Saturday, November 19, 2005

China's Hilarious Future

This hilarious video of two Chinese students lip-syncing the Backstreet Boys reminds me for the zillionth time how technology and globalization is changing China in ways we can't even imagine. President Bush, currently in Beijing, might want to take notice. Of course, the real value of this video is not its social-political significance. It's just downright hilarious and should be an instant classic.

Friday, November 18, 2005

More on the Pew Poll: U.N.'s Favorability Rating Keeps Falling

Thanks to Roger for pointing out this interesting poll. Here's another tidbit. The U.N.'s favorability rating among the general public continues to fall rather dramatically and pretty widely among all demographic groups, even as public support for the war in Iraq continues toi fall. Here is an excerpt from the report's section on the U.N.

The public's view of the United Nations has soured since March, continuing a slide that has been relatively steady over the last few years. In March, 59% held a favorable opinion of the U.N.; today just under half (48%) have a positive view. The decline has been steepest among groups that had been some of the U.N.'s strongest supporters, including Democrats (now at 58% favorable, down 17 points since March), blacks (49%, down 20 points), and those with household incomes below $20,000 (48%, down 19 points).

Of course, this doesn't reveal whether the fall in support is due to the U.N.'s internal problems or its failure to more effectively constrain the U.S., or some other problem. But still, this is an interesting and potentially important trend.

Who Is Responsible for Detainee Abuse?

A fascinating poll on "America's Place in the World" was just published by the Pew Research Center for the People and the Press (available here). The poll surveyed the general American public as well as opinion leaders in eight major categories. There is loads of information in the poll, but while we are on the subject of torture, it is worth pointing to this one nugget from the poll:

"The public, on balance, believes cases of U.S. prisoner mistreatment in Iraq and Guantanamo Bay were mostly the result of misconduct by American soldiers rather than the consequence of official policies. Opinion leaders are divided, with solid majorities in five of eight groups saying that the prison abuse scandal was the result of official policies."

More specifically, the poll shows that opinion leaders are far more likely to conclude that the abuse was the result of official policy than the general public. As discussed in this section of the poll:
"While influentials largely agree in opposing the use of torture, opinions differ widely on where the responsibility lies for cases of prisoner mistreatment in Iraq and Guantanamo Bay. By more than three-to-one (75%-21%) scientists and engineers say that these abuses were mostly the result of official policies. A majority of security (57%) and foreign affairs experts (58%) agree, along with about half of academics (53%) and news media leaders (53%). But most military (60%) and religious (67%) leaders believe cases of prisoner mistreatment were mostly the result of misconduct on the part of soldiers and contractors. The general public is divided over this question – 48% believe soldiers and contractors are mostly to blame, while 36% blame official policies. Not surprisingly, the public's views are highly differentiated by party. By a 67% to 20% margin, Republicans say these abuses mostly reflect misconduct by soldiers and contractors. Democrats and independents are more than twice as likely as Republicans to blame official policies (44% and 46% respectively)."
This disparity bears emphasis. Three out of four members of the National Academy of Sciences believes the mistreatment was the result of official policy, while three out of five of the top military brass believe it was not. The other interesting result: the average Democrat is less likely to believe that the mistreatment was the result of official policy than the average opinion leader in every category except leaders in the military, religion, and state/local government.

Thursday, November 17, 2005

Is Philippe Sands Serious about the Pinochet Precedent?

Philippe Sands is at it again. In an article in the San Francisco Chronicle last week, available here, Sands appears to be publicly pushing his idea that David Addington, John Yoo, and others he describes as "higher in the administration's hierarchy" (read: someone higher than the V.P.'s chief of staff!) should think twice about travelling abroad or they might suffer the same fate as Augusto Pinochet. It is precisely the same argument that Sands made in his debate with John Yoo a couple of weeks ago.

