The Chickens Come Home to Roost — U.S. v. Said

by Kevin Jon Heller

I have to respectfully disagree with Dave’s interpretation of Judge Jackson’s decision.  The decision is almost certainly incorrect from the standpoint of the law of nations; as Dave rightly points out, the definition of piracy in the High Seas Convention and in UNCLOS likely represents the customary standard.  But I think Judge Jackson’s decision makes complete sense given the US’s Alice-in-Wonderland approach to international law, whereby the Congress simply defines the “law of nations” as it pleases, no matter how idiosyncratic — read: wrong — that definition may be.  In other words, Said is the judicial cousin of the Military Commissions Act, which pretends that the “law of war” includes murder, conspiracy, and material support for terrorism in order to allow the US  to prosecute “terrorists” in military commissions instead of in civilian courts.

I have no problem with Dave’s syllogism, which I think accurately describes Judge Jackson’s decision.  My disagreement comes with this statement:

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 think that the “subsequent cases” are anything but dicta in the opinion.  Indeed, Judge Jackson’s holding depends on them.  Dave seems to believe that Jackson disagrees with the idea that “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.” But I don’t think he does: although the judge states that he “must determine… what Congress meant by piracy as defined by the law of nations, as stated in sec. 1651 at its 1819 enactment,” he then immediately acknowledges that “since the statutory language of sec. 1651 is devoid of any guidance on the scope of piracy as defined by the law of nations, the Court must examine any relevant judicial decisions to answer this question” (p. 6).  Judge Jackson thus accepts that the object of his inquiry is how the law of nations defines piracy; he simply believes that the appropriate method of identifying that definition is to look at US judicial decisions on the subject.

Judge Jackson then proceeds to canvass the decisions themselves.  He begins with Smith, which essentially defines piracy as “robbery upon the seas.”  But he does not limit piracy to the Smith definition.  On the contrary, he specifically rejects the government’s argument that piracy is not limited to “robbery upon the seas” by insisting that “the discernible definition of piracy… under sec. 1651 has remained consistent and has reached a level of concrete consensus in United States law since 1820.”  He cites a number of federal decisions to that effect, such as the Sixth Circuit’s 2007 decision in Taveras, the Eleventh Circuit’s 2006 decision in Madera-Lopez, the 1841 Supreme Court decision in Schooner Amistad, and a bunch of other federal cases from the late 19th century.  All agree with Smith that the law of nations defines piracy as “robbery upon the seas.”

Again, this line of cases is almost certainly wrong.  But to describe all of the cases after Smith as dicta misses the fundamental problem with Judge Jackson’s decision: its animating assumption that “United States law since 1820″ accurately reflects the law of nations concerning piracy.  United States law since 1820 does not accurately reflect the law of nations, just as the Military Commissions Act does not accurately reflect the law of war.  By treating the US cases as a reliable proxy for the law of nations, therefore, Judge Jackson necessarily reached the wrong conclusion.

So, was Said wrongly decided?  The answer, paradoxically enough, is both yes and no.  As Dave notes, Judge Jackson should have relied on the High Seas Convention and UNCLOS instead of on Smith and its progeny for the definition of piracy.  So from a “real” law of nations perspective, the decision is clearly wrong.  But I think the decision is absolutely correct as a matter of US law, which has consistently assumed that the law of nations is more narrow than it actually is.  Indeed, as Judge Jackson points out (p. 12), because Congress specifically criminalized violent acts short of “robbery upon the seas” in 18 USC 1659, adopting a broader definition of piracy would effectively nullify that section.

In the end, then, I think the title of this post — “The Chickens Come Home to Roost” — is an accurate one.  If Congress wants to rely on international law (the law of nations, the law of war) to define domestic crimes, it needs to accept the fact that international law does not always take the position that the US wants.  When it comes to pirates and the law of nations, it does — the defendants in Said probably did commit an act of piracy, no matter what Smith and its progeny say.  But when it comes to “terrorists” and the law of war, it does not — murder, conspiracy, and material support are not war crimes, no matter what the Military Commissions Act says.  The US should not be able to make use of international law only when it is convenient, relying on it when it wants to sentence pirates to life imprisonment, ignoring it when it wants to avoid trying “terrorists” in civilian courts.  So forgive me if I find Judge Jackson’s decision in Said, incorrect though it may be, more than a little satisfying.

P.S.  Just to be clear, Dave has been one of the most intelligent critics of the Military Commissions (see the links on his homepage here), particularly concerning the crimes within its jurisdiction, so I am in no way implying that he endorses the misguided approach to the law of war on which they rely.  We also don’t disagree about piracy under the law of nations.  I am simply taking issue with his reading of Judge Jackson’s decision.

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