Cathedral Round-Up #25: Yale Law and the Expansion of “Persecution”

Way back in Round-Up #7, I noticed the Cathedral was trying to expand the notion of “refugee” to include “economic migrants.” In today’s Round-Up, courtesy of the Yale Law Journal, Paul Strauch would like to expand “persecution” to include “might get killed by common criminals.”

Strauch’s first paragraph (from When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union’s Operation To Combat Smuggling in Libya’s Territorial Sea) is a doozy:

Over the past three years, the number of human tragedies on the Mediterranean Sea has reached an unprecedented level.1 The now-iconic image of a German rescue worker cradling a drowned migrant baby in his arms in the sea between Libya and Italy remains a disturbing reminder of the over 5,000 migrants and refugees who died attempting to cross the Mediterranean in 2016 alone.2 Of the European Union’s (EU) responses to this humanitarian crisis, perhaps the most controversial has been Operation Sophia: a naval mission to combat human smugglers and traffickers operating in the Mediterranean, in particular off the coast of Libya.3 As part of Operation Sophia, the EU is now supporting and training the Libyan Navy and Coastguard to combat smuggling and stop migrant departures within Libya’s territorial sea—waters within twelve nautical miles of Libya’s nautical baseline. The EU simultaneously continues to seek permission for European Union Naval Force Mediterranean (EUNAVFOR MED) vessels and personnel themselves to enter Libya’s territorial sea to seize and dispose of smuggling vessels. (These two components will hereinafter together be referred to as the Operation Sophia “territorial sea component.”)

Source: Human Costs of Border Control

Okay. Let’s unpack this. First, a little background on Yale Law: for those of you who don’t know, it is regarded as the most prestigious law school in the US. Paul Strauch might be an unknown American law student who doesn’t even have his own Wikipedia page (yet,) but he still has the power to influence the development and implementation of European Human Rights law. According to his profile on Linked In, Strauch has only had one real job–he worked as an “Investment Banking Compliance Analyst” for Goldman Sachs for a year. The rest of his “work experience” is three-month internships.

Getting an accurate estimate of the full scale of migrant deaths in the Mediterranean is tricky because dead bodies often end up at the bottom of the sea where they are hard to find, thousands of miles away from any loved ones. A well-publicized sinking can prompt European governments to dredge the sea floor in search of bodies, while a boat that just disappears in the middle of the night and is never heard from again may never get noticed.

Nevertheless, migrant deaths do look like they’ve gone up overall. HCOBC cites over 450 deaths in 2013, and the UNHCR reports over 3,750 in 2014 and estimates more than that for 2016. The numbers for 2017 aren’t out yet, but look similar.

This is a bad idea

Why are so many people suddenly drowning in the Mediterranean?

The Libyan civil war which began in 2011 turned a relatively stable country with functioning borders into an anarchic free-for-all infested with sociopathic smugglers happy to let you risk death in a rubber raft in the Mediterranean in exchange for all your money.

A quick glance at a map of the Mediterranean reveals that Libya-Italy route is about the worst one you could possibly pick. Morocco to Spain/Gibralter? Only 9 miles! There are totally legal ferry companies that will take you from Tunisia to Sicily in about 10 hours. You can cross from Turkey to continental Europe via the Bosporus, (yes I know the other side of the Bosporus is also Turkey,) or if you want to take the long route, you can island-hop through the Aegean. The minimum distance from Libya to Italy (to the island of Lampedusa) is a much further–290 miles.

But the smugglers aren’t actually trying to get to Italy. As the Irish Times reports,

“It is well-known that the Italian boats save everybody,” [a smuggler] said. Smugglers and migrants said that a rescue by a European vessel in international waters – not reaching the Italian coast – was the goal of every departure. …

But the Libyan coast guard is practically useless. Coast guard officials responsible for most of the coastline where the smuggling occurs say equipment failures have prevented them from carrying out an operation for more than three months, and at least one captain said he was afraid of retribution by the smugglers. …

An Egyptian or Tunisian captain for the boat might get $5,000-$7,000, and blend in with the migrants to avoid responsibility if the boat is stopped, according to the smugglers. About $800 buys a satellite telephone the captain can use to call the Red Cross when the boat reaches international waters, to expedite pick-up by the Italian coast guard.

source

The vast majority of migrants coming via Libya are not Syrians refugees fleeing ISIS (who of course take the eastern Mediterranean/Bosporus routes,) but regular Sub-Saharan Africans who have traveled through Libya’s non-existent borders in search of a quick route to European prosperity.