I would be curious if others have thoughts on whether this is a serious possibility. I have not heard anyone but Philippe Sands outspokenly and seriously pushing this idea. Is it in fact a plausible possibility that if a senior Bush Administration official, current or past, who was involved in the "torture memos" travels to Europe, they might be slapped with an arrest warrant from a Spanish prosecutor (or the like) and subject to an extradition proceeding? It seems highly implausible to me that Vice President Cheney's chief of staff (or various senior deputies in the Justice Department) could be arrested if one of them took a trip to London or Madrid. But then again, I don't know the mindset of an independent-minded Spanish prosecutor like Baltasar Garzón. I would be curious if others take a different view, particularly any international lawyers steeped in the details of the Torture Convention.

In short, is Sands dead serious about the Pinochet precedent?

WTO, NAFTA and International Judicial Abstention

Last month the WTO issued a decision (available here) in favor of the United States regarding the illegality of Mexico's beverage tax. According to the USTR press release, under the Mexican tax, "soft drinks made with imported sweeteners, such as high-fructose corn syrup (HFCS) and beet sugar, are subject to a 20 percent tax on their sale and distribution. Beverages made with Mexican cane sugar are tax-exempt. The beverage tax resulted in an immediate drop in U.S. exports of HFSC to Mexico. As of 2004, U.S. exports of HFCS to Mexico remained at less than six percent of their pre-tax levels."

One of the interesting procedural arguments at issue was the interplay between the WTO dispute resolution process and a NAFTA arbitration process. Specifically, the WTO panel rejected Mexico's request for it to decline jurisdiction in favor of a NAFTA dispute settlement panel, concluding that WTO panels may not decline to exercise jurisdiction over disputes properly brought before them.

The key language in the WTO decision was that Mexico's request for the WTO panel to exercise its discretion to decline jurisdiction implies "that the Panel has the power to decide whether or not to act. Indeed, discretion may be said to exist only if a legal body has the freedom to choose among several options, all of them equally permissible in law. It seems that such freedom for a panel would exist within the framework of the DSU only if a complainant did not have a legal right to have a panel decide a case properly before it.... [T]he aim of the WTO dispute settlement system is to resolve the matter at issue in particular cases and to secure a positive solution to disputes. A panel has thus to address the claims on which a finding is necessary to enable the DSB to make sufficiently precise recommendations or rulings to the parties. A panel would seem therefore not to be in a position to choose freely whether or not to exercise its jurisdiction. Were a panel to choose not to exercise its jurisdiction in a particular case, it would be failing to perform its duties." (Paras. 7.7-7.8).

It then made quite an interesting conclusion regarding the legal nature of disputes before it, and how that nature would be compromised if the WTO engaged in a practice of judicial abstention. "Even assuming, for the sake of argument, that a panel might be entitled in some circumstances to find that a dispute would more appropriately be pursued before another tribunal, this Panel believes that the factors to be taken into account should be those that relate to the particular dispute. We understand Mexico's argument to be that the United States' claims in the present case should be pursued under the NAFTA, not because that would lead to a better treatment of this particular claim, but because it would allow Mexico to pursue another, albeit related, claim against the United States. The Panel fears that if such a matter were to be considered then there would be no practical limit to the factors which could legitimately be taken into account, and the decision to exercise jurisdiction would become political rather than legal in nature." (Para. 7.17)

This conclusion makes immanent good sense. With the proliferation of international tribunals and arbitral bodies, concurrent jurisdiction between international tribunals will increasingly become an issue. This of course risks the possibility of inconsistent judgments, as Susan Franck discusses here. But the risk of a doctrine of international judicial abstention appears even greater, potentially leading international judges and arbitrators to render decisions beyond the scope of their authority and without sufficient regard to their treaty or contractual obligations to resolve the cases submitted to them.

Wednesday, November 16, 2005

Vote on Graham/Levin Amendment

I would be curious what our readers' opinions are of this compromise. Scroll down and vote.








Do you approve or disapprove of the Graham/Levin Amendment?
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Harvard Law Review Debates Roper and Foreign Authority

The Harvard Law Review has just issued its Supreme Court Review and it includes four wonderful articles by Richard Posner, Vicki Jackson, Jeremy Waldron and Ernest Young debating Roper and the citation to foreign authority. Jackson and Waldron favor comparativism, while Young and Posner express strong skepticism. Abstracts and full texts of the articles are available on the Harvard Law Review website here. A summary and introduction to the debate is here.

