What to do in Somalia?

By Michael Ruhl, University of New Mexico – Talk Radio News Service

The lack of a coordinated international response might have emboldened pirates off the coast of Africa to step up their terror, according to Retired Vice Admiral Kevin Cosgriff. This comes on the heels of Secretary of State Hillary Clinton announcing the Obama Administration’s new approach to the situation in Somalia, which includes the U.S. seizure of financial assets.

Cosgriff believes that a coordinating authority among the nations with maritime interests in the region could help present a unified front against pirates.

“With so many different players on the field, it’s a bit like an all-star game without an authoritative coach. There are differing rules of engagement, national approaches, and limits on what they want their warships to do.” Cosgriff said it’s a challenge “to have the right ship from the right navy in the right place at the right time to do what you want to do.”

Cosgriff is former commander of the US Naval Forces Central Command. He held a talk at the Middle East Institute, at which he addressed the possible courses of action which could be taken against maritime piracy in the nearly 400,000 square mile region along the Somali coast.

“Doing nothing, or being ineffective at what we do, strikes me as bad policy,” said the commander, who addressed five possible courses of action that could be taken to curb the lawlessness:

• Do Nothing: Companies which traffic goods off of the African Horn would pay ransoms and treat piracy as a cost of business.
• Arm the Crews: Ship crews would be expected to maintain their own security through hiring private security forces or arming their mariners.
• Flood the Zone: International naval coalitions and unofficial patchworks of navies “with significant maritime interests” would patrol the region.
• Go in on ground - Light: Tactical airstrikes and troops on the ground aimed at equipment and infrastructure within known pirate camps along the Somali coastline.
• Go in on ground - Heavy: Tactical airstrikes and troops on the ground to flush out the pirate camps, seize property, and not allow the pirates to bare the fruits of their actions.

Cosgriff emphasized the importance of a coordinated international response in whatever route was selected, because it is an “international problem in the great global commons known as the sea.” A coordinated response would provide a uniform framework in which to react to pirates when they engage in hostility, according to Cosgriff. He said that since the U.S. is a global maritime leader, it should take a leading role in the solution.

“Whatever lies ahead, we have to take care… that the cure is not worse than the disease,” he said.

Cosgriff acknowledged that piracy is a business, and doesn’t believe that it is rooted in simple poverty and desperation, although he acknowledged those as contributing factors. “The overall problem is that of organized criminal clans,” groups which he said, “try to extend seaward the rule of the gun which pertains in much of Somalia.” He continued, “in short, piracy pays.”

Somalia has faced ongoing violence and lawlessness since the government collapsed in 1991.

Somalia: A Pirate’s Paradise

By Michael Ruhl, University of New Mexico – Talk Radio News Service

Piracy is nothing new in Somalia. Every day pirates run free off of Somalia’s nearly 2,000-mile coastline and find haven within this African country which is slightly smaller than Texas. The problem has long been of concern to the U.S. State Department and the United Nations, but it has been gaining special attention once again because of the targeting of American citizens. The hostage situation with American ship captain Richard Phillips caused a nation to hold its breath, and many were in shock when U.S. Congressman Donald Payne (D-NJ) escaped a mortar attack aimed at his airplane in Mogadishu on Monday while the congressman was meeting with government officials.

Maritime piracy has been a lucrative business since the collapse of the Somali government in 1991 and in the thirteen governments to exist since. It can provide quick income for the uneducated and impoverished, and has become a fact of life for companies trading around the Horn of Africa.

The United States has not had full diplomatic ties with Somalia since 1991. Somalia now has a U.S. “Ambassador-at-large” with no formal office in the U.S. from which to work. The Ambassador-at-large, Abdi Awaleh Jama, believes that the violence comes from a “poverty of leadership” in Somalia. Jama said the leaders at the regional and national level don’t serve communal interests but rather favor specific clans or family members.

“The dominant paradigm now is the clan paradigm... not the nation paradigm,” Jama said. He continued, “When there is no law and order, you take the law into your own hands.” Jama said the natural resources in Somalia have been seized by certain clans and used to hold down opposition within the rest of the country.

Jama, who does not fault the sitting Somali president for the country’s condition, said that pirates flourish off the expansive coast because the rule of law has not existed in Somali society in the past decade. When such anarchy is combined with the overflowing poverty, a situation will develop where people will seize “any opportunity they have to make money,” said Jama.

Officials within the Somali government have defended the so-called pirates as being a “coast guard” who protect the country’s resources. Jama dismisses that claim.

“These are criminals who want to make quick money, and who want to just use force, in the name of saving Somalia,” he said. “They are only there to enrich themselves, and to use that gimmick that they are defending Somali resources, which is wrong.”

Joel Carny, an expert from Refugees International, said that Somalia “really hasn’t had a central government that has functioned in so long.” He believes this has led to “warlordism” and opportunity for clan-based regional politics to develop. He called Somalia “an environment in which everyone has to fend for themselves.”

