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Somali Piracy Convictions on Appeal in 4th Circuit

In September, the 4th Circuit Court of Appeals began hearing oral arguments for United States v. Hasan, the case of five Somali men who were convicted of piracy and other charges in November 2010. They were the first people convicted of piracy in the United States since 1819, a conviction that potentially opens the door to numerous piracy prosecutions. The turning point of the appeal is the actual definition of the crime of piracy. Under US law it is technically the act of boarding or robbing a ship at sea, yet the crime in question consisted of only a ship-borne attack on a US warship.

In April 2010, the five men fired on the USS Nicholas at night, mistakenly believing it to be a defenseless merchant ship. The US frigate easily defeated the attack and detained the men, eventually transferring custody so they could stand trial in Norfolk. The trial judge decided to let the piracy count stand despite the facts not meeting its technical requirements, instead opting to incorporate some aspects of international law which is generally more inclusive. A federal jury convicted them of piracy and a litany of other counts and sentenced the five to life sentences as mandated by the governing 200 year old law.

While the ruling from the 4th Circuit won’t be handed down for some time, it is interesting to note that another case with piracy charges was recently dismissed after a different court found a simple attack not enough to bring counts of piracy. This highlights the ongoing problem of how to deal with apprehended pirates. Almost universally, the suspects are detained by military personnel, a fact which leads to questions concerning their training in the use of Miranda procedures. American service members are not typically trained to inform prisoners of their Miranda rights like law enforcement officers are. This lack of training, further complicated by language barriers immediately following arrest, le

d to Miranda rights being a key issue of the case at hand. It was resolved in this case by deeming inadmissible all statements prior to the detainees being properly Mirandized through an interpreter by law enforcement prior to interview. This outcome suggests a need to have military police or other investigative personnel on hand for further piracy operations to prevent hours of interactions from becoming inadmissible.

Additionally, pragmatic concerns usually mean that suspects aren’t apprehended in the midst of actually committing piracy, but rather while engaged in suspicious behavior or blatant attacks on US warships. This issue lies at the center of the appeal and the common law definition of piracy may be updated as a

result. It seems untenable that suspects would be immune from piracy charges because of their failure to carry out their task. From a practical perspective, most piracy suspects are apprehended after failed attacks on military vessels, or else after being found in a suspicious situation leading the military to believe they were about to attempt a raid. Thus, from a policy standpoint, American law needs to be brought up to date with international law to be less restrictive on the definition of piracy in order to avoid losing convictions just because the suspects failed to get on board their target.

Further problems are caused by the multinational aspect of the situation, since it is often foreign ships and people who are attacked by pirates, bringing up jurisdictional issues when caught by a different state. Due to the multinational response effort, it is fairly often that a warship of one country captures pirates suspected of attacking a ship originating from a different country. This can create jurisdictional difficulties. Additionally, not many countries have stepped forward to try detainees, leading to concerns that a better mechanism needs to be put in place to allow the successful prosecution of piracy suspects to proceed. There is obviously a need for many countries, including the United States, to update piracy laws to better prepare themselves to handle cases of modern international piracy that continue to be prevalent.

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