The DC Circuit’s Ali Decision

DC Circuit Court of Appeals

DC Circuit Court of Appeals

On June 11, the U.S. Court of Appeals for the District of Columbia decided the case of United States of America v. Ali Mohamed Ali, a case about which I have written extensively. This post will provide a brief factual and procedural background of the case, briefly discuss the DC Circuit’s treatment of three of the four charges against Ali, and explain how and why the court rejected my argument about a high seas requirement for facilitators of piracy.

Background

Ali Mohamed Ali, the Minister of Education for the semi-autonomous Somali region of Somaliland, negotiated the release of eleven hostages aboard the Bahamian-flagged, Danish-owned merchant vessel CEC Future. Regrettably, in the era of piracy off the Horn of Africa, this is not an uncommon occurrence. What is interesting about Ali’s case, however, is that he negotiated the ransom from Somali territorial waters, never facilitating while on the high seas. Nonetheless, the United States government built a case against him, planned a fairly elaborate ruse to invite Ali to an education conference in North Carolina, and arrested him on the tarmac when his plane touched down in Washington, D.C. on April 20, 2011.

After a number of superseding indictments, a grand jury charged Ali with conspiracy to commit piracy, aiding and abetting piracy, conspiracy to commit hostage taking, and aiding and abetting hostage taking. Ali filed a motion to dismiss and was successful on a number of counts, with the lower court dismissing the conspiracy to commit piracy count, narrowing the aiding and abetting count to acts of facilitation that occurred on the high seas, and dismissing both hostage taking charges as a violation of due process.

On appeal, the DC Circuit affirmed the dismissal of the conspiracy to commit piracy charge, but reversed the dismissal of the hostage taking charges and held that the United States may assert universal jurisdiction over acts of facilitation that take place entirely within the territory of another state.

Conspiracy to Commit Piracy and Hostage Taking Charges

Of the four charges considered by the court, three were relatively uncontroversial. In affirming the lower court’s dismissal of the conspiracy to commit piracy charge, the court relied on the Charming Betsy canon, concluding that because “UNCLOS [art. 101]’s plain language does not include conspiracy to commit piracy,” the government cannot charge conspiracy to commit piracy “as defined by the law of nations.”

As for the hostage taking charges, Ali’s principle argument was that asserting universal jurisdiction over hostage taking – a non-UJ offense – the government violated Ali’s right to due process under the Fifth Amendment of the U.S. constitution. However, the court concluded that the Hostage Taking Convention provided global notice that an alleged hostage taker could be haled into court. That, combined with the fact that 18 USC § 1203, the American hostage taking statute, asserts jurisdiction over all offenders “found in the United States,” was enough to sustain Ali’s hostage taking charges. This section contains some interesting discussion of the relationship between United States and international law, but it remains to the side of what I believe the most interesting aspect of the Ali case: whether universal jurisdiction exists over facilitators of piracy who never leave the territorial jurisdiction of a state.

Aiding and Abetting Piracy

In considering whether “piracy as defined by the law of nations” allows for universal jurisdiction prosecutions over territorial facilitators, the court considered the text of UNCLOS art. 101, the context provided by surrounding provisions, as well as the relevant drafting history. Though it did not consider the underlying policy implications of criminalizing piracy, the structure of the court’s argument closely mirrored that from my law review article. However, the similarities between our analyses went no further.

The court begins with a textual analysis of art. 101, which takes only three sentences and is re-printed in full here:

Explicit geographical limits – ‘on the high seas’ and ‘outside the jurisdiction of any state’ – govern piratical acts under article 101(a)(i) and (ii). Such language is absent, however, in article 101(c), strongly suggesting a facilitative act need not occur on the high seas so long as its predicate act has. So far, so good; Charming Betsy poses no problems.[1]

Although the court could have ended its analysis there, it turned to Ali’s contextual arguments concerning arts. 86 and 105, introducing the relevant Part in UNCLOS and describing states’ power to capture pirates, respectively. Regarding art. 86, the court concluded that it was not meant to limit the provisions of the Part to high seas acts, but rather to explicate the meaning of “high seas” for the purposes of the Part. As for art. 105, the court explained that “the provision’s reference to the high seas highlights the broad authority of nations to apprehend pirates even in international waters.” The court further asserted that Ali’s argument that art. 105 limits universal jurisdiction captures to the high seas “proves too much, leaving nations incapable of prosecuting even those undisputed pirates they discover within their own borders.”

