20 May 2007

A deeper look at Terrorism and Piracy, and why it matters

Just a bit ago I looked at what Piracy is and what constitutes it, along with mere terrorism. Now it is time to put those together and find out just what activities will make a group, organization or individual eligible to be considered a Pirate under the Laws of the United States.

Needless to say I am not an international law expert, just interested in the topic and its applicability to the modern world.

So to recap the offenses which make up Piracy:

Sec. 1651. Piracy under law of nations

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 pirates

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.

Sec. 1654. Arming or serving on privateers

Whoever, being a citizen of the United States, without the limits thereof, fits out and arms, or attempts to fit out and arm or is concerned in furnishing, fitting out, or arming any private vessel of war or privateer, with intent that such vessel shall be employed to cruise or commit hostilities upon the citizens of the United States or their property; or

Whoever takes the command of or enters on board of any such vessel with such intent; or

Whoever purchases any interest in any such vessel with a view to share in the profits thereof--

Shall be fined under this title or imprisoned not more than ten years, or both.

Sec. 1657. Corruption of seamen and confederating with pirates

Whoever attempts to corrupt any commander, master, officer, or mariner to yield up or to run away with any vessel, or any goods, wares, or merchandise, or to turn pirate or to go over to or confederate with pirates, or in any wise to trade with any pirate, knowing him to be such; or

Whoever furnishes such pirate with any ammunition, stores, or provisions of any kind; or

Whoever fits out any vessel knowingly and, with a design to trade with, supply, or correspond with any pirate or robber upon the seas; or

Whoever consults, combines, confederates, or corresponds with any pirate or robber upon the seas, knowing him to be guilty of any piracy or robbery; or

Whoever, being a seaman, confines the master of any vessel--

Shall be fined under this title or imprisoned not more than three years, or both.

Sec. 1661. Robbery ashore

Whoever, being engaged in any piratical cruise or enterprise, or being of the crew of any piratical vessel, lands from such vessel and commits robbery on shore, is a pirate, and shall be imprisoned for life.

Those are the basics! Piracy, strangely enough, is NOT about theft, stealing, etc., although that *also* goes on. That said this *is* extended into airspace as seen later in the US Code, first with this general provision:
The application of the Federal Aviation Act of 1958 (72 Stat. 731; 49 U.S.C.A. Sec. 1301 et seq. [see 49 U.S.C. 40101 et seq.]), to the extent necessary to permit the Secretary of Transportation to accomplish the purposes and objectives of Titles III [former 49 U.S.C. 1341 et seq., see Disposition Table at beginning of this title] and XII [see 49 U.S.C. 40103(b)(3), 46307] thereof, is hereby extended to those areas of land or water outside the United States and the overlying airspace thereof over or in which the Federal Government of the United States, under international treaty, agreement or other lawful arrangement, has appropriate jurisdiction or control: Provided, That the Secretary of Transportation, prior to taking any action under the authority hereby conferred, shall first consult with the Secretary of State on matters affecting foreign relations, and with the Secretary of Defense on matters affecting national-defense interests, and shall not take any action which the Secretary of State determines to be in conflict with any international treaty or agreement to which the United States is a party, or to be inconsistent with the successful conduct of the foreign relations of the United States, or which the Secretary of Defense determines to be inconsistent with the requirements of national defense.
Needless to say the bolding and emphasis are mine, throughout. The FAA gets the overflight capability and oversight concept, but the Laws of the Sea are extended into airspace for general provisions and outlook (navigation excepted), although specific laws will be put in place the more general of the laws, being that of the High Seas is primary via precedence. Thus all the readings on Piracy are *also* extended into the air and while 'air piracy' will get its own view the general rules and customs in particular regarding making war upon the US is primary and has precedence.

This is expanded upon by the Emergency Powers of the President given a bit later in the US Code:
Sec. 40106. Emergency powers

(a) Deviations From Regulations.--Appropriate military authority may authorize aircraft of the armed forces of the United States to deviate from air traffic regulations prescribed under section 40103(b)(1) and (2) of this title when the authority decides the deviation is essential to the national defense because of a military emergency or urgent military necessity. The authority shall--
(1) give the Administrator of the Federal Aviation Administration prior notice of the deviation at the earliest practicable time; and

(2) to the extent time and circumstances allow, make every reasonable effort to consult with the Administrator and arrange for the deviation in advance on a mutually agreeable basis.
(b) Suspension of Authority.--(1) When the President decides that the government of a foreign country is acting inconsistently with the Convention for the Suppression of Unlawful Seizure of Aircraft or that the government of a foreign country allows territory under its jurisdiction to be used as a base of operations or training of, or as a sanctuary for, or arms, aids, or abets, a terrorist organization that knowingly uses the unlawful seizure, or the threat of an unlawful seizure, of an aircraft as an instrument of policy, the President may suspend the authority of--

