How to Define Piracy (Cont’d): A Critique of U.S. v. Said

by David Glazier

[We are pleased to have David Glazier, a professor of law at Loyola Law School Los Angeles, share his thoughts on the U.S. District Court’s recent interpretation of the piracy statute in U.S. v. Said]

As I read Judge Jackson’s decision, the crux of his holding boils down to the following syllogism:

(1) Federal criminal statutes must be interpreted according to the meaning of the words at the time they were enacted;

(2) The language in the current piracy statute was originally enacted in 1819; therefore,

(3) The current definition of piracy must be that understood in 1819.

The facts stated in the indictment are simply that “at least one person on Defendants’ skiff shot a firearm” at the USS Ashland. This act must either fall within the legal definition of piracy or the judge must dismiss this count. A literal reading of the Smith language excludes mere attempts at robbery, hence the decision to dismiss.

It would be relatively straightforward IF the 1819 statute (now 18 U.S.C. § 1651) stated the elements of the crime of piracy. Unfortunately it only refers to “piracy as defined by the law of nations.” Judge Jackson determines that the U.S. Supreme Court’s 1820 decision in U.S. v. Smith, upholding the validity of the 1819 statute while declaring that piracy is “robbery or forcible depredations . . . upon the sea” provides the applicable definition. While the court discusses subsequent cases and scholarship, it is dicta under the decision’s logic, and most sources simply refer back to Smith anyway.

I see two flaws in the court’s logic.

First, as Eugene Kontorovich has already noted, the Smith holding simply states that robbery is piracy (all that was necessary under the facts of that case); it doesn’t say that only robbery is piracy.

Second, since the 1819 statute refers to the law of nations rather than to a specific definition of piracy, what logically ought to be locked in by the rule of interpretation the court relies upon is the reference to the law of nations, not the definition of piracy contained therein. While the court does find some modern sources stating that the definition of piracy is unsettled in customary international law, that view flies in the face of the two widely ratified treaties, the 1958 High Seas Convention and the 1982 UN Convention on the Law of the Sea which include the same definition in reasonably precise language. Given Senate advice and consent to the ratification of the 1958 treaty, it seems to me that language fairly becomes the operative definition of piracy for U.S. courts under the last in time rule and the supremacy clause. So even a judge with an aversion to international law in general can ground their decision in written federal law. Oddly, however, the court treats these two widely ratified treaties, including one that is the law of the land, as mere secondary sources entitled to no more weight than scholarly commentary. I think that is a fundamental error.

The treaty language, ratified by both the U.S. and Somalia, surely satisfies the constitutional due process requirement which the court noted requires fair warning that the defendant’s conduct is proscribed. Surely it is fairer to hold a Somali defendant to notice of a treaty his (admittedly dysfunctional) nation has ratified than to a foreign 1820 Supreme Court decision. I haven’t read any of the parties’ filings, but from the text of the opinion it appears that both sides engaged in a battle of law office history, using often obscure historical examples to bolster their positions. I would hope that on appeal, and certainly in the other ongoing Norfolk piracy case with similar facts, the government will argue for the application of the treaty language as effective law rather than as a mere secondary source.

My crystal ball predicts the Fourth Circuit will reverse if the government makes more coherent arguments on appeal.

4 Responses

  1. Another abject lesson and reminder:  law is as law does.

  2. I think the court has a point in suggesting accepting the government’s interpretation of 18 USC 1651 as covering virtually all unauthorized maritime violence would make the rest of the chapter 81 of title 18 (piracy and privateering) superfluous.  18 U.S.C. 1659, which prohibits attacks with the intent to plunder, is also an anti-piracy statute, although it makes no reference to international law.  It is not unusual for Congress to set forth lesser penalties for attempted crimes than for completed offenses. If Congress had wanted to impose a mandatory life sentence on everybody who commits a piratical offense, it could have done so. 

  3. Piracy hasn’t actually changed that much since 1819.  The technology for it has, certainly.  But it’s still people on boats stealing from other people on boats, isn’t it?

  4. “But piracy’s still people on boats stealing from other people on boats, isn’t it?”

    Pretty much, in company with the continued exploitation of affordable speed against unaffordable size in the world’s “boat” traffic, from all appearances.

    I see merit in both arguments – the Judge’s opinion seemed quite sound to me (especially given its turnaround time, in the midst of a busy docket, as compared, for example, to the leisurely pace, despite a quiet docket, of the still-silent Court of Military Commission Review, as it mulls potent related questions for seven months or more), but the considered responses of Kontorovich and Glazier, among others, do seem to raise elements of doubt about some of Judge Jackson’s conclusions.

