kill them in light of long term potential consequences; and, 3: The legal status of the fourth Somali "pirate" allegedly in US custody.
First the background: We are told that on Friday, President Obama gave the military the green light to use lethal force to rescue Phillips. We also know that a group of "Somali elders" believed they were negotiating with the US to try to bring about a peaceful resolution to the crisis. Reports indicate that the Somali elders asked that the four Somalis be allowed to return freely to Somalia without being prosecuted in exchange for releasing Phillips. That was reportedly rejected by the US. On Sunday, the Somalis were told the negotiations were over and that the Americans "had another action." Shortly after that, lethal force was used--with Navy SEAL snipers on board the USS Bainbridge shooting dead three of the Somali men. The Navy says the snipers took the action because they believed Phillips's life was in "imminent danger"--this allegedly came when a Somali was pointing an AK-47 at Phillips's back. A fourth Somali citizen is in custody, though it is unclear when exactly he was taken by the US. Reports indicate that he had been stabbed in the hand in the initial "pirate" raid on the Maersk Alabama and, before the Sunday raid, had voluntarily left the lifeboat holding Phillips to seek medical attention from the US warships and/or to negotiate with the US side.
I have been in touch with two well-respected legal scholars, Francis Boyle from the University of Illinois College of Law and Scott Horton, a military and constitutional law expert. Both agree that the US had legal justification to use lethal force against the "pirates." Boyle said, "Technically, piracy is a felony under US law. And deadly force can be used against someone involved in the commission of an ongoing felony."
For his part, Horton said: "The legal rule historically is that pirates on the high seas are fair game for any country's military. In this case they kidnapped a captain and threatened to kill him, so the use of lethal force against them was fine from a legal perspective. (The bigger question was whether it was a wise thing to do, of course, but that requires an assessment of the entire tactical situation, about which I don't know enough)."
On that question, Vice Admiral Bill Gortney, head of the U.S. Navy's Bahrain-based Fifth Fleet, seemed to realize that there may be significant consequences for the decision to kill the Somali men. "This could escalate violence in this part of the world, no question about it," Gortney said. As Reuters reported, "Somali pirates have generally not harmed their hostages and officials fear they could now act more violently."
As one "pirate" said, "The French and the Americans will regret starting this killing. We do not kill, but take only ransom. We shall do something to anyone we see as French or American from now." Another added, "As long as there is no just government in Somalia, we will still be the coast guard... If we get an American, we will take revenge."
On the issue of jurisdiction to prosecute the fourth Somali "pirate," Horton said, "Pirates can be tried anywhere that exercises jurisdiction. Here they attacked a US-flag vessel, which means that the United States would have criminal law jurisdiction if it chose to exercise it."
There are certain to be calls from blood-thirsty lunatics to send this Somali man to Guantanamo or Bagram with right-wingers like Newt Gingrich and Cal Thomas wrapping this into their tired "Obama is weak on terror" narrative. As Thomas wrote last week on the Fox News website:
What will the Obama administration do if the pirates are captured alive? He won't sent them to Gitmo, which he is closing down. Will they get ACLU lawyers? Will there be testimony from a "pirates rights" group? Will they be released on a technicality after a trial in U.S. courts? If there is not as forceful a response as there was during the Jefferson administration, it will invite more of these incidents. The world's tyrants are watching to see how President Obama reacts. The message they get will determine how they respond to America and whether we will be in greater peril.
Indeed, The Wall Street Journal on Sunday called for the Somali man in custody to be "transferred to Guantanamo and held as an 'enemy combatant,' or whatever the Obama Administration prefers to call terrorists." On this point, Horton points out an interesting distinction between the Obama and Bush administration positions on "pirates," particularly as it relates to the "terrorist" label.
The big legal issue is surrounding calling them "terrorists," which the Bushies did with regularity and Obama resisted. I think that Obama and his people are correct. These people were motivated by the desire to make money, pure and simple, which makes them conventional pirates. If they were labeled "terrorists," the insurance company and the ship charter company wouldn't be able to negotiate with them or make a payment. Pirates they can still pay off, which will often be the most sensible and least costly solution.
