The American Spectator : Pirates' Rights

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Pirates' Rights

By Brett Joshpe on 11.24.08 @ 6:07AM

How many lawyers does it take to apprehend a pirate?

The ABA Journal recently detailed the swath of lawyers (16 out of 25) populating the top echelon of Barack Obama's transition team. Both Obama and Vice-President-elect Joe Biden are lawyers, the first time Americans have elected an all-attorney ticket since Richard Nixon and Spiro Agnew. What can America expect from an executive branch teeming with lawyers? This month's scenes from the Somali coast might offer a troubling glimpse.

Pirates have seized nine vessels in the last two weeks and attacked at least 80 ships this year, threatening commerce and jeopardizing human lives. Most notoriously, they captured a super-tanker carrying $100 million of crude oil, and are holding the crew hostage for ransom. In an op-ed in Wednesday's Wall Street Journal titled "Pirates Exploit Confusion About International Law," David Rivkin Jr. and Lee Casey explained how legal uncertainty among governments is stymieing efforts to combat the pirates who are wreaking havoc on East-African high seas.

Rivkin and Casey observed that "America's NATO allies have effectively abandoned the historical legal rules permitting irregular fighters to be tried in special military courts (or, in the case of pirates, admiralty courts) in favor of a straightforward criminal-justice model…common criminals cannot be targeted with military force." They went on to explain that last year "the British Foreign Office reportedly warned the Royal Navy not to detain pirates, since this might violate their 'human rights.'"

Sound familiar? This legal confusion seems to mirror the puzzlement that hinders the War on Terror. For the incoming Obama administration, it has been fashionable to lambaste George W. Bush's "lawless" handling of the terrorism threat. Team Obama, which, thus far, has had the luxury of avoiding the choice between legal technicalities and human life, seems bent on operating with a pre-9/11 legal mentality that would treat Osama bin Laden and his followers as criminals entitled to due process. Obama has pledged to eliminate President Bush's military tribunals and to close Guantanamo Bay as one of his first orders of business. Where will Obama send these captives currently held there? Perhaps change will not be the only thing coming to America.

Many of these terrorist suspects could be tried in U.S. criminal courts where they will be granted constitutional rights and where procedural matters will trump the prevention of future acts of terror. Many detainees will also be released due to evidentiary standards that should govern America's streets, not the battlefields of Kandahar. In fact, in the first civilian decision on this matter, U.S. District Judge Richard J. Leon ordered the release of five terror suspects on Thursday. This is how the War on Terror is fought when a lawyer's mentality prevails.

Last summer, the U.S. Supreme Court ruled in Boumediene v. Bush that suspected terrorists captured in combat and held as enemy detainees had a constitutional right to habeas corpus. It was another example of lawyers injecting themselves into a policy arena where their absence was preferable. After the Court issued its ruling, Obama described it as "a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo -- yet another failed policy supported by John McCain." What exactly would qualify as a successful policy in fighting terrorism for Obama? Is the approval of Western European elites and the United Nations Obama's anti-terror gold standard?

Obama soon will become Commander-in-Chief and lead the international community whose affection he so clearly craves. His administration's cadre of lawyers can debate the legalities of fighting terrorists and pirates as if they still attended law school, institutions hardly known for inspiring decisiveness and moral clarity. Hopefully they will not debate too long and hard. After all, these are riddles only lawyers could create.

About the Author

Brett Joshpe is an attorney and entrepreneur in New York City. He is Of Counsel to the American Center for Law & Justice and co-authored the book Why You're Wrong About the Right (Simon & Schuster, 2008).

Letter to the Editor View all comments (18) | Leave a comment

Rocco| 11.24.08 @ 7:21AM

Too damned many lawyers in government will be the downfall of this republic. Witness the quality of legislation produced - crap only a lawyer would love. Clarity would definitely serve to get rid of the murkiness and ambiguity.

Regarding pirates, inability to strike at their home ports is definitely a lack of cojones across the board. I have a feeling the Chosen One will vote present and move on. The way to resolve this once and for all is to obliterate their home ports, one at a time. Failure to do this and the continued willingness to pay ransom will ensure continued practice of this piracy. We have the means to do it, but lack only the will.

kingfish| 11.24.08 @ 9:48AM

I read Boumediene v. Bush. The main concern the Court had was with the possibility of someone sitting in Gitmo for years who was wrongfully accused with little remedy or appeal.

There is a simple solution to remedy Boumediene v. Bush. Congress can designate that all of these Habeaus Corpus cases be handled by the DC Court. Then it can mandate that the court appoint a special judge or master to hear these cases. It can mandate that the judge shall obtain a high-level security clearance and will receive regular briefings from CIA and NSA. This will address the national security issues. the judge can also be authorized to travel to places such as Gitmo to hear such cases. This remedy would pass muster with the Court in its holding.

ncatty| 11.24.08 @ 9:50AM

Let the shipping companies increase speed, pull up the ladders, hire armed guards and bear the extra costs. This is not a crisis, it does not require naval action, and certainly does not require attacks and occupation of that worthless coast.

Robert| 11.24.08 @ 10:09AM

Shakespeare had it right about lawyers. They screw up everything in which they're involved. Wordcraft is replacing warfare...not a formula for elimination of sworn enemies of civilization. These pirates - like their landside brothers, terrorists, don't play by rules of law...the epistimology under which lawyers operate.

Of course piracy will increase, just like terrorism did under lawyer Clinton until someone with cohones (President Bush) came along and ran foreign policy at the point of a gun rather than pen. Sorry bleeding hearts...that's what the nasty world beyond our cushy shores understands, like it or not.

