Treating Terrorists as Pirates

Douglas R. Burgess Jr. wrote a great op-ed piece entitled "The Dread Pirate Bin Laden" over at Legal Affairs (an online magazine that I think I am going to have to add to my daily reading), arguing that terrorists should be treated, legally, as pirates: hostis humani generis, or "enemies of the human race".

Thanks, as always, to Bruce Schneier for highlighting this in his blog. Schmoliticans, if you aren't already, give his blog a look. It is about so much more than computer security.

Anyway, back to the terrorists as pirates issue. Here's a juicy bit to hook you in:

More than 2,000 years ago, Marcus Tullius Cicero defined pirates in Roman law as hostis humani generis, "enemies of the human race." From that day until now, pirates have held a unique status in the law as international criminals subject to universal jurisdiction—meaning that they may be captured wherever they are found, by any person who finds them. The ongoing war against pirates is the only known example of state vs. nonstate conflict until the advent of the war on terror, and its history is long and notable. More important, there are enormous potential benefits of applying this legal definition to contemporary terrorism.

[...]

President Bush and others persist in depicting this new form of state vs. nonstate warfare in traditional terms, as with the president's declaration of June 2, 2004, that "like the Second World War, our present conflict began with a ruthless surprise attack on the United States." He went on: "We will not forget that treachery and we will accept nothing less than victory over the enemy." What constitutes ultimate victory against an enemy that lacks territorial boundaries and governmental structures, in a war without fields of battle or codes of conduct? We can't capture the enemy's capital and hoist our flag in triumph. The possibility of perpetual embattlement looms before us.

If the war on terror becomes akin to war against the pirates, however, the situation would change. First, the crime of terrorism would be defined and proscribed internationally, and terrorists would be properly understood as enemies of all states. This legal status carries significant advantages, chief among them the possibility of universal jurisdiction. Terrorists, as hostis humani generis, could be captured wherever they were found, by anyone who found them. Pirates are currently the only form of criminals subject to this special jurisdiction.

The argument put forth in the article makes a lot of sense to me. Lawyers in the crowd, what do you think?

And my apologies for that tasteless picture--I just could not help myself.