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[Eugene Kontorovich, guest-blogging, April 20, 2009 at 7:31pm] Trackbacks
Somali Pirate in New York on Tuesday

The pirate captured by the Navy last week in the rescue of the Maersk Alabama will apparently be prosecuted in federal court in New York. It will be a fascinating case (if he doesn't plead guilty): perhaps the first piracy prosecution in the United States since the late 19th century, in the first prosecution of a foreigner in a much longer time.

He may be charged under the federal piracy statute, which carries a life sentence for piracy against US vessels. However, he may also be charged under 18 U.S.C. § 2280, which codifies the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the “Maritime Safety Convention”). That treaty was drafted as a response to the Achille Lauro hijacking by Palestinian terrorists in the mid-1980s. The treaty criminalizes acts of violence on or against international shipping, which is a broader range of conduct than piracy. While it was intended as a response to international maritime terrorism, it could just as well be used against piracy itself.

There are a few reasons the Justice Department might choose to act under the treaty as well. They may wish to breathe life into the rather moribund treaty, which has once been used as a basis for prosecution anywhere in the world. It could be useful in other piracy cases that do not fit the technical definition of piracy, i.e., where the attack occurs in Somali territorial waters. (Ruth Wedgewood argues the federal piracy statute needs to be updated to explicitly include waters within a nation’s exclusive economic zone, but the Maritime Safety Convention clearly applies an exclusive economic zone seems to obviate the need for such reform.)

The prosecution would not be the first American case 18 U.S.C. § 2280. As I describe in the forthcoming International Decisions: United States v. Shi, 103 AMERICAN JOURNAL OF INTERNATIONAL LAW __ (July, 2009), in a case finally resolved by the Ninth Circuit last year, the statue was used in a universal jurisdiction prosecution of a Chinese cook on a Seychelles-flagged fishing trawler who went postal, killed the officers and briefly took over the vessel. The defendant was not charged with piracy because under international law it does not include mutiny and other true internal disturbances on a ship. However, the Ninth Circuit in a fit of romanticism erroneously invoked piracy law on appeal.

Taking into New York and trying him will almost certainly cost more than the $1 million average ransom for pirated vessel. This doesn’t make it a bad idea, if it deters subsequent pirates. That depends in part on whether there is capacity to prosecute Pirates on a large scale. If this is a one-off thing, it will deter no one.

While I have written about the likely difficulty of prosecuting pirates, I anticipate this case to be a relatively straightforward one. The crime in question was at the center of global attention for a week. This guy was likely filmed by several Navy drones, aircraft and other assets. And given the groundbreaking nature of the case, I'm sure vast efforts will be taken to get it right.

But this is just one pirate. Hundreds have been captured and released by the NATO-lead coalition. It is not clear if this prosecution could be replicated on such a scale, and in many less-well documented cases.

One thing is certain. The defendant has won second prize in the piracy lottery. So far, deterrence is not on the horizon. From the moment he was captured by US forces, the alleged pirate's life expectancy went up by decades. In the coming months, years and maybe decades, he is likely to get the best nutrition and accommodation he or anyone he knows has ever had. Given that he did not kill or injure anyone, a life sentence is very unlikely. If he serves 15 years in a federal prison and is then allowed to remain in America, he will likely come out the healthiest, most educated and perhaps oldest former Somali pirate around.

Related Posts (on one page):

  1. Somali Pirate in New York on Tuesday
  2. Pirate Prosecution NIMBY: Catch-and-Release or the Kenya Option
Hadur:
Did you ever think that specializing in piracy law would pay off for you to the extent that it clearly has now?
4.20.2009 7:39pm
Just an Observer:
While I have written about the likely difficulty of prosecuting pirates, I anticipate this case to be a relatively straightforward one. ...

But this is just one pirate. Hundreds have been captured and released by the NATO-lead coalition. It is not clear if this prosecution could be replicated on such a scale, and in many less-well documented cases.


The problem of scale is obvious -- if the scope of the problem is defined as all piracy in the area.

But if the highest priority of U.S. efforts is focused on protecting U.S. flagged vessels there, and criminally prosecuting any pirates captured, would not the problem of scale be reduced by many orders of magnitude? And would not such criminal cases typically be relatively straightforward?

The rest of the world's problems are something else altogether, and much more difficult to solve.
4.20.2009 7:52pm
11B40 (mail):
Greetings:

When you cruise the Mediterrean,
Look out for Arab and Iranian,
For on the Achille Lauro
Anything goes.
4.20.2009 7:52pm
Oren:

If he serves 15 years in a federal prison and is then allowed to remain in America,

Wouldn't he serve and then be deported?
4.20.2009 7:56pm
Soronel Haetir (mail):

Wouldn't he serve and then be deported?



Except that he'd likely have a good anti-torture argument. At least so long as Somalia remains a failed state. I'm not certain but I believe we've been having lots of trouble with deporting Somalis for that reason.
4.20.2009 7:59pm
Kontorovich (mail) (www):
In regards to just an observer's question, piracy is a universal crime and thus is considered to affect all countries. And this is the reality. A seizure of an oil-tanker raises global crude prices by a dollar a barrel. That affects everyone. There are very few U.S.-flagged vessels; America is not patrolling the Gulf of Aden to protect them, but international shipping in general.
4.20.2009 8:04pm
dave h:
My understanding (can't remember from where, but probably this site or something linked from here) is that large international shipping is not at risk because the ships are too large and too fast to be boardable by pirates. Presumably no oil tankers are being seized.
4.20.2009 8:14pm
mariner:
If piracy is a universal crime and affects all countries then all countries have a moral responsibility to contribute to its eradication, but I don't see that happening.

Unfortunately, "everybody's job is nobody's job".

The United States has neither the ability nor the resources to do everybody's job, but it should not wait for "the world" to act. America should protect Americans first, and contribute to a world effort as/if the opportunity presents itself.
4.20.2009 8:14pm
Soronel Haetir (mail):
dave h,

At least one, possibly two large tankers have been taken by these groups.
4.20.2009 8:22pm
CDU (mail) (www):
There was some noise in the press about how this fellow may be a minor, or at least that given the lack of government records from Somalia, that the government would have a hard time proving he isn't under 18. How would that affect the prosecution?
4.20.2009 8:22pm
Rich Rostrom (mail):
"the rather moribund treaty, which has once been used as a basis for prosecution anywhere in the world"

The meaning of this is not clear. Does "once" mean in the past, as "I was young and handsome once"? Or "on one occasion", as "I appeared before the Supreme Court once"?

In this case, sense #1 would be better expressed as

"which once was used as a basis".

Sense #2 would be better expressed as

"which has been used once as a basis".

As phrased, it could mean either.
4.20.2009 8:27pm
Just an Observer:
Kontorovich: In regards to just an observer's question, piracy is a universal crime and thus is considered to affect all countries. And this is the reality. A seizure of an oil-tanker raises global crude prices by a dollar a barrel. That affects everyone. There are very few U.S.-flagged vessels; America is not patrolling the Gulf of Aden to protect them, but international shipping in general.

Thank you for that response.

Respectfully, I think it begs the question of what U.S. policy ought to be.

You seem to be taking for granted that the scope of the problem is global so the U.S. response must be applied equally to all incidents and all nations' maritime risks. But realistically, from the U.S. President's point of view, U.S.-flagged vessels present a qualitatively separable problem -- and a smaller one -- which more directly implicate national prestige.

There certainly are global consequences of global piracy, and no one expects the United States to play zero role in multinational anti-piracy efforts. But while we work to make those more robust, should we not place particular emphasis on protecting our own merchant marine first? In that small subset of piracy cases, prosecution in U.S. courts for miscreants who survive encounters with U.S. military force seems realistic.
4.20.2009 8:36pm
Prof. S. (mail):
Part of me is wondering which big name law firm is going to step up and defend this guy. I mean, this guy wasn't involved in any killings (well, except for his co-pirates). Surely he deserves even better than detainees at Guantanamo.
4.20.2009 8:41pm
ohwilleke:
The case shows the decreasing relevance of logistics as a basis for trial venue (that has also started to play out in the Gitmo and Baghram cases. The pirate will have his preliminary hearing, and quite possibly a trial or in the event of a likely guilty plea, a sentencing hearing, before the Bainbridge crew makes it back to the states from their tour.

