Tiptoing through the tulips of Transnational Jurisprudence and Constitutional Protections

The lawyers have too much sway in these situations and obfuscate what should be obvious. We have been tiptoing through the tulips on matters of jurisprudence, incredibly both taking the transnational side a la Harold Koh ( the view that international law can trump the Constitution --which elected officials are sworn" to preserve, protect, and defend" ) and then taking that of Constitutional rights for pirates and other terrorists, invariably to the detriment of common sense and innocent victims. It's so nice to learn that the FBI is conducting a criminal investigation and, if pirates murder a hostage, they might be tried in U.S. courts and subject to long prison sentences, at the outside.

Prof. Owens' distinctions reminds us of the proper transnational precedent, albeit one antedating the hardly-definitive U.N. Traditional treatment of latrunculi is summary execution at sea or on the field, conjoined with assaults on their lairs. Lord Palmerston pointed out that it is easier to clean out wasps' nests than swatting wasps individually.

The most sensible comment heard so far is from a naval officer, probably not definitive and likely out of touch with the Obama attitude: "the pirates should know that, if they harm Captain Phillips, they will die immediately." Would that such common sense were shared! If jurisdiction is, indeed, ambiguous and applicable law unclear, what complaints can be made about the proper actions of the U.S. Navy?

http://tinyurl.com/d7vqny
* APRIL 11, 2009
The Pirates Challenge Obama's Pre-9/11 Mentality
Distinctions between lawful and unlawful combatants go back to Roman times.
By MACKUBIN THOMAS OWENS
When Somali pirates hijacked ...President Barack Obama refused to comment...While renouncing the term "enemy combatant," the Obama administration acknowledges the reality ...detainees are still not entitled to prisoner-of-war status... violated the laws of war by killing civilians and fighting out of uniform.... opted to refer to them as "individuals captured in connection with armed conflicts and counterterrorism operations," or "members of enemy forces," or "persons who [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks."... these changes ...represent a substantive shift...a return to the policy mindset that existed before 9/11, and the consequence will be material harm to U.S. security.
= Lincoln wrote,,,"I think the Constitution invests its commander-in-chief, with the law of war, in time of war."... Lincoln found his war power in his presidential oath "to preserve, protect, and defend the Constitution of the United States."
...historian Sir Michael Howard argued... after 9/11, the status of al Qaeda terrorists is ...in a distinction...the Romans ...between bellum (war against legitimus hostis, a legitimate enemy) and guerra (war against latrunculi, pirates, robbers, brigands and outlaws).
Bellum...for interstate conflict...the Geneva Conventions ...apply. They do not apply to guerra. Indeed, punishment for latrunculi, "the common enemies of mankind," traditionally has been summary execution....legal experts agree that al Qaeda fighters are latrunculi -- hardly distinguishable...from pirates and the like...."I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards ... prisoners of war." ... "no 'terrorist organization' thus far has been deemed a combatant under the laws of armed conflict." Thus al Qaeda members "can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities." ...Obama administration is about to extend legal rights... to the very latrunculi...did not rule out trying the Somali pirates....
most appalling -- and hypocritical -- is that Congress was briefed ...wanted to ensure that the interrogations were tough enough... But..."the environment was different then because we were closer to Sept. 11 and people were still in a panic."
...
Mr. Owens is a professor at the Naval War College and editor of Orbis, the journal of the Foreign Policy Research Institute.