(A) an air carrier or foreign air carrier to provide foreign air transportation to and from that foreign country;

(B) a person to operate aircraft in foreign air commerce to and from that foreign country;

(C) a foreign air carrier to provide foreign air transportation between the United States and another country that maintains air service with the foreign country; and

(D) a foreign person to operate aircraft in foreign air commerce between the United States and another country that maintains air service with the foreign country.
(2) The President may act under this subsection without notice or a hearing. The suspension remains in effect for as long as the President decides is necessary to ensure the security of aircraft against unlawful seizure. Notwithstanding section 40105(b) of this title, the authority of the President to suspend rights under this subsection is a condition to a certificate of public convenience and necessity, air carrier operating certificate, foreign air carrier or foreign aircraft permit, or foreign air carrier operating specification issued by the Secretary of Transportation under this part.

(3) An air carrier or foreign air carrier may not provide foreign air transportation, and a person may not operate aircraft in foreign air commerce, in violation of a suspension of authority under this subsection.

So here the seizure part is enumerated, but this is only to cover the seizure of an aircraft via terrorist acts, which are threats, coercion and so on. Aircraft get special jurisdiction seen in this part of the US Code:

Sec. 46502. Aircraft piracy

(a) In Special Aircraft Jurisdiction.--

(1) In this subsection--

(A) "aircraft piracy'' means seizing or exercising control of an aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent.

(B) an attempt to commit aircraft piracy is in the special aircraft jurisdiction of the United States although the aircraft is not in flight at the time of the attempt if the aircraft would have been in the special aircraft jurisdiction of the United States had the aircraft piracy been completed.
(2) An individual committing or attempting or conspiring to commit aircraft piracy--

(A) shall be imprisoned for at least 20 years; or

(B) notwithstanding section 3559(b) of title 18, if the death of another individual results from the commission or attempt, shall be put to death or imprisoned for life.
(b) Outside Special Aircraft Jurisdiction.--

(1) An individual committing or conspiring to commit an offense (as defined in the Convention for the Suppression of Unlawful Seizure of Aircraft) on an aircraft in flight outside the special aircraft jurisdiction of the United States--

(A) shall be imprisoned for at least 20 years; or

(B) notwithstanding section 3559(b) of title 18, if the death of another individual results from the commission or attempt, shall be put to death or imprisoned for life.
(2) There is jurisdiction over the offense in paragraph (1) if--

(A) a national of the United States was aboard the aircraft;

(B) an offender is a national of the United States; or

(C) an offender is afterwards found in the United States.
(3) For purposes of this subsection, the term "national of the United States'' has the meaning prescribed in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).
Now is 'air piracy', by that, Piracy? This outlook has separate view based on the fact that it is not being defined as an act of war. The attempt is to skirt that issue by including no Treaty language, so that simple air piracy can be differentiated from war-based piracy.

Terrorism has its own overview and that is given in this section of the US Code:
(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
Terrorism, then, is intimidation, coercion or threats upon civilians or governments, or attempts to to use weapons of mass destruction, assassination or kidnapping to further intimidate or coerce government. Again this are going after those things which threaten the conduct of daily life. Thus simple terrorism is different from Piracy by the *inaction* and being on the order of threats. When *action* is taken the step has been crossed from simple terrorism to Piracy. This is expanded upon by this part of the US Code:
Sec. 2332b. Acts of terrorism transcending national boundaries

(a) Prohibited Acts.--

(1) Offenses.--Whoever, involving conduct transcending national boundaries and in a circumstance described in subsection (b)--

(A) kills, kidnaps, maims, commits an assault resulting in serious bodily injury, or assaults with a dangerous weapon any person within the United States; or

(B) creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States; in violation of the laws of any State, or the United States, shall be punished as prescribed in subsection (c).
(2) Treatment of threats, attempts and conspiracies.--Whoever threatens to commit an offense under paragraph (1), or attempts or conspires to do so, shall be punished under subsection (c).
(b) Jurisdictional Bases.--

(1) Circumstances.--The circumstances referred to in subsection (a) are--

(A) the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;

(B) the offense obstructs, delays, or affects interstate or foreign commerce, or would have so obstructed, delayed, or affected interstate or foreign commerce if the offense had been consummated;

(C) the victim, or intended victim, is the United States Government, a member of the uniformed services, or any official, officer, employee, or agent of the legislative, executive, or judicial branches, or of any department or agency, of the United States;