Posner wrote the Foreward to this year's review, and his discussion is broader than this one subject. But he has a long section on the "Cosmopolitan Court" that is highly critical of Roper and Lawrence. He argues that "I do not think the citation of these foreign decisions is an accident, or that it is unrelated to moral vanguardism. It marks Justice Kennedy (like Professor Dworkin) as a natural lawyer. The basic idea of natural law is that there are universal principles of law that inform--and constrain--positive law. If they are indeed universal, they should be visible in foreign legal systems and so it is "natural" to look to the decisions of foreign courts for evidence of universality.... To cite foreign decisions as precedents is indeed to flirt with the idea of universal natural law, or, what amounts to almost the same thing, to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience... Strip Roper v. Simmons of its fig leaves--the psychological literature that it misused, the global consensus to which it pointed, the national consensus that it concocted ... and you reveal a naked political judgment."

In her article, Jackson argues "the Eighth Amendment’s interpretive history supports the majority’s use of foreign and international law in deciding what is 'cruel and unusual.' Past practice, however, is only a partial answer to debates over whether transnational law should be considered in resolving questions of U.S. constitutional law, debates linked to a broader set of disagreements about constitutional interpretation. Part I below argues more generally that considering foreign and international law within a framework of learning by engagement — assuming neither convergence nor disagreement — is a legitimate interpretive tool that offers modest benefits (and fewer risks than current debate suggests) to the processes of constitutional adjudication. Part II makes preliminary suggestions for standards of inquiry in using comparative law in constitutional adjudication and raises cautions about the difficulties of developing contextually accurate understandings of foreign law."

In his article, Waldron argues that in Roper "Justice Kennedy said that it was 'proper' to take foreign law into account and that referring to the laws of other countries could be “instructive” for the Court’s interpretation of the Eighth Amendment. But he did not explain the jurisprudence behind this view. Nor did the Roper dissenters articulate a theory of citation to foreign law that they could squarely refute; they simply denounced the practice. The theory that is called for is not necessarily a complete jurisprudence. But it has to be complicated enough to answer a host of questions raised by the practice: about the authority accorded foreign law (persuasive versus conclusive), about the areas in which foreign law should and should not be cited (private law, for example, compared to constitutional law), and about which foreign legal systems should be cited (only democracies, for example, or tyrannies as well). The theory has to be broad enough to explain the use of foreign law in all appropriate cases: too many scholars call for a theory that will explain the citation of foreign law only in constitutional cases. The theory has to be persuasive enough to dispel the serious misgivings that many Americans have about this practice: why should American courts cite anything other than American law? Above all, it has to be a theory of law."

Finally, in Young's article, he argues that "Roper’s 'denominator problem' concerned whether foreign jurisdictions should count in Eighth Amendment cases. Justice Kennedy’s claim that a domestic consensus rejected the juvenile death penalty was profoundly implausible given that twenty states retained the practice. But by shifting focus from the domestic to the international plane — where the United States stood as one jurisdiction against all the rest — the Roper majority made an implausible claim of “consensus” into a plausible one. Defenders of looking to foreign law typically describe that practice as a search for “persuasive authority” — an attempt, in Justice Breyer’s words, to “learn something” from a “judge in a different country dealing with a similar problem.” I argue here, however, that creating consensus by including foreign jurisdictions in the Eighth Amendment denominator goes considerably further and, in fact, gives the practices of those jurisdictions authoritative legal weight."

Tuesday, November 15, 2005

The Revised Graham Amendment: A Legal Analysis

As Bobby helpfully notes in a comment to my last post, the revised Graham Amendment has made it through the full Senate and will be presented to the House negotiators soon for approval on that side (see the Washington Post's report here). It is a bit early, but it is worth thinking about the legal effect of the amendment, if enacted, on the existing wave of litigation coming out of Guantanamo. Here is my first effort, but I welcome thoughts from Bobby or anyone else. My goal here is not to argue in favor or against the amendment, but simply to try to predict the amendment's legal effects on current litigation.