If the US decides to pursue prosecution of the Somali "pirate" in custody in a US court, he would obviously hopefully have a right to a defense (which would clearly enrage the crazies) and the nature of that defense could well depend on what type of legal counsel he ends up with and how his lawyers present the motives of his actions, as described to them, in attempting to seize the Maersk Alabama. This could be a major test of Obama's legal interpretation of the rights of prisoners taken by the US in unusual circumstances (to put it mildly). In an era when due process has been trashed in the US and prisoners have been tortured at CIA "black sites" and held without trial for years at Guantanamo and elsewhere, Obama should allow exactly what Thomas and his ilk fear so much--respect for the legal rights of prisoners held by the US.
So what would a "pirate" defense actually look like? Remember, some Somalis--and other international observers-- do not exactly see the "pirates" as being 100% unjustified in their actions. This form of "piracy" really escalated after the 1991 collapse of the Somali government and Western ships allegedly dumping waste off the Somali coast and devastating the Somali fishing industry, a primary source of income in the Somali coastal areas where many of the "pirates" are based.
If Obama elects not to take the terrible option of sending the man to Guantanamo, it will be interesting to see if Obama elects to bring him to the US or, as has been suggested by some, prosecute him in Kenya.
As Professor Boyle pointed out, "certainly if he were tried in a United States federal district court, he could try to make the points [about dumping, etc], which is why they might send him to Kenya to avoid all of that... If i remember correctly, under the Geneva Convention definition of piracy (which is not precisely the same thing as the federal statute), the crime of piracy must be for a private purpose, not a public purpose. So he might be able to raise these issues on the question of intent--that he acted for a public purpose, not a private purpose."
Boyle later emailed me the following quote from St. Augustine:
Kingdoms without justice are similar to robber barons. And so if justice is left out, what are kingdoms except great robber bands? For what are robber bands except little kingdoms? The band also is a group of men governed by the orders of a leader, bound by a social compact, and its booty is divided according to a law agreed upon. If by repeatedly adding desperate men this plague grows to the point where it holds territory and establishes a fixed seat, seizes cities and subdues peoples, then it more conspicuously assumes the name of kingdom, and this name is now openly granted to it, not for any subtraction of cupidity, but by addition of impunity. For it was an elegant and true reply that was made to Alexander the Great by a certain pirate whom he had captured. When the king asked him what he was thinking of, that he should molest the sea, he said with defiant independence: "The same as you when you molest the world! Since I do this with a little ship I am called a pirate. You do it with a great fleet and are called an emperor."
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BBC NEWS | Africa | Somali pirates living the high life
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Pirate should not be tortured. We should respect human rights. The abuses at Gitmo are a national shame.
However, piracy is not justified. We have tried to help Somalia -- back in the early 90's we tried sending food and humanitarian aid, and were beaten back by tribal war lords who did not want their people receiving these things. I still recall the image of a U.S. soldier who they'd killed who was being dragged through the streets of Mogadishu.
Piracy is an act of war. The armed capture of a commercial vessel and hostage taking of crew members for the sake of trying to extract ransom is kidnapping and extortion. What makes it "piracy" is the fact that these people aren't operating under orders/authority of a recognized government.
If their complaint was not being able to ply their trade due to environmental concerns, I could sympathis. But, environmental remediation is not what they ask for. They ask for exorbitant amounts of money -- and they continue terrorizing peacegoing vessels in international waters.
Do a little historical research into piracy and you will find that pirates are NEVER 100% unjustified in their actions. The harsh draconian punishments of the past will prove just as counterproductive now as they were then. The best ways to deal with this phenomenon is to 1) allow commercial vessels sufficient firepower to defend themselves, and 2) really work HARD to address justified grievences and needs of those committing the piracy. (Somalia has had no real working government for many years now, and people there are desperate to survive.)
True!
These Somali pirates should consider themselves lucky that this isn't the 19th century, when they would have probably been captured by the British Navy, taken to London, then drawn and quartered.
Slavers and Pirates
1) People who buy and sell other people for a living are called slavers. When they capture their slaves off of ocean-going vessels, they are called pirates.
2) The US has jurisdiction to charge the surviving slaver/pirate with kidnapping.
The International Law of the Sea defines all countries a right to seize and prosecute those committing piracyon the high seas. 240 nautical miles, where the Maersk was siezed, is certainly the high seas.
The US Navy had the right to enter Somali territorial water in "hot pursuit" of the pirate vessel.
3) If this slaver/pirate is tried in the US as a juvenile, as he should be under US law, he will have no right to a jury and the judge setting the sentence will consider what the best interest of the juvenile.
