Categorized | Jon Bellish, TVFA Posts

Will the United States Play a Role in Prosecuting Pirate “Kingpins?”

Somalia has no trouble producing pirates. Between a central government that controls little beyond the capitol city of Mogadishu, an utter lack of economic opportunity for young men, and a 3,025 mile long coastline with access to the world’s busiest shipping corridors, for every Somali pirate captured at sea, there are many more waiting to take his place. Accordingly, one of the most promising means to put an end to this global menace is the prosecution and detention of the financiers of pirate action groups – those benefitting most from lawlessness in the Indian Ocean but never actually setting foot on a boat.

Mohammad Saaili Shibin (AP Image)

The Eastern District of Virginia and the Fourth Circuit Court of Appeals are in the process of hearing two separate cases that, taken together, could decide whether or not the United States of America will have any role in the prosecution of these so-called “kingpins” of piracy.

One case, United States v. Shibin, is just beginning the trial phase and is the United States first attempt to prosecute a high level facilitator of piracy. The case concerns Mohammad Saaili Shibin’s role in the hijackings of the M/V Marida Marguerite and the S/V Quest. In both attacks, Shibin’s role was that of translator and hostage negotiator. Shibin was paid between $30,000 and $50,000 for his role in the M/V Marida Marguerite attack but was paid nothing in for his role in the S/V Quest, as all hostages were killed before a ransom could be negotiated. Shibin confessed to his role in both hijackings to American authorities.

At issue is, inter alia, whether Shibin can be charged with Piracy under 18 U.S.C. § 1651, which outlaws “piracy as defined by the law of nations” and carries with it a mandatory life sentence.

Because Judge Robert G. Doumar denied the defendant’s motion to suppress his confessions, it will be difficult for Mr. Shibin to argue that he did not participate in the hijackings in the manner alleged. Instead, his case will rise and fall on the way the Fourth Circuit settles a split on the legal question of whether “piracy as defined by the law of nations” is an evolving or a static concept.

This legal question comes to the Fourth Circuit in the context of a split within the Eastern District of Virginia on two cases with essentially the same set of facts. In both United States v. Said and United States v. Hasan, the defendants set out to plunder a merchant vessel and fired upon what they believed to be such a vessel. In both cases, the would-be pirates were actually firing upon a United States Naval vessel.

In Said, the trial court held that § 1651 should be interpreted in light of the nineteenth century definition of piracy, which included only “robbery at sea.” Because the defendants in Said only fired upon a ship and never actually stole anything, their acts did not rise to the level of piracy.

The Hasan trial court, on the other hand, found that “the ‘law of nations’ connotes a changing body of law,” and that Congress meant to keep pace with those changes as they relate to maritime piracy when they drafted § 1651. The court went on to find that the contemporary definition of general piracy under customary international law is embodied in the High Seas Convention and UNCLOS,1 both of which define piracy as:

(A) (1) any illegal act of violence or detention, or any act of depredation; (2) committed for private ends; (3) on the high seas or a place outside the jurisdiction of any state; (4) by the crew or the passengers of a private ship or a private aircraft; (5) and directed against another ship or aircraft, or against persons or property on board such ship or aircraft; or

(B) (1) any act of voluntary participation in the operation of a ship or an aircraft; (2) with knowledge of the facts making it a pirate ship; or

(C) (1) any act of inciting or of intentionally facilitating (2) an act described in subparagraph (A) or (B).

The cases of United States v. Shibin and United States v. Hasan are therefore inexorably tied to one another. If the Fourth Circuit overrules the Hasan trial court and holds that, for the purposes of § 1651, piracy only includes armed robbery at sea, none of the defendants in Hasan, Said, and Shibin are guilty of a crime under that statute. If it affirms the Hasan trial court’s holding that that the definition of piracy under the law of nations has expanded to include the definition embodied in UNCLOS and the High Seas Convention the result will almost certainly be the opposite. The defendants in Hasan and Said would be guilty of piracy resulting from acts of violence on the high seas, and Mohammad Saaili Shibin would be guilty of intentionally facilitating piracy. Though Shibin, as a translator and hostage negotiator, would be considered a mid-level pirate at best, the same legal reasoning that applies to him will apply to higher level facilitators who “incit[e] or . . . intentionally facilitat[e]” piracy but do not themselves commit robbery at sea.

An interpretation of § 1651 as embodying an evolving definition of piracy would make the United States an excellent venue to prosecute the financiers and facilitators of piracy, as the level of due process afforded to the defendants would be unassailable and the mandatory life sentence imposed by § 1651 would be a strong deterrent. Prosecuting these “kingpins” is, apart from solving Somalia’s broader governance problems, the surest way to put an end to maritime piracy in the Indian Ocean and Arabian Seas. Hopefully the American judicial system can adapt to this modern realities of maritime piracy.