Well, deaths are sad, but people die every day, especially if they do things that are likely to kill themselves, like try to cross the Mediterranean in a rubber raft. What makes a death in Libyan waters (or the open sea) Italy’s problem–or more generally, Europe’s?

Operation Sophia’s ostensible goal of helping the Libyan coast guard reassert control over Libyan waters is the fastest and most sensible way of stemming the tide and saving the lives of everyone involved. But Strauch takes issue with this:

The EU’s goal of decreasing the number of migrants4 who reach the Mediterranean high seas is understandable, but the territorial sea component presents serious human rights concerns. Instead of traversing the high seas to possibly reach Europe and asylum, migrants will be turned back by the Libyan Coastguard—trained and supported by EUNAVFOR MED—to a country where they likely face prolonged detention, brutality, and persecution. There is also the possibility that migrants and refugees will be caught in the crossfire between the human smugglers and the Libyan Coastguard in collaboration with EUNAVFOR MED. This Comment considers whether the EU’s activities in the territorial sea of Libya will occur within the framework of international human rights law, or whether there are gaps in protection for migrants impacted by the Operation.

These migrants are not in danger in Libya because some faction in the Libyan civil war has it out for them. They’re not even Libyans fleeing violence in Libya. They are opportunistically taking advantage of Libya’s lawlessness in order to cross it, and Strauch is arguing that because of that same lawlessness, it would be a violation of Human Rights Law to send them back.

<–Here’s a map of homicide rates by state (the UNODC report doesn’t include recent violence in Libya.) By this logic, pretty much any of the billions of people from Russia to Brazil should have the right to waltz into the blue-zone country of their choice.

Of course, the actual result of Operation Sophia has not been the return of smuggling vessels to Libya (that phase of the operation is not yet and may never be live.) According to the New York Times, Efforts to Rescue Migrants Caused Deadly, Unexpected Consequences:

Strategies to rescue migrants in the Mediterranean Sea and disrupt smuggling networks have had deadly, unexpected consequences, according to aid groups monitoring the crisis.

It is part of a wrenching Catch-22: Any effort to lessen the migrant crisis can backfire as smuggling networks devise even more dangerous strategies in response. …

Each year, aid groups patrol the area and rescue thousands of migrants at risk of drowning.

Before 2014, rescues took place closer to Italy, with migrant boats traveling as far as Italian waters. By 2014, many rescues were occurring farther south in the Mediterranean. By 2015, rescues reached even closer to the Libyan side of the Mediterranean Sea.

More recently, rescues were taking place closer to Libyan territorial waters…

Smugglers use flimsy boats and provide just enough fuel to reach the edge of Libyan waters. Drivers can remove the engine and head back to Libya on another boat, leaving the migrants adrift until help arrives.

The NY Times fatalistically concludes:

“It’s really time to start looking at some of the long-term policies,” [Federico Soda, the director of the Coordination Office for the Mediterranean with the International Organization for Migration,] added. “Africa and Europe are always going to be neighbors. Movement of people between the two is just a reality of the coming decade.”

Libya’s porous borders are just a reality, like average rainfall in the Sahara or the height of Mount Everest, not something humans actually have control over, so you’d better just get used to it.

Peter “Sweden” Imanuelson has an interesting account of his recent trip to Sicily:

So I went down to Sicily, the front line where many immigrants first set foot in Europe to find out the truth about the so-called refugee crisis. …

What I found in Sicily was an organized and large-scale operation. These are so-called non-governmental organizations (NGOs) such as Oxfam, Save the Children, MSF, and others who work with governments from different EU countries to bring in a new population in Europe.

In Catania I met an immigrant named Mohari who arrived just a few days earlier. His journey began in Eritrea, from where he traveled all the way up to the coast of Libya. After six failed attempts, this Eritrean was finally picked up by a boat from Save the Children, only a few kilometers from Libya’s coast. …

Mohari told me he wanted to either Sweden or England. I asked him why he just selected these countries.

– Money, solved his short answer.

There are a number of different ships operating in the Mediterranean to help immigrants. Partly, we have ships from NGOs, but we also have coastguards from different EU countries, including Sweden.

In Catania I met the crew of Triton, a Swedish coastguard vessel operating in the Mediterranean at the request of the EU. The ship is formally there as a Coast Guard, but I found out that they also collaborate with NGO vessels to pick up immigrants on Libya’s coast and transport them to Europe.

It is thought that the Swedish Coast Guard should guard the coasts of Sweden – not pick up Africans in the Mediterranean. After all, it is Swedish tax money that accounts for the cost. However, the Swedes are commissioned by the EU Coast Guard Frontex along with the Coast Guard from other EU countries.