How many witnesses are necessary? At $2,500 each for economy travel and lodging from Somolia one would call 400 for $1,000,000 and 40 for $100,000. This is expensive, but not that much more than an interstate or international drug dealing trial, and far less than the hostage drama itself which required a billion dollar ship with a crew of hundreds, plus support ships.

Moreover, realistically, most well documented cases that a prosecuted plea bargain. The average total prosecutor and defense attorney and judge and clerk legal process cost per felony prosecution in the U.S. (including the cases that actually do go to trial) is about $100 - I wouldn't believe it myself if I hadn't repeatedly seen the numbers. The big costs are the original law enforcement cost and the jail/prison time (which a plea bargain also reduces pre- and post- sentencing in most cases).
4.20.2009 9:08pm
Lucius Cornelius:
How long before people are claiming that he is a political prisoner? Then there will be claims that he was framed.
4.20.2009 9:54pm
Just an Observer:
BTW, are there any documented cases where the U.S. Navy has seized pirate suspects and released them for lack of jurisdiction? I understand that to have occurred with some other NATO navies because their national laws -- as construed by their national command authorities -- do not provide a basis for detention.

But have our naval forces in the area ever played catch-and-release? My understanding is that we have turned over some pirate suspects to Kenya for prosectution, none of them accused of attacking U.S. vessels.
4.20.2009 10:23pm
Jacob Berlove:
Under Jama v. INS, deportation to Somalia is allowed even though Somalia is a failed state.
4.20.2009 10:32pm
Bill Poser (mail) (www):
I hate to say it, but the ideal outcome would probably be for him to be eaten by a shark while attempting to escape.
4.20.2009 10:49pm
Bill Poser (mail) (www):

There was some noise in the press about how this fellow may be a minor, or at least that given the lack of government records from Somalia, that the government would have a hard time proving he isn't under 18. How would that affect the prosecution?


I have no idea what the state of the law is as to the acceptability of these techniques, but forensic anthropologists can determine the age of a living human being with considerable accuracy, especially if he or she is fairly young. For example, if the wisdom teeth have erupted, he is with very high probability at least 18. If the roots of all of the teeth are calcified, he is almost certainly at least 25.
The problem would presumably be greatest if evidence such as this indicates that he is near the boundary.
4.20.2009 11:08pm
Bill Dyer (mail) (www):
Actually, he could be charged with a capital crime, hostage-taking under 18 U.S.C. § 1203(a), which provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment." The statute doesn't require that the defendant have done the killing, but rather only that "the death of any person results," which could include his fellow hijackers. As with state felony murder statutes, the statute may be satisfied simply by virtue of the fact that anyone's death occurred as a result of the criminal sequence embarked upon by the defendant, and at least one federal trial court has held that "foreseeability" of the death of the eventual decedent is not an element of this particular federal crime, United States v. Straker, 567 F. Supp. 2d 174 (D.D.C. 2008).

I think the odds that the Obama administration will charge this particular hostage-taker with the capital version of the crime are slim to none, given that he was effectively in captivity when his comrades were shot by the Navy SEAL snipers, and there have also been suggestions that he may be (or have been) only 17, which presumably would bring him within the SCOTUS' protection of minors from capital punishment.
4.21.2009 12:12am
swamp rabbit (mail):
a valid legal strategy for this man would be to claim that his civil rights were violated by the two "pirates of the carribean" sequels.

Frankly, I believe that if anything the US owes him an apology.
4.21.2009 12:59am
Christopher Cooke (mail):
I read that the pirate surrendered before the Navy Seals took out his comrades (to get medical attention). If so, he can make a pretty good withdrawal from unlawful conspiracty type of argument to argue that he cannot be charged with the offense where a death resulted. If he was still negotiating at the time when the others were killed, it is akin to felony-murder. I would expect him to be charged with the maximum offense possible as leverage for plea to a lesser offense. That is how it usually works.
4.21.2009 1:05am
chris m (mail) (www):
So whatever happened to the whole idea of trying pirates on the deck of the ship that captured them and then hanging them from the mast?

