Youthful Pirate Faces Life in Federal Prison if Convicted on Piracy Charges
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
Abduwali Abdukhadir Muse, the lone survivor of the four Somali pirates who attacked the United States flagged-ship Maersk Alabama on April 8, 2009, was recently indicted in the United States District Court for the Southern District of New York on five criminal counts, including piracy under Section 1651 of the Title 18 of the United States Code. The other three pirates did not fare as well. They were killed four days earlier in spectacular fashion by Navy Seals sharp shooters who also rescued the captain of the Maersk Alabama. If convicted of piracy, Muse will face a life sentence under United States Code Title 18, Section 1651.
The Maersk Alabama case, which drew around-the-clock media attention, provoked intense discussions in American households and work places about the issue of piracy and what to do about it. The only real frame of reference most Americans had of piracy before this incident was the swashbuckling kind portrayed in Disney’s Pirates of Caribbean. The Maersk Alabama made the horrible act of piracy personal because the freighter was flying an American flag and was being captained by an American citizen. In effect, the four pirates had attacked America and held the nation hostage for four days until the Navy Seals shut down the high seas drama with three simultaneous, perfectly-placed bullets that not only killed three of the Somali pirates but sent a message to other potential pirates that the American military will take no prisoners when Americans are attacked on the high seas.
One hundred and eighty-nine years ago the United States Supreme Court held that the U.S. Congress had the power “to define and punish piracy and felonies committed on high seas, and offenses against law of nations.” 1/ Forty-one years later a Massachusetts court ruled that the U.S. Constitution conferred upon Congress the power to not only punish piracy under the Law of Nations but to define piracy in its own terms even if the high seas acts committed were not considered piracy by the Law of Nations.2/ Larry Howard, a professor at the Maritime College branch of the State University of New York, and an expert on piracy, said these definitions were embraced by the 1958 Geneva Convention on the High Seas which defined piracy as “any act of depredation, committed for private ends.”
The Supreme Court in 1893 defined “high seas” as open waters of oceans and seas 3/, and forty-two years later a California federal court held that the territorial waters of the United States are not considered “high seas.” 4/ Under the Law of Nations, any robbery committed on the high seas is piracy 5/ and Article 3 of the Law of Nations defines the term “law of nations” as “the science of the rights which exist between Nations or States, and of the obligations corresponding to these rights.”
Ben Macintyre, writing in the April 16, 2009 edition of TIMES Online, said Americans call bandits on the high seas pirates “because that is how they most easily translate into Western culture, but the Somali marauders currently terrorizing Indian Ocean shipping might better be termed ocean-going shiftas, heirs to a long and uniquely African tradition of banditry.
“The term shifta may be unfamiliar, yet it is key to understanding what is happening off the coast of Somalia, and how it might possibly be resolved. Shifta, derived from the Somali word shufto, can be translated as bandit or rebel, outlaw or revolutionary, depending upon which end of the gun you are on.”
The shiftas were established in the 19th century as a “law and order” militia to control the lawless mountain ranges in east Africa. But, as Macintyre pointed out, they soon disintegrated into bands of freelance outlaws and highway robbers who became ruthless killers with reputations for barbarity. Macintyre referred to one British military officer stationed in Kenya in 1942 who described the Somali shiftas as “ruthless outlaws who killed for the sake of killing, holding human life cheap if it stood in the way of rape and pillage.” Historical accounts record that shiftas turned their captives over to their women who, as Macintyre said, “elaborately mutilated [them] before an agonizingly slow death.”
But as John Dillinger and other bank-robbing gangs of the 1930s depression era became Robin Hood-like folk heroes in the American heartland, the shifta also emerged in some areas in East Africa from criminal barbarity to popular rebels fighting oppressive government authority. Macintyre noted that two 19th century Ethiopian emperors started out as shiftas. The Somali “pirates,” or shiftas, have now assumed a John Dillinger kind of status in their worn-torn country: they do not kill unless it’s absolutely necessary, they divide the booty among all gang members, and they spread the wealth in the Somalia communities where they live. They are “a sort of maritime Mafia upholding social order while resisting Western power,” wrote Macintyre.
The International Maritime Bureau (IMB) has maintained statistics on pirate attacks dating back to 1995. The attacks have dramatically escalated in recent years. In 2006, for example, there 239 such attacks resulting in 77 crew members being attacked and another 188 held hostage. Only 15 of the attacks resulted in someone being killed. A year later the number of attacks increased to 263 with 64 crew members being injured as opposed to 17 in 2006.
