21 August 2007

The murky lines of authority

In this lovely era of high tech and rich commerce, the commercial side of the law has made inroads to just about everything. And as so much of that is contract law on the Civil Law side, we tend to think that *everything* on the Civil Law side is *about* Civil Law. The era of the late 19th to mid-20th centuries saw many fine and exacting definitions of Nation States, Treaties to change military behavior and to give a hard and fast defining line between Military and Civil law. Such was always not the case, however, and there is one remnant of that era when the hard divisions between Civil and Military Law were not clear nor distinct.

This was the era of the High Seas before the founding of the US, and to understand *our* lineage of courts and law, we must go *back* to English Common Law and the views of that upon this other area of Law that transgressed against the Sovereign and yet was done by individuals of many Nations upon the commerce and Sovereign operations upon the High Seas and Inner Seas. The distinction between those would become codified by international Treaty and agreement to settle out to the 3-mile territorial limit for the Inner Seas of a Nation and everything outside of that, in common and open use, the High Seas. That said, the question that vexes us today, of what to do with non-Nation State actors waging indiscriminant war and plunder on the High Seas was a problem. Was it Military Law or Civil Law? These were crimes against the Nation, after all, but what about how to handle them?

At the time of the founding there were many sources on this sort of law which was run by the Admiralty Lords of England and by similar Lords or Nobles in other Nations. That tells you the kind of lineage it has for the immediate past, but goes even further back as seen by Courts of Admiralty in Colonial America (Carolina Academic Press, Durham, NC, 1995)[pdf reprint here], Chapter 1, p. 4 on Substantive Law [note abbreviations for this piece are: Lord High Admiral of England (“LHA”), High Court of Admiralty (“HCA”)]:

Courts of admiralty administer the specialized law of the sea called “admiralty law” or “maritime law.” This law has no connection, in history or in principle, with the common law.[36] In England it has always been referred to as the “civil law,” in the sense of “continental law” in contrast to the common law.[37] Basically this is Roman law onto which have been engrafted concepts and procedures developed by merchants in European ports of the Mediterranean, Atlantic Coast, North Sea and Baltic. An important part of maritime law thus acquired the name “Law Merchant.” Many principles of this ancient and specialized area of law are still with us today.38 An example is the law of charter parties.

The common law of England originated in its feudal society, with the great additional influences in the 11th century of the Norman Conquest and in the 18th century of a developing market economy and the Industrial Revolution that continued into the 19th century. The maritime law, on the other hand, originated in the practices of merchants along the southern, western and northern coasts of continental Europe. Gradually, this “Law Merchant” was absorbed into the continental or “civil” law which had its own roots in the Roman law. Beginning in about the 13th century the law maritime commenced its immigration to England, a process that has never completely ceased.[39] This cross-Channel transplant was welcomed by the Court of the High Admiral (later, the HCA), which was taking form about 1360 for reasons of commercial convenience. English merchants, who were beginning to deal in international trade, needed a substantive law that had international recognition and uniformity. They also needed a procedure of summary justice that would resolve commercial disputes promptly and allow them to get back to sea. The law merchant and the law maritime of continental Europe satisfied these two needs; the common law did not.

Fortunately, this medieval commercial law was codified in some of the major ports of the Western World. The most important were the Consolato del Mare of Barcelona, the Rolls of Oleron (a French Atlantic island) and the Town-Laws of Wisby (a Swedish port in the Baltic). Other codes originated in the ports of Pisa (now Italy), Damme, Flanders (now Belgium), and Hamburg and Lubeck (now Germany).[40] These codes, and many other maritime laws and regulations, are preserved in the famous Black Book of the Admiralty which originated about 1450 as a form of manual for the judges and practitioners in the HCA.[41]
This lineage starting at Roman trade law then moving into the era of the Nation State in Europe would have some different outlooks upon it by different legal systems. Yet it is the English system of Common Law that would come to hold for itself and its colonies, which would include the US Colonies. It is, indeed, useful for Commerce and Trade between Nations upon the High Seas, although that expanded definition would take some time to manifest between Inner and High Seas. Now this system would later change as folks got to thinking about it, and a further passage from Admiralty Court in Colonial America helps to get this across:
Several civil law countries have contributed to the development of English maritime law. The contribution of Spain (then Castile) was the Consolato del Mare,[42] which was often cited by 19th century American admiralty judges. The maritime law of Holland was almost pure Roman law which, strangely enough, was absorbed into Scots law. The typical civil law countries were then, and still are, Germany and France. The former produced the codes of Hamburg and Lubeck previously mentioned. In recent centuries the German input has been minimal. However, mention should be made of an important treatise by a German writer Frederick Jacobsen, Advocate, of Altona, and titled Laws of the Sea With Reference to Maritime Commerce During Peace and War (1815). This treatise was translated into English by William Frick of the Maryland Bar and re-published in Baltimore in 1818.