Far as I knew, the law was to shoot them in the water and then if any survive, hang them...
4.21.2009 3:19am
Oren:

Far as I knew, the law was to shoot them in the water and then if any survive, hang them...

The entire US Code is available for free online, which means that either you didn't look very far or you didn't care to look.
4.21.2009 10:12am
Oren:

and there have also been suggestions that he may be (or have been) only 17, which presumably would bring him within the SCOTUS' protection of minors from capital punishment.

Just as an aside, does the defense have to prove he's under 18 or does the State have to prove he's over (or equal) 18?
4.21.2009 10:13am
Oren:

Under Jama v. INS, deportation to Somalia is allowed even though Somalia is a failed state.


Thanks for the cite! I was wondering why EK thought he'd be released into the US.
4.21.2009 10:14am
DennisN (mail):
@ohwilleke:


far less than the hostage drama itself which required a billion dollar ship with a crew of hundreds, plus support ships.


I always have difficulty with these monetary cost arguments. The only actual cost incurred is the incremental cost of fuel and ammunition consumed. The ships and forces were already on active duty.

Now, there is an argument that there is an incremental cost in that additional vessels, aircraft and personnel must be kept mobilized to combat piracy, and the perp is a small part of that extra. But actually developing credible numbers on that would probably be impractical.

@ chris m


Far as I knew, the law was to shoot them in the water and then if any survive, hang them...


I don't think that has been anyone's law since Caesar was s Second Lieutenant.
4.21.2009 11:05am
Seamus (mail):

That depends in part on whether there is capacity to prosecute Pirates on a large scale.



Why are we suddenly talking about prosecuting baseball players?
4.21.2009 12:18pm
Seamus (mail):
The statute doesn't require that the defendant have done the killing, but rather only that "the death of any person results," which could include his fellow hijackers. As with state felony murder statutes, the statute may be satisfied simply by virtue of the fact that anyone's death occurred as a result of the criminal sequence embarked upon by the defendant, . . .

I've always thought this aspect of the felony murder rule was wrong. It would seem that if the death of the accomplices was justifiable homicide, then it just isn't right to rely on it as the basis for executing the survivor.
4.21.2009 12:22pm
Pete P. (mail):
"Pirate Lottery" is about right. As EK stated, this pirate will live better, eat better, get more luxuries ( commisary, TV, education, hobby shps, etc ) than he or anyone he ever knew ever DREAMED of back in Somalia. And this is IN US prison. IF he goes there.

He may very well be tried as a minor, sentenced to a juvenile facility until he's 18 or 21, and then released HERE ( you can COUNT on it the ACLU et all will be SCREAMING 'You can't send this poor child back to Somalia after he's become acclimatized to life here ! It would be cruel and unusual for him to have to remember things like air conditioning, reliable central heat, balanced fresh hot free meals 3 times a day, etc, as well as missing out on all the great opportunities in America he became aware of while here !'.

Anyone who thinks that argument won't be made, and STRONGLY, doesn't think it will get dark outside tonight.

His fellow pirates ( the ones that lived ) back in Somalia are jealous of his good fortune today. Not merely for being alive ( a cheap commodity in Somalia ), but for being a 'ward of the USA' today, a status that even at its lowest level ( let's say, in prison ) is superior to their life in Somalia.

Hell, we'll probably buy him his own cab in Minneapolis when he hits 21, so he can protest about having to take passengers with guide dogs.
4.21.2009 12:44pm
zippypinhead:
Wouldn't he serve and then be deported?
Yup. Piracy would be considered an aggravated felony, and under the immigration laws he would be subject to immediate, mandatory removal when he leaves Bureau of Prisons custody. The protections against deportation in the Convention Against Torture require specific showings that he would be unlikely to be able to make, at least given the current situation in Somalia (where he'd be more likely to get a hero's welcome).
4.21.2009 4:20pm
Richard Aubrey (mail):
Pete P.
Maybe he could hook up with the Uighurs and start a business. Or something.
4.21.2009 4:25pm
Just an Observer:
His fellow pirates ( the ones that lived ) back in Somalia are jealous of his good fortune today. Not merely for being alive ( a cheap commodity in Somalia ), but for being a 'ward of the USA' today, a status that even at its lowest level ( let's say, in prison ) is superior to their life in Somalia.