According to Carny, approximately two million Somalis have been displaced due to the violence in the past decade and three million are in need of emergency assistance.

Somalia’s Ambassador to the United Nations, Dr. Elmi Ahmed Duale, acknowledged in a phone conversation that the violence was taking place and said the government cannot hide it. He hopes for a resolution.

The international community has taken this issue very seriously. The United Nations has had peacekeepers in Somalia at various times since 1991, and most recently the African Union has dedicated resources through AMISOM, their official Mission to Somalia. In February 2009, the United Nations Security Council authorized AMISOM to stay in Somalia for another six months, which places peacekeepers on the ground through August. The United Nations says the goal of this mission is to help establish order and secure human rights.

Recent Somali elections were marked by violence to the point that they had to take place in neighboring Djibouti. Somali President Sharif Sheikh Ahmed was elected in January, and shortly thereafter, Ahmed appointed a new prime minister.

Carny is doubtful of the new government’s ability to establish order but thinks that the international community should give the new president a chance. Carney said, “Lets see if [the government] can establish a viable authority... that can at least establish security inside the capitol and then spread from there.” Carney said, however, that “anyone who’s pessimistic about Somalia is probably going to be right.”

Jama wants the United States to help Somalia build a “proper coast guard,” which would replace vigilantism that currently runs the shorelines.

Both Jama and Carny acknowledged that most of the social problems in Africa are rooted in the colonial past, but Carny believes that Africa must move on. “We’re not going to redraw the boundaries in Africa,” said Carny. He suggested that Somalia could be governed regionally through “some kind of Federalism,” as a credible solution for ethnically diverse nations prone to social conflict, civil war and genocide.

“For better or for worse, these countries have to live and work their way out of consequences. When you get good leadership at the national level... things can turn around fairly quickly,” Carny said.

Listen to the audio report here.

Supreme Court: $2.5 billion too much for Exxon Valdez; death penalty not allowed for child rape

Exxon v. Baker (5–3 that $2.5 billion was too high a damage award): After the Exxon Valdez oil spill, Exxon paid $3 billion in cleanup fees and fines. Alaskan fishermen brought this case for compensatory damages due to their lost revenue from the damaged fishing areas. They also asked for punitive damages. The jury awarded $287 million in compensatory damages to some of the fishermen (some others had already settled their claims), and it assessed $5,000 in punitive damages against captain Hazelwood and $5 billion against Exxon (an appeals court later halved the amount awarded to Exxon, to $2.5 billion). Exxon made three arguments in this case: that it should not face punitive damages for Hazelwood's actions, that these kinds of events were regulated by the Clean Water Act and no other damages were appropriate, and that the damages award was too large. Justice Alito sat out the case, and the Justices split 4–4 on the question of whether Exxon can be fined for Hazelwood's actions, so the 9th Circuit's decision that Exxon can be held responsible stands. The Court found 8-0 that the Clean Water Act does not prohibit this kind of action. Finally, the Court found 5-3 that the damage award was excessive. Justice Souter, writing for the majority, went through a long historical analysis and found that an appropriate ratio of punitive damages to compensatory damages in maritime cases is 1:1.. Justices Souter, Roberts, Scalia, Kennedy, and Thomas agreed on this point. Justices Stevens and Ginsburg each wrote separately to say that they thought Congress should decide the question of punitive damages in the maritime field, and until then the $2.5 billion award should be left standing. Justice Breyer wrote separately to say that he thought the excessiveness of the recklessness here was enough to justify the award.

Kennedy v. Louisiana (5–4 that death penalty is unconstitutional in cases of child rape): Kennedy raped his 8-year-old stepdaughter. He was sentenced to death. He brought suit, claiming the death penalty for child rape violated the 8th Amendment prohibition against cruel and unusual punishment. In announcing the opinion, Justice Kennedy said that the 8th Amendment must be interpreted “not by the standards that prevailed when the 8th Amendment was adopted” but by evolving standards of decency. Noting the Court's prior decisions of Roper v. Simmons (2005, invalidating the death penalty for minors), Atkins v. Virginia (2002, invalidating the death penalty for mentally retarded), and Coker v. Georgia (1977, invalidating the death penalty for adult rape), Justice Kennedy summarized the legal situation in the states: 6 U.S. states allow the death penalty for child rape, while 44 states and the federal government do not allow it. There has been no execution for child or adult rape since 1964. Finally, there are only 2 people on death row in the United States for crimes other than homicide (the petitioner is one of them). In comparison, there were 5,702 child rapes in 2005, almost twice as many as homicides, so that number of people would be opened to the death penalty if the law were upheld. Justice Kennedy, joined by Justices Stevens, Souter, Ginsburg, and Breyer, voted to invalidate the law. Justice Alito, joined by Justices Roberts, Scalia, and Thomas, dissented, arguing that the Coker case led states to believe laws like this would be struck down and dissuaded them from passing them, and thus their scarcity is not reflective of a real consensus of opinion. Notably, Justice Alito did not spend much time discussing whether it is proper to examine the 8th Amendment under “standards that prevailed when the 8th Amendment was adopted,” yet Justices Scalia and Thomas joined his opinion in full without writing separate opinions.