4) In high-profile cases, prosecutors like to try juveniles as adults, so they get a hanging jury and a stiffer sentence. There may be some justification for this argument, since a child growing up in a failed state becomes an adult at 14 or so. (Do not confuse the extended adolesence that we have been lucky enough to be able to foster in the west with natural human development.)
5) Whatever sentence he recieves will be no deterrent to other slavers/priates.
6) Threats from other slavers/pirates should not convince us to allow them to continue ply their vicious trade.
I doubt the brains of 14 year olds mature faster (in a biological sense) in the developing world than in the US. At 14 years of age the brain has yet to have gone through neural connection pruning and developed into the fully adult stage. If there are any scientific studies that indicate neural development is different in different countries, I would like to hear about them.
Juvenile brains do not physiologically operate the same way that adult brains do. Teenagers are less rational than adults because their brains are still in flux, still changing and plastic. This is why no teenager should ever be tried as an adult.
Good points.
If they aren't "pirates", what are they?
Undocumented citizens?
Businessmen?
Poor deprived somalis?
Members of an organized crime organization, similar to the mafia.
Oh. You mean pirates?
If the ppl in gitmo had or showed respect for other ppl lives ie the US ppl,they wouldnt be in gitmo!!! I have no respect for them! so why should Pres Obama have respect for the legal rights of prisoners held by the US.
As stated before by Brian Ross..
Mr Hari's article is complete BS. These folks are criminals, pure and simple, an extension at sea of the lawless chaos of Somalia on shore. Mr. Hari glamorizes them as Robin Hoods of the ocean, but they are nothing more than sea thugs. The pirates of the Johnny Depp brand worked under the aegis of the Queen of England to plunder Spanish ships laden with gold. When they finished serving their useful purpose to the Crown, and began plundering English ships from time to time, the English navy extinguished them with predjudice.
Prior to that, Pirates were no more than the sea thugs of earlier centuries preying upon ships coming up from Africa and Asia. They are largely the reason that England developed such a strong and swift navy: To protect commercial interests at sea.
You do the crime you do the time!!!
Somalians with AK an 47; a sympathetic figure that needs our understanding and financial aid.
A Law abiding Americans with an AK 47; America's central problem and a revolting figure that needs to be legislated out of existance..
There is much speculation that European fishing fleets paid off Somali warlords to fish in their waters. Wouldn't that make the warlords at least partly responsible for their own nationals to 'turn to' piracy? let's not make too many excuses for them. Piracy has always been a problem in this part of the world, and it has also escalated because of the apparent willingness (rightfully so) of companies to pay for the return of their crews, vessels and cargo.
What will happen when someone can't pay them off?
A few quick points. 1 We acted correctly, the pirates had plenty of time to release the hostage, they already fired at him when he tried to escape once and the navy showed restraint by not killing them at that time. 2. You are no longer a child when you pick up an AK-47 and threaten to kill someone. This argument about us "murdering" children is preposterous. 3. Appeasement never works, it just emboldens the enemy. To those of you who said all we had to do is pay them off... remember how well appeasement worked for Germany in the pre- WWII era.
I hate violence like anyone else, I would have loved to see a peaceful resolution, but sometimes violence is justified, this was one of those occasions. President Obama made the right call here.
Somalia in 2009 is hardly comparable to Germany in the 1930's.
This may or may not have been the right call in the immediate situation. In the larger picture, there needs to be an international effort to rebuild Somalia and establish an orderly government so that people have their material needs met and some predictablility as to how they are going to continue to do so. Otherwise the world community is just blatantly and callously taking advantage of these people and it is only going to get worse.
You are both right. In this situation, the call was the right one. In the long term, allowing the piracy and ransom to continue is deadIy and only serves to make the problem grow.
At the same time, rebuilding of the country and assistance in building the government is essential. Somalia has significant resources. With structure and leadership, they can become a useful nation instead of the ultimate rogue state.
But rest assured, whether the Somali people accept assistance or not, the piracy must end, by force if necesary.
By the way, it is correct that Somalia in 2009 is not comparable to Germany in the 1930's. It IS comparable to Germany in the 1920's.