(1) Retroactivity: If enacted, the amendment might eliminate federal court jurisdiction over existing as well as future cases coming out of Guantanamo, including Hamdan v. Rumsfeld, the case challenging the legality of the military commissions, and the Guantanamo Detainee Cases, which challenge the legality of the detainees' confinement and their lack of rights to challenge their confinement.

Section e reads: "no court, justice, or judge shall have jurisdiction to hear or consider an application for the writ of habeas corpus filed by or on behalf of an alien outside of the United States ... who is detained by the Department of Defense in Guantanamo Bay, Cuba."

The current Guantanamo detainees might argue that this language cannot eliminate their existing cases, e.g., that it cannot operate retroactively. This is a complicated issue and one that the federal courts have wrestled with before in the context of previous amendments to federal habeas jurisdiction. So it is at least possible that all of the existing cases could go forward.

(2) Constitutionality of Military Commissions: Even if the existing suits go forward, this amendment would almost certainly remove the main constitutional argument made by Hamdan and others challenging the military commissions because it either authorizes the commissions outright or recognizes the President's authority to establish such commissions. Hamdan and the detainees facing military commission trials will have to try their luck with due process arguments, which are much, much harder, especially given the creation of limited judicial review.

(3) Compliance with Geneva Conventions: Guantanamo detainees have challenged the adequacy of the Combatant Status Review Tribunals (CSRTs) which are used by the military to determine their status as an unlawful enemy combatant by alleging that these tribunals violate the Geneva Conventions. Detainees facing military commission trials have also made this same treaty-based argument. I think this argument that the CSRTs or the Military Commissions violate the Geneva Conventions may be in serious trouble. The amendment approves the CSRTs and military commission trials as long as they apply "such standards and procedures consistent with the Constitution and laws of the United States."

The key missing phrase here: "treaties of the United States." The D.C. Circuit, which has exclusive jurisdiction, can only review the CSRT and military commission procedures for violations of the U.S. Constitution and federal statutory law. The Geneva Conventions, as a treaty of the United States, cannot serve as the basis for that court's review. Any attempt to invoke the treaty would run into the "last in time" rule, which holds the a later in time treaty trumps an earlier enacted statute.

---

In sum, the amendment is likely to be bad news for the existing litigation. But in a way, that litigation has served its purpose, by forcing Congress to clarify (and limit) the President's policies toward the detainees. So while everyone lost a little bit, perhaps we can also say that everyone won as well?

Update: Full Text of Proposed Senate Compromise

Here is the full text of the proposed Senate compromise bill on detainee rights to challenge their confinement in federal courts, which I discussed below (thanks to Greg Fox for the link). I may have slightly different comments after reviewing the bill directly, but I must run to class...

The Senate's Detainee Bill Makes Everyone Unhappy; This Must Be a Good Thing

According to this Washington Post report, the Senate may have reached a deal on the controversial "Graham Amendment" stripping federal courts of habeas jurisdiction over appeals by Guantanamo detainees (which Bobby and I have blogged about here and here and which SCOTUSBlog discusses here). (The full text is posted above).

    The bill on first glance seems pretty reasonable, especially since the Senate will demand that the bill be linked to the McCain Amendment establishing uniform standards for the treatment of detainees. But it is likely to make all sides unhappy.

    The Bush Administration is (wrongly, I think) opposing the McCain Amendment and is currently taking the position that the Guantanamo detainees have no constitutional rights cognizable in federal courts. The supporters of rights for Guantanamo detainees will hate the fact that this legislation confirms the constitutionality of trials by military commission. Moreover, while the compromise appears to confirm some federal court jurisdiction to review detainees appeals, it limits such review to the D.C. Circuit, which is likely to take a deferential view of such military commission trials and is less likely than the district courts of finding such trials constitutionally defective.

    So everyone loses, at least a little bit. This probably means, however, that the compromise is a good one. We'll see.