Giles v. California (6–3 out-of-court statements by a murder victim are not necessarily allowed as evidence in the murder trial): Giles shot and killed his girlfriend. At trial, he argued self defense. To rebut that claim, the prosecution sought to bring into evidence statements the girlfriend had made about prior violence against her by Giles. Giles argued that the 6th Amendment gave him a right to cross examine her, but since she couldn't be cross examined the statements couldn't be used. California said that it was Giles's fault that she was unavailable, so he had no right to complain. The Supreme Court, in an opinion by Justice Scalia, found that the 6th Amendment right to confrontation did not have an exception for cases like there; there is an exception if someone makes a witness unavailable intentionally so that the person cannot testify, but California's argument against Giles was broader than that. Justices Scalia, Roberts, Souter, Thomas, Ginsburg, and Alito joined that opinion, arguing based on historical cases that an exception to the confrontation clause does not exist. Justice Thomas wrote separately to argue that statements to a police officer (like these were) should be admissible anyway, but he joined the majority because he agreed that Giles's actions were not reasons to make the statements admissible. Justice Alito wrote separately, making an argument similar to Justice Thomas's. Justice Souter, joined by Justice Ginsburg, wrote separately to say that they were not convinced by historical cases but by the need to avoid the circularity of having a court find that a defendant killed a victim in order to have evidence admitted in the defendant's murder trial; if the court finds that the defendant killed, what question is left for the jury? Justice Breyer, joined by Justices Stevens and Kennedy, dissented, arguing that historical cases found that an exception applies and the evidence should be admitted.

Plains Commerce Bank v. Long Family Land (9–0 saying Indian Tribal Courts can't hear cases over non-indians selling reservation land to non-indians): The bank owned some land on an indian reservation (sale of indian land was allowed for a short time by Congress). It sold that land to a non-indian. The Longs had previously leased that land with an option to buy, and they claimed the terms offered to the new buyers were better than the ones they had gotten. They brought their claim before an indian Tribal Court. Tribal Courts generally do not have jurisdiction over non-indians, and the only exceptions are when the case involves a consensual relationship involving an indian (such as a lease or contract) and when the case deals with reservation land and would dramatically affect the tribe. In this case, Justice Roberts wrote for the Court, the Tribal Court was hearing a case about a non-indian bank selling non-indian-owned land to a non-indian, so the Tribal Court had no jurisdiction. He said the Longs are free to pursue their discrimination claims in federal court. The decision of the Court was unanimous, but 4 Justices (Ginsburg, Stevens, Souter, Breyer) would have let the non-indian keep the land while still allowing the Tribal Court to fine the bank $750,000 for the discrimination.

The Court announced that it will release the remaining opinions from this term tomorrow, Thursday, June 26.

Supreme Court today: Exxon v. Baker

There was one ruling, announced by Justice Kennedy. The question was whether plaintiffs could file an age discrimination suit against Federal Express even though they did not go through the normal EEOC complaint process first. The Court deferred to the EEOC's interpretation of its rules and found that the filings to the EEOC, though not the complete normal process, were a "complaint," so the suit can go forward. Justices Thomas and Scalia dissented.

The case today was Exxon v. Baker. Justice Alito has recused himself, likely because he is an Exxon-Mobil stockholder. The question is whether maritime law allows punitive damages against Exxon for the Exxon Valdez oil spill, and if so whether there's a limit to how large they can be. There is no clear, recent precedent on the issue, so the Court is looking at rulings from 200 years ago in cases that aren't directly comparable. Exxon is arguing that the captain of a ship cannot make company policy and is therefore independent enough that the company should not be held liable for his actions violating their policy; these concerns are the grounding for the precedents. Additionally, Exxon argued that punitive damages are unneeded in a case where the action was not intentional and did not benefit the company in any way. Baker argues that nothing has changed since the spill, indicating Exxon does need incentive to make sure it doesn't happen again. Baker also argues that the captain is in charge of a "business unit" of Exxon and therefore is high enough in the company that the company should be liable for his actions. Most states follow a "managerial agent" standard for determining when a company should be held liable in cases like this, and Exxon does not contest that the captain is a managerial agent; instead they argue that the rules are different in the maritime context. Justice Souter suggested the distinction may have been relevant when ship captains were out of touch with land for long periods and captains had to act independently, but the distinction may no longer make sense. On the size of the award, Exxon argues the Clean Water Act's limit of double the compensatory damages should be considered, but Baker points out the CWA considers economic harms to people rather than environmental harms.

All of the Justices seemed unsure of the strength of precedent in this case, so I do not feel comfortable predicting how any of the Justices will vote.

[Disclosure: the author is an Exxon-Mobil stockholder.]