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Sunday, April 12, 2009

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!

USS Bainbridge (DDG 96)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.


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).

CDR Francis X. Castellano, USN, the Captain of the USS Bainbridge, greets rescued MV Maersk Alabama Captain Richard Phillips (right)(Navy photo)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.


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.


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.

Posted by Beldar at 05:11 PM in Current Affairs, Global War on Terror, Law (2009), Obama, SCOTUS & federal courts | Permalink


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Tracked on Apr 13, 2009 10:30:05 AM


(1) nk made the following comment | Apr 12, 2009 10:42:33 PM | Permalink

There is still the third stage of the Furman/Gregg test -- whether there are sufficient factors in mitigation to prohibit imposition of the death penalty. And a prosecutor should not, ethically, seek, or threaten, the death penalty unless he is reasonably comfortable that he can overcome that test.

(2) Beldar made the following comment | Apr 12, 2009 11:09:20 PM | Permalink

nk (#1), I agree completely, and further agree that the prosecutor must believe himself to have both factual and legal bases to charge the capital crime and seek capital punishment. I'm more comfortable right now in arguing that there's a sufficient legal basis -- I think Congress' intent, as reflected in the phrasing of the statute, was clearly to permit felony-murder type capital liability. But I concede that the additional facts that have been suggested in the later news reports today tend toward mitigation, and that we don't know yet whether there's a strong case for aggravating facts which outweigh those (e.g., was this kid one of the ones who fired on the U.S. Navy boat earlier in the episode, or one of the ones who was involved in administering beatings to Captain Phillips) -- even if it does turn out that he's 18 or above. I'm assuming that he'd have the standard "deprived childhood/culture of violence" mitigating factors that are pretty much always argued. And I'm likewise assuming that notwithstanding the bleak conditions for someone growing up in Somalia, not everyone from those same conditions chooses to become a murderous pirate. (Which is to say that I'm fairly unsympathetic to the "Gee, Officer Krupke" defense of "he's depraved on accounta he's deprived", but juries sometimes buy it, and it's ultimately up to the trier of fact to balance the mitigating against aggravating circumstances when capital cases are charged and proved.)

(3) nk made the following comment | Apr 13, 2009 9:18:43 AM | Permalink

^_^ The sentencing phase is a free-for-all, usually, when it comes to arguments and tugging at heart strings, but I think I would do better by pointing out that he did not harm the hostage, had surrendered or was at least away from a position where he could harm the hostage when his comrades were killed, his gang had no history of killing or abusing their hostages, and, very delicately, or maybe not at all, the people who now want to execute him are in fact the ones who killed the people for whose deaths they want to execute him.

(4) Michael J. Myers made the following comment | Apr 13, 2009 10:42:44 AM | Permalink

All of this new Obama spin and posturing reminds me of Hillary's "bravery under fire at Tuzla". If I read the Wall Street Journal account of the story correctly, the crew of the Maersk Alabama acquitted themselves more gracefully than did Obama. One of the crewmen stabbed that 16 year old kid in the hand with an icepick in the engineroom; the rest of the crew then surrounded him and tied him up. They weren't waiting for Obama to decide to act. They then took their "hostage" up to the bridge where the other three pirates were holding some of the crew at gunpoint. Negotiations ensued (ah Obama's favorite activity!). A deal was cut--the three pirates and Captain Phillips would get in the lifeboat and leave the ship--the crew would release their hostage, one Abdul Mohammed,in exchange for the Captain. Well the crew released the hostage, and the pirates welshed on the deal and kept Captain Phillips.

A sentient human being might then have figured out that negotiations with the pirates were a chump's game. It took the "Mighty O" several days to figure that out and authorize the commanders on scene to take action.

In the meantime the world watched the unedifying spectacle of three or four U.S. Navy ships--including the Boxer, the equivalent in size of an Essex class carrier of WWII, in a standoff with four Somali teenagers in a 28 foot boat. That force was held on a short leash by the "Mighty O" and thus powerless to do anything. Force is useless unless you are willing to use the weapons that you do have when necessary. I believe that Admiral Gortney was qouted as saying that he "fears Somali retaliation", unless he's given permission to do something about the situation on land. I assume by that that he means a brief assault to blow up every pirate boat on shore. If they can't get out to sea, they can't be pirates anymore.

But I believe that what Admiral Gortney really "fears" is another bit of feckless shortleash handling by the Mighty O.

(5) D mockracy made the following comment | Apr 13, 2009 7:53:08 PM | Permalink

It would be a real shame , if the prisoner were taken for a walk , and he (ahem) cough cough--were allowed to , jump overboard, with a bullet in his head.

(6) Dai Alanye made the following comment | Apr 14, 2009 12:11:25 AM | Permalink

If the surviving pirate is underage, I kinda sorta think if I were presy-dunt I might—after military trial, conviction and imposition of the death penalty—release the lad subsequent to lecturing him on the advisability of his suggesting to other pirates that they look for different and far safer hobbies. Always assuming, of course, that we begin to prosecute a serious campaign against them.