    Federal Court Dismisses Claims Against Ethiopia

    Last week the D.C. federal district court dismissed a class action lawsuit against Ethiopia. In the case of Nemariam v. Ethiopia, __ F.Supp.2d __ (D.D.C. Nov. 8, 2005), available here, Ethiopia allegedly expropriated bank accounts of Eritreans living in Ethiopia. Specifically, the allegation is that Ethiopia and its agents engaged in a systematic effort to seize the property of the Eritrean deportees, including seizing or freezing the deportees' bank accounts and foreclosing on their properties and businesses.
    On remand from the D.C. Circuit, the district court held that Ethiopia enjoyed sovereign immunity under the FSIA, and that the expropriation exception, (28 U.S.C. 1605(a)(3)), did not apply. The most important aspect of the case is the holding that the claimants' expropriated bank accounts were not in fact currently "owned" by the government.
    "Contrary to the plaintiffs' argument, however, the plaintiffs' property is not owned or operated by ... the Ethiopian government....the plaintiffs' property is a contract right as a depositor, not the actual funds that were originally deposited into the accounts. The funds, once deposited, become the funds of the bank, subject to the account holder's contract rights.... [T]his distinction ... is critical. So, rather than having property rights in the deposited funds, the plaintiffs' property rights are actually the contractual rights they possess to have those funds returned to them. Accordingly, to establish that ... the Ethiopian government own or operate the plaintiffs' property, the plaintiffs must establish that ... Ethiopia ha[s] assumed control over these contract rights and used them for their own benefit. But they have failed to make such a showing. The plaintiffs' position is predicated on a belief that when funds were deposited into their accounts, they still have property rights in those funds. However, as already discussed, the property rights the plaintiffs possess is the contract right to the repayment of those funds.... Thus, any investment or use of the funds by ... the Ethiopian government has not offended the plaintiffs' property rights since those funds, until they are repaid, are owned by the bank, not the plaintiffs. Thus, because the plaintiffs' argument is based on a false proposition, the argument fails as a result of its flawed foundation. "
    This conclusion appears to be a real stretch. It essentially suggests that claimants do not "own" the money in their bank accounts, only the contractual right to access the funds in those accounts. And since the government did not assume control of those contract rights, it did not take the money in those accounts and does not own them.
    This appears to be an overly formalistic approach to expropriation of bank assets. If the government imposes complete limitations on access to the funds in their accounts, it would seem that the claimants no longer effectively control those accounts and that those assets are currently owned and controlled by the Ethiopian government. To conclude otherwise would encourage governments to write laws denying account holders' ownership of bank accounts, take confiscatory action just short of full ownership, and thereby achieve a taking without compensation.
    As it stands, the suggestion of the D.C. district court is that the Eritrean claimants never owned the money in their bank accounts, only the contractual right to them, and therefore no expropriation of those funds could have occurred.
    Funny, all this time I thought I actually owned the money in my bank and retirement accounts.

    Monday, November 14, 2005

    Ken Anderson on ICRC Customary International Humanitarian Law Study

    Ken Anderson is the first member of the blogosphere to read every page of the 5,000 page ICRC study on Customary International Humanitarian Law (which we discussed here when it was published last spring). His thoughtful analysis is here. So why pay attention to the study?