The pirate attack against the Maersk Alabama was only the second pirate attack against an American vessel since 1975. On March 12th of that year the Vietnam War was winding down to the relief of most Americans until the U.S. flagged-ship Mayaguez, operating under the U.S. Military Sealift Command, was captured by Khmer Rouge rebels who had just seized control of Cambodia and would ultimately slaughter up to two million of their own people.
President Gerald Ford declared the hijacking of the Mayaguez as an act of piracy and ordered the U.S. Marines and Air Force commandos to retake the ship at Koh Tang, an island off the Cambodian coast. The president also ordered the USS Coral Sea into the area.
The rescue attempt proved to be a tragic military disaster, like the one set in motion in 1980 with Operation Eagle Claw designed to rescue the Iranian hostages. The Khmer Rouge rebels had secretly moved the 39-man crew of the Mayaguez to the mainland. While a first group of Marines launched a precise military operation that recaptured the American vessel, other military forces flown onto the island by helicopter were met by intense resistance from the Khmer Rouge. Altogether, 18 U.S. military personnel from the Navy, Air Force, and Marines were either killed or disappeared with another 40 seriously wounded, along with 12 helicopters being shot down. And the fiasco did not end there. Yet another helicopter carrying an armed unit from Thailand to the fight crashed, killing 23 military personnel on board. Shortly after the brief but costly battle, the Khmer Rouge released all of the Mayaguez crewmen.
The IMB has noted that since 2003, there have been more than 1900 pirate attacks worldwide, 218 of which have been committed since 2007 by Somali pirates. Military might, as used in the Maersk Alabama incident, has historically proven to be the only way to successfully deal with pirates. This was first made clear by Julius Caesar who was captured by pirates and held captive until a ransom was paid for his release. He assured the pirates he would return and crucify all of them on their own beach. He kept his word, and for many years to come the once pirate-infested Mediterranean Sea was free of pirates. In his excellent book “Jolly Roger: The Story of the Great Age of Piracy,” Patrick Pringle wrote about how the British Royal Navy had the same impact on piracy in the Caribbean Sea and Indian Ocean. “By 1744, the Age of Piracy was over,” he wrote, “and it was the men-of-war, after all, that finally brought it to an end.”
Pringle pointed out that arming merchant ships to fight piracy has always proven to be an enormously expensive failure. That’s why all the seafaring nations of the world agreed to stop the arming of merchant ships and “privateers” with the 1856 Declaration of Paris. It is this historical maritime agreement among nations that today prevents merchant vessels from carrying armed guards to ward off pirate attacks.
Thus a heavy military presence sponsored by all seafaring nations is the realistic hope for cleaning up the plague of piracy currently infecting the Indian Ocean. The “special forces” of both the United States and France have demonstrated over the past couple months that military force is an effective remedy for stopping attacks and rescuing hostages.
Beyond prevention with military force, the seafaring nations of the world should establish a more modern Geneva Convention upgrading the 1958 definition of piracy to a “crime against humanity.” This would allow for all captured pirates by military forces to be turned over to and tried before the International Criminal Court (ICC) in The Hague, Netherlands. Upon conviction and sentencing, the pirates could be turned over to nations against whom their crimes were committed to serve out their terms of imprisonment.
One or two nations cannot wage this fight alone. There must be a concerted effort among all nations with commercial interests on the “high seas” to join in a collective military effort to accomplish what the British Royal Navy achieved in the 1700s—an end to scourge of piracy.
Young pirate Abduwali Abdukhadir Muse is about to become fodder to feed the American public outrage over the Maersk Alabama attack. Besides the testimony of Captain Richard Phillips and his 20 crew members that Muse participated—and, in fact, was the leader—in the hijacking of the vessel, there is his surrender to military authorities and the incriminating statements he gave to law enforcement investigators after his surrender. Finally, and most significantly, there are statements from Captain Phillips that he personally gave Muse and two of the deceased pirates $30,000 from the ship’s safe. This $30,000 robbery on the high seas satisfies the definition of piracy by the Law of Nations and subjects Muse to a life sentence under Section 1651. Convictions on the other counts will not matter that much. A federal life sentence does not have parole eligibility. Muse, therefore, will almost certainly spend the rest of his life in a maximum security federal prison.
1/ United States v. Smith (1820) 18 U.S. 153, 5 Wheat 153, 5 L.Ed. 57
2/ Charge to Grand Jury—Treason & Piracy (1861), CCD Mass) 2 Spr. 285, 30 F. Cas. 1049, No. 18277
3/ United States v. Rodgers (1893) 150 U.S. 249, 37 L.Ed. 1071, 14 S.Ct. 109
4/ United States v. Carrillo (1935, D.C. Cal.) 13 F.Supp. 121
5/ United States v. Palmer (1818) 16 U.S. 610, 3 Wheat 610, 4 L.Ed. 471
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair