Pirates May Not Be Pirates

The Fourth Circuit heard arguments today in United States v. Abdi Dire, an appeal of the first piracy conviction in a U.S. courtroom in nearly 200 years.  Kevin Walsh has an excellent synopsis of the oral arguments, available here.  The defendants, five Somali pirates, were convicted for their attack on the U.S.S. Nicholas in in April, 2010.  The Nicholas was in the Indian Ocean north of the Seychelles Islands.  Three pirates approached in a skiff, fired rocket-propelled grenades in the air and raked the ship with AK-47 fire, but did not board the ship. No sailors were injured in the attack.

In short, the pirates’  position is that their actions did not constitute piracy, in the legal sense, because they did not board the ship or rob it.  They argued that the Supreme Court has been clear about a key element of piracy: “It is robbery at sea.” But the government said Congress has embraced a broader definition of piracy based on international policy and a common understanding of the term.  Under the government’s definition, piracy includes “violent attacks on the high seas” and does not require actual robbery.

The Nicholas was part of an international flotilla combating piracy in the seas off Africa.  The Somalis mistook it for a merchant ship because the Navy used a lighting array to disguise the 453-foot warship and attract pirates.  The pirates also argued that they were not read their Miranda rights once they were captured by the crew of the Nicholas.

The Nicholas ruling could have an impact beyond that case. Last August, a judge in Norfolk dismissed piracy counts against five defendants accused in an attack on another Navy ship, the USS Ashland. In attack on the Ashland, a 610-foot dock landing ship, the ship’s 25mm cannons destroyed a skiff, killing one Somali man and injuring several others.  The judge concluded that since the men had not taken control or robbed the ship their actions did not rise to the nearly 200-year-old U.S. Supreme Court definition of piracy.  The government appealed the Ashland ruling, but the Fourth Circuit set that aside until they heard the  Nicholas case.  The last U.S. conviction for piracy was in 1819, and involved a foreign vessel. U.S. piracy law was based on that case.



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