U.S. judge dismisses piracy charges
A federal judge on Tuesday has dismissed piracy charges against six men accused of attacking a Navy ship in April in the Gulf of Aden.
U.S. District Judge Raymond A. Jackson granted a motion by attorneys for six Somalis, writing in his decision, “the government has failed to establish that any unauthorized acts of violence or aggression committed on the high seas constitutes piracy as defined by the law of nations in 18 U.S.C. S.1651.
“Following the government’s assertions would subject defendants to an enormously broad standard under a novel construction of the statute that has never been applied under United States law, and would in fact be contrary to Supreme Court case law,” he added.
Jackson noted, however, that while he dismissed the piracy count, the government is not without tools to try and punish the men who are accused of using a small skiff to attack the USS Ashland, a 610-foot dock landing ship.
The government said as the skiff approached the Ashland, at least one occupant raised a firearm and shot at the Navy ship. The Ashland returned fire and destroyed the skiff with a 25mm cannon. One passenger was killed.
In an indictment, the government charged the six surviving Somali’s with a variety of crimes in addition to piracy — attack to plunder a vessel, acts of violence against persons on a vessel, conspiracy to perform acts of violence against persons on a vessel, assault with a dangerous weapon on federal officers and employees, conspiracy involving firearm and a crime of violence, use of firearm during a crime of violence. These crimes have maximum penalties from 8 to 25 years compared to life in prison for piracy.
“It appears the judge adopted a very narrow interpretation whereas the Supreme Court in the case he cites, tended to define piracy in accordance with international law and in a broader way,” said John Kimball, an attorney with Blank Rome.
Jackson’s decision extensively discusses the 1820 Supreme Court decision U.S. v. Smith where Justice Joseph Story wrote: “all writers concur in holding that robbery or forcible depredations upon the sea, animo furandi (with the intention to steal) is piracy. The same doctrine is held by all the great writers on maritime law in terms that admit of no reasonable doubt. The common law, too, recognizes and punishes piracy as an offense not against its own municipal code, but as an offense against the law of nations (which is part of the common law), as an offense against the universal law of society, a pirate being deemed an enemy of the human race.”
Jackson said that 1820 Supreme Court decision defines piracy as sea robbery, and has a much narrower meaning than, for example, the phrase “piratical aggression,” which in the Piracy Act of 1819 included acts of violence other than robbery, forcible depredation or otherwise taking of a vessel.
Robert Rigney, attorney for the Somali men, said the judge’s decision was critical because his clients, if convicted, would be subject to a life sentences without the possibility of parole.
He also complained that the anti-piracy law in 18 U.S.C. S. 1651 — “whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life” — is much too vague for a criminal law.
“You have to be given fair warning of what you are charged with. If you are charged with murder, if you are charged with assault, you know what the elements are. But under the criminal law “piracy under the law of nations is just too vague.”
“If you want to change the law so that it says piracy is under the Geneva Convention, well then Congress is going to have to do that and they have not done that in 190 years,” he added.
The 1958 Geneva Convention on the High Seas give has its own definition of piracy that includes “any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft” that takes place on high seas or in a place outside the jurisdiction of any state.
Jackson also rejected a government argument that the phrase “forcible depredations” as something other than robbery or plunder.
The Associated Press said attorneys for five other Somali defendants accused in a similar attack on the frigate USS Nicholas off the coast of Kenya in April are also seeking dismissal of a piracy count, citing similar arguments. A hearing in that case is scheduled for Sept. 9 before a different judge in Norfolk.
The government is expected to appeal to the 4th U.S. Circuit Court of Appeals. ' Chris Dupin