Finally, the court considered UNCLOS’s drafting history, or, as it phrased the inquiry, the “drafting history’s drafting history.”  The court traced UNCLOS back to the 1932 Harvard Draft Convention’s explicit pronouncement that acts of facilitation must take place on the high seas to be subject to universal jurisdiction. The court found this evidence unpersuasive, stating that, “[e]ffectively, Ali would have us ignore UNCLOS’s plain meaning in favor of eighty-year-old scholarship that may have influenced a treaty that includes language similar to UNCLOS art. 101. This is a bridge too far.”  Indeed, the court stated that it would not completely address the drafting history, as the plain meaning of UNCLOS art. 101(c) was clear.

The court concluded that UNCLOS art. 101, and by extension 18 USC § 1651, and by further extension 18 USC § 2, all allow for universal jurisdiction prosecutions for acts of piratical facilitation which take place entirely with another state’s borders.

In the end, the D.C. Circuit’s analysis and my own departed ways at the very beginning, perhaps even before.  In conceptualizing piratical facilitation as a form of liability distinct from piracy rather than piracy in and of itself, the court was able to resolve the textual argument in one short paragraph. From there, the court sought independent justifications for the limitation in the context and drafting history, where I looked to the context, drafting history, and underlying policy rationale to resolve the ambiguous language.


[1] Omitting the internal citation to the general proposition that inclusion of language in one section of a statute and exclusion in another should be taken as purposeful.

DC Circuit publishes Ali appeal

This morning, the DC Circuit published an opinion concerning the scope of permissible charges against Ali Mohammed Ali. In the opinion, the DC Circuit affirmed Judge Ellen Huevelle’s decision to dismiss one count for conspiracy to commit piracy, but reversed the dismissal of the hostage-taking charges and a limitation of aiding and abetting piracy to acts committed on the high seas.

I agree with the DC Circuit’s decisions regarding the conspiracy and hostage taking charges, but it will come to no surprise to readers of this blog that I disagree with the aiding and abetting reversal, which was based on the conclusion that aiding and abetting piracy under 18 USC § 2 (and by extension 18 USC § 1651 and UNCLOS 101(c)) can occur from within the territorial jurisdiction of another state. I argue differently in my forthcoming law review article in the San Diego International Law Journal, and I am mostly unpersuaded by the Court’s opinion. I plan on writing more about this subject after I have a chance to read the opinion more carefully.

Interestingly, the Associated Press left out the reversal limiting the scope aiding and abetting charge, reporting only that “the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed the dismissal of the of hostage-taking charges, while upholding the decision to dismiss the conspiracy to commit piracy charge.” Perhaps adding, “reversed the lower court ruling limiting piracy to acts committed on the high seas” would have seemed too controversial.

Forthcoming article on private security

Yvonne Dutton, an Associate Professor of Law at Indiana University Robert H. McKinney School of Law (not to mention a friend and colleague), has a law review article forthcoming in the Duke Journal of Comparative & International Law on regulating the private maritime security industry. Here’s the abstract:

Since only mid-2011, states have increasingly authorized their shippers to hire private armed guards to protect them as they travel through pirate-infested waters. Estimates indicate that in 2011, the percentage of ships employing armed guards rose from approximately 10% to upwards of 50%. Primarily, the guards are hired out by the 200 to 300 private maritime security companies (PMSCs) that have been created overnight to capitalize on this new opportunity. This article recognizes the importance of protecting innocent seafarers from violent pirate attacks. It also recognizes that the worlds’ navies may not be able to protect each and every ship and crew from being attacked. Nevertheless, it argues that states should not be permitted to include private citizens in the fight against piracy without first ensuring that those guards will abide by governing laws and norms and be held accountable should they fail to do so. Yet, as the article shows through a comparison and analysis of the laws and guidance of five states, only some states appear to be providing any guidance regarding the necessary training and qualifications that armed guards must possess or how and when they may lawfully use and transport weapons. This article argues that states need to do more. At the very least, it urges states to agree on vetting and monitoring procedures to make certain that any guards who are hired by shippers are well trained and prepared to safely transport, store, and use weapons. States are responsible for the fight against piracy, and if they want to include private contractors in that fight, then they should act responsibly and regulate and monitor the guards’ conduct. Otherwise, in a world where each state is creating its own rules or even no rules at all, the likely outcome is chaotic and violent seas — and perhaps the next “Blackwater” moment.

The full article can be accessed here.

