How to handle pirates -- and terrorists

How should we solve the problem of Somali pirates? It's not too hard to figure out -- we have several centuries of experience in dealing with the matter, from an economic, military, legal and political point of view.

Here's my Canadian Lawyer column on the subject. Here are some excerpts:

Threatening to undo Johnny Depp’s public relations efforts, Somali pirates have gone on a hijacking spree. Even freighters carrying food aid for their fellow Africans are not immune to their ransom efforts.

A Canadian warship, HMCS Winnipeg, is in the thick of it and has successfully thwarted a number of pirate attacks. On several occasions, the Canadians seized pirates. But after relieving them of their weapons, they actually let the pirates go, to attack again another day.

Canada’s Department of National Defence says it is legally and logistically impractical to try the pirates, but that’s not true. Legal responses to piracy are almost as old as seafaring itself. And Canada’s Criminal Code gives our courts jurisdiction over piracy, wherever it’s committed.

Some countries are trying captured pirates in their home countries; others have handed them to Kenya. British, Russian, and American forces have killed Somali pirates in military operations. Canada says it’s looking into the Kenyan solution, but continues its policy of catch-and-release.

It is more convenient for HMCS Winnipeg to let the pirates go than detain and transfer them to Kenya or Canada. But if convenience was the deciding factor, the ship could have stayed in Esquimalt, B.C. It is lawful under Commonwealth precedent for pirates to be executed summarily if the situation does not permit a more rococo trial. In 1830, British ship HMS Falcon, with 30 crew, seized a pirate ship with 250 men. One report said: “the little crew was in no small difficulty, after the capture of their disproportioned antagonist, what to do with their prisoners, who, as soon as they had an opportunity, showed symptoms of an attempt to overpower them.”

When they reached Ascension Island, the pirates were hanged in batches of 20, with only the pirate captain and first mate spared, to be taken to Bermuda to be tried  —  all completely lawful, given the exigencies of the case.
Pirates are a special legal class: hostis humani generis, or enemies of all mankind. They are legally similar to terrorists under the Geneva Convention  — literally outlaws. We tend to think of the word “outlaw” to mean someone who himself ignores the law. It actually means the opposite: someone who is beyond the pale so far that the law will provide him no protection, and vigilantes, mercenaries, and anyone else who hunts him will be unstopped by the law.

Canada’s namby-pamby approach is much the same that allowed piracy to flourish in the Caribbean in the century after the discovery of America. At first, pirates were tried by an Admiralty court, but under civil law: to be convicted, the pirate had to confess, or be condemned by two eyewitnesses who weren’t his accomplices. In 1536, the Offences at Sea Act permitted the testimony of accomplices and common law procedures, such as a jury. Still, pirates had to be tried in England, and many colonies simply chose to release them.

By 1700, piracy was in full bloom in the Caribbean, and the U.K. responded with a beefier naval presence and a dramatically tougher law, the Act for the More Effectual Suppressing of Piracy. Not only was the requirement of a trial in England (or a jury) abandoned, but a bounty of half of a pirate’s wealth was issued for any mercenary willing to fight him. And any sailor who was armed but didn’t fight off pirates, and any sailor who tried to discourage other sailors from fighting back, forfeited his entire wage and was sentenced to six months in jail...

The 19th century decision by the HMS Falcon is shocking to our 21st century sensibilities. That's because we have been trained to care more about the "optics" of war and our political correctness than actually winning -- or even defending our civilization. What the Falcon did was not only perfectly lawful, it was sensible -- it was simply not safe to ship the whole lot of pirates back to a port for a proper trial.

Which brings me back to my column about Omar Khadr, and the ridiculousness of giving him the same rights and courtesies as someone charged with an offence back in New York City or Toronto.

I pointed out that it was neither safe nor practical (nor legally necessary) for American soldiers in a battle zone in Afghanistan to treat Khadr with the same niceties as if he were picked up in a North American city.

Stop and think about the insanity that would entail: with the first waves of American troops, a wave of lawyers parachuted in, along with CSIs, judges, clerks, stenographers, jailers, jail-house chaplains, jail-house medics, etc., etc.

