Let's talk about pirates.
They exist. Not just in Disneyland. And they're bad.
Okay, I get that. The question then becomes: How can they be punished? Or, more accurately, does the United States, in particular, have jurisdiction to punish pirates for offenses committed on the high seas?
Let me give you the short (and easy) answer: Yes. For a variety of different reasons. For example, in Article I, Section 8, the Constitution enables Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." There's also the Article II Treaty Power, backed up by the Necessary and Proper Clause, and since the U.S. has, in fact, entered into a couple of international treaties that deal with piracy on the high seas, the constitutional power to punish pirates is pretty darn solid. Backed up by a wide variety of statutes that exercise that power.
Fair enough. So you're safe from Johnny Depp on the high seas. And less fictional -- and less savory -- real pirates as well.
But what about from people like Lei Shi?
Now, admittedly, you and I aren't likely to encounter people like Shi on a three-hour cruise. Or ever, for that matter. Shi's a Chinese citizen working on a Tawianese merchant ship. He's the cook. He allegedly gets beaten and harassed repeatedly by the Captain and First Mate. Which seems plausible. This does not make Shi happy, and in a subsequent fit of rage, he stabs and kills both men.
Not nice. Well, at this point, Shi realizes he's in what we legally call "deep doo-doo". So he throws the captain's body overboard and tells the crew to set a course for China or he'll do to them what he did to his harassers, plus he'll (allegedly) scuttle the ship. The crew obeys for a couple of days, but then promptly overpower Shi and lock him up in a storage compartment.
What's this got to do with the United States? Well, nothing. Shi's a Chinese national. The Captain was from Taiwan and the First Mate from China. The ship's a Tawianese fishing vessel registered in the Seychelles. The murders happen in international waters, where the ship was fishing, and there's utterly no connection to the United States.
But, after overpowering Shi, the crew sets a course for Hawaii, the closest major land mass, and eventually the U.S. Coast Guard intercepts the ship. It eventually takes charge of the vessel, takes possession of Shi, and then Shi's charged with a variety of crimes in federal court.
But Shi objects to being criminally charged in the United States, a forum as to which he has absolutely no connection other than that he was forcibly taken there. He didn't commit a crime there. He didn't go there. Why can he be charged there? Legally, he makes the argument that's traditionally (and often successfully) used by drug runners, who argue that they can't constitutionally be prosecution in the United States unless there's some nexus between their crime and that sovereign. Which, as we all know, there often is. But for Shi, there's not. So why can the U.S. prosecute him? Why doesn't that violate Due Process?
Remember that Article I, however, permits Congress to punish felonies committed on the high seas. Murder certainly counts. But so does drug-running, and still, we require a nexus. In other words, sure, Article I (as well as the Article II Treaty Power) grants an enumerated right, but Congress still has to comply with the Fifth Amendment and demonstrate a nexus. Otherwise, no dice.
So here's what Judge O'Scannlain holds today: The nexus requirement doesn't apply to Shi because he's a pirate. A pirate?! You may ask yourself: (1) How does that possibly matter legally?, and (2) How is that possibly true, since the guy's a cook, not a pirate? Both good questions.
As to the first, Judge O'Scannlain says that the nexus requirement doesn't apply to pirates because they're stateless and universally condemned. In the words of Ninth Circuit precedent, which concerned jurisdiction over stateless ships running drugs, “[s]uch vessels are international pariahs” and hence “by attempting to shrug the yoke of any nation’s authority . . . subject themselves to the jurisdiction of all nations." Or, as the Supreme Court put it in the conext of pirates, because "piracy . . . is an offense against the universal law of society, a pirate being, according to Sir Edward Coke, hostis humani generis [an enemy of the human race]."
Okay, I get that. Assume that's right, and that a pirate can be tried anywhere. I'm willing to sign onto that, I guess. How the flock is Shi a pirate?!
Well, Judge O'Scannlain holds, he's a pirate because he meets the definition of one. What?! Judge O'Scannlain admits that, traditionally, pirates were, well, pirates: i.e., people who robbed or plundered other ships on the high seas. Those are indeed the people who hostis humani generis. But that ain't Shi.
Ah, says Judge O'Scannlain, but you are one. Why? Because that's the way Congress defined it, as Section
2280(a)(1)(A) prohibits “seiz[ing] or exercis[ing] control over a ship by force or threat thereof” (which Shi surely did) and § 2280(a)(1)(B) prohibits “act[s] of violence against a person on board a ship” that are “likely to endanger the safe navigation of that ship" (which is a stretch, but which Shi arguably did).
But, with all due respect to Judge O'Scannlain, that argument constitutes an obvious logical fallacy, and conflates two distinct realms. Yes, Congress has, inter alia, the Article I power to "punish Piracies," and, for that matter, any "Felon[y] committed on the high Seas." But we already know that enumerated power doesn't categorically negate the Due Process Clause, otherwise drug offenses could be prosecuted without a nexus as well (since they're felonies too). What does negate the nexus requirement is a boat (or person) being stateless in the way that pirates or the crew of a stateless ship is stateless. But, again, that's not Shi.
What Judge O'Scannlain is basically saying is this:
(A) The Due Process Clause allows Congress to prosecute a "pirate" without a nexus to the U.S.
(B) Congress has defined a "pirate" to include someoe like Shi.
(C) Hence, the Due Process Clause does not bar Shi's prosecution.
But (C) does not follow from (A) and (B). Congress cannot define for itself who constitutes a stateless pirate sufficient to allow Congress to constitutionally exercise jurisdiction. So if Shi's not a "pirate" under the usual (and historically understood) definition of the term, it's insufficient that Congress has nonetheless passed a law that declares him to be one. Any more than Congress could define "piracy" as including "hitting of a golf ball off a cruise ship into the high seas" and thereby prosecute a citizen of Fiji with utterly no connection to the United States who engaged in this practice.
Is Shi a nice guy? No. Not to the Captain and First Mate, at least. Is he a "pirate"? Dubious, though I can at least see an argument based upon his takeover of the ship (though I doubt that mutiny counts as piracy). But that's not the argument that Judge O'Scannlain makes. And the argument he does make I don't find especially persuasive.