  1. Actually, this conceptualization of piracy was first announced in a 1932 study on the international law of piracy conducted by Harvard University and later incorporated into the Law of the Sea Treaty in 1958 and reproduced in UNCLOS in 1982.

3 Responses to “Will the United States Play a Role in Prosecuting Pirate “Kingpins?””

  1. Matt says:

    The government would argue that Hasan and Said don’t impact the Shibin case. Hasan/Said were incomplete attacks, putting the definition of piracy under 1651 directly at issue. In the Shibin case, however, the pirates actually managed to seize the ships. The government has argued that such completed seizures result in at least minor robberies (of fuel, supplies, etc.), meaning Shibin (and other facilitators) could be prosecuted under 1651 under either of Hasan’s or Said’s definitions of piracy. Of course, that may be a bit too much of the tail wagging the dog, but it is the position of the government.

    Regardless, I find prosecutions under 1651 to be troubling. The U.S. has more modern statutes covering violence at sea, such as Section 2280. The statutes are both well-defined in their elements and provide a range of sentences, allowing judges to impose appropriately proportional punishments. By contrast, 1651 is a statute that is nearly 200 years old, is vague on its face, and does not allow for proportional sentencing. Its application raises serious constitutional problems with no added benefit, other than to give prosecutors the hammer of an automatic life sentence to use in plea negotiations. (Imagine being a low-level employee of an Eyl caterer swept up in a pirate arrest operation. Thirty-years hardly seems the appropriate punishment for delivering rice and lamb to pirates and hostages, but such an offer by an overzealous prosecutor would always be preferable to life in prison under 1651.)

    Moreover, the fact that 1651 is on the books is sheer historical accident. After U.S. v. Smith, Congress formally defined piracy as sea robbery in the Act of 1820, and 1651′s definition was made dead letter applicable only to pre-existing cases. Fifty years later, Congress completed a general restructuring of the criminal code in the Revised Statues of 1874, and 1651′s predecessor was accidentally reincorporated without its limiting language. By that time there was little piracy to prosecute, allowing this accident to go unnoticed and uncorrected to the present day.

    In my opinion, the U.S. is risking losing piracy prosecutions on appeal by invoking such a uniquely problematic statute, rather than simply using one or more of the many other federal statutes addressing violence at sea that are unquestionably constitutional. Such a result would not only be a massive waste of resources, it would discourage other countries from undertaking piracy prosecutions, a longstanding goal of U.S. anti-piracy policy.

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    • Jon Bellish says:

      I agree that Shibin presents a different issue than Said and Hasan. It seems to me, however, that any honest reading of the statute and relevant case law requires an interpretation of piracy that goes beyond mere “robbery on the high seas” to result in a conviction in any of these three cases. If Congress passed a statute saying “those who commit the crime of murder shall be put to death,” subjecting the an attempted murderer or a getaway driver to the death penalty would be a gross misreading of that statute. Congress could easily have captured the actions of the attempted murderer and the getaway driver in that statute if it wished. If aiding and abetting are impliedly encompassed in “committing robbery on the high seas,” why not attempts as well? I fail to see a principled distinction.

      If, on the other hand, Congress passed a statute that said (for the purposes of this analogy) that “anyone who commits murder as defined by the law of nations shall be put to death,” and the international community decided that murder was so repugnant to the international order that attempted murder and aiding and abetting a murder is, in and of itself, murder, such an interpretation would be defensible.

      Second, while I appreciate your historical characterization, I would hope that a federal judge would never employ such logic in an opinion. To write in a judicial opinion stating that Congress did not mean to keep a law on the books despite the fact that it kept a law on the books is to ignore the nature of our constitutional system whereby Congress passes laws and the courts interpret them, subject to the constitution. I would hope that a court with a conservative reputation like the Fourth Circuit would be especially sensitive to that line of reasoning. There is nothing stopping Congress from fixing the error that you note, but until they do so, 1651 should carry no less legal weight than any other part of the US Code.

      With that said, I have saved your best argument for last, as I agree that other federal statutes, particularly 2280, can be used to prosecute individuals such as Said, Hasan, and Shibin. However, I would argue that there are at least two reasons to apply 1651 to those at the top of the piracy criminal enterprise.

      First, per the 2010 Digest of US Practice in International Law, the last four US presidents have accepted UNCLOS’s definition of piracy under customary international law as the definitive definition of the crime. There is little evidence that Congress viewed the law of nations as a static and immutable body of law in the mid-1800′s, and if it wanted merely to assert universal jurisdiction over robbery on the high seas, it could have easily done so. Second, UNCLOS art. 100 imposes an affirmative duty to “cooperate to the fullest possible extent in the repression of piracy on the high seas.” The United States should either live up to this obligation or argue that pirates are no longer hostis humanis generis, but should be considered common criminals. It cannot have it both ways.

      In the end, I would argue that while choosing to prosecute under 2280 as opposed to 1651 may be the better prosecutorial decision, judicial foreclosure to the use of 1651 would be a disingenuous reading of the statute.

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  2. Matt says:

    The history of 1651 is relevant to its interpretation, because the statute has no elements. The statute was originally passed in response to U.S. v. Palmer, a case that restricted the application of the existing piracy statute, the Act of 1790, to U.S. citizens and ships. Palmer created a national outcry, yet there was no easy way to overcome it, since it was a case interpreting a statute of universal language that by their terms should have been read universally. (It’s thus not historically correct to say that if Congress merely wanted to assert universal jurisdiction over robbery at sea, it could have easily done so. The Congress of 1790 thought that it had done exactly that, until the Palmer Court told it that it hadn’t, despite the clear language of the statute.) To overcome this problem, the Congress of 1819 passed a statute with a one-year sunset clause to force the Court to define piracy, which it did in U.S. v. Smith. Since the Congress that passed the language of 1651 gave it this limited duration, it clearly did not intend for it to evolve, but to be a snapshot of the law at that time.

    With the accidental recodification in 1874, the question is, should the language of 1651 mean (i) robbery, as the only Supreme Court case interpreting the language says it meant in 1820; (ii) piracy as defined in 1874, when it was accidentally recodified alongside the “piracy is robbery” statute; (iii) piracy as defined in 1909, when the punishment was changed as part of a general revision of punishments in the US Code; (iv) piracy as defined in 1948, when it was recodified as 1651 as part of a general revision of the code; or (v) piracy as it means whenever someone happens to be prosecuted, under an evolving standard?

    Before you answer, consider that the Congress that passed 1651 in 1948 stated, “In the light of far-reaching developments in the field of international law and foreign relations, the law of piracy is deemed to require a fundamental reconsideration and complete restatement, perhaps resulting in drastic changes by way of modification and expansion. Such a task may be regarded as beyond the scope of this project. The present revision is, therefore, confined to the making of some obvious and patent corrections. It is recommended, however, that at some opportune time in the near future, the subject of piracy be entirely reconsidered and the law bearing on it modified and restated in accordance with the needs of the times.” Can such a statement be squared with the notion that the statute would evolve automatically in lockstep with modern international law?

    Consider further that the Court in Smith said that piracy was “a crime of a settled and determinate nature,” which was crucial to the constitutionality of the Act of 1819. If it wasn’t understood as “settled,” then the petitioner’s claim–that Congress had failed to “define and punish” piracy as required by the constitution–may well have succeeded. So whether or not Congress viewed the law of nations as a static and immutable body of law in the mid-1800′s, the Court expressly held that the law of piracy was.

    Interestingly, one thing that was “settled” in 1820 was that there was no such thing as attempted piracy under the law of nations. Rather, “attack to plunder”–essentially attempted piracy–was prohibited in the Act of 1825 and given a 10 year sentence (as opposed to the universal sentence of death provided for piracy under the law of nations).

    Compounding all these problems, the international definition of piracy is understood by many to have become purely jurisdictional. That is, UNCLOS provides the scope of activity over which nations may punish piracy under domestic law using universal jurisdiction, rather than providing elements for a substantive crime of piracy. The reason for this understanding is that UNCLOS defines piracy as “illegal acts of violence,” meaning that acts of violence can be made illegal under national legislation. That creates a circularity problem for 1651: it prohibits piracy under the law of nations, but the modern law of nations is jurisdictional and looks to national law to supply the elements of what is “illegal.”

    Even further compounding these problems, conspiratorial liability under U.S. law is much broader than most nations accept. If conspiracy to commit piracy is not piracy under the law of nations, can prosecutors charge someone under 1651 using a purely conspiratorial theory of liability under Pinkerton?

    To be constitutional, a law must reflect a valid Congressional power, and that power must be exercised in accordance with due process. It seems to me that the aforementioned issues make applying an evolving view of 1651 fatal under the define and punish clause, which grants Congress the power to define piracy, not to punish piracy as defined by others under an evolving standard. It would also be fatal under the 8th Amendment, which requires the legislature to make a judgment that the punishment for a crime is rational in light of the conduct prescribed–if the conduct proscribed changes and evolves, but the punishment is fixed, there is no body making that determination. And whether evolving or not, 1651 seems fatally vague. How is an ordinary person supposed to navigate the aforementioned questions in order to determine what conduct will result in automatic life in prison under 1651, even if judges can? (Notably, at the time of Smith, other statutes punished robbery at sea with the same punishment as the Act of 1820. Now, however, there is no other relevant statute that carries an automatic life sentence other than 1651.)

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