So what happens when NGOs ship arrives in Europe filled with immigrants? I arrived at Pozzallo, a nice city in southern Sicily. There, the Aquarius, operated by a Physician without Frontiers, would arrive early in the morning after picking up about 420 immigrants on the Libyan coast.

I was there in good time when the ship arrived. Everything was in full swing to prepare for Europe’s new citizens. The Red Cross, the police, the Italian Ministry of Internal Affairs and several were in place. The ship arrived with what seemed to be almost exclusively young African men. No women or children were able to see on board.

Suddenly, the Italian police arrived at me, asked to see my ID actions and rejected me from the port.

Let me pause here for the irony as the person who is actually legally allowed to be in a Sicilian port is kicked out by the police and people who have entered the country illegally are not.

My trip continued and I wanted to find out where the immigrants are heading after they come to Europe. At the harbor there were buses lined up, ready to take the immigrants on. Many end up in refugee camps. One of these is Cara Mineo. What amazed me was how incredibly good the refugee camp is compared with how the native population lives. Newly built houses, playgrounds, football pitches, basketball courts and more.

A local resident told immigrants to get everything they needed. Mobile phones, cigarettes. They also get free healthcare, free legal assistance and so on… Cara Mineo is a former military base and the military is still there and watches. I was not rejected this time, but was strongly limited in what pictures I could take on the camp.

However, there is even more help to get if you are an immigrant from the third world. Near the train station in Catania, the organization Oxfam had its pop-up tent and helped immigrants. There they are interpretered and tell the immigrants what they need to do to seek asylum and get up to northern Europe. They even go so far as to share leaflets titled #OPENEUROPE Guide To Rights. There you will find a lot of useful information, like which trains you can take north and what the prices are. You also get to know which rights you have (such as access to the phone and the internet). Of course, there are links to web pages that show you how to stay in Europe.

Oxfam’s assistant described how they simply help the immigrants with all the information they need. They also share backpacks with necessities, such as toothbrushes, shoes, towels, paper and pens. She told them that they then ask immigrants to rate the service they received from Oxfam on the organization’s app.

You know, back during the big drought, several of my relatives ended up with no running water because their well dried up. After hearing that a deeper well could reach the water, I started contacting well-digging charities in search of help, but kept getting the same answer: they only drill in Africa. These folks would rather fly to Ethiopia to drill wells than drive a hundred miles up the road to help their neighbors.

Most people who want to “help” others don’t really want to help; they just want the feel-good-fuzzies they get from helping. You don’t have to hand out backpacks and toothbrushes to economic tourists illegally entering your country. You can hand out backpacks and toothbrushes to homeless people and foster children in your own city.

Strauch goes on (this paragraph is so egregious that I’m going to treat it like a Wikipedian):

In recent years, observers and scholars [who?] have rightly [judgmental language] called attention to European states’ heightened implementation of border security protocols and restrictions on asylum access in response to the global migration crisis. [Proof?] The term “Fortress Europe” is now commonplace [where?].6 [The linked source does not prove that the phrase is common.] Over the past twenty years, European states have developed this practice [what practice?] by striking deals with African nations to support maritime interdictions in their territorial seas.7 As a military operation designed to limit the number of migrants in reach of Europe’s borders, Operation Sophia expressly follows in this trend. [What trend? No trend has been demonstrated.]

Just look at that horrible trend of migrants being kept out of Europe

Notice how Strauch just asserts a bunch of stuff without offering any proof for any of it. Over in reality land, a Record 1.3 Million Migrants reached Europe in 2015; this number dropped negligibly to 1.2 million in 2016. Trends here probably have more to do with German Chancellor Angela Merkel having announced an extremely open policy toward migrants and refugees crossing into Germany in 2015 than Italian-Libyan coast guard cooperation.

Strauch never does provide data to back up his claims. Rather he argues:

The Operation Sophia territorial sea component risks violating fundamental international human rights protected by various international conventions.32 These include, in particular, the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the 1951 Refugee Convention.33 The states of the European Union are parties to all of these instruments and thus bound under international law by the obligations provided therein.34

The Operation Sophia territorial sea component is at odds with the principle of nonrefoulement, which holds that an individual may not be returned to a place where he or she faces risk of persecution.35 The nonrefoulement principle is affirmed most clearly in Article 33 of the Refugee Convention and is also binding upon European states under the ECHR.36 … Additionally, the duty of nonrefoulement now arguably is customary international law,38 and the overwhelming weight of international authority holds that states are prohibited from engaging in nonrefoulement practices when acting extraterritorially.39

