Dumbass Judge in Somali Piracy Case

Judge: Somali Pirates Who Fired on U.S. Navy Are Not Really Pirates
August 20, 2010 7:16 PM

By Andy McCarthy

Putting federal judges in charge of national security — what could go wrong?

Federal judge Raymond A. Jackson has dismissed piracy charges against six Somali men who are alleged to have fired on U.S. naval warships on the Indian Ocean. Why? Because the attacks failed to ravage our vessels — indeed, they were captured and brought to Judge Jackson’s civilian court in Virginia. According to Judge Jackson (appointed to the bench by President Clinton in 1993), to be prosecuted for piracy (under Section 1651 of the federal penal code), pirates have to succeed in carrying out a robbery on the high seas. If they try but we capture them, they can’t be charged.

Makes perfect sense, right?

The judge’s daylight to make mischief here is caused by Congress’s definition of piracy. Rather than spell out what sorts of acts (and attempts, and conspiracies) constitute piracy, Congress referred to “the crime of piracy as defined by the law of nations.” The judge looked at a Supreme Court case from 1820 (United States v. Smith) that involved robbery on the high seas, in which the Court ruled that such a robbery fit the law of nations concept of piracy. But that doesn’t mean it was the only kind of forcible act that would fit the concept — much less that because those pirates happened to succeed, pirates who try but fail aren’t pirates.

The really galling thing here, though, is how politically willful the courts have become. When they want to create a new offense that is not actually recognized by American law, they claim to find it in … the law of nations. So, for example, the Ninth Circuit attempted a few years back to claim that “arbitrary arrest and detention” was actionable under its evolving understanding of this amorphous international law concept. But now attacks on international waters — which is one of the few matters for which there is any reason to have a “law of nations” — are not piracy.
Find the pearls of Judge Jackson’s wisdom at Steve Emerson’s Investigative Project on Terrorism.