Pirates, Terrorists, Gunowners they’re all the same.

To Boost the British Economy I’d tax all foreigners living abroad

Monty Python’s Flying Circus The Spanish Inquisition 1970

Pirates are hanged

Lord Hornblower 1946

I have come to kill Indians and believe it is right and honorable to use any means under God’s heaven to kill Indians

Col. John M. Chivington

Via Glenn I see a very interesting and potentially dangerous precedent being made by US courts:

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks.

This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S.
Sounds good right, terrorists nailed before they could do suicide bombings read on…

The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group.

Even better, I’ve gone on for years about the threat of Islamic Terror and its large body count. Stopping these murderous bastards is always a positive and saves lives, but here is where it gets complicated…

To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

Three thoughts go into my mind:

In terms of utility this would be a good thing. Terror and suicide bombing are an international problem as is terror by Islamists. Going after them would doubtless save many lives, not necessarily American lives but lives just the same and make it more complicated for terror groups to act.

In terms of  principle furthermore you could apply the old rules of Piracy, Pirates when captured on the high seas could be hanged on the spot and piracy is still recognized as an “offense against the law of nations” surely Terrorism and suicide bombing can be as well

It’s in terms of practice is where we run into problems. First of all, there is the US Constitution (emphasis mine)

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law of nations. Congress cannot “define” something as a universal offense when the law of nations has not done so – not because of any superiority or comity of international law, but because that is the limit place by the Define and Punish Clause.

It would seem to me odd that suicide bombing and terrorism is not defined as “offenses against the law of nations” but if that is in fact the case, this simply can’t be done because the constitution explicitly limited the power of congress to do this (and that matters because they are being prosecuted under US law).

If we move to get terror and these groups listed as “offenders against the law of nations” internationally then we are in play, or better yet if we can get terrorism defined as a form of Piracy, already recognized as the same that would work, but until then it’s pretty dodgy allowing the government to redefine “offenses against the law of nations”.  I don’t trust congress or the president to unilaterally redefine this kind of thing and neither should any of you.

And if congress can’t be trust consider who defines these things internationally these days:

the problem of course is how such a law is enforced and how “terrorist” is defined. I suspect if the UN gets its hands on it suddenly Israel will be on the list of “terror” nations giving a false sense of legitimacy to the murder of Jews everywhere.

Remember this is the same international community ready to consider Israel a bunch of criminals for firing back when rockets are launched against civilians while willing to turn a blind eye to those who shoot them.

Or worse yet, what if this same international community defines offending religion (read Islam) is an “offense against the law of nations”. Suddenly US citizens abroad could be picked up for any of these offenses and tried under international law using the same type of Universal jurisdiction being applied here.  Or perhaps private ownership of firearms can also be so defined.  There are already international moves in that direction and if you don’t think that can happen here, look at the reaction in the US since Sandy Hook?

As a practical matter stopping these guys is a good thing, but we had better be careful,  VERY careful when it comes to embracing  this kind of thing.