(D) the structure, conveyance, or other real or personal property is, in whole or in part, owned, possessed, or leased to the United States, or any department or agency of the United States;

(E) the offense is committed in the territorial sea (including the airspace above and the seabed and subsoil below, and artificial islands and fixed structures erected thereon) of the United States; or

(F) the offense is committed within the special maritime and territorial jurisdiction of the United States.
(2) Co-conspirators and accessories after the fact.-- Jurisdiction shall exist over all principals and co-conspirators of an offense under this section, and accessories after the fact to any offense under this section, if at least one of the circumstances described in subparagraphs (A) through (F) of paragraph (1) is applicable to at least one offender.
So these are definitely actions taken against individuals and/or the United States itself, and is extended to killing, kidnap, assault/assault with a deadly weapon, puts individuals or property at risk for damage, and conspiracies to same WITHIN the territorial United States, which includes extra-territorial enclaves, known as Embassies. Included in the list of things are also all Federal employees or anyone working on behalf of the United States government (including contractors), and all Federally owned facilities (in whole or in part). Also note that co-conspirators and accessories *after the commission of such crimes* also fall under this statute. The inclusion, however, of all the sub-surface and airspace again gives further voice to the outlook on law extension, although this is more to define the entirety of the territory of the United States than anything else. Thus the High Seas Law under view of the Admiralty does not apply inside the United States for air traffic nor in defining terrorism.

However, by the extension of the High Seas view into airspace the breaking of a Treaty, of any sort, does apply. Thus simple 'air piracy' which breaks NO TREATY is different than Piracy inside the United States, but externally the High Seas extension and Treaty prevail as Congress cannot make law outside the United States (via the container concept I go over in this piece) save to regularize commerce via Treaty. And as non-Treaty Nations also use such air space, the more generalized rules for commerce and trade must apply, which is the High Seas.

Treaties to regularize air traffic and such are put into the US Code with suitable comments, amendments and so on here. Of these the Warsaw Convention covering international airflights is the best known, and gets printed on more air tickets and holders and such than one can easily handle, but such things as the Montreal Convention also apply with stipulations. But that is the Treaty language and requirement, so that each and every passenger knows what the international rules are. The Hague Hijacking Convention, as an example, provides for an incident to be ajudicated between Nations so that laws of both apply to the place where the incident happens. The 1973 Montreal Protocols on unlawful acts with regards to aviation talk much about civil penalties and extradition, which goes with the Hague Convention outlook. And those rules are one thing on the basis of language regarding the responsibilities of those seeking passage: vague.

All of this points to the problem of Nations treating terrorism as mere civil law violations: it does not address the fact that these are warlike acts performed by organizations that have, often, declared hostilities or war upon Nations and Peoples in an illegitimate fashion. Via this strange view, an organization can perform any level of violence via aircraft, or on the ground and not be held liable to it as an act of war that is a war crime. I looked at this in overview, previously, but the basics still hold that the activity being warlike or from a party declaring itself belligerent or at war with you then constitutes a war activity. What the High Seas outlook does, however, is place upon this view that the *activity* defines the sphere it is to be handled in. Air Piracy by an organization that has declared open hostilities is not, then, civil crime but war crime and Piracy, beyond being terrorism.

That then falls all the way back to the beginning of the post and those seeking to make war upon the United States being held to war crimes views and *not* civil crime views. The open establishment of an organization declaring itself hostile to the United States and acting in a way to bring the United States to harm then falls under the War Powers of the United States and its Piracy powers to bring such to heel. Those two things, combined, create a legitimate use of war power against such groups and, by putting them under the Piracy part of the US Code, also allows the legitimate targeting of those that aid and abet them.

By this line of thought, terrorist organizations that have declared their hostility to the United States are not *just* terrorists, but Pirates, too. So here are the categories:

  • Those that target US vessels or Federally owned or held buildings on land that are involved with the maritime, Admiralty or other related business outside the United States, and damage them using warlike activities are Pirates. This, by extension, includes all air facilities overseas and landing areas owned by the US, all US owned aircraft (in whole or in part), and all personnel related to that, via the extension of the High Seas provision outside the United States. Notice that ship to aircraft transportation and trucking is *also* part of this, along with related haulage and storage facilities owned (in whole or in part) by the US. This includes all commercial vessels and aircraft, their companies and firms utilizing air or sea transport. Actually, that is a pretty long list, when you come to think about it, especially when including the overseas US Nationals running ticketing offices and such.