It will take a mega trade disaster on the lines of 9/11 to knock the world from it's Euro-induced stupor regarding maritime terrorism - exactly what piracy IS.

Maybe the Saudi tanker blown up by these pirates will be the catalyst for action, but most likely the Saudi sheiks will give in, paying the pirates ransom. This appeasement of course will encourage escalations just like Clinton's inactivity after the first WTC bombing in '93 encouraged Bin Laden to mount 9/11.

Obama, another lawyer surrounded by Clintonistas, is in over his head, clueless about the only solution to this crisis. Get ready for 4 years of terror on - and offshore while BHO studies case law for a solution!

Skip| 11.24.08 @ 10:16AM

Fast-roping Navy or Royal Marine commandos, from any nation, to take down the ships commandeered by pirates would do the trick. As far as "human rights" and justice are concerned, the pirates could have their choice of a bullet to the head and get tossed overboard or "walk the plank." Either way, the sharks win. In order to root out the problem, a few silent special boat units with commando teams could take care of the pirates in their home ports.

kingfish| 11.24.08 @ 10:18AM

If terrorism increases, so what? The people voted for this. They wanted it, they asked for it, so if something happens because of the Obama policies that is bad to the American people, oh well, they voted for it. and make that enthusiastically voted for it.

Jeremayakovka| 11.24.08 @ 12:07PM

Robert | 11.24.08 @ 9:09AM

Shakespeare had it right about lawyers. They screw up everything in which they're involved. Wordcraft is replacing warfare...not a formula for elimination of sworn enemies of civilization.
* * *
Yes, yes, and yes.
The precious quip instead should go:
"The first thing we do, let's kill all the terrorists."

Dean M. Vanderlinde| 11.24.08 @ 2:21PM

I recall a story from the 1980s when an enterprising individual applied to the Navy Department for a letter of marque to arm a ship to pursue drug runners in the Caribbean. His request was refused, although the law authorizing such actions from the early 1800s was still on the books.
If the government lacks the will to allow the Navy to pursue pirates, then perhaps they should issue letters of marque and allow the private sector to handle the problem.

Marcus Tullius| 11.24.08 @ 2:44PM

I am a lawyer, but I'm also a warrior. This should be easy enough for even an attorney to understand (after all, I do): If our military is engaged in combat and captures someone who moments before their capture was trying to kill them, their disposition does not fall under the purvue of American courts and the Constitution. If they are regulars their treatment is governed by the Geneva Convention. If they are irregulars their treatment is governed by the military and military courts. At no point should there be any question about 4th, 5th, or 6th Amendment rights - they do not have them. In combat, the bar required by those amendments is unrealistic and suicidal.

You lawyers do, of course, realize that insisting on any other interpretation will lead our troops in the field to refrain from taking prisoners? that will not be good on a hundred different levels: "Why should I capture the bastard if some lawyer's just going to set him free to try to kill me or my buddies later?"

Please see the movie translator's mistake in insisting on the release of the German captured by Tom Hanks' patrol in "Saving Private Ryan." The German was recaptured later in the movie, after shooting more Americans dead. Such a scenario would be more fact than fiction.

Reality takes precendence over law when the law fails to account for reality or the law forces a result inconsistent with the acheivement of the stated policy goals of the law. Here, we have both.

Greenhills Bill| 11.24.08 @ 2:58PM

Julius Caesar has the right idea. When pirates were harassing Roman commerce near Greece, he lead a squad of Roman galleys, attacked the pirates and crucified the survivors. the pirate problem disappeared. Being of humane temperament I recommend good hemp rope, or determining how pirates can swim in shark infested waters after a stuck pig is thrown in.

Tailgunner| 11.24.08 @ 4:31PM

NCATTY: How exactly will putting armed guards on an oil supertanker (AKA "floating bomb") prevent a successful pirate attack?

One RPG would cause an environmental catastrophe no Blackwater team could prevent.

L. Ross| 11.24.08 @ 5:11PM

Tailgunner:
The goal of a pirate attack is not to destroy the ship or the crew. If they do that, there is nothing to ransom. I don't understand why we don't put attack helicopters on these ships. There is nothing on a rigid/inflatable boat that could take a 5 second burst or fifty caliber rounds, much less 20mm cannon.

Mickey| 11.24.08 @ 7:11PM

The ACLU lawyers and their crying about how these terror suspects have "rights" as if they were US citizens goes beyond just baffling me--it flat out ANGERS me that they would be so dense and so ridiculous at the expense of our safety as a nation

dgdc| 11.24.08 @ 8:30PM

As much fun as living in anarchy would be the founding fathers were so shortsighted as to form a nation of laws. As for pirates, if the shipping companies would provide adequate guards and armaments on their vessels there would be fewer problems, but the calculus seems to favor paying ransoms rather than protecting one's property. Typical corporation mentality looking for a bailout when things go bad but not willing to pay for precautions when things are OK.

Thomas| 11.24.08 @ 9:42PM

The reason that Somali Pirates roam at will in the Indian Ocean and The Gulf of Aden, is simple. Money. The shipping companies, and their respective flag countries, don't want to spend it. They want somebody else to foot the bill. I am surprised that no attorney has filed suit against the Indian government for sinking the pirate mothership, last week. But the month is not over yet.

Ms. Know| 11.29.08 @ 2:42PM

Right, these elitist illuminati are cheap with the wrong things, and because of that, they don't have the proper guards on their merchandise. They have no one to blame but themselves.

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