Libya remains a place of possible persecution for the irregular migrants who seek to leave it. In Libya, migrants face possible torture, arbitrary detention, and other abuses.40 Because Operation Sophia engagements seek to ensure that migrant vessels cannot leave Libya’s coast, interception and diversion of vessels containing migrants and refugees imply that they may be forced to return to Libya.41 In addition, the program of disposing of vessels used for smuggling may present nonrefoulement concerns, as these actions effectively ensure migrants seeking transportation cannot leave Libya. For similar reasons, territorial sea engagements may run up against the prohibition against collective expulsion. Affirmed in Article 4 of the Protocol 4 of the ECHR, collective expulsion is “any measure . . . compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group.”42

Strauch makes me think Duerte is on to something.

The article keeps going in this manner. Basically it’s Europe’s fault that anyone, anywhere in the world might be subject to violence and so Europe must take in anyone and everyone who shows up on its shores or even just a few miles off Libya’s coast. I recommend that you read the whole thing, just to get the full and thorough picture, but I will leave you with this final line:

Part III then contends that the territorial sea component makes significant and concerning contributions to an emerging norm of militarized, cooperation-based border control.

Strauch is concerned about cooperation? One wonders what kind of non-militarized border control Strauch imagines exists anywhere in the world.

 

Amazingly, I didn’t have to go digging to find this article–it was just the first article I encountered in this month’s issue of Yale Law Journal. I haven’t even touched the Journal’s other two articles, The Nature of Parenthood:

This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. … In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.

and Disparate Statistics, about the use of statistical evidence in evaluating claims of disparate impact.

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Pirate Friday: The Legend of Jean Lafitte

Jean Lafitte

No knows exactly where Jean Lafitte was born–The Pirate’s Own Book claims St. Malo, a (formerly) notorious pirate’s haunt in Brittany, France. Wikipedia proposes the Basque region of France or the French colony of St. Domingue (now Haiti,) among others:

Lafitte claimed to have been born in Bordeaux, France, in 1780 from Sephardic Jewish parents whose Conversos grandmother and mother fled Spain for France in 1765, after his maternal grandfather was put to death by the Inquisition for “Judaizing”. He and his brother Pierre alternately claimed to have been born in Bayonne, while other documents of the time place his birthplace as St. Malo or Brest. … Other contemporary accounts claim that Lafitte was born in Orduna, Spain or in Westchester, New York.[2]

With few hard facts, Wikipedia skips Lafitte’s early life almost completely. TPOB, thankfully, provides a stirring (if possibly untrue) account:

…after a cruise during which [Lafitte] robbed the vessels of other nations, besides those of England, and thus committing piracy, he stopped at the Seychelles, and took in a load of slaves for the Mauritius; but being chased by an English frigate as far north as the equator, he found himself in a very awkward condition; not having provisions enough on board his ship to carry him back to the French Colony.

He therefore conceived the bold project of proceeding to the Bay of Bengal, in order to get provisions from on board some English ships. In his ship of two hundred tons, with only two guns and twenty-six men, he attacked and took an English armed schooner with a numerous crew. After putting nineteen of his own crew on board the schooner, he took the command of her and proceeded to cruise upon the coast of Bengal.

He there fell in with the Pagoda, a vessel belonging to the English East India Company, armed with twenty-six twelve pounders and manned with one hundred and fifty men. Expecting that the enemy would take him for a pilot of the Ganges, he manoeuvred accordingly. The Pagoda manifested no suspicions, whereupon he suddenly darted with his brave followers upon her decks, overturned all who opposed them, and speedily took the ship.

After a very successful cruise he arrived safe at the Mauritius, and took the command of La Confiance of twenty-six guns and two hundred and fifty men, and sailed for the coast of British India.

Off the Sand Heads in October, 1807, Lafitte fell in with the Queen East Indiaman, with a crew of near four hundred men, and carrying forty guns; he conceived the bold project of getting possession of her. Never was there beheld a more unequal conflict; even the height of the vessel compared to the feeble privateer augmented the chances against Lafitte; but the difficulty and danger far from discouraging this intrepid sailor, acted as an additional spur to his brilliant valor. After electrifying his crew with a few words of hope and ardor, he manoeuvred and ran on board of the enemy. In this position he received a broadside when close too; but he expected this, and made his men lay flat upon the deck. After the first fire they all rose, and from the yards and tops, threw bombs and grenades into the forecastle of the Indiaman. This sudden and unforeseen attack caused a great havoc. In an instant, death and terror made them abandon a part of the vessel near the mizen-mast.

