Surviving Somali pirate captured by U.S. Navy should face death sentence under U.S. hostage-taking law

God bless the United States Navy! (H/t "Jack Dunphy" @ Patterico's.) And what a spectacular Easter blessing for the brave Captain Richard Phillips of the MV Maersk Alabama and his gallant crew and grateful family!

Three of the four pirates who were holding Captain Phillips on the Alabama's lifeboat were shot dead, apparently through the exceptional marksmanship and professionalism of Navy SEAL snipers.

As to the fourth pirate — who was aboard the U.S.S. Bainbridge trying to negotiate when his co-conspirators met their just deserts — news organizations including Fox News and the Associated Press are reporting that if brought to America and prosecuted under federal law, he faces a maximum potential sentence of life imprisonment.

I'm pretty sure that's just wrong. I think that if he's brought back to the U.S. for punishment under our criminal justice system, then the surviving pirate could be, and should be, charged with and found guilty of a capital crime punishable by death.

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It's true that federal laws against piracy — chief among them 18 U.S.C. § 1651 — prescribe life imprisonment as not only the maximum penalty, but the only penalty. But with respect to a federal conviction for hostage-taking, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment."

Congress' use of the word "results" means there must be a causal connection between the hostage-taking and the fatality, but it's a fairly loose one. There is no requirement that it be the defendant hostage-taker who directly inflicted any lethal injuries. And Congress could easily have limited the death penalty to situations where it was the hostage, or perhaps also law enforcement members or innocent bystanders, who were killed. But Congress didn't.

Instead, under the plain language of the statute, Congress instead chose to make the death penalty available when "the death of any person result[ed]" from the hostage-taking. Thus, even the death of one of the hostage-taker's fellow criminals satisfies the literal language of the statute.

I can't find any federal capital punishment appellate precedent directly on point under section 1203, and little precedent even from the federal trial court level. But as with "felony murder" capital punishment laws generally — under the Enmund/Tison standard — I believe that due process and other constitutional concerns are satisfied so long as the defendant is a "major participant" in the underlying felony (here, hostage-taking) and that underlying felony involved a "reckless indifference to human life" (a slam-dunk where the hostage-takers are threatening the hostage's death). There's no requirement that the prosecution show that the hostage-taking defendant had a specific mental intent to accomplish the death of any particular person when he committed the hostage-taking crime. Indeed, in contrast to some state "felony murder" capital punishment statutes, "foreseeability" of the death of the eventual decedent is not an element of this particular federal crime under section 1203(a), according to United States v. Straker, 567 F. Supp. 2d 174 (D.D.C. 2008).

And that should be no surprise to either pirates or decent folk: Hostage-taking, by its very nature, is a threat to kill innocents, and is likely to lead, one way or another, to the sudden and violent death of someone. It's only due to the skill of the SEALs — and, as I'm sure they'd be the first to acknowledge, the grace of God — that no one except pirates were killed or seriously injured. The pirates themselves did practically everything within their power to turn this into a fatal encounter for someone, and there's no doubt that all of them possessed sufficient murderous intentions to imbue them with capital culpability. Thus, in my opinion, even though it ultimately turned out that the only fatal shots were fired by Navy SEALs, that matters not for purposes of charging and convicting the surviving pirate of a capital offense.

I'd much rather see him swinging from the yardarms aboard the Bainbridge after a shipboard summary trial — or failing that, dropped off at Guantánamo as another of whatever the Obama Administration is now calling illegal enemy combatants — rather than afforded the due process which our federal courts accord to civilized human beings. But if the surviving pirate is indeed to be brought back to the U.S. and tried under our federal criminal law, then prosecutors at least ought to seek the most serious punishment for the most serious offense which applies to these facts under federal law.

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Chances that the Obama/Holder Justice Department will agree with me? I'd say less than 1%. My only question is whether the ACLU or some NYC white-shoe law firm (purportedly acting pro bono publico) has already filed a "Maxamed Doe" habeas corpus petition for the guy.

Finally, I endorse, recommend, and enthusiastically associate myself with (i.e., wish I had written) the following authors' recent essays on piracy and how the U.S. ought to respond to it (with 21st Century speed and firepower, but 18th and 19th Century principles): Andrew C. McCarthy at the National Review Online and Bret Stephens at the Wall Street Journal.

