The Pirates Challenge Obama’s Pre-9/11 Mentality, By Mackubon Thomas Owens. Wall Street Journal Vol. CCLIII, No. 84 Saturday/Sunday 11/12 April 2009, page A9

Mr. Owens of the Naval War College draws an interesting parallel between pirates and al Qaeda. The Obama administration is changing the term “enemy combatant” but they still do not seem to have solved the problem of how to handle those captured in Iraq and those likely to be captured as pirates.

As the eminent military historian Sir Michael Howard argued shortly after 9/11, the status of al Qaeda terrorists is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval and early modern European jurisprudence. According to Mr. Howard, the Romans distinguished between bellum (war against legitimus hostis, a legitimate enemy) and guerra (war against latrunculi, pirates, robbers, brigands, and outlaws).

Bellum became he standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to guerra. Indeed, punishment for latrunculi, “the common enemies of mankind,” traditionally has been summary execution.

Mr. Owens then argues that some in the Obama Administration seem more concerned in criminalizing the activities of those in the Bush Administration than focusing their energies o terrorist and pirates. If Obama is wise, he will squelch the talk of criminalizing those in the previous administration and move forward. Every administration, every president, should realize they too will one day be the “previous administration” and any precedents they set may well come back and haunt them.