The National Pulse
Makin’ ‘em Walk the Plank
Today’s pirates have more legal power than those of yesteryear
Posted Jul 1, 2009 8:40 PM CST
By Joseph Goldstein
It’s been a long time since a pirate faced his reckoning on the island of Manhattan. Abduwali Abdiqadir Muse certainly hadn’t anticipated the possibility. The youthful Somali has “virtually no understanding of the U.S. system of justice,” starting with the role of the lawyers appointed to represent him, says one of those lawyers, Philip Weinstein of the New York City public defender’s office.
But if Muse doesn’t know quite what to make of the law, it’s unclear that the law is sure what to make of Muse. He is the sole surviving member of the pirate crew that attacked the Maersk Alabama, an American cargo ship, and kidnapped its captain in April.
Once labeled by the law as the enemy of all mankind, pirates have no shortage of legal defenses. Muse may well be able to lay claim to more legal rights than any pirate ever to precede him. Somali pirates, some legal experts say, can seek protection and due process rights under the Geneva Conventions by arguing that, as part of a nascent and impromptu Somali coast guard, they are lawful combatants.
In the alternative, if acquitted or released from prison, he may argue against repatriation to Somalia on human rights concerns.
And in a 2007 law review article, Navy Lt. Michael Bahar suggests the Fourth Amendment may someday regulate arrest and detention on the high seas. He speculates that the courts, concerned the Navy is detaining innocent foreign fishermen, could rule suspected pirates held on U.S. warships are entitled to constitutional protections, as if they were being held at a county jail.
These and other developments in international law are likely to make prosecuting pirates a more complicated matter. The irony of that hasn’t been lost on scholars, who note one of the earliest goals of international law was to facilitate the prosecution of pirates.
A “trend in international law, which seeks to take the side of individuals against governments, has run into the oldest function of international law, which is to enable governments to take effective measures against international lawlessness,” says Eugene Kontorovich, a law professor at Northwestern University with an expertise in international law.
DISTANT PAST MAY GUIDE
Accused pirates may not only be turning to 21st century international law for precedent. One of their defenses may come from a British piracy trial in 1722 against the crew of Bartholomew “Black Bart” Roberts. Most of his pirates won acquittals by arguing they had been coerced into the pirate’s life, says Jonathan Gutoff, an expert on piracy at Roger Williams University, who is researching the case for a forthcoming article.
Gutoff speculates the British vice-admiralty court that tried them en masse off the west coast of Africa may have been less swayed by the merits of the defense than with the prospect of executing so many Englishmen.
It’s unlikely Muse would have much luck with such a defense: He was the first pirate to board the Maersk Alabama, he fired his gun at the captain, and he acted as leader of the four-man crew, according to the criminal complaint. He is the one who distributed to other pirates the $30,000 seized from the Maersk’s safe and who later issued the pirates’ demands to the U.S. Navy, according to the document.
Weinstein says it “seems a bit dubious” that Muse was the leader, given his estimated age of between 16 and 20. He adds: “It’s also claimed that he had a fairly good command of English, which I haven’t seen demonstrated.”
Muse’s is the first pirate case to be heard in the Southern District of New York—or anywhere in America, for that matter—since 1885, says Alfred Rubin, a law professor emeritus at Tufts University and author of The Law of Piracy. That year a U.S. warship captured the Ambrose Light, part of an insurgent force fighting the Colombian government. The ship, flying a strange flag and not a part of any armed force the U.S. recognized, was seized as a pirate vessel and brought to New York as a prize to be divided up in court.
Muse’s prosecution for piracy is a rarity, but pirates no longer are. In January 2006, the Navy captured 10 pirates who had commandeered an Indian dhow and gone hunting for a more lucrative catch. It was the first U.S. “capture of suspected pirates in recent memory,” writes Bahar, the Navy legal officer who interviewed the pirates, in his law review article.
It also marked the first meeting in more than a century between pirates and American due process. The pirates had been expecting the worst. Bahar recounts that when he asked the youngest of the pirates if he had any questions, the Somali said: “I don’t want to be shot.”
“They didn’t know the word rights,” says Robert Sproull, an FBI agent dispatched from Washington, D.C., to build a case against the pirates. “We explained that the word rights meant it was within their power to choose not to speak with us. If they wanted to stop the interview, they had the power to stop it.”
In the following days one pirate, deciding the creature comforts and safety of being imprisoned on a Navy ship compared favorably with pirating, would ask if he could spend the rest of his life in the brig. Instead the 10 were transferred to Kenya, which agreed to handle the prosecution. They each received seven years in prison.
The capture also showed the challenges of collecting trial evidence on the open sea. The Navy burned the tattered rags of the pirates as a health precaution, which made sense from a sailor’s perspective but not from a prosecutor’s, as the absence of such evidence could make an eyewitness ID of the pirates more difficult.
But the largest evidentiary difficulty preventing the arrest and prosecution of suspected pirates is that they possess the ideal alibi for casing the ocean for ships to attack. “They say they are Somali fishermen, and you know what? They’re telling the truth,” Kontorovich says. Unless caught in the act of boarding a vessel or holding a ship hostage, pirates are unlikely to be successfully prosecuted, legal experts say.
What is not a problem in prosecuting pirates is U.S. jurisdiction. Piracy is one of only three crimes that the Constitution specifically names. Since 1819 Congress has criminalized all piracy as “defined by the law of nations.” Many scholars believe this makes it a U.S. crime even when foreign pirates attack foreign sailors flying a foreign flag on the other side of the world.
Just last year the San Francisco-based 9th U.S. Circuit Court of Appeals decided universal jurisdiction over piracy crimes required it to uphold the prosecution of a Chinese chef on a Taiwanese ship. The chef had stabbed to death the captain and first mate, neither of them American. The only U.S. connection was the Coast Guard vessel that interdicted the ship.
And this seems to be consistent with international law. “Interestingly enough, international law is not a problem,” says Capt. Patrick Neher, head of international law for the Navy JAG Corps. “We have all the international legal authorities we could ever hope to have.”
The indictment isn’t the only slip of paper the Constitution contemplates for fighting piracy. One of Congress’ enumerated powers is to grant letters of marque and reprisal, essentially commissions that entitle the bearer to wage war against an enemy in return for the plunder.
Rep. Ron Paul, R-Texas, has floated the idea of issuing such letters as part of current anti-piracy efforts. But the idea doesn’t seem likely to gain traction on the Hill. Nor is it likely to entice many shipowners: There seems to be little profit in such a hunt.