France has made very important contributions to the substantive maritime law of England and the United States. There is a list of learned writers on the subject in the French language that rivals those writing in English. Prominent French writers of the 17th, 18th and 19th centuries and the subjects on which they wrote were: E. Cleirac (1661) (Usages and Customs of Sea); R. Valin (2 vols., 1766) (The Marine Ordinance of Louis XIV); P. Boulay-Paty (3 vols., 1821-22) (Maritime Commercial Law); and J. Pardessus (6 vols., 1828-41) (Collection of Early Maritime Laws). Three writers of the 18th century are worthy of special mention here because they were translated into English and re-published in the United States, thus demonstrating the influence of French maritime law in this country: D. Azuni (2 vols., 1766; American ed. New York, 1806) (Maritime Laws of Europe); B. Emerigon (American ed. Baltimore, 1811; translation by John E. Hall of the Maryland Bar) (Maritime Loans); and M. Pthier (2 vols., 1761; American ed. Philadelphia, 1826) (Maritime Contracts).

A third civil law country, Belgium, has made unique contributions t the maritime law. In 1896 a Belgian maritime lawyer founded the Comite Maritime International (“CMI”) as a spin-off from the International Law Association, and it has always been administered from Belgium. The objective of the CMI was to unify private international maritime law through the medium of international conventions adopted by the various maritime countries. The first was the Brussels Collision Convention of 1910, followed by conventions on such subjects as salvage and carriage of goods. The official texts of the conventions are in French. Unfortunately, the United States has adopted very few of these conventions, not including the Collision Convention.[43] However the Supreme Court has recently approved the doctrine of proportionate fault that had originated in France and was embodied in the Convention.[44]
American views on the Common Law and Civil Law aspect of the Admiralty Court would be a multi-source influence, then. English Common Law would be a major force behind it, but other views upon what the Admiralty Courts cover would come from different Nations. While an established court in the US, the ability of the US to adapt to Treaty and convention was also needed, but the plural nature of different Admiralty Courts in other lands would lend itself to a uniquely American Admiralty Court. One of the interesting aspects of the Admiralty Courts is that they were not regularly held in England and, so, were late-comers to the concept of 'judicial precedence' when making decisions. As cited later, a system of doctor's notebooks of notes taken at such trials would serve as a basis for later precedent, but in the UK that would only happen in the 19th century! Yes, after the founding of the US.

One of the main things that Admiralty Courts dealt with was Piracy and, again from Admiralty Court in Colonial America a last passage on the unique nature of this court sytem is viewed:
For completeness a few words should be said about the substantive law of prize. It is unique in several respects. Obviously there is nothing comparable in the common law, but it is surprising to find that the medieval codes do not touch the subject. Prize law involves the law of nations, of war, of neutrality, of nationality, of capture, etc. The classic writers are Vattel, Grotius and Puffendorf. Dr. Browne has chapters on the law of nations (I) and the law of the prize court (VII). Henry Bourguignon thoroughly discusses the law of prize as developed by Sir William Scott, the greatest of all prize judges.

Certain unique features of the substantive instance law find no counterpart in the common law. Not all of these, however, were characteristic of the admiralty in the 17th or 18th centuries but developed in the 19th or even 20th century.
And that may now be extended to the 21st century, as there is *still* nothing like it to handle these things. Little did you know that there was a court to handle the commerce involved with the Law of Nations against Pirates that would involve war and such. While the majority of case load of the modern court has been subsumed into the Civil Court system, there are still those acts that show up as clearly and specifically designated for Admiralty Courts. The Sir William Scott mentioned did, indeed, put down a very broad view of Admiralty Court, and this bit from Wikipedia looks at this view which gets picked up into the Admiralty Court concept and do note that bit at the end:
The chief doctrines of international law with the assertion and illustration of which the name of Lord Stowell is identified are as follows. The perfect equality and entire independence of all states (Le Louis, 2 Dod. 243) a logical deduction from the Austinian philosophy and still one of the fundamental principles of English jurisprudence; that the elementary rules of international law bind even semi-barbarous states (the Hurtige Hane, 2 Rob. 325); that blockade to be binding must be effectual (the Betsey, I Rob. 93); and that contraband of war is to be determined by probable destination (the Jonge Margaretha, I Rob. 189). In the famous Swedish convoy case (the Maria, I Rob. 350; see, too, the Recovery, 6 C. Rob. 3489) Lord Stowell asserted that a prize court is a court not merely of the country in which it sits but of the law of nations. The seat of judicial authority, he added, in words which have become classic, is indeed locally here, in the belligerent country, but the law itself has no locality. His dictum concerning the right of a belligerent to sink a neutral ship, when unable to take her before a prize court, was much quoted in 1904 in reference to the sinking of the Knight Commander by the Russians in the Far East.

The judgments of Lord Stowell were, almost without exception, confirmed on appeal, and they are to this day (as of 1911) the international law of England, and have become presumptive though not conclusive evidence of the international law of America.
There is firm and hard reasoning for you! "The seat of judicial authority is indeed locally here, in the belligerent country, but the law itself has no locality." That is one of the most succinct views of the Law of Nations that has been put forth and how to deal with it by, perhaps, anyone. Note that the Wikipedia entry is using the 1911 Encyclopedia Brittanica entry, and that leads to a different direction, too, as the US Constitution has not been Amended in this area nor can the powers defined in it be changed. One of the great problems of Wikipedia and modern encylopedias is that they are not, necessarily, written to inform the reader well enough to allow a good idea to filter through. And since the original 1911 source is available, it should be interesting to take a look at this area of the law there, as it should remain pretty much the same today, with exception of Treaties and such that would give some precision to powers, as it was then.

Dropping back to the 1911 Encyclopedia Brittanica we now look at the course of cases going through Admiralty Court via their Admiralty Jurisdiction article first looking to England and then shifting to the US:
Pirates, whatever flag they pretended to fly, were, from 1360 onwards, wherever their crimes were committed, subject to the admiralty jurisdiction. The criminal jurisdiction of the admiralty was first exercised by the High Court of Admiralty; and then, by virtue of the Offences at Sea Act 1536, transferred to commissioners appointed under the great seal, among whom were to be the admiral or admirals, his or their deputies. Admiralty sessions were held for this purpose till 1834. Admiralty criminal jurisdiction is now, by virtue of the series of statutes, the Offences at Sea Act 1799, the Central Criminal Court Act 1834, Offences at Sea Act 1844, and the criminal law consolidation acts passed in 1861, exercised by the Central Criminal Court and by the ordinary courts of assize. Special provision for trial in the colonies of offences committed at sea has been made by an act of William III. (1698-1699), the Offences at Sea Act 1806, and the Admiralty Offences (Colonial) Act 1849.


Marsden, Select Pleas of the Court of Admiralty, Selden Society, London, 1892 and 1897; Zouch, Jurisdiction of the Admiralty of England asserted; Robinson, Collectanea Maritimes; Brown, Admiralty; Edwardes, Admiralty; Phillimore, International Law, vol. i., vol. iii. part xi.; Pritchard, Admiralty Digest, tit. Jurisdiction. (W. G. F. P.) United States The source of admiralty jurisdiction in the United States is Article 3, � 2 of the United States Constitution: - "The judicial power shall extend to all cases of admiralty and maritime jurisdiction." The United States Supreme Court has declared that by virtue of these words the admiralty jurisdiction extends not only to the high seas but to the great lakes and the rivers connecting them, and to all public navigable waters in the United States (the "Genesee Chief" v. Fitz-Hugh, 12 Howards U.S. Rep. 443), including even interstate canals (Ex. p. Boyer, 109 U.S. Rep. 629, the "Robert W. Parsons," [1903] 191 U.S. 17), and is not confined to tide waters. The American colonies had vice-admiralty courts with an admiralty jurisdiction equal to the largest claimed by the English admiralty courts even under Edward III. When they became states they delegated to the federal government their several "admiralty and maritime jurisdiction," using these words in the sense understood in every country in Europe, England excepted, and in the sense in which they had then been used in the colonies for a long time, and without reference to the very narrow jurisdiction of the English admiralty courts then existing (Waring v. Clark, 5 Howards U.S. Rep. 441).

It is settled as to the United States admiralty jurisdiction not that it is "co-equal with that of the original English, or that of continental European admiralty, but is rather that defined by the statutes of Richard II., under the construction given to them by contemporary or immediately subsequent courts of admiralty" (2 Parsons Adm. 176), and that it embraced all maritime contracts, torts, injuries or offences (De Lovio v. Boit, 2 Gallisons Rep. 398; Waring v. Clark, 5 Howards U.S. Rep. 441), and that it has never been restricted by the action of the common law courts as in England under Lord Coke (2 Parsons Adm. 166 n.; Waring v. Clark; De Lovio v. Boit). Original admiralty jurisdiction was by the Judiciary Act of 1789 (U.S. Rev. Stats. � 563) granted to the United States district courts exclusively, except that concurrent original jurisdiction was given to United States circuit courts over seizures for slave trading, and condemnations of property used by persons in insurrection (� 62 9; � 5309), and in the coolie trade (� 2159), and by the act of the 3rd of March 1901; the supreme court of the District of Columbia is given the same jurisdiction as the district and circuit courts. The Supreme Court of the United States has no original jurisdiction in admiralty. All suits are brought in the first instance in the district court. Appeals lie, both on the law and on the facts, from a final decree of that court to the circuit court of appeals only, except in cases involving the jurisdiction of the court, the constitutionality of a law of any state or of the United States, or the validity or construction of any treaty of the United States, and except cases of prize and capital or infamous crime, in which cases of appeal lies directly to the supreme court. In cases of gravity and importance the Supreme Court may by certiorari review the judgment of the circuit court of appeals, but such cases are rare (re Lau Ow Bew, 141 U.S. Rep. 587; Benedict's The American Admiralty, � 607). Formerly the Judiciary Act authorized an appeal from the district court to the circuit court, and thence to the Supreme Court. But the act of the 3rd of March 1891 (Ch. 517) abolished this and created the circuit court of appeals, making it the final appellate court in admiralty, except as above stated. In any case where the district judge is unable to perform his duties or is disqualified by reason of interest or of relationship, or has acted as counsel for one of the parties to the action, it may be removed to the circuit court in that district (U.S. Rev. Stats. �� 587, 589 and 601). These are now the only cases in which admiralty suits can come before the circuit court (Benedict's Adm. � 321).

The subject matter in cases of contract determines the jurisdiction (the "General Smith," 4 Wheaton U.S. Rep. 438), and not the presence or absence of tide, salt water, current, nor that the water be an inland basin or land-locked, or a river, nor by its being a harbour, or a port within the body of the county, nor that a remedy exists at common law. The admiralty courts have jurisdiction over all matters that concern owners and proprietors of ships as such; possessory actions and petitory actions to try title of a ship; cases of mariners' wages, wharfage, dockage, lighterage, stevedores, contracts of affreightment, charter parties, rights of passengers as such (the "Moses Taylor," 71 U.S. Rep. 411), pilotage, towage, maritime liens and loans, bottomry, respondentia and hypothecation of ship and cargo, marine insurance, average, jettison, demurrage, collisions, consortship, bounties, survey and sale of vessel, salvage, seizures under the laws of impost navigation or trade, cases of prize, ransom, condemnation, restitution and damages; assaults, batteries, damages and trespasses on the high seas and navigable waters of the United States; but not suits in rem for duties (Benedict's Adm. � 303a).

The U.S. Supreme Court has held in Peoples Ferry Co. v. Beers, 20 Howards U.S. Rep. 393, and in a series of subsequent cases that a contract to build a vessel is not a maritime contract (the "Robert W. Parsons"). Contracts to furnish cargo for ships and to furnish ships to carry the cargoes are maritime contracts (Graham v. Oregon R. N. Co., [1905] 135 Fed. Rep. 608).


The admiralty courts have jurisdiction over crimes and offences committed upon vessels belonging to citizens of the United States on the high seas or any arm of the sea or any waters within the admiralty and maritime jurisdiction of the United States (U.S. Rev. Stats. � 5339). High seas include the great lakes. (U.S. v. Rogers, 150 U.S. 249). (J. A. BA.)

Yes, the US has put Pirate law into the Civil Code by law, that is by an Act of Congress, has moved the Admiralty Court to the Civil Court. It is a very strange thing that one of the first acts of Congress was to shift the Executive Authority to hold Admiralty Courts out of the Admiralty and into the Civil Courts, exclusively. Remember that was done in 1789, so why are they mentioned in the Constitution if the very first thing that Congress does is to remove that as a separate court system? The answer is that the States, having the Inner Seas and waterways also get jurisdiction on Piracy. Yes, Piracy can be tried in either State or Federal courts, as the States also have Sovereign Right over unmolested use of the Inner Seas and waterways. Thus the Admiralty Court is a jurisdictional court within the US, not a separate system as operated in the British Isles at the time of the founding.

Remember now, that the Common Law does, indeed, look at the normal crimes and such committed upon the High Seas and Inner Seas so as to give adjudication that is equitable as the activities were affecting commerce. Thus if you commit an act of war upon the US and are NOT a Nation State you can only be tried in Civil Court if you are brought in by civil authorities. While performing the act of war or fighting the forces of the US, you are under the Uniform Code of Military Justice as that is the separate jurisdiction.

A question arises, however, of those in the US illegally as violating the State Sovereignty and Equal Protection under the law, as guaranteed in the US Constitution. If they use weapons of warfare to attack and rob on waterways are they not *also* Pirates? By putting State based jurisdiction that answer is *yes* and, in fact, generalized attacks using warlike or intentionally destructive means to hinder or destroy the commerce of a State would also be an act of Piracy. That would put the attacks upon the World Trade Center in 1983 and 2001 as more than just bounded by standard Federal terrorist statutes: it would also apply to State based Piracy claims for NY State against al Qaeda as having, without warrant from any Nation, openly attacked the State of NY in a warlike fashion with an aim to destroy commerce of the State. A positive finding in *that* would label al Qaeda a Piratical operation which would then apply to the Federal government and all States as an attack upon one State is an attack against the equal protection of all States. That is why the US has different law outlooks from the UK.

Now what is the case for those that wage war just to threaten commerce and destroy commerce but not, of necessity, to plunder commercial trade? These are, under US law and many State's laws, Pirates. Sad to say that roaming armies, 'terrorists' and anyone forming into a non-Nation State organization to attack the US is not something else: the perform warlike acts but are not covered under Military Law. We can, and do give the UCMJ basic determination status, but once that has been determined an 'illegal enemy combatant' is about as far as we can go on that side of things, as they are 'combatants' but not within any legal context of National Law although they are within the context of the Law of Nations. That is why you can use the Armed Forces against Pirates, and the President is limited in abililty to strike back only against that organization that has had Piratical findings against it. So lets skip back a bit to the basics of Piracy to see if this yields different views that would benefit us in our 'civilized' modern times.

One of the books on law available to the founding generation was Blackstone's Commentaries, which yields up, in Book 4, Chapter 5: Of Offences Against the Law of Nations. One of the prime views of these offences is given in the following [and the original manuscript uses the "Long s" of manuscript form which turns into 'f' by modern character recognition, so some swapping of 's' for 'f' is necessary here and there, plus some 't' to 'f' on the same grounds] p.69 :
THE principal offence againft the law of nations, animadverted on as fuch by the municipal laws of England, are of three kinds ; 1. Violation of fate-conducts ; 2. Infringement of the rights of embaffadors ; and, 3. Piracy.
There are the three things that are violations of the Nation State way back in 1765-9: Violating a safe-conduct by which someone is allowed to traverse the territory of a Nation without molestation; doing anything to infringe the rights of Ambassadors as they represent the Nation which was often the Sovereign, but in modern times it is the Nation as a whole; and Piracy. On pp. 72-74 that last is addressed:
III. LASTLY, the crime of piracy, or robbery and depredation upon the high feas, is an offence againft the univerfal law of fociety ; a pirate being, according to fir Edward Coke k, boftis humani generis. As therefore he has renounced all the benefits of fociety and government, and has reduced himfelf afrefh to the favage ftate of nature, by declaring war againft all mankind, all mankind muft declare war againft him : fo that every community hath a right, by the rule of felf-defence, to inflict that punifhment upon him, which every individual would in a ftate of nature have been otherwife entitled to do, any invafion of his perfon or perfonal property.

