Tuesday, April 21, 2009

On Presidents, Pirates and Pardons

Presidents have understood the potential foreign policy / international benefits of the pardon power at least since April 25, 1793, when George Washington pardoned one Joseph Ravara out of "sentiments of respect" for the Republic of Geneva. Two hundred sixteen years and a few days later, the mother of Abduhl Wali-i-Musi is calling on President Barack Obama to pardon her teenage son, who is about to be tried for piracy. Notwithstanding the success of the Pirates of the Caribbean trilogy, it does not appear to be the best time in history to be facing such a charge.

John Adams pardoned the first pirate, George Rice, in May of 1800 (for "the public good"), but, in the catalogue of pardoned pirates, the popularity contest is easily won by Jean LaFitte and the Baratarian Pirates. Researching LaFitte (and his brother) is an excellent exercise in myth, legend, lore and - somewhere in there - fact. There appears to be agreement, however, that he was prone to sea sickness and stayed on shore as much as possible. General Andrew Jackson was appalled that the government would call upon the LaFitte (played by Yule Brenner in The Buccaneer) and Baratarian Pirates to assist in the Battle of New Orleans. But the self-righteous disposition of the future president gave way, soon enough, to expediency and, as a reward, President James Madison granted the Baratarians a general pardon. Unfortunately, Madison's grant was premised upon "sincere penitence" and, well, there was no such thing in the mix. So, it wasn't long before the government went right back to hanging Baratarian Pirates en masse and cannon-blasting their island headquarters.

Madison granted respites to delay the hanging of the pirate John Dalton on November 13 and December 18 of 1812. Meanwhile, Dalton's partner Samuel Tully was executed. President Madison then granted additional respites to Dalton on January 2, February 6 and March 6 of 1813. Finally, on June 5 of 1813, John Dalton was pardoned. Madison's clemency warrant for the pardon provides no justification whatsoever for the decision. This story suggests Dalton went on to become a minister.

Abraham Lincoln pardoned Alfred Rubery, a pirate captured in the San Francisco area. The pardon cut Rubery's ten-year sentence to a mere two months and raised the eyebrows of some historians and biographers. Lincoln's clemency warrant justifies the decision on the basis of Rubery's "immature age" and his "highly respectable parentage." John Bright, a Member of the British House of Commons (who also happened to be Rubery's uncle), recommended the pardon and Lincoln admitted that it was granted, in part, as a "a public mark of the esteem held by the United States of America for the high character and steady friendship" of Mr. Bright. Carl Sandburg observed Rubery's pardon illustrated the fact that those who administered justice "in their daily decisions knew it was in quality adulterated and shoddy while in politics expedient and necessary."

In March of 1916, New Yorkers were shocked to learn that a 400-foot 3,000 ton vessel had been seized by one fantastically unlucky pirate. In an attempt to execute a plan carefully crafted during heavy consumption of alcohol in the bars of Hoboken, New Jersey, Ernest Schiller found himself forsaken by his four accomplices, in charge of the wrong ship and, as a result, the recipient of non-traditional pirate booty (barbed wire and agricultural instruments). In an attempt to adjust to his misfortune, Schiller told the ship's crew that he had the ability to set off several carefully planted bombs and forced them - at gun point - to participation in a champagne toast to the Kaiser. He then attempted to escape via a small boat. A life-sentence for piracy followed, but Schiller was transferred to a mental hospital in 1922. Calvin Coolidge commuted his sentence, in 1926, on the condition that Schiller be deported to Germany.

PardonPower is not yet aware of a pardon for piracy post-Schiller. But today's popular headline / news tease that we are looking at the first U.S. piracy charge in "over a century" is clearly inaccurate.

Barack Obama has yet to exercise the pardon power. How might he exercise it, and to what end, in the case of Abduhl Wali-i-Musi? To the extent that proportionality is an important consideration in sentencing, it is worthy of note that this teenager's accomplices are all dead. And when is the last time a federal prisoner in the United States was executed, for anything? Assuming we have sent our "message," Obama should refuse to comment directly on the trial and let it run its full course. Ideally, the resulting sentence would be quite severe. But the President could then commute the sentence, in a very public way, on the condition that Wali-i-Musi admit his guilt, express repentance, return to his home and engage in piracy no more.

A cave-in to piracy? Too much softness in the cruel hard world? Hardly. It would instead be the kind of signal that would round the rough edges of this incident, assert the power of the United States and re-direct related dialogue to the legal environment. The President has convincingly proven that he can take life away. With three executions behind him, it is perhaps it is now time to explicitly show that he would rather not. The current issue of National Review says it well:
... At one pole, savages avail themselves of the best that American medicine and law have to offer; at the other are those three head shots from U.S. snipers. Somewhere in the middle is politics.

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