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A Lawyer's Look at Captain Phillips

One of my kind readers sent me a question about Captain Phillips and why the merchant ships depicted did not carry firearms or security personnel to combat pirates.

 

The International Maritime Organization was created by the United Nations and is the consensus building body for the governance of maritime trade, navigation and seafaring.  

The IMO's official policy regarding carriage of firearms aboard vessels is, surprisingly, to NOT carry them.

Carriage of firearms on board merchant ships:

• Masters, shipowners and companies should be aware that ships entering the territorial sea and/or ports of a State are subject to that State’s legislation. It should be borne in mind that importation of firearms is subject to port and coastal State regulations. It should also be borne in mind that carrying firearms may pose an even greater danger if the ship is carrying flammable cargo or similar types of dangerous goods.

Non-arming of seafarers:
• The carrying and use of firearms by seafarers for personal protection or for the protection of a ship is strongly discouraged;
• Carriage of arms on board ship may encourage attackers to carry firearms or even more dangerous weapons, thereby escalating an already dangerous situation. Any firearm on board may itself become an attractive target for an attacker;
• It should also be borne in mind that shooting at suspected pirates may impose a legal risk for the master, shipowner or company, such as collateral damages. In some jurisdictions, killing a national may have unforeseen consequences even for a person who believes he or she has acted in self defence. Also the differing customs or security requirements for the carriage and importation of firearms should be considered, as taking a small handgun into the territory of some countries may be considered an offence.

There are moves afoot, however, to rethink this policy at the international level and by flag states.  A vessel owner pondering the arming of crew to fight off pirates has several considerations.  First, in many coastal nations of the world, it is illegal to possess firearms, so will their crews be subject to criminal prosecution during a port call?  Second, will the ship's insurance company cover any claims for mishaps? Third, does the flag state permit or discourage the carriage of firearms onboard ships flying that country's flag?  Fourth, by possessing firearms are you transporting them in international commerce, thereby posing a customs issue?  

From a more geopolitical standpoint, the international community certainly expects that every coastal state regulate maritime activity in their coastal waters and police criminal activity occuring there too.  Note that TYPICALLY,  the areas where piracy flourishes are typically maritime areas that lack the governmental law enforcement presence necessary to tamp down such activity.  That being said, incidents of piracy do occur worldwide.

As to the Maersk Alabama and Captain Phillips.  As a U.S. flagged vessel, U.S. law would govern the carriage of firearms onboard.  18 U.S.C. 922 bars the importation or transport of firearms without a governmental permit.  The Code of Federal Regulations provides additional requirements. 

Fourth Circuit - Piracy Conviction Affirmed

The Fourth Circuit Court of Appeals affirmed a Somali pirates' conviction for various federal offenses including piracy and violence against maritime navigation. The case is USA v. Shibin and the opinion can be found here.

This case arose out of several piracies off the Somali coast in 2010 and 2011.  The defendant had various roles in the piracies, including negotiator and "regular" pirate.

The FBI, in conjunction with Somali "Host Nation Defense Forces", arrested Shibin in Somalia.

Among the issues on appeal are the argument that Shibin did not actually venture into the high seas, but was only charged with aiding and abetting piracies that occurred on the high seas and was not personally on the high seas.  Interpreting the United Nations Convention on the Law of the Sea, the court found that the geographic element of piracy did not apply to those that are charged with facilitating piracy.  Sl ong as the non-high seas conduct incited or facilitated acts committed on the high seas, the Article was violated.

Shibin also argued that he was forcibly removed from Somalia and had not opportunity to challenge his removal in Somalia, noting that there was no extradition treaty between Somalia and the United States.  This argument has failed before in U.S. courts, under the Ker-Frisbie Doctrine, and it failed here.

Shibin also argued that the prosecution was based on statutes that could not apply extraterritorially.  The court found constitutional authority for the extraterritorial crimes:

Congress’ power to enact statutes that extend extraterritorially is derived generally from the Define and Punish Clause, U.S. Const. art. I, § 8, cl. 10; the Treaty Power, U.S. Const. art. II, § 2, cl. 2; and the Necessary and Proper Clause, U.S. Const. art. I, § 8, cl. 18.

Thus far, there are no circuit splits, so it seems that piracy cases won't be making it to the Supreme Court any time soon.

Sea Shepherd Piracy Case Bound for SCT?

Well, no cert petition yet, but the Ninth Circuit rejected the Sea Shepherd Conservation Society's petition for rehearing en banc.  I earlier posted about this case here.

Per the court:

The opinion is amended as follows:Defendants-Appellees’ petition for rehearing en banc is denied. See Fed. R. App. P. 35.

