[Edit of 22 AUG 2007] Note that this article on the Admiralty Court firmly places all Piracy law in the Civil Courts. Admiralty Court is a jurisdiction within the Federal court system, not a separate court and I do stand amended on that. The reasoning is that Piracy is a crime against society and Nation, thus a civil crime that involves having a Nation. That said it is also a crime against ALL Nations. I stand corrected!
I have looked at the Federal Piracy Laws in two posts: When Terrorists are Pirates, and A deeper look at Terrorism and Piracy, and why it matters.
This piece now works off of the more finalized views of the second piece, but do understand the background given in the first as necessary to this.
Piracy is an activity, which has bounds and definitions placed upon it of which the 'swashbuckling' form of it from previous centuries is only a sub-part of the larger and broader definitions of Piracy. Consider the very broad part of the US Code Title 18, Chapter 81 on this:
Sec. 1651. Piracy under law of nationsThis is the very broad view of keeping the traffic lanes on the seaways open from illegitimate and unlawful attacks, seizures and other activities that put the commerce of the seas and navigation of the seaways at peril. Those that endanger such, even if they endanger NO US owned or operated vessels, are Pirates. That is more simple brigandage upon the high seas, but also delineates that Nations at War are respected in their ability to hamper shipping against their enemies that directly supports those enemies, as that is a lawfully declared purpose of Sovereign Nations. Putting war material on a passenger liner, however, is a violation of that as it comingles civilian and military affairs in wartime and is, thusly, considered to be shipping in support of the war effort of one Nation.
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.
Beyond that, however, this is a very broad purposeful law that does NOT put forth that non-State organizations cannot be considered Pirates. In point of fact that is why the law is addressed in such a broad way: to include anyone who commits laws against Nations on the High Seas to put shipping at peril. And as Civil Law may not hold here, it is the Admiralty part of the US Armed Forces that are to apply these Laws.
Sounds ancient, doesn't it?
Consider this news report from 15 JUL 2006 by ABC News, confirmed by multiple sources:
JERUSALEM Jul 15, 2006 (AP): A missile fired by Hezbollah, not an unmanned drone laden with explosives, damaged an Israeli warship off Lebanon, the army said Saturday.Do notice the last section there.
The attack late Friday alarmed Israel because initial information indicated the guerrillas had used a drone for the first time to attack Israeli forces.
But the army's investigation showed that Hezbollah had fired an Iranian-made missile at the vessel from the shores of Lebanon, said Brig. Gen. Ido Nehushtan.
"We can confirm that it was hit by an Iranian-made missile launched by Hezbollah. We see this as very profound fingerprint of Iranian involvement in Hezbollah," Nehushtan said in an interview with The Associated Press.
Another Hezbollah missile also hit and sank a nearby merchant ship at around the same time, Nehushtan said. He said that ship apparently was Egyptian, but had no other information.
That, the unwarranted attack upon an unarmed merchant on the High Seas, is Piracy.
It does not matter if that was or was not a US vessel, that was an indiscriminant attack upon civilian merchant shipping. Therefore, all members of Hezbollah are Pirates and can be put away for life imprisonment under the Admiralty adjudication of the Laws.
Amazing, isn't it? One simple Law and all of one entire Terrorist Organization can now be gone after by the US. And if they resist arrest... well, not the thing to do if you are a Pirate now, is it?
How about the next law in line:
Sec. 1653. Aliens as piratesYet another way to look at Piracy, this time from the perspective of going after the US, vessels, property or citizens of the Nation. Again, an Admiralty Law, not a Civil Law.
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.
Now lets think upon the 1985 hijacking of the Achille Lauro cruise ship. That was an act of Piracy against a ship with the attacking and killing an American aboard, who was using civilian maritime transport which he had paid for passage on: Leon Klinghoffer.
Who was behind it? The Palestine Liberation Front and was led by Abbu Abbas ( Muhammad Zaidan ). This organization would later be funded and backed by Saddam Hussein. Over at the Terror Knowledge Base we get this from their entry on the PLF:
Current Goals: The PLF continued to carry out attacks against Israelis through the 80’s and 90’s, often employing unique techniques such as hand gliders, and even claimed a naval unit. Abbas and the PLF did, however, support the signing of the 1993 Oslo accords, and officially renounced terrorism against Israel. Abbas was permitted to move back to Gaza in 1996 under an Oslo-related Amnesty program. PLF involvement in terrorism was still suspected after 1993 due to the group’s distribution of Iraqi funds to Palestinian suicide bombers.By claiming a 'naval unit' and having previously performed Piracy, this organization continues its ways under that purview. Thus the whole of the PLF can considered to be a Piracy operation and can be brought in with life imprisonment for any involved with it.
Consider next the al Qaeda attack upon the USS Cole. As al Qaeda sponsored this operation and takes full credit for it and it is an attack upon a US Navy vessel and it being an act of war to attack same, all of al Qaeda is a Piratical operation. They can be brought in and sentenced for life imprisonment under the Admiralty Laws.
