Will Obama Prosecute the Captured Somali 'Pirate' in a US Court?

By Jeremy Scahill, Rebel Reports. Posted April 13, 2009.

Indeed, The Wall Street Journal on Sunday called for the Somali man in custody to be "transferred to Guantanamo and held as an 'enemy combatant,' or whatever the Obama Administration prefers to call terrorists." On this point, Horton points out an interesting distinction between the Obama and Bush administration positions on “pirates," particularly as it relates to the "terrorist" label.

The big legal issue is surrounding calling them "terrorists," which the Bushies did with regularity and Obama resisted. I think that Obama and his people are correct.  These people were motivated by the desire to make money, pure and simple, which makes them conventional pirates. If they were labeled “terrorists,” the insurance company and the ship charter company wouldn’t be able to negotiate with them or make a payment. Pirates they can still pay off, which will often be the most sensible and least costly solution.

If the U.S. decides to pursue prosecution of the Somali "pirate" in custody in a U.S. court, he would obviously hopefully have a right to a defense (which would clearly enrage the crazies) and the nature of that defense could well depend on what type of legal counsel he ends up with and how his lawyers present the motives of his actions, as described to them, in attempting to seize the Maersk Alabama. This could be a major test of Obama’s legal interpretation of the rights of prisoners taken by the U.S. in unusual circumstances (to put it mildly). In an era when due process has been trashed in the U.S. and prisoners have been tortured at CIA "black sites" and held without trial for years at Guantanamo and elsewhere, Obama should allow exactly what Thomas and his ilk fear so much -- respect for the legal rights of prisoners held by the U.S.

So what would a “pirate” defense actually look like? Remember, some Somalis -- and other international observers -- do not exactly see the "pirates" as being 100% unjustified in their actions. This form of "piracy" really escalated after the 1991 collapse of the Somali government and Western ships allegedly dumping waste off the Somali coast and devastating the Somali fishing industry, a primary source of income in the Somali coastal areas where many of the “pirates” are based.

If Obama elects not to take the terrible option of sending the man to Guantanamo, it will be interesting to see if Obama elects to bring him to the U.S. or, as has been suggested by some, prosecute him in Kenya.

As Professor Boyle pointed out, "certainly if he were tried in a United States federal district court, he could try to make the points [about dumping, etc], which is why they might send him to Kenya to avoid all of that… If i remember correctly, under the Geneva Convention definition of piracy (which is not precisely the same thing as the federal statute), the crime of piracy must be for a private purpose, not a public purpose. So he might be able to raise these issues on the question of intent -- that he acted for a public purpose, not a private purpose."

Boyle later emailed me the following quote from St. Augustine:

Kingdoms without justice are similar to robber barons.  And so if justice is left out, what are kingdoms except great robber bands? For what are robber bands except little kingdoms? The band also is a group of men governed by the orders of a leader, bound by a social compact, and its booty is divided according to a law agreed upon. If by repeatedly adding desperate men this plague grows to the point where it holds territory and establishes a fixed seat, seizes cities and subdues peoples, then it more conspicuously assumes the name of kingdom, and this name is now openly granted to it, not for any subtraction of cupidity, but by addition of impunity. For it was an elegant and true reply that was made to Alexander the Great by a certain pirate whom he had captured. When the king asked him what he was thinking of, that he should molest the sea, he said with defiant independence: "The same as you when you molest the world! Since I do this with a little ship I am called a pirate. You do it with a great fleet and are called an emperor."

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Jeremy Scahill, an independent journalist who reports frequently for the national radio and TV program Democracy Now!, has spent extensive time reporting from Iraq and Yugoslavia. He is currently a Puffin Writing Fellow at The Nation Institute. Scahill is the author of Blackwater: The Rise of the World's Most Powerful Mercenary Army. His writing and reporting is available at RebelReports.com.

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