Lafitte, who observed every thing, seized the decisive moment, beat to arms, and forty of his crew prepared to board, with pistols in their hands and daggers held between their teeth. As soon as they got on deck, they rushed upon the affrighted crowd, who retreated to the steerage, and endeavored to defend themselves there. Lafitte thereupon ordered a second division to board, which he headed himself; the captain of the Indiaman was killed, and all were swept away in a moment. Lafitte caused a gun to be loaded with grape, which he pointed towards the place where the crowd was assembled, threatening to exterminate them. The English deeming resistance fruitless, surrendered, and Lafitte hastened to put a stop to the slaughter. This exploit, hitherto unparalleled, resounded through India, and the name of Lafitte became the terror of English commerce in these latitudes.

Wikipedia speculates far humbler origins: he grew up aboard ships owned by his father, a trader. They were living in or near St. Domingue when the Haitian revolution broke out, and fled to Louisiana.

At this point TPOB and Wikipedia are in agreement: Lafitte moved to Barataria, Louisiana, around the time of the Louisiana purchase. Here he found a much safer way to earn a living than charging ships: smuggling.

In 1807, the US government passed an embargo against trade with Britain and France:

The embargo was imposed in response to violations of the United States neutrality, in which American merchantmen and their cargo were seized as contraband of war by the belligerent European navies. The British Royal Navy, in particular, resorted to impressment, forcing thousands of American seamen into service on their warships. Britain and France, engaged in the Napoleonic Wars, rationalized the plunder of U.S. shipping as incidental to war and necessary for their survival. Americans saw the Chesapeake-Leopard Affair as a particularly egregious example of a British violation of American neutrality.

A pirate is an outlaw who plunders ships on the high seas, but a privateer, like Sir Francis Drake, is a man who has been given permission by his sovereign to rape and despoil the ships of other nations.

The embargo was particularly problematic for Louisiana, which was accustomed to trading with the other French colonies of the Caribbean, so Lafitte and his brother, Piere, established a smuggling port in Barataria. By 1810, business was booming, and since almost everyone in Louisiana benefited from the trade Lafitte and his men enabled, the local government turned a mostly blind eye to his activities.

Barataria Preserve, Louisiana

In 1812, Lafitte returned to piracy with the purchase of a schooner, and soon after captured a Spanish hermaphrodite brig, which Wikipedia assures me is a kind of boat.

Sale of the brig’s cargo–including 77 slaves–netted $18,000 in profits plus a new ship, which Lafitte re-christianed the Dorada. With the Dorada, Lafitte captured a third ship laden with over $9,000 in goods, but decided the ship itself was not particularly useful for piracy, and so turned it back over it to its captain. His habit of not massacring everyone onboard the ships he captured and sometimes returning them to their rightful owners earned Lafitte some measure of local good will.

Lafitte soon captured two more ships, La Diligent and the Petit Milan, which they outfitted with guns from their original schooner. Biographer William Davis writes that this was likely one of the largest and most versatile privately owned corsair fleets operating on the coast.

The Lafittes made good use of their ships in the smuggling business. According to Wikipedia:

For several months, the Lafittes would send the ships directly to New Orleans with a legal cargo and would take on outgoing provisions in the city. The crew would create a manifest that listed not the provisions that had been purchased, but smuggled items stored at Barataria. Uninterested in exports from New Orleans, customs agents rarely checked the accuracy of the manifests. The ship would sail to the mouth of Bayou Lafourche, load the contraband goods, and sail “legally” back to New Orleans, with goods listed on a certified manifest.[22]

With the outbreak of war in 1812, the US government issued Letters of Marque–official documents authorizing private citizens to become privateers–to several of Lafitte’s men.

Article 1, Section 8, line 11 of the US Constitution states that Congress shall have the power to “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” (Letters of Marque are interesting in and of themselves, but would require too long a diversion to discuss fully right now.)

Lafitte’s men soon had Letters of Marque from several different countries–including ones Lafitte made up. Goods from captured British ships they turned in to the authorities in New Orleans, but goods from other ships they captured went through Barataria, depriving the government of tax revenue.

