I almost can’t think of anyone with whom my own views on sovereignty, national security, and international law are more closely aligned than with Messrs. Rivkin and Casey. But I think it might be valuable to add another turn in the dialectic on piracy, given Rivkin’s rejoinder to my earlier post.
First, the problem of piracy is, practically speaking, a commercial one, and, if the market is unable to solve the problem, and if we consequently face a strategic threat to a vital interest, then an exertion of U.S. power, including military power, might be warranted. If, as David Rivkin warns, a “tipping point” is reached at which piracy begins to “seriously impair the flow of global commerce” then I would not hesitate to support a rational application of force. Indeed, I would advocate an application of preventive force if such a tipping point seemed to be in prospect.
But I simply do not believe that such a tipping point is here, or even on the horizon. David Freddoso’s post a little while ago lends good congressional color to this view. I base my view on the fact that 21,000 merchant ships continue to transit the area in question every year, when they have the (admittedly more expensive) option of going round the Cape of Good Hope. I could be wrong; perhaps many more ships would be transiting the Gulf of Aden were it not for the piracy problem. But one would have to demonstrate that this is so in order to demonstrate that the problem is of a strategic scale. I have yet to come across any such analysis. If the numbers of ships-in-transit through the Gulf of Aden were to start diminishing precipitously, or if we had good reason to think that this might happen, then clearly a major exertion of national power would be warranted. But otherwise, the argument for increased national exertion seems to have little force.
The problem of piracy is an international problem. As China has demonstrated in the Malacca Straits on the other side of the Indian Ocean, the problem implicates the interests of other powers more squarely and heavily than it does our own, and they will move to deal with it. In every situation where piracy has become a major problem for international commerce, the response of the international community has been adequate to the task. This cannot be denied: We have not lost, nor are we in any imminent danger of losing, any major thoroughfare of international maritime commerce.
The debate over strategic proportionality and the effectiveness of the global market should not distract from what I think are the much more profound issues as stake for U.S. sovereignty, and here there is no daylight between me and Rivkin-Casey. The legal opinions rendered in successive U.S. administrations have left the U.S. Navy in an impossible legal tangle as to which anti-piracy operations are permissible and which are not. This, it seems to me, is the issue that we should be airing. In its anti-piracy operations, the U.S. Navy is nowadays caught in a brave but outlandish attempt to make some sense of the various authorities and restrictions under which it is called upon to operate. Which merchant ships does the Navy have a right to defend? Which crews does it have a right to rescue? Which acts of piracy have a “jurisdictional nexus” to our own courts? Which pirates are subject to U.S. law, for crimes that have no direct “jurisdictional nexus” with the U.S.? It used to be that we could take any pirates we found and hang them on board. But not now. Now, when our Navy captures pirates and puts them through the requisite legal analysis that net result is often legal limbo — and, in the meantime, for the detainees, the world’s best medical care.
The U.S. Navy uses the term “authorities” to refer to the legal guidelines that it relies on for operational clarity — within the executive branch. But the State Department uses the term “authorities” to apply to international law. The two meanings are not the same, but they are easily confused even by the most senior professionals — Condoleeza Rice being the prime example — and therein lies a huge problem. That is where the appointment of someone like Harold Koh to be the State Department’s legal adviser should draw our close attention. If left to his own devices, he might not take long to make the U.S. Navy’s task even more complicated than it is already.