Calculating the Cost of Piracy

total-pie_graphOn April 9, Oceans Beyond Piracy released its third annual Economic Cost of Somali Piracy (ECoP) Report at the Danish National Museum in Copenhagen. The launch included a panel discussion including representatives from the Danish Shipowners Association, EUNAVFOR, Oceans Beyond Piracy, and BIMCO. Ambassador Thomas Winkler of the Danish Foreign Ministry and Mohamed Osman, Director of Somaliland’s counter-piracy force, also spoke at the launch.

As the lead author of the report, ECoP kept me away from CHO for a while, so while I’m glad to present some of its findings here, I’m looking forward to returning to some more regular (and more legal) posts in the future. Rather than going into each of the nine cost sections in detail – which can be done easily by reading this two-page summary and slightly less easily by reading the entire report – I will instead focus on the report’s central economic and thematic findings.

The biggest takeaway from the 2012 report is that the overall cost of piracy fell from around $7 billion in 2011 to around $6 billion in 2012. Unsurprisingly, this bottom line figure is the one that has been carried the furthest by the mainstream media.

The key drivers of the decreased costs was a sharp reduction in the cost of evasive measures such as increased speeds and re-routing, which fell by 43.3% and 50.2%, respectively. These decreases were due to a combination of methodological changes and a decreased proportion of ships acceding to the voluntary guidelines laid out in the industry best management practices, version 4. The cost of ransoms and insurance also fell, reflecting the decreased number of attacks and hijackings seen in 2012.

Although many cost factors dropped from 2011 to 2012, one that certainly did not was the cost of private armed security, which rose a staggering 80% when controlling for the number of transits through the Indian Ocean. However, OBP utilized automatic identification system (AIS) data to revise its estimate of the number of annual commercial transits through the Indian Ocean to 66,612 from the 42,450 estimated in 2011. All told, the cost of armed guards rose to $1.34 billion from the $530 million reported in 2011. This change was driven by a doubling in the rate of armed guard use, which was in turn the result of clearer flag state laws regarding the use of armed guards and the continued effectiveness of armed security teams.

Lamentably, there was no change in the proportion of dollars spent on short-term mitigation versus long-term prevention, with 99.5% of funds spent on the former and 0.5% spent on the latter.

The short-term/long-term dichotomy is even more striking in light of the drastic reduction in reported incidents of piracy, which resulted in a fairly dramatic increase in the “per incident” cost. In 2011, $28.60 million was spent per pirate attack. In 2012, $78.66 million was spent per attack, a 175% increase. Put another way, $42 dollars was spent fighting piracy for every dollar spent on a 2011 ransom payment. In 2012, that proportion was up to $186 in prevention for every $1 in ransom. These ratios suggest that the international community would do well to increase the economic efficiency of piracy suppression and devote a portion of those savings to a long-term solution on the shores of Somalia.

In closing, it should be noted that the World Bank released a report two days after the launch of ECoP entitled The Pirates of Somalia: Ending the Threat, Rebuilding a Nation. The report concluded that between 2005 and 2012, piracy has cost the world economy around $18 billion per year (+/- $6 billion). Much has been made (paywalled) about the divergence between our findings and those of the World Bank. However, in my opinion at least, the results are not at all incompatible. Our report only focuses on the costs spent by those directly involved in combatting piracy, while the World Bank’s methodology seeks to capture the full spectrum of costs, most of which are picked up by the general consumer in the form of barely-noticeable price increases. It is therefore unsurprising that the World Bank’s figure was significantly higher than that from ECoP.

I would highly recommend the World Bank Report, as well as ECoP, to anyone interested in developing a fuller picture of the global fight against maritime piracy.

New Facilitators Paper Available on SSRN

After months of blogging about a high seas requirement for facilitators of piracy, I have posted a law review article on SSRN. Here is the abstract:

Around 2005, maritime piracy began to make a troubling resurgence three quarters of a century after consensus had been reached that the age of piracy had “permanently ended.” It returned, however, in a slightly different form, with pirates relying much more on land-based facilitators than did their historical counterparts. Maritime piracy’s renaissance made pressing the question of whether an inciter or intentional facilitator of maritime piracy must be physically present on the high seas while facilitating in order to be subject to universal jurisdiction. This article undertakes a thorough analysis of the text, statutory context, drafting history, and policy impetus behind UNCLOS art. 101 as it relates to universal jurisdiction over facilitators. It finds that the preponderance of the evidence suggests that a high seas requirement in fact exists for facilitators of piracy jure gentium. From there, the article considers the likely implications of such a requirement on modern facilitators of maritime piracy. Through the lens of political economy, the article concludes that universal jurisdiction piracy prosecutions pose something of a commons problem or, alternatively, a public goods problem. Because rational actors operating in a market tend to internalize externalities and under-produce public goods, theory suggests that universal jurisdiction prosecutions should be quite rare. The article goes on to find that state practice shows such prosecutions to be quite rare in fact. The article thus concludes that there is a high seas requirement for inciters and intentional facilitators of piracy jure gentium, but that this requirement will have few practical implications on impunity for facilitators.