Paul Watson’s petition for rehearing en banc of our April 1, 2013, order denying him leave to file a late supplemental petition for rehearing en banc is also denied. See id. We are unpersuaded by Watson’s belated claim that he and co-defendant-appellee Sea Shepherd developed “divergent interests.” Watson had months to consider whether his interests diverge from Sea Shepherd’s, yet claims to have discovered only recently that they do. He does not explain how or why. His bald assurance that “serious grounds exist[]” is too little, too late.

No further petitions for panel rehearing or rehearing en banc may be filed.

Next stop, Supreme Court? We shall see.

Universal Crimes, Extraterritorial Jurisdiction and an Educational Conference in North Carolina?

So, apparently I'm not the only person to get emails offering Canadian pharmaceuticals or random free stuff.  The federal government is not above the email ruse to bring an alleged pirate to justice.

The Court of Appeals for the D.C. Circuit just handed down a decision upholding the prosecution of an alleged Somali pirate or pirate-helper. The case is United States v. Ali.

Per the opinion:  

Ali Mohamed Ali, a Somali national, helped negotiate the ransom of a merchant vessel and its crew after they were captured by marauders in the Gulf of Aden. Though he claims merely to have defused a tense situation, the government believes he was in cahoots with these brigands from the very start. Ali eventually made his way to the United States, where he was arrested and indicted for conspiring to commit and aiding and abetting two offenses: piracy on the high seas and hostage taking.

The government says Ali is a pirate; he protests that he is not. Though a trial will determine whether he is in fact a pirate, the question before us is whether the government’s allegations are legally sufficient. And the answer to that question is complicated by a factor the district court deemed critical: Ali’s alleged involvement was limited to acts he committed on land and in territorial waters—not upon the high seas. Thus, the district court restricted the charge of aiding and abetting piracy to his conduct on the high seas and dismissed the charge of conspiracy to commit piracy. Eventually, the district court also dismissed the hostage taking charges, concluding that prosecuting him for his acts abroad would violate his right to due process. On appeal, we affirm dismissal of the charge of conspiracy to commit piracy. We reverse, however, the district court’s dismissal of the hostage taking charges, as well as its decision to limit the aiding and abetting piracy charge.

Piracy is a universal crime, which under international and U.S. law, subjects the offenders to worldwide jurisdiction.  Practically speaking, this means that a Somali pirate faces the same prosecution for his conduct in the Gulf of Aden as if he committed the acts in San Francisco Bay.

Piracy is a very old crime and there is a dearth of case law analyzing the due process issues associated with these prosecutions.   As such, every opinion with universal criminal jurisdiction tends to cite United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991)(aircraft piracy) and, of more recent vintage, United States v. Shi, 525 F. 3d 709 (9th Cir. 2008)(as the court noted, Shi is technically not a piracy case, but it did involve violence in the maritime realm)(posted here).

Apparently Mr. Ali was not just a pirate-helper, but was also the self-proclaimed Director Generatl of the Ministry of Education for the Republic of Somaliland.  The federal government invited him to attend an education conference in Raleigh, North Carolina.  He was arrested at Dulles International Airport enroute to that conference.  "Little did he know it was all an elaborate ruse."

Peg Legs and Eye Patches - Ninth Circuit Wades Into Piracy

"You don't need a peg leg or an eye patch."

Author note:  I challenge any of my intrepid readers to find as odd a statement in any opinion.

Ninth Circuit Chief Judge Kozinski at his finest, for sure.  Today, the Ninth Circuit ruled on an Alien Tort Statute brought by a permitted whale hunter against a conservation group who, as shown below, has forcibly interfered with their whaling operations.  The case is:  Institute of Cetacean Research v. Sea Shepherd Conservation Society, the opinion is here, the concurrence/dissent by Judge M. Smith is here (the dissent is targeted at the Ninth Circuit's order to transfer the case to a different judge based on his "errors" and concerns about his ability to be "impartial").

The case went to the Ninth Circuit after the trial court denied a motion for preliminary injunction brought to enjoin the alleged piratical activities of the Sea Shepherd vessels.  The Ninth Circuit found that the Alien Tort Statute did empower the courts to enjoin piratical activities and found such an injunction to be entirely warranted by the facts, as alleged.

This will be a fun quote for your next piracy brief:

 You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

 

 

President Issues Executive Order on Somalia - Ransom Payments Illegal?

On Tuesday, President Obama issued an Executive Order relating to the Somalia piracy situation.  The Executive Order took effect immediately.  It purports to "block" payments, transfers or donations of property to several classes of individuals related to the crisis in Somalia.

The text of the Executive Order, the concurrently released message to Congress and the Annex are provided below.  When reviewing the legality of such an Executive Order, the starting point is to identify the statutory authorization for such an action.  As President Truman found out during the Korean War, the Executive Branch of the federal government is constitutionally constrained by its inability to legislate and any actions which purport to legislate are unconstitutional.  See Steel Seizure Case.