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UPDATE (Sun Apr 12 @ 7:15pm): Greyhawk at The Mudville Gazette, in the midst of some very perceptive comments about the media coverage of these events, refers to reports that the fourth and only surviving pirate might be (a) the one who was originally captured by the Maersk Alabama crewmen in re-taking the ship, (b) as young as sixteen years old, and/or (c) possibly cooperating with the Navy, rather than (as I'd heard) trying to negotiate on behalf of the other pirates. My comments about his culpability are based on the premise that he's an adult who was actively involved in plotting and executing the attempted piracy and the hostage-taking, and of course my only source for that premise is the admittedly sketchy and unreliable news reporting we've all been following. Even were he to be subjected to the traditional summary ship's-deck justice of decades' past, the sorts of circumstances suggested by Greyhawk, if they panned out, would be given due weight. I don't think this will turn out to be complicated or uncertain, and indeed, to the knowledgeable people already on the scene, these issues are almost certainly already crystal clear. But if my premises turn out to have been wrong, I of course reserve the right to reconsider my conclusions from them.

UPDATE (Sun Apr 12 @ 8:45pm): If you're wondering why I've been so churlish in not extending even a nod of appreciation to our Commander in Chief, read this paragraph tucked away near the end of the New York Times' account of the rescue:

The Defense Department twice asked Mr. Obama for permission to use military force to rescue Captain Phillips, most recently late on Friday night, senior defense officials said. On Saturday morning, the president agreed to permit action, they said, but only if it appeared that the captain’s life was in imminent danger.

Then tell me: When, exactly, during this entire episode was Captain Phillips' life not in imminent danger? Why did Barack Obama have to sleep on the decision whether to permit our military commanders on the scene to use their own judgment as to whether to kill pirates who had attacked an American vessel and were holding its captain hostage? If this paragraph from the NYT is correct, then even if our forces had clear shots at all of the pirates simultaneously prior to Saturday morning, they lacked Obama's permission to take them. And that is outrageous and, on the part of our nominal Commander in Chief, pathetic.

Yes, I suppose Obama could have been more pathetic — he could have refused permission altogether. But Obama obviously thinks he's our Defense Lawyer in Chief, maybe Defense Lawyer for the World. And that's not the job he's in — that's emphatically not the oath he took last January, and there are times, including this one, when it could be inconsistent with the oath he took last January. Obama's operating under a delusion that is very dangerous for America and the rest of the free world. Color me unsurprised but still disappointed.

UPDATE (Sun Apr 12 @ 10:25pm): The WaPo report leaves open the possibility that the fourth and surviving pirate was an adult (as judged at least by American law), but is equivocal about the degree of his relative culpability and cooperation:

Meanwhile, one of the pirates, estimated to be between 16 and 20 years old, asked to come aboard the Bainbridge to make a phone call. He had been stabbed in the hand during an altercation with the crew of the Maersk Alabama and also needed medical care. "He effectively gave himself up," said a senior military official. The Navy then allowed that pirate to speak with the others in hopes that he could persuade them to give up.

I disagree with the SCOTUS precedent that forbids imposition of capital sentences on Americans who were under 18 when they committed their crimes, at least when those defendants have been found as a matter of individual fact to have been sufficiently mature to justify being tried as adults. But if this individual isn't yet 18, there's no chance whatsoever that the Obama administration will seek to hold him responsible as an adult, regardless of any other facts. Whether charging this as a capital offense turns out to be justified on these particular facts for this particular individual, however, I still think the media is wrong in describing life imprisonment as the maximum possible sentence for his crimes. (And I still think treating this as an ordinary crime to be tried in our civilian courts is a mistake as well.)

UPDATE (Mon Apr 13 @ 2:45am): Someone is re-writing the first draft of history. The paragraph I quoted above from the NYT now reads (at the same URL, but with no acknowledgment of having been stealth edited)(additions in red, deletions in strikeout):

The Defense Department twice sought asked Mr. Obama’s for permission to use military force to rescue Captain Phillips, most recently late on Friday night, senior defense officials said. On Saturday morning, the president agreed to permit action, they said, but only if it appeared that the captain’s life was in imminent danger.