The full article can be accessed here. Any substantive criticism is most welcome at jonbellish at gmail dot com. For those interested an another well developed take on the issue, I invite you to have a look at Roger’s piece, which is forthcoming in the Florida Journal of International Law.

In other piracy-related news, the Ashland defendants were convicted in a Norfolk federal district court.

Round Two for the Ashland Defendants

The trial of the remaining five pirates accused of mistaking the U.S. Navy amphibious dock landing ship Ashland for a commercial tanker and attacking it in 2010 has restarted. Initially, the trial court dismissed the charges against the defendants under the 1820 case of United States v. Smith — defining piracy as “robbery at sea” — because the defendants never boarded the ship or attempted to steal anything. However, after the 4th Circuit endorsed the UNCLOS definition of piracy in United States v. Dire, the Ashland defendants are back in court.

USS Ashland

USS Ashland entering port in Florida (U.S. Navy photo by Scott Lehr)

Here is what the Norfolk-based Virginian-Pilot had to say about the case:

Prosecutors argue the men were pirates who mistook the amphibious dock landing ship for a commercial vessel.

Defense attorneys, however, claim they were merely lost at sea and trying to get the ship’s attention.

A jury trial for five of the men started Wednesday in U.S. District Court in Norfolk. Over the next week, prosecutors are expected to call to the stand sailors who were on the Virginia Beach-based Ashland at the time of the incident and a Somali man who was on the skiff and is now cooperating with authorities.

Jama Idle Ibrahim, also known as Jaamac Ciidle, pleaded guilty in August 2010 to attempting to plunder a vessel and two related charges. He was sentenced to 30 years in prison but could have his sentence reduced.

Due to the similarities between the case of the USS Ashland and that involving the USS Nicholas (which culminated in the Dire opinion), the defendants’ overall prospects do not look strong.

Shibin files appellate brief

On December 13, Mohammad Shibin filed an Appellate Brief with the Fourth Circuit Court of Appeals. Shibin was charged with eight crimes, comprising fifteen separate counts, for his alleged role as a hostage negotiator in the hijackings of the Marida Marguerite, a German merchant vessel manned by foreign nationals, and the S/V Quest, an American sailing vessel with Americans on board. At trial, Shibin was convicted of all fifteen counts and sentenced to multiple life sentences plus 120 months in prison.

This post will offer a brief summary of the defendant’s arguments followed by even briefer commentary concerning the plausibility of those arguments. On balance, Shibin may have earned himself a retrial on a couple of issues, but he is highly unlikely to escape punishment altogether.

Mohammad Shibin shortly after his arrest.

Shibin’s first argument on appeal is that the two counts of piracy under 18 U.S.C. §§ 1651 and 2 should be dismissed because, “[i]n what could be characterized as almost indifference to this essential requirement, the government failed to present any evidence that Shibin had at any point committed any act upon the high seas whatsoever” (emphasis in original). In support of this argument, Shibin advances the plain language of § 1651, the legislative history of §§ 1651 and 2, prior lower court opinions on the issue, and customary international law as found in the Harvard Draft Convention and the Geneva Convention on the High Seas. These sources, according to the defendant, all suggest that universal jurisdiction over piracy only exists for those acts committed on the high seas or outside the territorial jurisdiction of any state, and that § 1651 only purpose is to criminalize those extraterritorial acts.

I have written a great deal about this argument in the past, and rather than re-hash it all here, I’ll direct readers to this EJIL Talk post and to other on CHO. I will add, however, that I agree that using § 2 to provide for universal jurisdiction over facilitators who act from with a single nation’s territory is impermissible under the Charming Betsy Canon. Ultimately, though, this is an issue that has yet to be fully litigated, so it is anyone’s guess how it will come out in the end.