    What does the Study mean in practical terms for matters of international humanitarian law? The view of the ICRC is that the Study “does indeed present an accurate assessment of the current state of customary international humanitarian law.” The ICRC therefore intends to “take the outcome of this study into account in its daily work.” (Kellenberger introduction, at xi.) The Study’s view of customary law will thus form the basis, for example, of ICRC challenges to the US practices regarding detainees. Beyond the ICRC, it will almost certainly be absorbed as authoritative by other non-governmental actors, international tribunals, and others. It will thus be cited as essentially binding authority in a wide variety of venues, ranging from courts to treaty negotiations. Because of the fact that customary law is, in principle, binding on all states even without formal consent, the implications of the Study being accepted as authoritative are, to say the least, weighty for international law. Finally, it should be noted, the Study may well have a very significant practical effect within US domestic legal practice, as it will surely be widely cited and, absent some clear dissent from the US, be accepted as the authoritative standard for the content of customary international law in Alien
    Tort Statute and other domestic cases that turn on international law.
    He identifies one of the central flaws in this project of "codifying" the content of customary international law by taking into account every action of every state (no matter how "micro" the state in question is, or how infrequently it engages in war):
    The flip side of this exhaustive inclusivity is that the views of larger and military powerful states are inevitably downplayed. Unsurprisingly, the views of the United States are the most downplayed – not from any ideological motivation, but simply as a result of a method that emphasizes including everyone’s views, and regards “views” as equally important if not, in the aggregate, more important than the facts of how parties fight. There is, in other words, a certain sense in the Study that in the battle over legal rules, he who writes the most memos wins.
    Ken and Tod Linberg are co-sponsoring a discussion of the study at the Washington, D.C. offices of the Policy Review-Hoover Institution this Wednesday, Nov. 16, for those seeking a primer on the issues and the study's implications for the United States.
    The next big agenda item for the ICRC is the conference being convened next month to adopt a new emblem -- the red crystal. I blogged about the emblem issue in May, but will have some updates as the conference nears.

    Yale Law Frets Over Alito

    A parody of the recent New York Times article, “Yale Law Frets Over Court Choices It Knows Best”:

    NEW HAVEN, Nov. 8 - The morning after Judge Samuel A. Alito Jr. was announced as the president’s choice for the Supreme Court, some students and professors at his alma mater, the Yale Law School, were already hard at work - to defeat him.

    Professor Bruce Ackerman, who teaches constitutional law here, appeared on CNN with this instant assessment: "I’m a judicial radical, and I don't think Alito’s conservative views fall within the mainstream of my constitutional vision.”

    A group called Law Students Against Alito was formed the same day. “There is a chunk of the population, probably a majority," said Ian H.L.A. Bass, III, a founder of the group, “who are completely insufferable and pompous and frankly they do not want some working-class Sam from Newark on the Supreme Court. It’s beneath them.”

    Conservative students here said they were concerned that the Alito nomination would be a replay of what they called the savage treatment meted out to Judge Bork and Justice Thomas, who endured ad hominem attacks from members of the dysfunctional Yale family.

    The mood here appeared to be irrationally but predictably hostile. A few students who supported Judge Alito tended to make annoyingly traditional arguments that he was spectacularly qualified, noting that Alito has the most judicial experience of any nominee since Benjamin Cardozo. Some said, for example, that an ideology out of sync with the liberal ethos of Yale Law School should not in itself derail a candidate who was otherwise qualified.

    But the dominant view, based on a day of interviews at the law school, appeared to be that Judge Alito’s jurisprudence, while faithful to the Constitution, represented a betrayal of the law school’s liberal political values. For many, that was enough for a good borking.

    Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito's 15 years of opinions with a jaundiced eye. “Alito is a careful carpenter,” Professor Gordon said. “The things are well built, but they are not beautiful. If only I had applied my hand to interpret the Family Medical Leave Act. What a sight you would behold! Soaring arches! Corinthian columns! A veritable Sistine Chapel of statutory interpretation.”

    Still, the happy memories of the Bork and Thomas hearings linger, and many of those interviewed said that they hoped the discussion of Judge Alito’s views would be robust, civil, and focused exclusively on his dissent in Casey.

    “Sadly,” said Professor Kronman, the former dean, “relations between Justice Thomas and the law school have not been as warm and cordial as I would wish them to be. The confirmation process left a residue of discomfort that has never completely drained, though I think it is dissipating. I believe that he felt, with whatever justification, that the school did not come out as strongly and consistently and institutionally in support of his nomination as he would have wished. I guess it stemmed from the fact that many here portrayed him as the devil incarnate. I just can’t imagine why he would not want to embrace us now.”

    The earlier nominations were a turning point for the law school, said Harold Hongju Koh, the current dean. “This kind of self-righteousness of Yale really emerged in full flower for the first time with the Bork and Thomas hearings.”

    A recent study in The Georgetown Law Journal suggested that Judge Bork's assessment of the law school’s political leanings was true. The study analyzed 11 years of records reflecting federal campaign contributions by professors at the top law schools. Forty-three percent of law professors at Yale made contributions of more than $200, and 92 percent of those gave mostly or wholly to Democrats.