Dear me! In three actions we now have three organizations that claim to be merely terrorist organizations, but are, in fact, Piratical operations:
2) Palestine Liberation Front
3) al Qaeda
This is becoming a 'who's who' of Transnational Terrorism! Lets see what other lovely organizations there are out there that have performed acts of Piracy!
On 11 JUL 1988 the Abu Nidal Organization boarded and attacked a Greek Cruise ship killing one American. As with the Leon Klinghoffer case, this is Piracy, and even though Abu Nidal is now deceased, anyone who was a part of that organization is liable to be picked up for Piracy and put away for life.
On 06 OCT 2002 a Yemeni group attacked a French oil tanker and was claimed by the Aden Abyan Islamic Army. As with the Hezbollah attack upon civilian merchant shipping, this, too, is Piracy and while it may have been a small organization, anyone from it can be put away for life.
In 1984 the Suez Canal was mined damaging 19 vessels as of 20 SEPT 1984 and this was claimed from Islamic Jihad in Egypt, which may or may not have been supplied with mined from Libya and/or Hezbollah. All members of Islamic Jihad, for going after neutral civilian shipping in the transit waters of the Suez Canal are Pirates for doing so. Needless to say once they merged with al Qaeda, such members retain their previous standing and now have another mark against them.
Now, to understand how Congress gets to make these laws, we need to go to the Constitution and, in particular, Article I, Section 8, from which I shall excerpt the necessary passages:
[..]These are the Commerce regulation powers, High Seas powers, and the ability to make rules to govern those things for the US, as well as putting together rules for the Armed Forces so as to defend the US outside of the civil laws of the Union. Much of this is guided by Treaty for territorial waters, but the High Seas by ancient custom, has freedom of navigation upon it. There is no Empire over the High Seas and, thusly, Congress can make laws with respect to the High Seas in regards to its view of how the US seeks to safeguard that ancient custom.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To make Rules for the Government and Regulation of the land and naval Forces;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Now as navigation of airspace was not a possibility at the time of the writing of the Constitution, or not considered as something that could be addressed, the US Code has regularized the High Seas powers to cover non-territorial airspace and general navigation safety of airspace:
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.The emphasis is mine, of course. From this all air transport outside of the territory of the US and areas that have Treaty agreement jurisdiction do fall under the High Seas general power. Congress has attempted to skirt this by making 'terrorist' offenses and a separate category for 'air piracy' but it must be noted that those offenses are only valid inside the US and cannot be extended outside of it via the Commerce power for civil jurisdiction. It is possible to have a separate concept of 'air piracy' outside of US civil jurisdiction, but it is strictly limited by activity type.
As Piracy outside the US is delimited to commerce and the combined High Seas, Air Space and other Treaty coverage with Foreign Nations as part of that commerce power, the act of Piracy is given to the Admiralty for jurisdiction. Thus in 1653, above, it is time to take a look at the point of the activities as that is what defines Piracy. And as this applies to foreigners, it can be seen in the following view for each section:
"and taken on the sea making war upon the United States," - Any group or organization, including Nation States and actually attacks the United States while on the High Seas is a Pirate. That means these foreign organizations, by creating capability and utilizing it, in that utilization against the United States, are Pirates. The activity of war making is the key, not the source involved, and it is that activity that defines the punishment. Thus, while al Qaeda is *not* a Nation State its attack upon a vessel of the United States then make it a target of Piracy laws.
"or cruising against the vessels and property thereof," - Now here is an expansion of the definition as making war is also that of going against the properties of the United States. This is, as I have looked at in previous views, that property covered under the commerce provisions of the High Seas and its extension into the air. Such property would include: port or airport facilities, storage facilities such as warehouses, the actual points of business including offices and terminal placements for transacting commerce, and any and all equipment to move, transfer and otherwise conduct commerce in foreign lands that is owned, in whole or in part, by the United States. Any company founded or operating from the United States is protected by this provision not only on the High Seas, in open air space, but has these provisions so that the United States may protect these operations when they are attacked overseas.
"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." - Here the Treaty provisions are added into this, when attack citizens of the United States. Again, citizens overseas while conducting wholly legitimate commerce in foreign nations with the agreement of Treaties to provide for that, gain the protect of US laws in that commerce activity via the High Seas and extensions thereof. Any war like upon any individual in a foreign nation who is conducting legitimate commerce there under the Treaties between the US and that Nation is NOT TERRORISM. It is PIRACY. And this is, by custom, extended to the full time that an American citizen is in that Nation for that reason. Which includes, it should be reasoned, this thing known as 'tourism' where American citizens go overseas to give custom to foreign businesses to enjoy time in that Nation. Tourism *is* a commerce activity and anyone touring a foreign nation that is an American citizen and the US has normal Treaty relations to cover such trips is *protected* from attacks there that are warlike.