Or if transplanting our North American legal system to a hot war zone isn't ridiculous enough for you, transplant the hot war zone to our North American legal system: imagine if in a city like Toronto there were, say, fifty murders a day, every day, by a rag-tag gang that followed no rules of war (no uniforms; no chain of command; they hid their weapons; they hid amongst civilians, etc.) Imagine if there were hundreds of murders a day -- too much for our jails, courts and even police. Well, no need to imagine such a bizarre scenario: Pierre Trudeau invoked martial law across the whole country after a few mailboxes were bombed in Quebec and there was a kidnapping and murder. Normal civil liberties were suspended -- including the imposition of media censors.

Now, I'm not defending Trudeau's invocation of the War Measures Act. It was uncalled for in terms of security. It was a cover for a massive, otherwise-illegal police attack on separatist politicians and their supporters, as well as an indirect calumny, too, by implying that separatists were a general security threat.

Rather, my point is that our law has a long tradition of allowing abbreviated legal procedures in occasions of grave civil stress. Surely a war zone, like the one into which Omar Khadr willingly went as a terrorist, is such an occasion.

If you remain unconvinced, I invite you to study how Allied troops -- including Canadians -- handled terrorist-style actions by German troops in the days after the landings at Normandy. They were not shipped back to Canada; there were drum-head trials in the field, and quick executions. Not for regular soldiers who surrendered, of course -- they were treated as prisoners of war, and many of them in fact were shipped back to Canada. But the terrorists? Shot on the spot after a quick hearing.

I say all this because I don't think that most Canadian pundits have thought through their knee-jerk support for Khadr and opposition to his special detention at Guantanamo Bay. Take Dan Gardner, the columnist at the Ottawa Ctizen. He read my comments about Khadr, and simply rejected them -- without really explaining why:

[Levant's proposal:] the summary execution of a 15-year-old Canadian in Aghanistan -- that is to say, skipping the matter of proof and whatnot and simply blowing out the kid's brains -- would bring a smile to the lips of sweet Justice.

...I share Levant's views on human rights commissions, incidentally. But this is a pretty good demonstration of why the man should not be treated as anything but the rodeo clown of Canadian punditry.

Actually, I didn't call for "skipping the matter of proof". I specifically called for a hearing. But an expedited hearing in the field -- not one back in the West.

I don't think, though, that Gardner's mischaracterization of my views was deliberate; I think he's probably still fashionable appalled by the idea of a summary hearing in situ. But he declines to explain why.

(I must say, though, that his meatiest response -- calling me a rodeo clown! -- is the most delightlful insult I've received all year. And it's even culturally sensitive to my Calgary roots!)

I like Gardner because he's usually such a contrarian. I wouldn't even call him a conservative -- I don't think he'd call himself that. I'd just call him someone who usually starts from scratch with an argument from first principles, and often disagrees with the groupthink of Ottawa. That's why I'm so surprised with him here: it looks like he's simply conforming to received establishment wisdom, and that's not like him.

Look, I know it's ugly to discuss matters like terrorism and piracy in a serious way. Look at the apoplexy over the revelation that (gasp!) Dick Cheney asked the CIA to assassinate Osama Bin Laden and other terrorist leaders (a plan that, bizarrely, was scrapped). Such assassinations are not only perfectly legal (U.S. law merely forbids the assassination of foreign heads of state) but they're practised by both parties. Bill Clinton famously tried to assassinate Bin Laden with cruise missiles; Barack Obama continues his targeted assassinations using more accurate Predator drones. Now that Obama is president, he's even extended Guantanamo Bay for a year -- the morally preening Harvard lawyer has been replaced with a Commander in Chief.

It would have been nuts for the HMS Falcon to have shlepped 250 pirates back to a formal court. And though our modern logistics and technology is better in 2009 than in 1830, the exigencies of war, where soldiers are there to fight, not to be social workers for the other side's terrorists, call for the same pared down niceties.

Dan Gardner would know that if he thought it through for what his luxuriant liberalism would mean in Afghanistan today -- or what it would have meant in Canada in the FLQ crisis, or in Normandy after D-Day.

I hope Gardner replies substantively: what rules of engagement would he suggest for the Canadian (or U.S.) army fighting against terrorists in Afghanistan? What law? What lawyers? What jail? What jailers? What standard of proof? What witnesses? What court? What judge? Other than saying "ew, yuck", what is his practical solution?

If he's going to replace the Geneva Convention rules with something new, I'd like to hear it. I hope he replies.