BY the antient common law, piracy, if committed by a fubject, was held to be a fpecies of treafon, being contrary to his natural allegiance ; and by an alien to be felony only : but now, fince tha ftatute of treafons, 25 Edw. III. c.2. it is held to be only felony in a fubject l. Formerly it was only cognizable by the admiralty courts, which proceed by the rule of the civil law m. But, it being inconfiftent with the liberties of the nation, that any man's life fhould be taken away, unlefs by the judgment of his peers, or the common law of the land, the ftatute 28 Hen.VIII. c.15. eftablifhed a new jurifdiction for this purpofe ; which proceeds according to the courfe of the common law, and of which we fhall fay more hereafter.

THE offence of piracy, by common law, confifts in committing thofe act of robbery and depredation upon the high feas, which, if committed upon land, would have amounted to felony there n. as, by ftatute 11&12 W.III.c.7. if any natural born fubjeft commits any act of hoftility upon the high feas, againft others of his majefty's fubjefts, under colour of a commiffion from any foreign power ; this, though it would only be an act of war in an alien, fhall be conftrued piracy in a fubject. And farther, any commander, or other feafaring perfon, betraying his truft, and running away with any fhip, boat, ordnance, ammunition, or goods ; or yielding them up voluntarily to a pirate ; or confpiring to do thefe acts ; or any perfon confing the commander of a veffel, to hinder him from fighting in defence his fhip, or to caufe a revolt on board ; fhall, for each of thefe offences, be adjudged a pirate, felon, and robber, and fhall fuffer death, whether he be principal or acceffory. By the ftatute 8 Geo. I. c.24. the trading with known pirates, or furnifhing them with ftores or ammunition, or fitting out any veffel for that purpofe, or in any wife confulting, combining, confederating, or correfponding with them ; or the forcibly boarding any merchant veffel, though without feifing or carrying her off, and deftroying or throwing any of the goods overboard ; fhall be keemed piracy : and all acceffories to piracy, are declared to be principal pirates, and felons without benefit of clergy. By the fame ftyatutes alfo, (to encourage the defence of merchant veffels againft pirates) the commanders or feamen qounded, and the widows of fuch feamen as are flain, in any piratical engagement, fhall be entitled to a bounty, to be divided among them, not exceeding one fiftieth part of the value of the cargo on board : and fuch wounded feamen fhall entitled to the penfion of Greenwich hofpital ; which no other feamen are, except only fuch as have ferved in a fhip of war. And if the commander fhall behave cowardly, by not defending the fhip, if fhe carries guns or arms, or fhall difcharge the mariners from fighting, fo that the fhip falls into the hands of pirates, fuch commander fhall forfeit all his wages, and fuffer fix months imprifonment.
This *is* what the US had to work with, plus some help from France, Holland, Spain and such to try and figure out how to deal with Pirates, and the primary is robbery and depradation upon the high seas, which then brings up the concept that are both a singular offense, or are they separated but still the same concept? This is cleared up by the part that clearly and distinctly points out that it is those that put themselves under no law, no society, and seek to declare war against all mankind, that is the defining characterization of a Pirate. Every Nation has the right to defend itself against those that put themselves under no law, no authority save themselves and refuse to form a Nation or recognize Nations. These are Pirates.

Previously this had been under the Admiralty Court of England, at the time of writing, as given by Henry VIII, which also precludes such things as the use of torture and such upon Pirates. Those that commit such acts of robbery and depradation, those that abide by no laws over them, that comport to no Nation and are answerable to no authority are liable under the Piracy laws to be brought in and tried as Pirates. If it would be an act of war for a Nation to do an activity, then it is Piracy if a subject or individual does it without adhering to any authority of any Nation. The rest of the statutes cited, though archaic in reading, are almost word for word, save for penalties, as those found in the US Civil Code. While the UK would revive the Admiralty Court as a Court in the 19th century, the US, because of the Federal arrangement of the US Constitution, was forced to consider war making by those that are not Nations as only under Civil Penalty, save when captured during wartime.

