Judicial Nonsense of the Week

The facts: Earlier this month in Norfolk Virginia, Federal District Judge Raymond Jackson dismissed criminal charges of piracy against six Somali nationals who attacked a Navy ship off the coast of Africa on April 10. United States v. Said, No. 2:10cr57 (E.D. Va. Aug. 17, 2010). The 21 page opinion concludes that the defendents weren't pirates because they never boarded the USS Ashland, only fired upon it--in other words, attempted piracy isn't illegal. What to think?

The law: Article I, Section 8, clause 10 of the Constitution gives Congress the power to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Congress did so in 1819, in 18 U.S. § 1651:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

In interpreting that statute, the Supreme Court said in United States v. Smith, 18 U.S. 153, 160-61 (1820):

What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing that law. There is scarcely a writer on the law of nations, who does not allude to piracy as a crime of a settled and determinate nature; and whatever may be the diversity of definitions, in other respects, all writers concur, in holding, that robbery, or forcible depredations' upon the sea, animo furandi, is piracy. The same doctrine is held by all the great writers on maritime law, in terms that admit of no reasonable doubt. The common law, too, recognises and punishes piracy as an offence, not against its own municipal code, but as an offence against the law of nations, (which is part of the common law), as an offence against the universal law of society, a pirate being deemed an enemy of the human race.

So long as they don't conflict with the Constitution, another source of international law is treaty obligations, such as the most recent law of the sea convention signed by the United States, the 1958 Convention on the High Seas, Article 15 of which reads:

Piracy consists of any of the following acts:

(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating an act described in sub-paragraph 1 or sub-paragraph 2 of this article.

Analysis: There are three problems with Judge Jackson's opinion. First, he says that because the language of statutes must be afforded their meaning at the time of enactment -- which is true -- the near-contemporaneous Smith case is the best source. Jackson then notes that the facts in Smith involved robbery on the high seas by force, and thus the crime of piracy must similarly be limited. Slip Op. at 6-10. But, as Prof. Eugene Kontorovich observes on the Volokh Conspiracy:

The judge concludes from this that attempted piracy is not robbery -- because nothing is taken. I disagree: the issue in Smith was not what the definition was, but whether there existed a reasonable concrete one such that Congress executed its power to "Define" by simply naming the offense. Smith did not rule out attempts. . .

If one is on notice that piracy is illegal under international law, isn’t one also on notice that trying to commit it will also get you in trouble?

Second, Judge Jackson refuses to apply the treaty definition of piracy, calling it "questionable" because "there is no single court that can bring order to various interpretations" of the term. Slip Op. at 17. Uh, you in the robe, that's your job -- you took an oath to "faithfully and impartially discharge and perform all the duties incumbent" of a Judge, and have an ethical obligation to act "fairly, impartially and diligently." But Judge Jackson instead, says David Glazier:

treats these two widely ratified treaties, including one that is the law of the land, as mere secondary sources entitled to no more weight than scholarly commentary. I think that is a fundamental error.

It's the flip side of result-oriented judicial activists who rationalize liberal outcomes via inapplicable international law. Either approach is un-judicial and unconstitutional.

Third, in a way, Jackson's reasoning confirms the conservative view on the rights of Gitmo detainees. Because he views the definition of piracy as ambiguous -- wrongly in my view, but accepting his logic for the moment -- it would be unconstitutional under the Fifth Amendment to convict under a vague statute. He's right about laws being void for vagueness, see Connally v. General Const. Co., 269 U.S. 385, 392-93 (1926). Yet that means Jackson recognizes the primacy of the Constitution over treaties such as, say, conventions on treatment of POWs or those prohibiting torture. Kevin Jon Heller at Opinio Juris finds it "satisfying" that those objecting to Jackson's opinion here defend the lawfulness of military tribunals elsewhere. But he's just as inconsistent in admitting Judge Jackson's "is almost certainly incorrect from the standpoint of the law of nations" while (Heller I mean) insisting terrorism isn't a war crime. And conservatives don't claim the Constitution is an excuse to ignore a valid treaty so as to make the remaining law vague. So, when the Fourth Circuit reverses Judge Jackson -- as they probably will -- conservatives will be happy not hypocrites.

Conclusion: Federal Judges shouldn't be in charge of national security.

(via The Corner)