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Piracy and the Court — Act II

A crime that is as old as the nation itself — piracy — is reaching more boating criminals around the globe, but the Supreme Court may have the last word on whether the American government will share that broader authority to punish violence at sea.  Although piracy does not appear often in modern court cases, it is undergoing something of a revival in the Supreme Court, last Term and this.

The Court, in fact, opened the new Term this month by continuing a focus begun earlier on how to interpret another law that dates to the Founding era: the Alien Tort Statute of 1789.  That review, in the case of Kiobel v. Royal Dutch Petroleum, is analyzing piracy as a classic form of legal wrongdoing for which American courts can provide a civil remedy: money damages.  At the oral argument, where piracy came up often, some Justices wondered whether those who engage in human rights violations today could be sued for damages as if they were modern-day pirates.

Next up for the Court, though, could be a review of how broadly to interpret piracy when it is punished as a crime — as it had been under U.S. law since 1790.  The two concepts, civil and criminal, may be more closely related in the field of piracy than at first appears.  Or so the Fourth Circuit Court thought, and its rulings in two criminal piracy cases now await the Supreme Court’s attention.

For all of the entertainment that actor Johnny Depp has provided for the movie-going public, piracy is a very serious crime: if one is convicted of it in a U.S. court, the sentence is automatically life in prison.   And that is the sentence that has been imposed in federal courts in Virginia on two groups of convicted high-seas pirates, whose lawyers are contending in new appeals to the Supreme Court that their crimes were not piracy at all but were, at most, a form of violence at sea that carries a prison term of no more than ten years.

By coincidence, the two cases — Dire v. United States (docket 12-6529) and Said v. United States (12-6576) — were filed at the Court on October 1, the same day of the Kiobel oral argument.  It is now clear that a 2004 decision by the Court — Sosa v. Alvarez-Machain — is likely to provide the legal key for the Justices in Kiobel and in the new piracy cases, as well.  In Sosa, the Court gave U.S. courts some authority to recognize new forms of civil wrongdoing, if those are recognized in international law, on the theory that such misconduct amounts to a civil tort under U.S. common law.  Although that was a civil law precedent, the Fourth Circuit in the piracy cases has said that its reasoning applies, too, to criminal piracy prosecutions.  The view that international law now takes of piracy, the Circuit Court decided, now provides the meaning for the crime of piracy under U.S. law.

Traditionally, and, indeed,  up to the time of these two privacy cases prosecuted in Virginia, piracy as a crime in U.S. law meant robbery at sea, and usually involved pirates who either forcibly boarded a vessel at sea, or stole some of its cargo or other property.   That definition of piracy, in fact, dates back to the work of the great eighteenth-century English judge and legal philosopher, Sir William Blackstone — whose work is being pondered anew by the Justices in the Kiobel case.

In a recent development, however, some overseas courts, and some treaties, now define piracy as encompassing almost any form of violence at sea.   If the Supreme Court endorses that expansion, then life prison terms will await modern pirates prosecuted in American courts, even if their actions involved no boarding of a vessel and no theft.

The two cases, according to federal prosecutors, certainly involved violence at sea, but prosecutors conceded that the incidents did not involve piracy as previously understood under U.S. law.   In the Dire case (docket 12-6529), which became the lead case in the Fourth Circuit, three Somalis in a small skiff, who were armed with a rocket-propelled grenade and two AK-47 rifles, approached a U.S. Navy vessel, the USS Nicholas, in April 2010 about 600 miles off the coast of Somalia.   As the skiff approached the Navy frigate, there was an exchange of gunfire.  As the skiff sought to flee, the Nicholas chased it, and captured the three men in the skiff as it began to sink, and the Navy crew captured two other Somalis from another boat that had been nearby.

The Somalis never went aboard the Nicholas until taken there as captives, and they stole nothing from the vessel.  Still, federal prosecutors accused them of crimes under the U.S. piracy law.  As that law is currently worded (with very little difference from the 1790 act except that the mandatory punishment is now life in prison rather than death), the crime of piracy is said to be “as defined by the law of nations.”   The Somalis were found guilty of that crime, along with others, and received life terms for piracy plus lengthy prison terms for other crimes of which they were found guilty.

In the Said case (docket 12-6576), the five individuals were convicted on piracy counts alone, and received life terms.  Prosecutors charged that, in April 2010, the men in a small skiff approached the USS Ashland, a U.S. Navy craft, in the Gulf of Aden.  There was an exchange of gunfire, and the Navy sank the skiff.  One occupant of the skiff was killed in the gunfire, and the others were captured.  They never boarded or attempted to board the Navy ship during the encounter, and did not steal anything from it.

In the Said case, a federal district judge ruled that the crime of piracy was restricted now as it had been traditionally, to robbery or violent boarding at sea.   In the Dire case, a different district judge accepted the Justice Department’s argument and ruled that, since the piracy law’s language said it was defined according to “the law of nations,” the Supreme Court’s precedent in the Sosa case meant that the concept of piracy would change as international law norms changed.  Relying on foreign court rulings and on treaty language, the judge in the Dire case rejected the Somalis’ argument that federal courts had no authority to create common law crimes, even if they could create new common law civil torts.

The Fourth Circuit, outlining its views most fully in the Dire case, and then deciding the Said case on the same basis, agreed with the Justice Department and with the district judge who found that piracy changes with the times, as international law changes.

In both petitions in the Supreme Court, the convicted men’s lawyers are arguing that the Fourth Circuit has abandoned the long-standing principle that only Congress can create new crimes, and thus the Fourth Circuit has violated that separation-of-powers principle.  They also argue that piracy had a settled meaning at the time Congress made it a crime, and thus that meaning, as in the old criminal statute, remains what it was in the beginning.

That is the key issue the Justices will ponder, after the Justice Department responses — now due in early November — are filed.   The Dire case also raises separate issues about the scope of the right of foreign nationals, captured abroad by U.S. forces, to be warned of their legal rights before they may be questioned, and about the power of the sentencing judge to add on multiple sentences for actions growing out of a single criminal incident.

Although the Fourth Circuit stands alone on its interpretation of the scope of criminal piracy, the convicted men’s attorneys argue that the Justice Department is now likely to bring all of its piracy prosecutions in the courts in that circuit, so there is little chance of a split developing in the appeals courts.

(The blog thanks a reader for alerting us to these two criminal piracy cases.   A website devoted to maritime piracy, Communis Hostis Omnium, has provided extensive coverage of these cases, as in this post.)



Recommended Citation: Lyle Denniston, Piracy and the Court — Act II, SCOTUSblog (Oct. 21, 2012, 9:06 PM),