The US Army has actually changed its outlook on this as Presidents, treaties and times shifted, and anyone who has read the post just previous to this, knows where this is headed. What happens with this change to the concept of Admiralty as jurisdictional court and not as separate court system, is that the Executive is left with the National Commander in Chief of the Navy power which had, under the English system, the appointment power for Admiralty Court. Shifting that to be a purely jurisdictional procedure to civil courts, at least on the National side, deprives the Executive of having a court system for the trial of those that would oppose the Nation without warrant. That court system would still be bound by US Civil Law, but would have the military backing and understanding of International events and what constitutes a war like activity. The US has not substantially missed this as the early era of the US was during the fitful and dying days of Piracy on the High Seas near the US, and as a threat to commerce it would remain a background but minor problem.

With the rise of terrorism and non-Nation State actors taking military means to enforce their views on the world, the US has no court system specificially designed to handle this. The Civil Courts can serve here, but swift findings on military matters is a paramount concern to the Executive and, in actuality, to the Legislative so that the type and depth of threat these new Pirates form can be adequately dileneated by military personnel in Civil Courts... run by authorized military personnel. The Navy JAG does serve that dual role but this is getting a bit ahead of things.

Looking into the Admiralty Administration (1911 Encyclopedia Brittanica), we see that the broad overview is:
The navy is the only force that can safeguard the British islands from hostile descents; it is the only force that can protect their vast sea-borne commerce and food supplies; by giving safety to the home country it sets British troops free for operations abroad, and makes their passage secure; and thus, as also by giving command of the sea, the fleet is the means by which the empire is guarded and has become a true imperial bond.
Again the British system is the starting point, but keep in mind the US system will vary from this. A bit earlier the lineage of the Admiralty is traced back to 796 and King Offa, which gives you an idea of how the Roman laws would get picked up by later European systems. The actual British system has its own murkiness due to the lack of records kept from at least 1700 to the mid-19th century, and in dealing with that the US system would have to cope. Their entry on the US system further down looks at some of how what was not clearly defined was regularized by the US Admiralty Administration system:
The president of the United States is commander-in-chief of the navy - a constitutional prerogative which he seldom asserts.

The Navy Department is administered by a civilian secretary of the navy - a cabinet officer appointed by Navy the president - who exercises general supervision. Next in authority is the assistant-secretary, also a civilian nominee, who acts as an assistant, and has, besides, cer taro specific duties, including general supervision of the marine corps, naval militia and naval stations beyond the continental limits of the United States. The details of administration are supervised by the chiefs of bureaus, of which there are eight. They are appointed by the president from the navy list for a period of four years, and have the rank of rear-admiral while serving in this capacity. They have direct control of the business. and correspondence pertaining to their respective bureaus; and orders emanating from them have the same force as though_ issued by the secretary.
Note the clear line of authority for establishing the Admiralty Administration starts at the President, as the powers given to that Office are those of the Sovereign Nation's People delegated to the President. As part of the US Navy Administration we get to the various offices and bureaus under the Secretary and one of those is of prime concern here:
Under the cognizance of the secretary's office is the office of the judge-advocate-general, an officer selected by the president from the navy list for a term of four years, with the rank of captain while so serving. He is legal adviser to the department,. and reviews the records of all courts and statutory boards. Under the cognizance of the assistant-secretary's office is the office of naval intelligence, which collates information on naval. matters obtainable at home and abroad. The staff is composed. of naval officers on shore duty, the senior in charge being usually a captain, and known as chief intelligence officer.
The Judge Advocate General, as part of the Secretary's Office also has purview to the records in the Office of Naval Intelligence. Today the line of authority starts from the President, goes through the SecDef to the Secretary of the Navy to Chief of Naval Operations from that, as seen at the CNO org chart, it then goes to the Vice Chief of Naval Operations to Director of Navy Staff to Director of Naval Intelligence. The US Navy JAG, reports directly to the Secretary of the Navy (as given at this org chart). The responsibility to do high level review of the legal status and classification of Intelligence is incumbant upon the Secretary to coordinate that with the USN JAG. The JAG's office has the Admiralty Court under its administrative oversight and it is their Regional Legal Services Offices (TSO's) that take on the following:
TSOs, their detachments and branch offices are organized into departments and divisions that provide services in the functional areas of trial counsel, command services, court reporting, international law (overseas TSOs), ethics counseling and command administration. Local conditions may require variations in organizational structure.
From this the place to *start* with looking at International Law and the Laws of Nations is *not* to Federal Court but to the Admiralty System with the international law under its purview, that then would, most likely, go to the Trial Judiciary (which puts out that 96% of its caseload is UCMJ, indicating a non-UCMJ caseload) which would most likely end up in the Washington DC court. That would be the outline of an Admiralty Court that covered more than just the US Navy questions via the UCMJ, but, as it has official Federal Court ruling capability would also serve the older Admiralty Court purpose of defining when the Nation has had its Sovereignty violated by the breaking of the Law of Nations by individuals and unaccountable groups and organizations.

