Piracy Prosecutions

Piracy U.S. Prosecutions in 2013

United States views on international law [1] in relation to Piracy U.S. Prosecutions: Domestically, the United States continues to pursue the prosecution of captured individuals suspected in several pirate attacks. As of the end of 2013, the United States had pursued the prosecution of 28 suspected pirates in U.S. courts for their involvement in attacks on seven ships that were either U.S. flagged or related to U.S. interests. Prosecutions resulted in 27 defendants receiving convictions. On August 2, 2013, three Somali pirates were sentenced to life in prison in the U.S. District Court for the Eastern District of Virginia for the 2011 murder of four U.S. citizens abducted on the yacht QUEST off the coast of East Africa. The State Department issued a press statement on August 7, 2013, welcoming the sentencing, available at (Secretary of State website) state.gov/r/pa/prs/ps/2013/08/212809.htm. Eleven of the other pirates who attacked the QUEST previously pleaded guilty in federal court in 2011 and were also sentenced to life in prison. The onshore negotiator working for the pirates was also convicted and received multiple life sentences as well.

Some Aspects of Piracy U.S. Prosecutions

(1) United States v. Ali: aiding and abetting and conspiracy to commit piracy

On June 11, 2013, the U.S. Court of Appeals for the District of Columbia reversed, in part, a district court's dismissal of charges of aiding and abetting piracy, conspiracy to commit piracy, and hostage taking. United States v. Ali, 718 F.3d. 929 (D.C. Cir. 2013). The district court found it critical that defendant's alleged actions as a hostage negotiator occurred on land and in territorial waters—not upon the high seas. The court of appeals held that prosecution for aiding and abetting piracy based on acts not committed on the high seas was consistent with U.S. and international law, but that prosecution for conspiracy to commit piracy was not consistent with international law. The court of appeals also held that prosecution of defendant for hostage taking was neither in violation of international law nor due process under the U.S. Constitution. Excerpts from the opinion of the court of appeals follow (with footnotes omitted).*

Developments

In most cases, the criminal law of the United States does not reach crimes committed by foreign nationals in foreign locations against foreign interests. Two judicial presumptions promote this outcome. The first is the presumption against the extraterritorial effect of statutes: “When a statute gives no clear indication of an extraterritorial application, it has none.” Morrison v. Nat'l Austl. Bank Ltd., –––U.S. ––––, 130 S.Ct. 2869, 2878, 177 L.Ed.2d 535 (2010). The second is the judicial presumption that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains,” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804)—the so-called Charming Betsy canon. Because international law itself limits a state's authority to apply its laws beyond its borders, see RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 402–03, Charming Betsy operates alongside the presumption against extraterritorial effect to check the exercise of U.S. criminal jurisdiction. Neither presumption imposes a substantive limit on Congress's legislative authority, but they do constrain judicial inquiry into a statute's scope. Piracy, however, is no ordinary offense. The federal piracy statute clearly applies extraterritorially to “[w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations,” even though that person is only “afterwards brought into or found in the United States.” 18 U.S.C. § 1651. Likewise, through the principle of universal jurisdiction, international law permits states to “define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404; see United States v. Yunis, 924 F.2d 1086, 1091 (D.C.Cir.1991). And of all such universal crimes, piracy is the oldest and most widely acknowledged. See, e.g., Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L.REV. 785, 791 (1988). “Because he commits hostilities upon the subjects and property of any or all nations, without any regard to right or duty, or any pretence of public authority,” the pirate is “hostis humani generis,” United States v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 232, 11 L.Ed. 239 (1844)—in other words, “an enemy of the human race,” United States v. Smith, 18 (5 Wheat.) U.S. 153, 161, 5 L.Ed. 57 (1820). Thus, “all nations [may punish] all persons, whether natives or foreigners, who have committed this offence against any persons whatsoever, with whom they are in amity.” Id. at 162.

Details

* Editor's note: After the court of appeals issued its decision, the case went to trial before a jury which resulted in acquittal of Mr. Ali on the piracy charges in late November 2013. The jury could not reach agreement on the charges of hostage taking, resulting in the district court declaring a mistrial on those charges in early December 2013. The U.S. government elected not to pursue the available retrial solely on the hostage taking charges.

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Universal jurisdiction is not some idiosyncratic domestic invention but a creature of international law. Unlike the average criminal, a pirate may easily find himself before an American court despite committing his offense on the other side of the globe. Ali's situation is a bit more complicated, though. His indictment contains no straightforward charge of piracy. Rather, the government accuses him of two inchoate offenses relating to piracy: conspiracy to commit piracy and aiding and abetting piracy. On their face, both ancillary statutes apply generally and without exception: § 2 to “[w]hoever … aids, abets, counsels, commands, induces or procures” the commission of “an offense against the United States,” 18 U.S.C. § 2(a) (emphasis added), and § 371 to persons who “do any act to effect the object of the conspiracy” to “commit any offense against the United States,” 18 U.S.C. § 371 (emphasis added). But so powerful is the presumption against extraterritorial effect that even such generic language is insufficient rebuttal. See Small v. United States, 544 U.S. 385, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005). That leaves both statutes ambiguous as to their application abroad, requiring us to resort to interpretive canons to guide our analysis. Given this ambiguity in the extraterritorial scope of the two ancillary statutes, we consider whether applying them to Ali's actions is consistent with international law. Conducting this Charming Betsy analysis requires parsing through international treaties, employing interpretive canons, and delving into drafting history. Likewise, because the two ancillary statutes are “not so broad as to expand the extraterritorial reach of the underlying statute,” United States v. Yakou, 428 F.3d 241, 252 (D.C.Cir.2005), we also conduct a separate analysis to determine the precise contours of § 1651's extraterritorial scope. Ultimately, Ali's assault on his conspiracy charge prevails for the same reason the attack on the aiding and abetting charge fails.

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A. Aiding and Abetting Piracy We begin with Ali's charge of aiding and abetting piracy. Aiding and abetting is a theory of criminal liability, not a separate offense, United States v. Ginyard, 511 F.3d 203, 211 (D.C.Cir.2008)—one that allows a defendant who “aids, abets, counsels, commands, induces or procures” commission of a crime to be punished as a principal, 18 U.S.C. § 2(a). “All that is necessary is to show some affirmative participation which at least encourages the principal offender to commit the offense, with all its elements, as proscribed by the statute.” United States v. Raper, 676 F.2d 841, 850 (D.C.Cir.1982). From Ali's perspective, it is not enough that acts of piracy were committed on the high seas and that he aided and abetted them. Rather, he believes any acts of aiding and abetting he committed must themselves have occurred in extraterritorial waters and not merely supported the capture of the CEC Future on the high seas. Ali's argument involves two distinct (though closely related) inquiries. First, does the Charming Betsy canon pose any obstacle to prosecuting Ali for aiding and abetting piracy? For we assume, absent contrary indication, Congress intends its enactments to comport with international law. Second, is the presumption against extraterritoriality applicable to acts of aiding and abetting piracy not committed on the high seas?

Resources

Notes

1. Piracy U.S. Prosecutions in Digest of United States Practice in International Law