Terrorist = Pirate?

Interesting post that I caught linked at Schneier.

AT FIRST GLANCE, THE CORRELATION BETWEEN PIRACY AND TERRORISM seems a stretch. Yet much of the basis of this skepticism can be traced to romantic and inaccurate notions about piracy. An examination of the actual history of the crime reveals startling, even astonishing, parallels to contemporary international terrorism. Viewed in its proper historical context, piracy emerges as a clear and powerful precedent.

Piracy has flourished on the high seas for as long as maritime commerce has existed between states. Yet its meaning as a crime has varied considerably. The Roman definition of hostis humani generis fell into disuse by the fifth century A.D. with the decline of the empire. But the act didn't disappear with the definition. By 912, pirates along the coasts of Western Europe who styled themselves as "sea-warriors," or Vikings, had terrorized Britain and conquered Normandy. In the early Middle Ages, with no national navies to quash them, pirates held sway over nearly every trade route in Europe. Kings like Edward I of England then began to grant "Commissions of Reprisal" to merchantmen, entitling them to attack both pirate ships and any other merchant vessel flying the same country's flag as the one flown by the pirates they had seen before.

and

TO UNDERSTAND THE POTENTIAL OF DEFINING TERRORISM as a species of piracy, consider the words of the 16th-century jurist Alberico Gentili's De jure belli: "Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law." Gentili, and many people who came after him, recognized piracy as a threat, not merely to the state but to the idea of statehood itself. All states were equally obligated to stamp out this menace, whether or not they had been a victim of piracy. This was codified explicitly in the 1856 Declaration of Paris, and it has been reiterated as a guiding principle of piracy law ever since. Ironically, it is the very effectiveness of this criminalization that has marginalized piracy and made it seem an arcane and almost romantic offense. Pirates no longer terrorize the seas because a concerted effort among the European states in the 19th century almost eradicated them. It is just such a concerted effort that all states must now undertake against terrorists, until the crime of terrorism becomes as remote and obsolete as piracy.

But we are still very far from such recognition for the present war on terror. President Bush and others persist in depicting this new form of state vs. nonstate warfare in traditional terms, as with the president's declaration of June 2, 2004, that "like the Second World War, our present conflict began with a ruthless surprise attack on the United States." He went on: "We will not forget that treachery and we will accept nothing less than victory over the enemy." What constitutes ultimate victory against an enemy that lacks territorial boundaries and governmental structures, in a war without fields of battle or codes of conduct? We can't capture the enemy's capital and hoist our flag in triumph. The possibility of perpetual embattlement looms before us.

I see no issue with forming a legal structure for terrorists. Though I think Burgess is missing a point in that by calling it war, the US can bring military forces against nation-states that harbor terrorists or even assist them. This can be done at various levels of escalation from declared war as occurred in Afghanistan to more surgical attacks. It does get a bit fuzzy though in that the war on terror doesn't really have a clear declaration though the AUMF could be seen as just that. The problem with that is it appears that the Supreme Court has decided that war declaration is now defunct.