Since the stationary bandits weren’t strong enough to stop the mobile ones, the government resorted to suing Lafitte for tax evasion. There followed several skirmishes between Lafitte and the revenuers:

On November 10, 1812, the United States District Attorney John R. Grymes charged Lafitte with “violation of the revenue law”.[27] Three days later, 40 soldiers were sent to ambush the Baratarians; they captured Lafitte, his brother Pierre, and 25 unarmed smugglers on November 16, and confiscated several thousand dollars of contraband. Officials released the smugglers after they posted bond, and they disappeared, refusing to return for a trial.[27]

In October, a revenue officer prepared an ambush of a band of Lafitte’s smugglers. The smugglers wounded one of the officers and safely escaped with the contraband.[31] The following month, the governor offered a $500 reward for Lafitte’s capture. Within two days of his offer, handbills were posted all over New Orleans offering a similar award for the arrest of the governor. …

Given the success of his auctions at the Temple, in January 1814 Lafitte set up a similar auction at a site just outside New Orleans. Officials tried to break up this auction by force, and in the ensuing gunfight, one of the revenue officers was killed and two others were wounded.[33]

The government’s ability to apprehend Lafitte was hampered by the fact that Louisianans appreciated the lower prices they could get buying smuggled goods directly from Barataria rather than official import channels. They did, however, catch, convict, and imprison his brother, Pierre.

In 1814, a British warship arrived in Barataria, bearing an intriguing offer:

The British raised a white flag and launched a small dinghy with several officers. Lafitte and several of his men rowed to meet them halfway.[37]

Captain Nicholas Lockyer, the commander of the Sophie, had been ordered to contact the “Commandant at Barataria”. He was accompanied by a Royal Marine infantry Captain, John McWilliam,[38][39] who had been given a package to deliver to Lafitte. The Baratarians invited the British officers to row to their island. When they had disembarked and were surrounded by his men, Lafitte identified himself to them. Many of the smugglers wanted to lynch the British men, but Lafitte intervened and placed guards outside his home to ensure their protection.[37] McWilliam brought two letters in his packet for Lafitte: one, under the seal of King George III, offered Lafitte and his forces British citizenship and land grants in the British colonies in the Americas if they promised to assist in the naval fight against the United States and to return any recent property that had been taken from Spanish ships. (The British were allied with Spain against the French and the US.) If they refused the offer, the British Navy would destroy Barataria. The second item was a personal note to Lafitte from McWilliam’s superior, Lieutenant Colonel Edward Nicolls, urging him to accept the offer.[40]

TPOB claims that Lafitte turned down the offer due to patriotic sentiments, while Wikipedia gives a more self-interested motivation: he thought the Americans would win and did not wish to be on the side of the losers. Moreover, an American victory left him only the revenuers to contend with, while a British victory could bring his operations into conflict with the British navy–and he considered the revenuers easier opponents.

Lafitte therefore offered his services to the Americans in exchange for a pardon. His brother–perhaps coincidentally–mysteriously “escaped” from prison soon after.

Within days, however, the US navy attacked Barataria, capturing 8 ships, 20 canon, $500,000 worth of goods, and 80 men–but not Lafitte. Louisiana’s Governor Claiborne wrote to the Attorney General and General Andrew Jackson to request a pardon for Lafitte and his men, arguing that for generations, smugglers were “esteemed honest … [and] sympathy for these offenders is certainly more or less felt by many of the Louisianans,” and that Patterson’s capture of Lafitte’s ships, “had destroyed a potential first line of defense for Louisiana.”

Jackson responded testily, “I ask you, Louisianans, can we place any confidence in the honor of men who have courted an alliance with pirates and robbers?” But when Jackson arrived in New Orleans, he found the city woefully unprepared to defend against the invading British. It had only two ships, plus the eight captured from Lafitte–and not enough sailors to man them all. General Jackson had no choice: he pardoned the pirates. TPOB quotes Lafitte’s official pardon from President Madison:

It has therefore been seen, with great satisfaction, that the General Assembly of the State of Louisiana earnestly recommend those offenders to the benefit of a full pardon; And in compliance with that recommendation, as well as in consideration of all the other extraordinary circumstances in the case, I, James Madison, President of the United States of America, do issue this proclamation, hereby granting, publishing and declaring, a free and full pardon of all offences committed in violation of any act or acts of the Congress of the said United States, touching the revenue, trade and navigation thereof, or touching the intercourse and commerce of the United States with foreign nations, at any time before the eighth day of January, in the present year one thousand eight hundred and fifteen, by any person or persons whatsoever, being inhabitants of New Orleans and the adjacent country, or being inhabitants of the said island of Barrataria, and the places adjacent; Provided, that every person, claiming the benefit of this full pardon, in order to entitle himself thereto, shall produce a certificate in writing from the governor of the State of Louisiana, stating that such person has aided in the defence of New Orleans and the adjacent country, during the invasion thereof as aforesaid.