    Not to relapse into “obscure historical examples,” but I do think this debate could use some context and background from the Piracy debates of the 1800s Congress, which add some needed perspective, and a flavor of the view of the “law of nations” held by the Senators and Representatives of the day.  Partly because, back then we still had a federal legislature – BOTH houses – that actually engaged in debate of ideas and principles, and tried to honor the founding ideals of the nation to a degree not seen from inhabitants of our modern Congress for decades.

    Thus, for those interested, I’ve excerpted below at some length excerpts of the debate in the House and the Senate in 1825 about a measure proposed to “suppress Piracy.” [Passage of the earlier 1819 legislation left no existing record of meaningful debate. The source is not as comprehensively accurate as today’s verbatim <i>Congressional Record</i>, but the commercial publishers did their best to rely on authentic sources.]

    Most of the debate does not seem to squarely address the question of the 1819 definition of Piracy with which Judge Jackson was contending, but it’s filled with lessons for, among other things, our extra-judicial Military Commissions, our treatment of our opponents in armed conflict, and Israel’s blockade of Gaza.

    All taken from <I>Gales & Seaton’s Register of Debates</i>, 18th Congress, 2nd Session.


    <blockquote>Friday, January 21, 1825

    The Senate again proceeded to the consideration of the bill “for the suppression of Piracy.”

    Mr. [Littleton Waller] TAZEWELL [of Virginia] rose, and moved to strike form the bill the third section thereof, which is as follows:


    In support of this motion, Mr. T. said —

    <i>Mr. President:</i> In proposing this measure, I do not by any means, wish to be considered as being opposed to the great object of the bill.  -skip-  It is sufficient to observe, that its object is to authorize the President of the United States, under certain circumstances, to institute a blockade of certain Spanish ports [in the West Indies].


    We have been told of a blockade by statute, but my honorable colleague is mistaken, I believe, when he traces the rights and duties it creates to this source.  No, sir, the power to declare it is derived from no such paltry municipal spring; it flows directly from the great and pure fountain of the public law.  And when so derived, its influence extends over all upon whom this high law acts, that is to say, over the whole civilized world.

    Deriving its powers thus from the law of nations, how idle would it be for a Government to invoke the aid of such powers when it would act upon its own subjects! Sir, the relation which subsists between sovereignty and subjection, between a nation and its own people, is that which enjoins and requires all power on the one hand, and all subjection on the other; and the only doubt which ever has, or ever will exist, is, in what hands this unlimited sovereignty, demanding unlimited obedience, might most properly be confided.  We say, (and, I think, say truly,) it can be trusted no where with propriety but to the people.


    In war, you capture and condemn your enemy, it is true, not because he is attempting to break the blockade, however, but because he is your enemy.  You assign no other reason but that.  You say he is your enemy; therefore, you have a right to seize his person as well as his property, wherever you find either out of the protection of a neutral state.  This right existed before the blockade was instituted, and exists in equal force after it is taken off; and during its continuance, wherever you find your enemy beyond the limits of a neutral state, although not attempting to violate your blockade.  If so, a blockade which bestows no right, and imposes no new disability, cannot be considered as acting in any manner directly upon him; your right of action on him is derived from public law; it was perfect the instant war existed between you, and it is a right entirely independent of blockade.


    The advocates of this measure seem to have looked only on one side of it; but this is not right.  The effect of blockade is, to shut out all who are out, and keep in all who are in.  It prevents egress as well as ingress.  The neutral can no more go in than he can come out; and the only exception to this rule is, that he may, if he chooses, quit the port the moment he is notified of the blockade, provided he leaves it in the condition he was when that notice was received, in ballast or half loaded, if such was his situation at that time.


    You blockade the port into which you have pursued the pirate, and will suffer none to enter there, because it contains the monster; and, while you do and say this, you prevent all from escaping thence, although it contains the very beast of prey whom you have thus hunted into these formerly peaceful recesses.


    If it be true, as my honorable colleague [Senator James Barbour of Virginia, Chairman of the Senate Foreign Relations Committee] yesterday asserted, that necessity and right go hand in hand, then their necessity will be as strong as ours; and while it gives us the right to enforce, equally bestows upon them the right to resist, our assumed functions. And if it be true, as my honorable friend yesterday contended, that we have the right to interpolate a new principle in the public law, they have, at least, as strong a claim to do so.

    And what, sir, must be the inevitable effect of all these various readings of the holy text, under which different and discordant rights are claimed?  No one can doubt it must be war, horrid, interminable war, unless we are content to return to the fold from whence we shall be said to have strayed, to come again within the pale of civil society, and consent to be governed once more by the ancient rules which the necessities, not of one, but of all, digested, and for the preservation of which, unaltered by any, the peace of all requires the guarantee of each.


    If a nation has just cause of war, the question whether she will wage it or not, is one resting solely on its own discretion; and if, in the exercise of this discretion, it is found expedient to waive the right of waging war, then the moment it waives the right of waging war, it waives its right to the exercise of all the incidents, consequences, and accessorial rights of war.  To urge the contrary, would be to argue that you had a right over the shadow, after having given up the substance.  No, sir.  Nations waive all the benefits when they avoid all the risks of war.

    If, in the exercise of its discretion, a nation having just cause of war, sees fit to use its perfect right of waging war, the instant war exists, it requires no statute to give the right of blockade, and none can take it away.  It is then derived from the high law which the wisdom and convenience of the whole world dictated, and which is consecrated by the holy hand of time.  Let no audacious editor dare to pollute, by any blot, erasure, or interpolation, the sacred page.  The common good of all mankind requires, that what the common wisdom of all dictated, and the common and long acquiescence of all has sanctioned, should neither be repealed nor abridged by any.


    The right of visitation and search, and the right of blockade, are three twin sisters, born of the same mother – war.  They come into being at the same moment, with the existence of war; they continue during the same period while war continues; and, unlike the twins of the heathen mythology, they die at the same instant, when peace returns.  Now, sir, if we are justified to exercise in peace one of these rights of war, we are justified in exercising the other; and if we claim the right of blockade in peace, we cannot deny to any nation the right of visitation and search in peace also.  Is the Senate prepared to make this concession?


    Mr. President: for half a century we have been struggling, sincerely, I know, and I hope successfully, to establish the reputation of being a just people – to acquire the character of doing unto others what we would to be done to ourselves in similar circumstances.  If we mean to preserve this character, we must take special care to act cautiously and consistently; for, if it is found in any one page of our history, that we are asserting for ourselves a privilege, which elsewhere we had denied to others, we forfeit this character of moral rectitude.


    Now, Mr. President, if the actual presence of an enemy’s fleet, in a neutral port, in time of open war, cannot justify blockade, can the presence of a piratical vessel, in any port, justify it? 


    “How then, sir, I ask is this blockade to be carried into effect? [Mr. Barbour said, By force.]  Sir, force is not right.  It never did convey the property of one neutral into the possession of another, where the public law forbade it; and we know not yet on which side of the question the conclusion of this <i>ultimata ratio</i> may apply.

    The moment you announce this doctrine, you stand on the principle that force gives rights; and, when you interpolate it into the page of the public law that expressly denies it, you place yourself beyond the pale of civil society; the whole civilized world will rise against you, and declare you in a state of barbarism as well as blockade.

    It is contended, sir, that, as we have a right, in peace, to lay embargoes, and to grant letters of reprisal, and as these are war measures, therefore, we have a right to institute a blockade, which is not more a war measure.  I have never understood that embargoes and reprisals were war measures, and should like to be informed from what authority such assertions are derived.  Embargo is no more a measure of war than the infliction of the sanction of any other municipal law is a measure of war.  Its operation is confined to your own territory, the same as in any other municipal law.  A man commits a murder, and is hanged for it.  This might as properly be called a measure of war as an embargo.


    As to letters of reprisal, they are always understood as measures of peace, designed to prevent war.  I grant that they often lead to war; but, in themselves, they are as much measures of peace as an embargo, and their object always is certainly to prevent war.

    But, as to blockade, the effect is very different.  Letters of reprisal act on the guilty, and the guilty alone; and embargo acts on all alike, but it acts municipally on all within the territory; whereas blockade acts beyond the territory, and acts directly upon the innocent only. 


    [A]nd there never has been an instance known of any nation, endeavoring to regain a revolted portion of her state, that had severed itself from her, calling the rebellious parties enemies.  No, they style them rebels and traitors, and the moment they catch them, hang them.  Were they once to acknowledge them as enemies, they could not thus punish them, because they would be entitled to the privileges granted by civilized warfare, which forbid us so to punish an enemy, or to exert over him our municipal means.  We, ourselves, stand a memorable example of this…</blockquote>

    Toward the close of the Senate debate, Senator Martin Van Buren of New York responded to Senator Robert Hayne of South Carolina:

    <blockquote>But it had been said, that, admitting that, by the law of nations, the right of blockade can only be exercised in time of war, this act itself would place us at war with Spain, and thus render the blockade lawful.  Mr. V. B. said, that this argument, however imposing it might, on a first impression, appear, was liable to great and unanswerable objections: first, it was in the face of the declaration of the [foreign relations] committee, and professions of the Government, both of which disclaimed the idea of attaching such a consequence to the measure they propose; secondly, although Spain might consider it as the commencement of hostilities, she might not – she might consult her true interests, and do us the justice to give us credit for proper motives; if she did, our unwarrantable invasion of the rights of other nations would stand without apology; and even if she did not, and war ensued, we will have anticipated its rights at the expense of our respect for the public law, and for the feelings of friendly powers; either of which would, he thought, be unworthy of the American people.</blockquote>

    The Senate voted, 37-10, on February 1, 1825 to strike out (as proposed by Senator Tazewell) the third section of the bill, despite the impassioned advocacy of the Chairman of the Senate Foreign Relations Committee, Senator Barbour of Virginia, to which Senator Tazewell’s comments were a response.  The Senate then agreed to a motion to recommit the bill to the Foreign Relations Committee, with instructions to amend the bill to provide that, upon the failure of local governments of the specified Islands to apprehend and prosecute pirates being pursued by U.S. ships, authority would vest in the President and Navy “to land on the said Islands, in search of [in fresh pursuit of] pirates, and there to subdue, vanquish, and capture them, and bring them to the United States for trial and adjudication, as the said instructions of the President of the United States may prescribe; and further, to authorize reprisals on the commerce and property of the inhabitants of the said islands.”

    On March 1, 1825, after debate on that and other sections, the House of Representatives voted to strike more sections of the bill, and then passed it as amended (which largely reduced the bill to providing for an increase in Navy ships), in which changes the Senate then concurred.  During the House debate, the Chairman of the House Foreign Relations Committee, Representative John Forsyth of Georgia, said in part [as though he was talking about our modern military Commissions, in lieu of Courts]:

    <blockquote>The laws of nations do not permit us to enter into crusades for the correction of the vices of our neighbors, nor to enter into their territory to inquire into the purity of their tribunals.  However well convinced we may be of their corruption, we cannot say that we, the people of the United States, are more unjustly treated than other foreigners, or than Spanish subjects.


    The rule of international law is well understood even in matters of property; every definitive sentence, regularly pronounced, is to be esteemed just, and executed as such.  The rule admits exceptions: they are, when justice is refused to a foreigner – palpable or evident injustice done, or rules and forms openly violated – or, finally, an odious distinction made to the prejudice of foreigners.  In these cases, the government whose tribunals are unjust, is responsible.  Justice is, however, to be sought in the usual form, by regular demand upon the government itself.</blockquote>

    As for the dreadful toll that piracy was taking in 1825 (despite which Congress nevertheless thoughtfully and seriously considered the matter, and restrained itself from resorting to reckless measures of vengeful action), Representative Ichabod Bartlett of New Hampshire described some of the deeds that had motivated the anti-piracy legislation:

    <blockquote>But it was not my purpose to have referred to particular instances of a crime, records of the repetition of which fill every gazette, till our surprise is, not that our vessels are captured, our citizens murdered, but that one escapes.  In the letter of our Agent, of the 6th of September, after a long catalogue of other captures, he says, “In the Bay were found the wrecks of twelve vessels, recently destroyed by the pirates, the crews of all which are supposed to have been murdered.”  Such are the monuments the Island every where exhibits of their plunder, while the coast is whitened with the bones of their victims.


    Who are these pirates, that we go out with all the “pomp and circumstance of war” to meet them?  What injuries do we expect to inflict by our national ships?  What trophies are we to gain?  They have indeed small small boats, with which they lurk about the bays and harbors; but is it believed they will give battle to your frigates or sloops of war, or attempt to make prize of your captains and commodores?  What evidence, unless you take them in the act of piracy, of their guilt?  It is not to be understood, that they carry a label upon their forehead, to designate their character; and should the Gulf of Mexico be covered with these “gentleman rovers,” as they may choose to be called, we have not the proof, and therefore not the power, to touch them, unless discovered <i>”flagrante delicto!”</i> 


    That “no naval force can afford complete protection against such a system,” is proved by experiment – while, year before the last, of all our vessels of every description in commission, twenty-one of the thirty-one were on that station; and last year, fourteen of twenty-three were in the same service.


    I have before me an official list of more than eighty officers, who have perished in this service in two years past.</blockquote>

    The index of that session of Congress gives the page numbers for the House and Senate debates on the bill, and also where in the Appendix related documents can be found.  President Monroe’s message to  Congress about the matter is on Page 197 (January 13, 1825) of the Debates.  Senate action is on Pages 34, 159-162, 275-284, 303-318, 375-379 & 395-408.  The House debate is on Pages 713-733.

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