At Large

Pirates’ Rights

How many lawyers does it take to apprehend a pirate?

By 11.24.08

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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.


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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).