TPOB also provides a stirring description of the Battle of New Orleans:

The morning of the eighth of January, was ushered in with the discharge of rockets, the sound of cannon, and the cheers of the British soldiers advancing to the attack. … A storm of rockets preceded them, and an incessant fire opened from the battery, which commanded the advanced column. The musketry and rifles from the Kentuckians and Tennesseans, joined the fire of the artillery, and in a few moments was heard along the line a ceaseless, rolling fire, whose tremendous noise resembled the continued reverberation of thunder. One of these guns, a twenty-four pounder, placed upon the breastwork in the third embrasure from the river, drew, from the fatal skill and activity with which it was managed, even in the heat of battle, the admiration of both Americans and British; and became one of the points most dreaded by the advancing foe.

Here was stationed Lafitte and his lieutenant Dominique and a large band of his men, who during the continuance of the battle, fought with unparalleled bravery. The British already had been twice driven back in the utmost confusion, with the loss of their commander-in-chief, and two general officers.

Two other batteries were manned by the Barratarians, who served their pieces with the steadiness and precision of veteran gunners. In the first attack of the enemy, a column pushed forward between the levee and river; and so precipitate was their charge that the outposts were forced to retire, closely pressed by the enemy. Before the batteries could meet the charge, clearing the ditch, they gained the redoubt through the embrasures, leaping over the parapet, and overwhelming by their superior force the small party stationed there.

Lafitte, who was commanding in conjunction with his officers, at one of the guns, no sooner saw the bold movement of the enemy, than calling a few of his best men by his side, he sprung forward to the point of danger, and clearing the breastwork of the entrenchments, leaped, cutlass in hand, into the midst of the enemy, followed by a score of his men, who in many a hard fought battle upon his own deck, had been well tried.

Astonished at the intrepidity which could lead men to leave their entrenchments and meet them hand to hand, and pressed by the suddenness of the charge, which was made with the recklessness, skill and rapidity of practised boarders bounding upon the deck of an enemy’s vessel, they began to give way, while one after another, two British officers fell before the cutlass of the pirate, as they were bravely encouraging their men. All the energies of the British were now concentrated to scale the breastwork, which one daring officer had already mounted. While Lafitte and his followers, seconding a gallant band of volunteer riflemen, formed a phalanx which they in vain assayed to penetrate.

The British finding it impossible to take the city and the havoc in their ranks being dreadful, made a precipitate retreat, leaving the field covered with their dead and wounded.

General Jackson, in his correspondence with the secretary of war did not fail to notice the conduct of the “Corsairs of Barrataria,” who were, as we have already seen, employed in the artillery service.

With the war’s conclusion, Lafitte seems to have felt like he had garnered too much attention from official government officials and left Louisiana for Galveston, Texas, then part of the Spanish Empire. Spain at the time was embroiled in the Mexican Revolution, and Lafitte offered Spain his services as a spy, particularly against Louis-Michel Aury, a French privateer on the Mexican side. He ousted Aury and took over the island, establishing a second smuggling base. (Today, Galveston is close to the port of Houston, the fourth largest city in the country.)

Lafitte’s “pirate colony” grew quickly, to 100-200 people and a few women; during this time he married and had his only known legal child, who died around the age of 12. (Wikipedia also mentions a child with a mistress, though not what became of it.)

In 1818, the US government passed a new law restricting the import of slaves, but this law had a poorly-thought-out loophole: pirates could capture slave ships, turn the cargo over to customs officials, and the receive 50% of the profits from sale of the cargo. Smugglers, pirates, and the operators of slave ships soon worked out a way around the law: smugglers bought the slaves from the ships, brought them to Louisiana, and turned them in to the government, receiving half their sale value. A second smuggler then bought the slaves at auction and could legally re-sell them throughout the South.

In other words, banning importation without banning sales just encouraged people to work around the importation law. Interestingly, slavery and piracy became so closely connected that in 1820, the Act to Protect the Commerce of the United States and Punish the Crime of Piracy was amended to also include the slave trade as a form of piracy.

Unfortunately for Lafitte, the tide was turning against him. A hurricane hit Galveston in 1818, destroying most of the colony’s houses. After the American Navy drove him from Galveston, he relocated to Cuba, but eventually angered the Cubans, too. They outlawed all forms of privateering, and Lafitte moved to Columbia. Here the government commissioned him as an official privateer, authorized to capture Spanish ships.