That is if we had that sort of system, which we don't have. We are left without a traditional court system to better respond to attacks by outlaws and Pirates on the international scale. Instead we are left with the morass of the Federal civil court system that bends over backwards to ensure that individual rights are put above those of the Nation. That leaves us with very few ways to go at this point in time.

First is to actually prosecute al Qaeda and such in Federal court in the way the Mafia and other organized crime groups have been looked at, save for applying the Piracy statutes. A basic finding of Piracy on things like the USS Cole attack or the unwarranted destruction and loss of life from multiple attacks (the African Embassy bombings, OPM-SANG attack in Saudi Arabia, USS Cole attack, WTC 1983 bombing, 9/11 attack on WTC and the Pentagon) and get a finding that the outlaw attacks make al Qaeda a Piratical organization. Note that this would also apply to Hezbollah for their attacks on the US and its armed forces (1983 and 84 Beirut Embassy bombings, 1983 Marine Barracks bombing in Beirut, Khobar Towers attack in Saudi Arabia).

Second is to do the First, but for those attacks directly on US States. This would be New York (1983 and 2001 attacks), Virginia (2001 Pentagon attack) and Pennsylvania (Flight 93 hijacking). Each of those involves separate lines of reasoning with a common theme: attacks on commerce that were warlike and intended to disrupt State based commerce (WTC attacks), attack on National military installation on State soil (Pentagon), skyjacking with intent for warlike acts as Piracy, not just 'air piracy'. Each of those would be substantive threats to each State and a positive finding with review by the Supreme Court (as this involves alien Nationals) would then give a National finding of al Qaeda as a Piratical organization.

Third is the pathway opened up in the previous post: have the US Armed Forces review the rules promulgated in the 1863 FM-100 for legal clarity. Again, here is what the US Army used for Field Regulations and what was legal from 1863 to 1898:
Art. 82.
Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.
While a summary judgement, most likely with initial tribunal to decide if these were 'illegal enemy combatants'. Yes they are not 'public enemies' but enemies of the Nation State by their activities. Note that this does NOT contravene any part of the Geneva Conventions nor Hague Conventions and is fully supported by what the US has signed on to right up to this very day. This is not group judgement, although with enough individuals identifying with one organization that would soon be apparent, but just for their acts on the field of battle: out of uniform, attempting to appear as a civilian while, in fact, returning to combat, and not being under any National Army or other accountable chain of command.

Who does that? Why the President does, as given his Commander in Chief and Commander of the Navy and being the head of the Admiralty Court, that ancient part of the Chief of the Navy, he can very well say that such miscreants, picked up attacking the Armed Forces in the ways described can be put away for the terms set for highway robbers or Pirates. I haven't checked out what highway robbery can get you, but Piracy is life imprisonment.

My guess as this violates NO treaty, NO law and is fully compatible with the codes of conduct expected of all legitimate armies and combatants is that this is fully and completely legal. Be found to be an 'illegal enemy combatant' go to jail, for life, as a Pirate.

No laws broken. No need for Congress to get involved. No recourse save for the finding of 'illegal enemy combatant' and that is *that*. You can appeal the 'illegal enemy combatant' to the Supreme Court.

Lotsa luck, there.

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