The criminal complaint outlining the charges against Somali pirate, Abduwali Abdukhadir Muse is available here.  Based on the charges, he faces life imprisonment.

The four charges he faces are:

1.  Piracy, 18 U.S.C. 1651, related to the seizure and robbery of the Maersk Alabama.

2.  Violence against maritime navigation, 18 U.S.C. 2280(e), which criminalizes acts which, among other things, destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such act is likely to endanger the safe navigation of a ship.

3. Use and carriage of a firearm in the commission of a crime of violence (specifically, violence against maritime navigation), 18 U.S.C. 924.  This carries a mandatory minimum sentence of 10 years if the firearm is discharged.

4. Hostage taking, 18 U.S.C. 1203.

5.  Use of a firearm during the hostage taking in violation of 18 U.S.C. 924.

Because piratical acts in U.S. waters are unheard of, this case will be the first piracy prosecution in a long time.  I would be cautious about saying that it is the first piracy case in 100 years because the crime could have been charged as murder or robbery or the crime may have not been reported on or decided in a published opinion. 

The exercise of criminal jurisdiction over extraterritorial crimes is not unprecedented.  As the complaint notes, the United States successfully asserted jurisdiction over Ramzi Yousef, Osama Bin Laden (tried in absentia) and Shi Lei.  The Ninth Circuit decision in Shi Lei is the only reported case interpreting the Violence Against Maritime Navigation statute.  [Disclosure: while serving as a Coast Guard JAG, I was a Special Assistant U.S. Attorney and worked on the Shi Lei case]. 

Per the Ninth Circuit in Shi Lei:

Article I, Section 8, Clause 10 of the United States Constitution (the “Offense Clause”) empowers Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Because the high seas, by definition, lie outside United States territory, see United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990), the Offense Clause grants Congress the authority to apply federal law beyond the borders of the United States, see EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).

Section 2280 is an exercise of Congress’s constitutional authority to define and punish “Felonies on the high Seas” because it proscribes felony offenses and expressly applies to international waters. See 18 U.S.C. § 2280(e). In addition, § 2280(a)(1)(A) and (B), the provisions under which Shi was charged, proscribe offenses which meet the definition of piracy. “Piracy” traditionally has been defined as “robbery, or forcible depredations upon the sea.” United States v. Smith, 18 U.S. 153, 161 (1820). “Depredation” is “the act of plundering, robbing, or pillaging.” Black’s Law Dictionary 397 (5th ed. 1979).

All three acts require the use of force.3 Section 2280(a)(1)(A) prohibits “seiz[ing] or exercis[ing] control over a ship by force or threat thereof,” and § 2280(a)(1)(B) prohibits “act[s] of violence against a person on board a ship” that are “likely to endanger the safe navigation of that ship.” Because such offenses involve interference with property on the open sea through the use of force, they are within Congress’s power to define and to punish crimes of piracy. See Smith, 18 U.S. at 158-59 (treating “Piracies,” “Felonies on the high Seas,” and “Offenses against the Laws of Nations” as three separate offenses).

My earlier posts on Somali piracy are: here, here, here, here, here, here.  This list is getting long, I’ll put together a resource page later.

I was fortunate to attend a lecture by Professor Andrew Jameson at Honolulu's Pacific Club on April 22.

Professor Jameson is a renowned expert on Near Asia. With a Harvard PhD, he was a longtime professor at the University of California-Berkeley and has consulted throughout the world.

He traced the history of piracy from its…

More resources on the Maersk Alabama piratical attack and hostage-taking incident. 

• Admiral Thad Allen, Commandant of the U.S. Coast Guard was interviewed on ABC's This Week (transcript here).  At issue is his call for an international framework to address Somali piracy.  This appears to call for a need to address the "endgame" or what-do-we-do-with-the pirates we

…

The pirate attack on the Maersk Alabama is unfolding in dramatic proportions. 

My thoughts, in no particular order: 

Mariners are wising up to the reality of Somali piracy.  Americans are a bit more sensitive about letting violence happen to them.  Perhaps a lesson from 9/11 and Flight 93?

America is extraordinarily restrained when it comes…

News reports

In dealing with Somali pirates, from a U.S. law perspective, the pirates can be prosecuted in American courts.

The SUA Treaty is a start. In the wake of the Achille Lauro murders, many countries signed and ratified the Suppression of Unlawful Acts (or SUA) Treaty (a.k.a. Rome Treaty). The Commandant of the Coast Guard’s blog…

On Somali pirates, my perspective. It seems there are two practical options: first, identify a neighboring state that has the capacity and political will to try and imprison suspected pirates; or second, obtain the shipping nations agreement that they will try the suspected terrorist upon apprehension by the world’s naval powers. While some nations, like the U.S., have the capability to interdict and stop pirate attacks, any comprehensive strategy must involve the endgame.

From a geo-political standpoint, naval patrols, and even interdiction and arrest, are only a small part of the solution.  The Pentagon seems to agree, here.  For sure, a robust naval presence allows for individual ships to remain unmolested by violence, but what about  then?  Pursuit ashore? The Commander of the U.S. Navy’s Fifth Fleet, Vice Admiral William E. Gortney expressed qualms about pursuing suspected pirates ashore, here.

The U.S. Naval Institute’s Proceedings this month contains a timely, insightful bank of essays on this issue:  the JAG’s perspective, hereherehere

The Wall Street Journal Law Blog posts an interesting article (here) about the role of private attorneys in the negotiation for the release of pirated vessels in Somalia.   According to the WSJ:

But there’s one job lawyers say they won’t handle. “We won’t get in that speedboat and deliver the suitcase of money,” says Stephens. “I don’t think anyone here agreed to do that when they signed on at the firm.”

My earlier post on Somalia piracy here.