In spite of yesterday’s praise for Prof. Martin, I think his analysis of this Latin-dropping opinion from the Ninth is wrong. Quick and dirty facts:
Lei Shi is a cook on a fishing ship. He is a citizen of the PRC, as is the captain of his vessel. The vessel is registered in the Seychelles, calls to port in Taiwan, and his first mate is from Taiwan. It is in international waters in the Pacific Ocean somewhere near the equator when Shi, apparently in an act of revenge for weeks of abuse at the hands of his captain and first mate, kills them. He then starts ordering the other members of the ship around, telling them to set a course for China, which they do. He stays in de facto command of the ship for three days until a few members of the crew overpower him and lock him up in a storage room. Then, they said for Hawaii where the U.S. authorities take possession of the vessel and of Shi. Shi is prosecuted in the U.S. as a pirate, and the Ninth Circuit says that yes, the U.S. courts have jurisdiction to do this.
Prof. Martin objects to this, on the theory that while the Constitution gives the government the power to prosecute pirates, it’s improper to rely on a Congressional definition of the word “piracy” because an act of Congress is subordinate to the text of the Constitution and Shi has not made himself “stateless” within the meaning of the ancient tradition of piracy law.
Seems to me, though, that Shi is indeed a “pirate” within that tradition. He committed an act of violence, killing his captain and first mate. He seized command of a ship on the high seas, and started to give commands to his crew and backed up his demands with a threat of violence. His objective, after forcibly taking command of the ship, was to get the ship to go to a port other than its usual one rather than to seek booty, or even to sell the ship to a black-market breaker. But the fact that his objective as a criminal was not a traditional objective of piracy does not mean that he was not a pirate. If I take a gun into a bank and threaten a clerk’s life with it so I can steal the bank manager’s laptop computer, with absolutely no designs on any of the cash or contents of safe deposit boxes, I am nevertheless still a bank robber. Shi’s objective was safe passage back to the PRC, not plunder, but he was still a pirate.
Now, Shi may not have been a very good pirate and it doesn’t look like he had ever thought things all the way through. He didn’t exploit his position to attempt to steal money or valuable cargo — but another thing of value that pirates have historically taken has been the ships themselves. Shi did that. He’s right that his connection to the United States is quite tenuous, but every maritime nation reserves to itself the jurisdiction to prosecute pirates. Shi is lucky that he wasn’t captured by Taiwanese authorities. Or those from his home nation, for that matter; he’d be spare parts by now. But more to the point, our courts were right to prosecute him because he is a pirate and it’s in our national interest as a maritime power that piracy on the high seas be punished.
