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.