Pirates and Terrorists

Officials in Washington are still struggling with how to deal with the alleged terrorists detained in Guantanamo.  One day the issue is whether some of them should be tried in a civilian court and, if so, where?  Another day the question is whether, and how, they should be tried by military commissions.  And then there is the thought that some of the detainees should just be held indefinitely without trial.

The most fruitful analogy for thinking about this problem comes from piracy.  (Eugene Kontorovich has an excellent paper on the modern aspects of this comparison coming out in California Law Review.)  Pirates and terrorists are both irregular enemies (or unlawful combatants) whose actions are clearly condemned by international law.  So I thought I would talk about the British experience with suppressing piracy to see what we might learn about dealing with alleged terrorists.

If you look at British practice (and I’m drawing here from Nick Leeson’s excellent book), you’ll see that they faced the same basic problem that we are dealing with — how do you prove in an ordinary trial that someone is a pirate?  The first British statutes (in the 14th century) provided that pirates be tried in an Admiralty court (without a jury) and that either a confession or the testimony of two eyewitnesses were necessary to obtain a conviction.  That eventually proved unworkable, so in 1536 Parliament passed the Offenses at Sea Act, which shifted pirate trials to common law courts (with a jury) and allowed a broader range of evidence to be introduced.  The problem here, though, was that this statute required the trials to be held in England.  That was problematic, for, as a subsequent law said:

It hath been found by experience, that Persons committing Piracies, Robberies, and Felonies on the Seas, in or near the East and West Indies, and in Places very remote, cannot be brought to condign Punishment without great Trouble and Charges in sending them into England to be tried within the Realm, as the said Statute directs, insomuch that many idle and profligate Persons have been thereby encouraged to turn Pirates, and betake themselves to that sort of wicked Life, trusting that they shall not, or at least cannot be easily questioned for such their Piracies and Robberies, by reason of the great trouble and expense that will necessarily fall upon such as shall attempt to apprehend and prosecute them for the same.

Consequently, in 1700 Parliament passed the “Act for the More Effectual Suppression of Piracy,” which stated that Vice Admiralty courts (without a jury) in the colonies could try pirates.  These courts were composed of seven commissioners and operated like a military commission.  (The Crown also offered a pirate amnesty and various rewards to merchant vessels if they captured pirates). This was still ineffective, though, because alleged pirates were often able to claim that they were “forced” into the pirate trade against their will and pirate crews worked hard to manufacture phony evidence of this in case someone was captured.  (Leeson discusses this in detail.)  As one prosecutor noted, “[p]lea of constraint of force [was](in the mouth of every Pirate”).  In the end, Leeson concludes that the use of force by the Fleet (more of less blowing up the key pirate bases) was necessary to stop piracy.

In this story we see many of the problems that plague current policy.  It’s difficult to obtain evidence (let alone witnesses) against alleged terrorists from foreign lands.  It’s easy for an alleged terrorist to claim that he is an innocent bystander.  It’s unclear whether jury trials are necessary or not.  Force may be the only solution.  The only thing I would note is that indefinite detention of pirates was never contemplated by the Crown.

Anyway, just food for thought.

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3 Responses

  1. As Larry May has pointed out, one problem with the terrorist/pirate analogy insofar as it goes back to the 16th and 17th centuries is that pirates were said to be outside any system of rules, their voluntary actions constituting a waiver of any rights they would otherwise be entitled to. I don’t think we should see alleged terrorists as having waived any rights, for surely the people in question “don’t recognize what they have done as constituting a waver,” and thus we have a rather tendentious employment of the concept of voluntary action.

    In addition, those who are terrorists are often individuals who, in their capacity as individuals and as members of organizations and movements, are capable of foreswearing use of terrorist methods over time (think of the ‘founding fathers’ of not a few nation-states who eventually became more or less conventional political actors accepting the rules of democractic governance), which is a reminder of their status as humans and thus, as May says, there is “no reason to think that terrorists are not owed what is considered the minimum for all humans,” that being “drawn in terms of both considerations of justice and humanity” (hence procedural justice along with a minimum amount of compassion, mercy, and justice).

    As May also informs us, in the case of both pirates and terrorists “there is a tradition that these people can be treated without restraint. The idea was that there were no limits to what could be deployed contra barbarum (‘against the barbarians’).”

    Before a trial there seems little justification for treating terrorists as international criminals, as if they’ve already been convicted of a crime. It thus behooves us to at least treat them with restraint and decency (the sort of humane treatment May argues for in War Crimes and Just War, 2007), given their status as prisoners utterly dependent on us.

  2. ParatrooperJJ says:

    The answer is simple. Don’t take prisoners.

  3. That’s not an answer but an evasion: its simplicity is in reference to its immoral substance, one that violates the principles of just war and humanitarian law, while doing dishonor to anyone who ever was or is a soldier. Perhaps some need reminder that

    “The general idea behind the rules of war…is that soldiers qua soldiers, have various duties (as well as rights). The best way to restrain soldiers who have been given a license to kill is to require the same restraints from each of them at a given time regardless of whether they fight on the just or unjust side of war. For soldiers not to be merely simple killers, they need to be men and women of honor, that is, people who kill but only under heavily restrained conditions and only behalf of their States, not for their own interests or pleasure. The idea of a ‘soldier’s honor’ is as old as war chronicles going back at least as far as the Iliad. Socializing soldiers to view their honor as of paramount importance is the chief way that soldiers are motivated to restrain themselves according to the rules of war. [….]

    Honor is a motive in that it influences the will in a certain way—namely, to follow certain moral rules scrupulously. [….] Soldiers don’t necessarily care about fellow soldiers fighting on the other side, but they do care about their own honor, their sense of being morally superior to others as scrupulous followers of moral rules. [….] Honor is the combination of enhanced respect for normal moral rules plus the respect for special rules that require conscientious reflection and socialized motivation crucial for humanitarian law’s requirement that soldiers act with restraint even when their lives are jeopardized on the battlefield. …[T]he primary motivation for humane treatment comes from a sense of self-worth of the person who acts humanely. Honor generally calls for acting in ways that we would not only approve of, but that we would seek to emulate and use as a basis for educating others. In fighting a war with restraint, we seek to to that which we would heartily approve of if it were aimed not at other but at ourselves. [….]

    A sense of honor offsets other emotions, especially anger, that can run so high in war. In ‘On Anger,’ Seneca rails against the sort of anger that he defines as ‘a burning desire to avenge a wrong.’ If States only instill a strict sense of justice—at least that form of justice that is based on what is owed to another because of what he or she has done—the violence of war can spiral out of control as we move from one angry episode of revenge taking to another.”
    Larry May, War Crimes and Just War (2007)