With increased official naval presences in the Gulf and Caribbean, Lafitte’s business became more dangerous and less profitable. His ships were captured and men arrested and executed. TPOB provides a description of the end of Barataria, after Lafitte’s departure:

About this time one Mitchell, who had formerly belonged to Lafitte’s gang, collected upwards of one hundred and fifty desperadoes and fortified himself on an island near Barrataria, with several pieces of cannon; and swore that he and all his comrades would perish within their trenches before they would surrender to any man. …

The United States cutter, Alabama, on her way to the station off the mouth of the Mississippi, captured a piratical schooner belonging to Lafitte … An expedition was now sent to dislodge Mitchell and his comrades from the island he had taken possession of; after coming to anchor, a summons was sent for him to surrender, which was answered by a brisk cannonade from his breastwork. The vessels were warped close in shore; and the boats manned and sent on shore whilst the vessels opened upon the pirates; the boat’s crews landed under a galling fire of grape shot and formed in the most undaunted manner; and although a severe loss was sustained they entered the breastwork at the point of the bayonet; after a desperate fight the pirates gave way, many were taken prisoners but Mitchell and the greatest part escaped to the cypress swamps where it was impossible to arrest them.

A large quantity of dry goods and specie together with other booty was taken. Twenty of the pirates were taken and brought to New Orleans, and tried before Judge Hall, of the Circuit Court of the United States, sixteen were brought in guilty; and after the Judge had finished pronouncing sentence of death upon the hardened wretches, several of them cried out in open court, Murder–by God.

Accounts of these transactions having reached Lafitte, he plainly perceived there was a determination to sweep all his cruisers from the sea; and a war of extermination appeared to be waged against him.

No one is sure exactly when or how Lafitte died. Wikipedia claims he was cruising for Spanish silver off the coast of Honduras when a Spanish ship counterattacked. Injured in the ensuing battle, Laftitte died on February 5th, 1823.

TPOB credits his death to the British:

In a fit of desperation [Lafitte] procured a large and fast sailing brigantine mounting sixteen guns and having selected a crew of one hundred and sixty men he started without any commission as a regular pirate determined to rob all nations and neither to give or receive quarter.

A British sloop of war which was cruising in the Gulf of Mexico, having heard that Lafitte himself was at sea, kept a sharp look out from the mast head; when one morning as an officer was sweeping the horizon with his glass he discovered a long dark looking vessel, low in the water, but having very tall masts, with sails white as the driven snow. As the sloop of war had the weather gage of the pirate and could outsail her before the wind, she set her studding sails and crowded every inch of canvass in chase; as soon as Lafitte ascertained the character of his opponent, he ordered the awnings to be furled and set his big square-sail and shot rapidly through the water; but as the breeze freshened the sloop of war came up rapidly with the pirate, who, finding no chance of escaping, determined to sell his life as dearly as possible; the guns were cast loose and the shot handed up; and a fire opened upon the ship which killed a number of men and carried away her foretopmast, but she reserved her fire until within cable’s distance of the pirate; when she fired a general discharge from her broadside, and a volley of small arms; the broadside was too much elevated to hit the low hull of the brigantine, but was not without effect; the foretopmast fell, the jaws of the main gaff were severed and a large proportion of the rigging came rattling down on deck; ten of the pirates were killed, but Lafitte remained unhurt.

The sloop of war entered her men over the starboard bow and a terrific contest with pistols and cutlasses ensued; Lafitte received two wounds at this time which disabled him, a grape shot broke the bone of his right leg and he received a cut in the abdomen, but his crew fought like tigers and the deck was ankle deep with blood and gore; the captain of the boarders received such a tremendous blow on the head from the butt end of a musket, as stretched him senseless on the deck near Lafitte, who raised his dagger to stab him to the heart. But the tide of his existence was ebbing like a torrent, his brain was giddy, his aim faltered and the point descended in the Captain’s right thigh; dragging away the blade with the last convulsive energy of a death struggle, he lacerated the wound. Again the reeking steel was upheld, and Lafitte placed his left hand near the Captain’s heart, to make his aim more sure; again the dizziness of dissolution spread over his sight, down came the dagger into the captain’s left thigh and Lafitte was a corpse.

The upper deck was cleared, and the boarders rushed below on the main deck to complete their conquest. Here the slaughter was dreadful, till the pirates called out for quarter, and the carnage ceased; all the pirates that surrendered were taken to Jamaica and tried before the Admiralty court where sixteen were condemned to die, six were subsequently pardoned and ten executed.

It was many years before news of Lafitte’s death at sea was widely accepted. Like Elvis, a great many rumors sprang up averring that he was still alive, including a persistent claim that he had rescued Napoleon from exile and the two were living in secrecy in Louisiana. Eventually it became clear, though, from the lack of real news of Lafitte, that however he had died, he was surely and truly dead.