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
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.
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.
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.
Undocumented citizens?
Businessmen?
Poor deprived somalis?
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!!!
A Law abiding Americans with an AK 47; America's central problem and a revolting figure that needs to be legislated out of existance..
What will happen when someone can't pay them off?
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.
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.
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.
thank you!!
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?
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.
We had no right to be in an international waterway?
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.
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
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.