  • Those that attack and damage or destroy US Embassies are attacking from a Foreign Nation's soil upon the extra-territorial enclave of the United States which IS part of the United States and that is an Act of War, even if it is not sanctioned by the host Nation. That activity warrants immediate reprisals and serves as a de facto Declaration of War or hostilities no matter who originates it (unless, of course, you are Jimmy Carter, in which case a retreat to the Rose Garden is in order). And as ALL US Embassies have US Marine Corps guards it is *also* an attack upon them and their offices which fall under the Admiralty, and those that do such attacks are Pirates. Ever wondered *why* USMC gets the guard duties? Fast, tough, effective and fall under the Admiralty, thus allowing the branding of Piracy *instantly*! Gotta love it!

  • Skyjacking when done for personal gain or from a group not hostile to the United States openly, or done to coerce or otherwise intimidate individuals or government, and when done to a US Citizen or on-board an aircraft that has *any* US ownership involved is terrorism, up to and including killing of innocents and destruction of aircraft. This includes when it is done overseas or within the United States. Examples of this are to get to a foreign nation or for personal robbery and such. This is 'air piracy' but NOT Piracy.

  • Skyjacking when done for purposes to attack the United States, its nationals, property, or is from a group that has declared open hostility with the United States is not just 'air piracy' but it is also Piracy.

  • Any US national that is robbed by a group that is a general outlaw group that is waging war, or performing warlike activities in any event, has suffered from a Pirate and that individual can get imprisoned for that even if their organization has not declared open hostilities with the US.
There, that ought to straighten things out a bit!

Terrorists who are part of organizations that have declared war on the US, and attacks the vessels, aircraft, land based facilities, personnel and networks between sea and air, owned wholly, or in part, by the US or its Citizens overseas is an act of Piracy and, thus, those doing so are Pirates. Anyone associated *with* said organizations by aiding and abetting them, are liable for the help they give Pirates.

Organizations that attack and damage US Embassies are Pirates.

Skyjacking is 'air piracy' but also Piracy if conducted by a group at war with the US. Otherwise it is simple terrorism.

Terrorists are those who do not declare war on the US, do not attack US Embassies, do not attack maritime and air assets (including terminals, cargo storage areas, transport vehicles) and their staff (Federal and Civilian, owned in whole or in part by same, all staff inclusive as this is seen from the commerce power side of things), and engage solely in threats and destruction without warlike intent against the United States and its People. Of course they just might be brigands (as cited in Rose v. Himley).

Of all of the above the air coverage and maritime interaction is the one that is the hardest to figure out. International Law, as such, is basically Nation to Nation contracts and agreements with only the backing of each Nation to give it force (which I went over in this post some time back). From that, then, the provisions for the Laws of the High Seas given to Congress extended into the Air domain for regularization and such is natural as it covers the same basic concept of freedom of navigation and movement upon the High Seas amenable only to Treaty.

Even so the rest still stands relatively well and finally gives a key tool for attacking the actual Transnational Terrorist Internetwork: those that have called for the destruction of the United States are not only Terrorists but also Pirates and those that associate with them can also be put into the category of aiding and abetting to the tune of a few years in jail. The anti-Piracy statutes are very basic, plain and 19th century and, thusly, easy to understand.

By calling activities of those groups actively calling for the attack or destruction of the US to be mere terrorists does *not* allow for the wider net to be cast against those aiding them on land or at sea as the terrorism laws go after individuals but the Piracy statutes go after entire organizations by this language: "Whoever consults, combines, confederates, or corresponds with any pirate or robber upon the seas, knowing him to be guilty of any piracy or robbery". That is language to go after groups, not just individuals because they are combining or confederating together while conspiracy is working together. There is a change in substance between the two: conspiracy means working with others to plan and commit, while confederate and combine means to pitch resources together or commit them together while working together which is a material combination of commitment rather than mere spoken commitment. That is what allows organizations to be put at the pointed end of the war powers: actual, material commitment.

The terrorism statutes are harsher on the Civilian side, but the war powers allow for expansive attack of terror organizations when they are considered Pirate cabals. And when using war powers 'resisting arrest' is *not* something considered: you either surrender or you do not. None of this 'struggling with officer concept', at all as this is military and not civil jurisdiction. And as it is entire organizations that are the target, they are *all* put up as fair game. War powers are expansive to go after full organizations by membership without having to prove individual conspiracy on an act-by-act basis. It is that latter that confounds stopping organized crime: the organization is left, even when the main actors are behind bars.

That is what the war powers are about: ending those working together to bring you down, not *just* the ones who attacked you, but their confederates and allies so as to put a stop and end to them. Perhaps we can start using them some day.

There, you have it! More legal concepts mangled in a shorter space than has ever been achieved heretofore!