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.