Second, Shibin advances the ambitious argument that all counts should be dismissed because Shibin was improperly brought before the U.S. courts. Shibin rightly notes that a pair of Supreme Court cases, Frisbie v. Collins and Ker v. Illinois, stand for the proposition that “the power of the court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a forcible abduction.” The Ker-Frisbee doctrine has been endorsed in the face of extradition treaties that were was silent on the propriety of forcible abductions in, inter alia, U.S. v. Alvarez Machainand Kasi v. Angelone. Shibin seeks to distinguish his case by noting that the United States and Somalia do not have an extradition treaty. The lack of such a formalized agreement, according to the defendant, signals the Somali government’s unwillingness to allow foreign officials’ access to their citizens.

This argument seems likely to fail with respect to the Marida Marguerite and will almost certainly fail regarding the Quest. In Alvarez Machain, the Court essentially held that silence as to the propriety of forcible transfers renders American courts unwilling to look into the legality of such transfers. This logic seems to suggest that U.S. courts view the right not to be forcibly brought before a U.S. court as a right that a foreign government must affirmatively assert on behalf of its citizens. Somalia’s silence on the matter is therefore likely to be interpreted in a similar fashion, whether or not that silence comes in the context of an extradition treaty.

The third argument advanced by the defendant is that all of the non-piracy offenses charged in connection to the Marida Marguerite should be dismissed because they are not crimes of universal jurisdiction. These counts include hostage taking and conspiracy to commit hostage, conspiracy to commit violence against maritime navigation and committing violence against maritime navigation, conspiracy to commit kidnapping and kidnapping. Shibin finds support for this argument in U.S. v. Yousef, 327 F.3d 56 at 104 (holding that universal jurisdiction crimes cannot be created judicially, by analogy, or through references to aspirational treaties or scholarly works).

However, this argument ignores the same Charming Betsy Canon upon which the defendant relies in support of his piracy charges. The Charming Betsy Canon states that statutes should not be construed as to violate the law of nations unless Congress manifests its intent to do so. However, 18 U.S.C. § 1203 (hostage taking), 18 U.S.C. § 2280 (violence against maritime navigation), and 18 U.S.C. § 1201 (kidnapping) all contain “found in” or “brought before” provisions stating that the United States shall have jurisdiction over those individuals who are later found in the United States or brought before a U.S. court. Thus Congress provides for some form of qualified universal jurisdiction over hostage taking, violence against maritime navigation, and kidnapping that arguably violates international law. Nevertheless, there is no shortage of precedent stating that courts will uphold such statutes if Congress’ intent is clear. It must be said, tough, that none of this precedent concerns a defendant with no traditional connection to the United States whatsoever, as is the case with Shibin’s charges stemming from the Marida Margueritte.

Finally, Shibin challenges the testimony of an FBI agent concerning a translated interview between that agent and Muhamud Salad Ali, one of the individuals who captured the Quest. Shibin argues that the facts surrounding the translation are such that the translator created an additional level of hearsay, and the translator’s absence from trial constitutes a violation of the Federal Rules of Evidence and the Confrontation Clause. In support of his argument, Shibin relies on a four-part test announced in the Fifth Circuit in U.S. v. Martinez-Gaytanand adopted by the Fourth Circuit in U.S. v. Vidacak. At issue in these cases was whether the translator should be considered an out of court declarant or a mere conduit of the in court witness. The four factors to be considered are: 1) which party supplied the translator; 2) whether the translator had a motive to fabricate; 3) the translator’s qualifications and skills, and; 4) whether actions taken subsequent to the translation were consistent with the statement translated.

According to Shibin, three of the four factors mitigate in favor of requiring the translator’s presence in court for examination. First, the FBI agent in question described the translator as “an FBI Somali linguist,” suggesting that the government supplied the translator. The second factor – potential motive to fabricate – is neutral, as there is no evidence suggesting bias. Third, there is no basis to determine the translator’s skill, as nobody but the prosecution had access to him or her. Finally, Mr. Salad Ali’s testimony in court directly contradicted that which came out of the earlier translated interview. On balance, Shibin argues, the nature of this particular translation created an additional layer of hearsay that can only be remedied through a re-trial of which the Somali translator would need to be a part.

This argument seems plausible on its face, assuming the facts and the law are as the defense brief says they are. Without more research or access to the government’s yet-to-be-filed brief, it is impossible to predict the outcome of this particular argument. I will note, however, that Shibin makes a Confrontation Clause argument that he says should stand regardless of the outcome of the hearsay argument. It seems to me, however, that the hearsay argument and Confrontation Clause argument will rise or fall together. If the translator is deemed a mere conduit of Mr. Salad Ali, the latter of whom was available for confrontation, it would be difficult to argue that the translator’s translation was testimonial.

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