Reality is truly flushing the moral idiots out of the woodwork now, isn't it? On the left at least as much as the right. Sure, the SEALs are simply brutal child murderers. They should have let the Somali teens finish Phillips off, as if this were Clockwork Orange in black. I think we should write Congress demanding "sensitivity training" for the SEALs, who are obviously racist thugs. The times have exposed the complete bankruptcy of the Republican Party, but they're also exposing the complete bankruptcy of the stoned Boomer values of the Summer of Love, given the fact that we live in a world full of pirates, not people who want to share a Coke and teach the world "harmony."
Watch out Poland, the Somali pirates are coming for you! LOL
This was a deliberate act to further escalate this "piracy" on the high seas. It was too simple to allow the pirates to release the hostage and depart. They were out of food, water and ammo so there seems to be no reason for an executive action. This seems more like murder to me. I wonder how this would play out if the hostage had been killed by friendly fire? For the pirates this is about money and crimes on the ocean where genocide is being committed in the water and on the people on the land. If they hold to their word and decide to take revenge for this act against the US (And any others), it would seem justified to me. Be that as it may, the US is merely looking for an excuse to expand their drone wars to Somalia and the pirate havens. So much for negotiations-- We like to sit at the table with one hand above and the other below with a weapon (Blackmail more often than not) being held at the ready and the finger on the trigger. Guess that's why we are so well liked out there.
The pirates had GUNS, they were making aggressive movements which were interpreted as imminent to the killing of an unarmed hostage. They should be allowed to depart? How is that just?
no one [to my knowledge] said any of that!! I thought we were providing food, water & clothing--as far as ammo goes...i doubt they were out of it. If i'm incorrect could you please provide a link??
thank you!!
Awww... those poor, misunderstood pirates didn't mean anyone any harm. They're hungry and have suffered hard lives. That's why they've spent the last few years taking hostages at gunpoint and extorting millions from countries who would rather roll over and beg for mercy than stand up for the rights and safety of their citizens.
And shame on us for thinking that law and justice should be considered in the least when acts of aggression are committed against our people. We should just join the others in bowing down and showering our money on the heads of those misguided rascals. Kidnapping is such a minor thing anyway. Hardly worth mentioning. I'm sure if we wrote them a nice, fat check they'd all change their ways and be model citizens.
Get a grip on reality will you. Whether this man thought he had a basis for what he was doing or not...he was a pirate. He tried to hijack a ship on the sea, which is the very definition of the term. I'd like to see the issues that may have driven this man to deeds addressed but that doesn't negate the man's alleged crime. As soon as he committed piracy he was risking his life. The dingy or whatever it was was less than 20 miles off the Somalia coast and even closer to that nation's territorial waters. If the navy captain said the merchant captain was in danger I'm inclined to believe him given the circumstances. Whatever may have happened it had nothing to do with murder. The situation would have played out precisely the same as it did with the French boat stormed by French special forces with the death of a French citizen (unfortunate bu the fault was with the pirates not the French special forces who tried to make a rescue). If Somali pirates seek revenge my response would be to escalate the situation to a point they couldn't afford to pay. The end never justifies the means and what these men are doing is wrong. Dumping waste ff the Somalia coast is wrong and the world should do something about it but thinking that piracy is going to help is nonsense.
gee, if they were so desperate, why didn't they let him go - before the cavalry showed up??!!!!
Or after, a lifeboat is not a match for a destroyer.
The "pirate" we captured is a 16 year old boy who surrendered to our Navy. I doubt this child is sent to Guantanamo or any other of Bush's torture chambers. He can thank Allah he got captured during THIS administration and not the previous one, which is said to have had no qualms about torturing children.He'll b questioned, briefly detained and sent home.
One would hope this is what happens. At the very least, he deserves the same justice as anyone else received before Bush and his band of cutthroats decided to change the law. I fear the boy may end up in Kenya, which would be unfortunate but convenient for our government.
Where he ends up is for a court to decide. A hardy "Well done!" to the U.S. Navy.
Car84
Arming one side in war usually makes enemies of the other side, right? Killing where where we have no place in being also seems to create enemies. You do remember "Shock & Awe" don't you? You think invading and destroying Iraq just might have made a few Iraqis a little angry?
I have to set you straight here - Enemies are made, not born. The premeditated invasion, destruction, and occupation of Iraq gave birth to many new enemies for America. Again, enemies are made not born. See the point here?
Nice. Post outside of the context of my post.