The other changes are minor, but the phrase "but only" has completely disappeared, which changes the emphasis significantly to make Pres. Obama seem less squeamish.

And in the Politico.com version, you can almost hear the chorus singing "Brave, Brave Sir Robin" in the background as they, umm, associate the POTUS' valor with that of the SEALs and Captain Phillips:

President Barack Obama issued a standing order to use force against pirates holding an American captain hostage — including giving a Navy commander the authority to act if he believed the captain’s life was in danger, two senior defense officials said Sunday night.

Aha. Now it's a "standing order." (¿Quien es mas macho: Barack Obama, Jack Lord, o Lloyd Bridges?) If, as the NYT insisted, Obama's permission was conditioned on the danger to Captain Phillips' life having been "imminent," Politico.com's reporters can't find the bandwidth to mention that. As for when the go-ahead was actually given, Politico.com, contra what the NYT still says, insists that "A timeline provided by the White House showed he issued the orders to use force at 8 p.m. Friday, and again at 9:20 a.m. Saturday, after new Navy forces moved on to the scene." Which would make the re-issued Saturday morning order sort of, ya know, redundant if the first order were both given on Friday night and really a "standing order." (This takes to new extremes — something under 14 hours — Jim Geraghty's frequent observation to the effect that every statement made by Barack Obama comes with an expiration date, because "standing orders" now have to be repeated at least twice a day.)

Keep in mind, friends and neighbors, that this was a five-day standoff. Whether we credit the NYT's version of events or Politico.com's, our military apparently only had shoot-to-kill authority for something under the last 24 hours of it. And that, I repeat, is simply pathetic.

UPDATE (Tue Apr 14 @ 4:35am): I have no basis to dispute or second-guess these statements from the Secretary of Defense, made on the record on Monday, as reported in the WaPo:

Defense Secretary Robert M. Gates said Monday that the Defense Department twice requested the authority to use deadly force because two groups of Special Operations Forces were involved in the operation. Each required its own sanction. He said that "the approval was given virtually immediately in both cases."

A senior administration official said that the president did not deny any operational request made to him and that he knew the broad outlines of the operation that the Navy had planned. The official said that "our people tried a variety of ways to resolve the situation peacefully, and the guidance all along was that the overriding interest was the captain's life."

Gates said the four pirates involved in taking Phillips hostage were 17 to 19 years old — "untrained teenagers with heavy weapons." The pirate whom Reza wounded in the hand asked the USS Bainbridge for medical attention, effectively surrendering.

That all the pirates were "teenagers" is sad, but not very exculpatory. I'd bet a large sum of money that each of them considered himself an adult before undertaking this piracy, whatever Western law might say for the ones not yet 18. They were engaged in a violent and dangerous crime using military weapons; the three who were slain certainly deserved what they got, but I'll reserve further judgment on the fourth for reasons I've explained earlier in this post or in comments below.

I'm still troubled and unsatisfied by the notion that it takes so many layers of approval, extending to the office of the POTUS, to provide our military forces on the scene — who were, after all, there patrolling for pirates whose routine method of operation is to seize and threaten hostages with execution — the very basic authority to kill any pirate whenever so doing will secure the release of a hostage. If the regular officers and crew of the Navy vessels in the area, including the Bainbridge, didn't already have the authority to do that, they ought not be there. But that is a systemic criticism, and one that may be leveled against American civilian leaders of both parties going back to at least the Bush-41 administration, when lawyers and concerns for civilian-style legalities began to infect every aspect of our efforts to fight both conventional military enemies and terrorists.

Bottom line: If Secretary Gates was being candid and thorough, that puts Obama in a better light than I gave him credit for earlier in this post. If Gates is engaging in spin, I have no way to tell that — and neither does anyone else, absent unfettered access and complete cooperation from Navy personnel who were on the scene but are not about to publicly second-guess the SecDef or the POTUS, whoever holds those offices. The possibility that Gates is being candid and the possibility that he's engaged in spin are not mutually exclusive. But in any event, with our ship recovered and Captain Phillips rescued, and with rare near-unanimity among Americans of every political stripe in celebrating the competency of our military forces and their performance, I'm not going to spend any more energy second-guessing Obama's personal performance on this episode.