    Professor Shuck said, “The politics of Yale Law School and the other elite law schools is 95 percent left and 5 percent other … and they all teach corporations.” He said he counted perhaps four conservative professors on a faculty of about 70. “But of course, they still have to run the gauntlet of tenure.”

    Four students recently chewed over the Alito nomination in the gilded offices of The Yale Law Journal. Justinian de la Florence, another founder of the group opposing Judge Alito, said Yale law students, ipso facto, had an important role. “This really matters to our generation of little Supremes," Mr. de la Florence said. "If these hearings are going to become a national conversation about how the Constitution should be interpreted, that can’t be a one-sided conversation. Yale must be at the forefront. The Bork hearings - they were a substantive conversation. Remember Ted Kennedy’s speech? The Thomas hearings were an embarrassment filled with character attacks from the likes of my faculty. It would be great if we had another Bork hearing. If only Alito would grow a beard and wasn’t so darn smart and likeable.”

    Pirates of the Arabian Sea

    Although little noticed in the mainstream media, pirates are on the prowl along the Horn of Africa. In a short squib in the New York Times this weekend it was reported that “Somali pirates chased and attacked five ships in the last week in a sharp rise of banditry apparently directed form a “mother ship” prowling the busy Indian Ocean corridor…. Four vessels escaped, including the cruise ship Seabourn Spirit, which was carrying 151 Western tourists, but a Thai cargo ship was commandeered, bring to seven the number of vessels now being held captive with their crews by the pirates.”

    The International Maritime Bureau tracks these developments closely. According to a recent article by the bureau, it appears that Somalia is to piracy today what Afghanistan was to terrorism yesterday: a safe haven for criminality.

    “After a quiet spell of nearly two years … serious attacks by heavily-armed pirates have resumed: 25 in the past six months.… Somalia occupies a strategic location on the Horn of Africa. To the north is the Red Sea and the Suez Canal with its heavy traffic of shipping between Europe and Asia. The former Italian colony is close to anarchy, without a functioning national government for the past 14 years. Captain Pottengal Mukundan, Director of the IMB, appealed to naval vessels in the region to come to the aid of ships under attack. ‘At the very least,’ he said, ‘they can prevent the hijackers from taking these ships into Somali waters. Once the vessels have entered these waters the chances of any law enforcement is negligible.’ Unless international action is taken against the pirates … Somalia could become a haven for criminals ‘who may feel encouraged to extend their activities in the wider region.’"

    Perhaps what is most newsworthy about these regional episodic attacks is that they are precisely that: limited and irregular. Today we fret endlessly about the rise of terrorism and the threats of madmen bent on destroying Western society as we know it. But pirates? Aren’t those bearded bandits quaint vestiges of a lawless age when barbarians trolled the Barbary Coast in lust of lucre? By and large, yes.

    At the dawn of our country Thomas Jefferson would sooner go to war with the Pasha of Tripoli then continue to pay “tribute” to stave off state-sponsored piracy. The Barbary Coast War (a.k.a. the Tripolitan War) of 1801 was fought because Jefferson took a stand and said no more. Assymetrical attacks on our merchant marine vessels were finally met with naval war power. The result? In the words of Robert McHenry, “State-sponsored piracy in the Mediterranean was ended…. The Tripolitan War … first thrust the United States into the unsought role of enforcer of international law against rogue states in league with terrorists.” Today the Marines sing of their exploits on the “shores of Tripoli,” a reference to our forgotten war against state-sponsored piracy.

    Is there a lesson in this for us today? Perhaps one day state-sponsored terrorism will be viewed as a quaint historical oddity. For now, we are vexed and perplexed about how best to respond to the barbarians at our gates. But assymetrical attacks on civilians are finally being met with war power. Of course we will never eradicate terrorism fully. But if the international community continues to take a stand, perhaps someday terrorist attacks will no longer garner the patronage of governments. If so, one day they truly may become parochial and episodic.