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

by Datechguy | January 3rd, 2013

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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.

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.

 

DaTechGuy on DaRadio Saturday Noon EST. WBNW AM 1120 Concord WPLM 1390 Plymouth WESO 970 Southbridge, FTR Radio, the 405 Media

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