I think that would depend on the situation. From some reports I have read, a few successful pirates there seem to live quite well, if they are near the top of the pyramid. (The pirate economy and culture seems to be sort of like Mary Kay with Kalashnikovs.)
4.21.2009 5:23pm
zippypinhead:
From some reports I have read, a few successful pirates there seem to live quite well, if they are near the top of the pyramid. (The pirate economy and culture seems to be sort of like Mary Kay with Kalashnikovs.)
Actually, more like old-time Mafia Godfathers, or minor tinhorn dictators. As a recent WaPo article explained:
In Harardhere, the pirates have become like so many Godfathers, building lavish homes, starting fly-by-night businesses, and launching operations involving well-organized networks of people who handle their food, weapons and other supplies....

The more famous pirates also employ entourages of locals, for whom piracy is part blessing, part curse. While pirate businesses have stifled local merchants and thwarted deliveries of food aid to the anarchic Horn of Africa nation, the pirates have also spread their millions around.

Locals say that onshore, the pirates are attended to by prostitutes, nurses, bodyguards and men who procure and deliver their precious khat, a mildly narcotic leaf chewed for its stimulant effects.
Nice work if you can get it, I guess. Not sure what your actuarial table looks like, but that's fairly problemmatic in that part of the world, regardless.
4.21.2009 5:57pm
Oren:

Yup. Piracy would be considered an aggravated felony, and under the immigration laws he would be subject to immediate, mandatory removal when he leaves Bureau of Prisons custody. The protections against deportation in the Convention Against Torture require specific showings that he would be unlikely to be able to make, at least given the current situation in Somalia (where he'd be more likely to get a hero's welcome).

ZPH, is it just me, or do people really just ignore the law and say whatever they want sometimes? Thanks for being sane.
4.21.2009 7:33pm
Richard Aubrey (mail):
All Things Considered says the pirate first insisted he is fifteen, then recanted and said eighteen going on nineteen. His father, in a phone conversation with the judge (What would Jack Aubrey think?) claimed something so preposterous that the judge refused to consider it.

And Ron Kuby has offered to be defense attorney. Best back up the Ryders at the National Archives--classified entrance.
4.21.2009 7:40pm
tvk:
EK, since you are expert in this area, one point that would help greatly if you can answer. Why is a life sentence very unlikely? I thought that piracy carried a mandatory life sentence? Is that wrong? Or are you expecting a plea bargain where the government drops the piracy charge?
4.22.2009 2:45am
Bill Dyer (mail) (www):
Seamus wrote (4.21.2009 12:22pm):
I've always thought this aspect of the felony murder rule was wrong. It would seem that if the death of the accomplices was justifiable homicide, then it just isn't right to rely on it as the basis for executing the survivor.


I understand your point, But presumably, then, you'd also excuse the criminal from enhanced punishment when the homicide caused by his crime is accidental as well.

Congress could have written this statute to require that it be a hostage who's slain before capital punishment could be assessed. Or to require that it be the defendant who did the slaying. Rather pointedly, however, it did not.

Whether foreseeable or not, whether it's the defendant who does the slaying or not, and whether it's a hostage who's slain or not, as written the statute enhances the potential punishment whenever a life is taken as a result of the hostage-taking. Anyone who wants to avoid a possible a capital sentence under this statute can do so by declining to take part in hostage-taking. But by its nature, in every hostage-taking there is a substantial risk that someone will die; the nature of the crime builds in the sort of aggravating circumstance that distinguishes this crime from other "mere" unintentional homicides. I don't think Congress was acting irrationally here; certainly it was acting within its constitutional ambit.
4.23.2009 2:53am

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