My point was that our national security should not be dictated by whether or not someone will get mad at us if we react to real threats. "Enemies are made, not born" is just a meaningless platitude, meant to strip all accountability from your lovable loser criminals.
The pirates have NO legitimate gripe against the US. They are opportunistic thugs who decided to mess with the wrong country's military.
Insurgents in Iraq, Afghanistan, and elsewhere, are quagmired against us. At least I hope they continue to be, and soon will be dead. They wish to kill us. Them first, I say. We're mad, and shouldn't take it any more.
Actually, I think the situation is a bit more nuanced then you make it out to be. The pirates are mostly ex-Somalia fisherman who have seen their fishing resources destroyed all or in past by the dumping of wastes by western ships into their territorial waters after 1991 when their government ceased to exist. This gives them more than sufficient reason to be angry and to seek their own redress if in fact this is what occurred (it is my understanding that this is precisely what has happened). In some respects the statement, 'enemies are made not born' is a platitude but it is hardly meaningless. If you knew anything about history, you wouldn't make such a patently inaccurate assessment. There have been instances where enemies simply occur. But for the most part, people get pissed at each other for sound reasons that are hardly meaningless to the affected parties.
JoBangles:
We had no right to be in an international waterway?
I say they should let the pirate go back to Somalia.
Let his people know that we are civilized and just.
Let him explain that we negotiated for days with him and his cohorts.
He was witness to how we gave him proper treatment for his injury and treated him with civility.
It was the pirates who instigated this and they should have backed down when they had the chance.
And that they were foolish to ever attack a ship flying the Stars and Stripes.
We will not be bullied!
We understand their plight and will encourage the world's nations to work together to address the ills of the African continent.
This will take time.
What THEY did is not the right way of going about things.
Will it make difference?
Probably not.
But they can count on the results being worse next time.
The question is will we encourage the world to redress what has happened to Somalia. Let's not worry about all of Africa for the moment. The Somalians have a beef but I suspect no one has done much to find out what it really may be. I don't know. If their coastal fishery has been wrecked, is it reasonable to expect men to watch their families starve to death? I think not. Unless we are prepared to kill everyone living on the Somalia coast--we won't do this--then the cheapest way to resolve this is by figuring out what beyond common greed drives most Somalia pirates. I don't buy the notion that all of these men are driven by pure greed. If indeed that is the case; we have a serious problem because there are too many ships, too much ocean, and the West simply will not wipe out entire coastal villages to rid the area of piracy.
Very well said!
First: It would seem that this whole thing began in the 1990's when the ocean off of Somalia was used as a toxic dump which eventually destroyed their fishing and economy.
This should lead to the UN (or the nations involved) to own up to their own participation.
And do what they can to rectify this terrible thing.
This is the basis of the "legality" for the piracy in the first place.
THEN, ships which go through this area should be armed and, under controlled conditions, be able to
1 warn
2 shoot in defense
It’s so amazing the number of comments that’s calling for the death/torture of this 16 years old pirate. For goodness sake he’s a child and must be treated like one. For those who are advocating for vigilante justice and who also tell us they are liberals…shame on you. One must be gracious in one’s victory after all.
This captured “child-pirate” has committed a crime and for that he should receive nothing less than a fair trial in US courts. Let him have his day in court and let’s hear his story. I think it would be interesting to find out what forced him to this dead-end job. But then of course there are those who are blind to what really happened in Somalia in the past 18 years and how various US administrations were implicated in the chaos that exists. The seeds of piracy were sewn then and the developed/western world is seeing the result of the harvest.
So, you are saying this is not the pirate's fault? You want him brought to the U.S. because he has an "interesting' story? Would you feel the same way if it was your son/husband/father that had an AK-47 in his back? No doubt there were many injustices committed in around Somalia, but then, similar injustices have taken place all over the world. "Piracy" is a choice that him and his comrades made, a decision in which the opportuinity to become rich was stronger than the desire to protect one's well being. They had guns, this was not a "Robin Hood" situation.
No what is being said is that the kid deserves his day in sorry even if he committed murder. The crime is irrelevant. And it may well have been a Robin Hood situation. You don't have a clue what motivates this kid or most of the Somalia pirates. he deserves a trial and his day in court and if he has any interesting story then let's here it. Ultimately, that too should be irrelevant to the crime committed unless the ends justifies the means.
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