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August 17, 2010

Judge: The Somali Pirates Who Attacked a Navy Ship Aren't "Pirate-Pirates"

The Navy brought these six guys back to Virginia in April after they fired on the USS Ashland, in what was probably a case of mistaken identity (I mean, who thinks piracy against the US Navy is a good idea?!?). They were charged with a bunch of things, but the most important and obvious of the charges was piracy, which carries a mandatory life sentence.

The defense raised a troubling argument: "piracy" is not defined in statute, but rather by Supreme Court case law. In particular, an 1820 case: "We have, therefore, no hesitation in declaring that piracy, by the law of nations, is robbery upon the sea," Justice Joseph Story wrote for the majority in United States v. Smith. The defendanst argued that they did not complete their act of piracy (they didn't actually rob the USS Ashland because it blew their little raft to smithereens) and so cannot be properly charged as pirates. This would be distinct from an attempted piracy charge, which I guess wasn't or couldn't be (?) made.

The judge bought it.

A judge on Tuesday dismissed piracy charges against six Somali nationals accused of attacking a Navy ship off the coast of Africa, concluding the U.S. government failed to make the case their alleged actions amounted to piracy.

The dismissal of the piracy count by U.S. District Judge Raymond A. Jackson tosses the most serious charge against the men, but leaves intact seven other charges related to the alleged April 10 attack on the USS Ashland in the Gulf of Aden. A piracy conviction carries a mandatory life term.

"The court finds that 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," Jackson wrote in granting the defense motion to dismiss.

Five other Somalis are before a different district court judge and making the same argument. One Somali pleaded guilty. Bet he feels like an idiot.

Much more on the background of the piracy issue was in the Wall Street Journal over the weekend.

More:

This grates so much, like many court decisions these days, because it bugs our common sense. Just see the Stolen Valor post below. Most of the commenters noted quite correctly that obviously these jerks aren't lying about having military medals just for the sake of lying. They're doing it to get stuff: attention, donations, political support, free drinks, whatever. That's freakin' obvious.

And that's part of what makes lying about having service medals objectionable in the first place. These guys are taking recognition that rightfully belongs to actual service medal winners. So they're harming the good guys and they're harming the public at large. Obvious.

So why didn't Congress put that in the Stolen Valor Act? Courts these days demand that every little thing be spelled out in triplicate, so it doesn't matter that this is obvious to everybody. If it doesn't appear in the statute, the courts aren't going to go out of their way to interpret it in. Particularly in a case that runs smack up against the First Amendment.

Same thing happens in this piracy case. In a criminal conviction, particularly one involving a mandatory life sentence, the starting point is: what is "piracy." Because it seems so obvious, Congress never defined it. And now the courts are sitting there wondering if piracy includes failed acts of robbery on the high seas. Oy.

Obvious. But law doesn't work that way. You want to put somebody away for life, you better be sure to get the charges right. Again, that runs smack up against the Fifth and Eighth Amendments. And courts are going to tend to err away from fudging that kind of thing, just because it's "common sense" that they're pirates. Due process and "beyond a reasonable doubt" and all that.


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posted by Gabriel Malor at 03:59 PM

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