(7) Marianne Matthews made the following comment | Apr 14, 2009 4:15:31 PM | Permalink

Following the course of this very interesting case, through various military blogs [neptunus lex, blackfive, etc.] I note that the Rules of Engagement for the U.S. Navy specify that the Naval commander on the scene does not need specific permission from the DOD or the CiC or any other political pontificator to 'protect' or 'rescue' an American citizen from the threat of imminent death. It's simply a courtesy rather than a necessity to make sure that the President is on board with the decision.

Therefore, this was the U.S. Navy and its SEALs who should get the credit for this achievement, not Mr. Obama or the Department of Defense, who were essentially bystanders.

The mainstream media should stop salivating about OBama's excellent military adventure and give credit where credit is due.

But they won't, of course.

Marianne Matthews

(8) Gregory Koster made the following comment | Apr 14, 2009 7:34:03 PM | Permalink

Dear Ms. Matthews: Whatever the Rules of Engagement say, had any naval officer moved in without The One's permission, they'd be prosecuted. Think rules or laws are going to stand in The One's way? Well, ask Ted Stevens, who relied on law that required the prosecutors at the Justice Department to furnish him with any exculpatory evidence. Ted was convicted, faces a colossal legal bill, lost his reelection bid, and will always have a stain (likely well deserved) above him. His reversal of fortune is nothing short of miraculous, and should be treated the same way news of a Powerball winner is treated: as an uncommon event that is almost never going to happen to any individual person. To be sure, no formal prosecution would likely take place. "Administrative discipline" and "hearings" and "discovery", will be used to destroy any intrepid officer.

The relief at Captain Phillips's rescue should not obscure the real "hero" of this episode: the amateurish ineptitude of the pirates. Let a more skilled and determined mob get involved, one that knows the real battle is fought over the airwaves and in the law offices, and the next victim will not escape so easily. That The One has chosen the odious Harold Koh, a mean-spirited, intolerant, anything to win swine for whom a belt is the upper boundary of any argument, as "Legal Adviser" to the State Department is a sign of what The One really believes. Ideally, Koh's confirmation should be held on a cruise ship off the Horn of Africa, sans any naval vessels nearby. Failing that, the GOP minority should invite Captain Phillips to testify at Koh's confirmation hearing, and let the Honorable Harold try to explain why turning the conduct of the American government over to, say, the UN or any other camorra of "right-thinking" i.e. "It's always ALWAYS America's fault," bureaucrats would be a swell job creator for the Ivy League professoriate, but not the average American citizen.

Sincerely yours,
Gregory Koster

(9) Marianne Matthews made the following comment | Apr 14, 2009 10:49:10 PM | Permalink

Gregory ... I think you're probably right about Obama's retaliatory actions if anyone, even properly entitled someones, got the facetime he craves by getting between him and the adoring fan-mag press. But he's the first President in my memory [which is a long one since I'm 81] who has so blatantly overstepped the traditional rules, including the Rules of Engagement. Even Jimmy Carter didn't do that, wretched President though he was.

Marianne Matthews

(10) Legal Aid made the following comment | Apr 15, 2009 12:30:56 AM | Permalink

Piracy has become a way of life for the Somali pirates. It’s good that US have the resources to help their citizens who were held hostage. For some countries who have no enough machinery and resources, its citizens remain a captive of these vicious pirates.

(11) davod made the following comment | Apr 19, 2009 4:38:17 PM | Permalink

He will be treated as a juvenile and released when he is 18.

(12) Jamie Smith made the following comment | Apr 21, 2009 10:39:09 AM | Permalink

RRR Matey

I sentence him to walk the plank. Now if we could only catch Sinbad.

(13) Bryan S. Johnson made the following comment | Apr 21, 2009 6:27:29 PM | Permalink

Wow, that was the most detailed account/opinion of this pirate odyssey I have seen thus far. Very interesting, although I disagree with your main points. For example, I don't see anything positive that can come out of aggressively prosecuting this pirate. Deterrence? No, pirates will continue to do what they do regardless of what happens to this guy. After all, a U.S. prison is probably safer than living in Somalia. Also, he will probably be fed better in a prison here. While in jail, he can even get a book deal detailing the adventures of a pirate's life.

One has to look at reality, too. People in Somalia do not have it easy, to put it lightly. Most, even yourself, if put into their situation, would jump at the opportunity to make millions of dollars from piracy instead of wasting away from hunger. These pirates are bad. They are a significant threat to the many states' economies. From what you've written--for example, suggesting Muse be dropped off at Guantanamo, it appears you liken the pirates to terrorists. Unlike terrorists, however, pirates are in this for pure monetary gain. They are apolitical. Generally, if the Pirates are paid, no one gets killed. While I find their conduct unacceptable and criminal, it pales in comparison to terrorists such as al-quaeda.

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