From that: any individual or group that sponsors or conducts attacks upon US citizens, US companies and any commerce capability of same overseas, including the property owned in whole or in part by same, are covered under Piracy provisions when attacked by those conducting what, under other circumstances, would be considered war-like acts. These are not simple muggings, rape and such. These things that are covered by Piracy laws are acts targeted upon US companies, its holdings or US citizens because they ARE from the US and the attack is directed to send a message TO the US by using war-like means.
And this also covers all US Federal Government property overseas.
Their penalty upon conviction by an Admiralty court: Life Imprisonment.
Now for the fun part of pulling down the support organizations to Pirates. The very next section starts on that:
Sec. 1654. Arming or serving on privateersThese are more traditional works of Pirates at sea. This deals with the era of Privateers, which were used as auxiliaries during wartime and to help go after Pirates. Some Privateers turned to Piracy, and this statute covers them. Do notice, however, that the concept of vessel to "commit hostilities upon the citizens of the United States or their property" also includes helping organizations get normal transport for their individuals to do that. And as this also extends to air transport, helping terrorists move around via sea or air to commit acts of war against the United States is aiding in Piracy. If you help others in boarding vessels with intent to harm or attack US citizens or their property, you are aiding in Piracy. This, as one may notice, also includes arming a vessel to do these things for plunder so as to profit by these acts.
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.
Notice that it is very unwise of American citizens to knowingly help organizations that target American citizens or their property. It is a felony.
Next up is a quick one:
Sec. 1655. Assault on commander as piracyThis does extend to aircraft not in US airspace as the High Seas extension to airspace puts the freedom of travel of vessels as paramount when engaged in commerce. If someone who is employed on a vessel attempts to stop a commander from resisting a take-over of a vessel, then that is an act that is Piracy. One gets life imprisonment for that.
Whoever, being a seaman, lays violent hands upon his commander, to hinder and prevent his fighting in defense of his vessel or the goods intrusted to him, is a pirate, and shall be imprisoned for life.
This is also a quick one, but has salient aspects to the modern era:
Sec. 1656. Conversion or surrender of vesselCaptains shall not steal thy vessels to sell them. Nor give such vessel to a Pirate. It is a felony. And it is damned hard to find a vessel under $50 of value in this day and age.
Whoever, being a captain or other officer or mariner of a vessel upon the high seas or on any other waters within the admiralty and maritime jurisdiction of the United States, piratically or feloniously runs away with such vessel, or with any goods or merchandise thereof, to the value of $50 or over; or
Whoever yields up such vessel voluntarily to any pirate--
Shall be fined under this title or imprisoned not more than ten years, or both.
Now comes a meaty one:
Sec. 1657. Corruption of seamen and confederating with piratesThis is the more general aiding and abetting of Pirates and do notice that it has a lengthy laundry list of things that will run one afoul of it. And, as Piracy has already been put down as war-like actions against the US and its citizens, both vessels and property engaged in commerce, that is the applicable standard to use for this.
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.
First is not to try and convince those that command vessels or who have access to the to commit Piracy or join up with same or even sell goods illegally to same.
Second is to not help Pirates with stores, ammunition or provisions of any kind. Do not aid them in their activities in attacking the US.
Third is not to create or convert vessels to provide help to Pirates, including delivery or transport of goods or even simple communications.
Fourth is a key to ending help with Pirates and I restate it, again:
"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"
Anyone who gives any help, advice, consultation, correspondence or actively confederates with Pirates can be charged under this statute when such aid is given to those known to be Pirates or even simple thieves and robbers upon the seas. This includes their organizations on land that have waged war upon the commerce of the US or its citizens. Those *are* Pirates.
The last is anyone who confines the master of a vessel, any vessel, is also covered under this statute.
One can be fined or put into jail for up to 3 years for doing these things.
As terrorists rarely plunder vessels these days, I will skip over the next two statutes which deal with attacks to plunder and plundering of those in distress. Likewise is receipt of stolen goods via Piracy skipped over.
There is a final one of interest and the last of the laws on Piracy:
Yes, if a member of an organization that has been deemed to be Piratical actually DOES try to rob you, they are liable to be imprisoned for life. They need only be engaged in a Piratical enterprise to be liable for this.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.
Now here is the question: Just how many terrorist organizations have used war-like capacity to attack US citizens engaged in commerce overseas, including tourists and businessmen, or otherwise attacked any US facility or property, owned in whole or in part by US companies?
Because those activities against the commerce of the US, as defined by the US Code, are Pirates. Even if they don't have a single sloop to their name.
The harder question is to name one terrorist organization that has NOT attacked the US or its citizens intent on sending a message while utilizing war-like capability to do so.
We certainly *can* imprison all such individuals who take part in such organizations for LIFE.
So, what is the problem at Guantanamo?
Seems like we have a lot of Pirates there.
Call them by their actions and charge them. We might not be able to figure out how to deal with them as 'illegal enemy combatants' but we sure, as hell, know how to put them away as Pirates.