In this case, as you would expect, the President does have wide authority in the realm of international financial transactions and national defense.  See 50 U.S.C. s. 1702.  The maritime community is abuzz about this E.O. (hat tip to the Maritime Law Association of the U.S. for sending me the attached documents). Stay tuned.

The E.O. states:

I, BARACK OBAMA, President of the United States of America, find that the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia, which have repeatedly been the subject of United Nations Security Council resolutions (including Resolution 1844 of November 20, 2008; Resolution 1846 of December 2, 2008; Resolution 1851 of December 16, 2008; and Resolution 1897 of November 30, 2009), and violations of the arms embargo imposed by the United Nations Security Council in Resolution 733 of January 23, 1992, and elaborated upon and amended by subsequent resolutions (including Resolution 1356 of June 19, 2001; Resolution 1725 of December 6, 2006; Resolution 1744 of February 20, 2007; Resolution 1772 of August 20, 2007; Resolution 1816 of June 2, 2008; and Resolution 1872 of May 26, 2009), constitute an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.

I hereby order:

Section 1. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, including any overseas branch, of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:

(i) the persons listed in the Annex to this order;

and

(ii) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:

(A) to have engaged in acts that directly or indirectly threaten the peace, security, or stability of Somalia, including

but not limited to:

(1) acts that threaten the Djibouti Agreement of August 18, 2008, or the political process; or

(2) acts that threaten the Transitional Federal Institutions, the African Union Mission in Somalia (AMISOM), or other international peacekeeping operations related to Somalia;

(B) to have obstructed the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia;

(C) to have directly or indirectly supplied, sold, or transferred to Somalia, or to have been the recipient in the territory of Somalia of, arms or any related materiel, or any technical advice, training, or assistance, including financing and financial assistance, related to military activities;

(D) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, the activities described in subsections (a)(ii)(A), (a)(ii)(B), or (a)(ii)(C) of this section or any person whose property and interests in property are blocked pursuant to this order; or

(E) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.

(b) I hereby determine that, among other threats to the peace, security, or stability of Somalia, acts of piracy or armed robbery at sea off the coast of Somalia threaten the peace, security, or stability of Somalia. (c) I hereby determine that, to the extent section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) may apply, the making of donations of the type of articles specified in such section by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to subsection (a) of this section would seriously impair my ability to deal with the national emergency declared in this order, and I hereby prohibit such donations as provided by subsection (a) of this section.

(d) The prohibitions in subsection (a) of this section include but are not limited to:

(i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order; and

(ii) the receipt of any contribution or provision of funds, goods, or services from any such person.

(e) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order.

Sec. 2. (a) Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this order is prohibited.

(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.

Sec. 3. For the purposes of this order:

(a) the term "person" means an individual or entity;

(b) the term "entity" means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization;

(c) the term "United States person" means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States;

(d) the term "Transitional Federal Institutions" means the Transitional Federal Charter of the Somali Republic adopted in February 2004 and the Somali federal institutions established pursuant to such charter, and includes their agencies, instrumentalities, and controlled entities; and

(e) the term "African Union Mission in Somalia" means the mission authorized by the United Nations Security Council in Resolution 1744 of February 20, 2007, and reauthorized in subsequent resolutions, and includes its agencies, instrumentalities, and controlled entities.

Sec. 4. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order.

Sec. 5. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA, as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government consistent with applicable law. All agencies of the United States Government are hereby directed to take all appropriate measures within their authority to carry out the provisions of this order.

Sec. 6. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to submit the recurring and final reports to the Congress on the national emergency declared in this order, consistent with section 401(c) of the NEA (50 U.S.C. 1641(c)) and section 204(c) of IEEPA (50 U.S.C. 1703(c)).

Sec. 7. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to determine that circumstances no longer warrant the blocking of the property and interests in property of a person listed in the Annex to this order, and to take necessary action to give effect to that determination.

Sec. 8. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 9. This order is effective at 12:01 a.m. eastern daylight time on April 13, 2010.

BARACK OBAMA

The White House issued a message to Congress re Somalia regarding this Executive Order and also published the Annex with the names of the individuals now "blocked."

Defending Against Pirates - Guidelines for Self Defense and Firearms

Captain Bryant has a great post on three recent Coast Guard Port Security Advisories related to defending U.S. flagged, commercial vessels from the threat of piracy.  The three advisories are available for download at his blog.

From the Coast Guard's advisory:

Working with our interagency partners we have identified at least three options under which firearms could be exported and used aboard vessels in compliance with the ITAR, 1) obtaining a temporary export license (DSP-73), 2) temporarily exporting firearms and ammunition under an exemption to the ITAR, and 3) purchasing foreign firearms and filing for a temporary import license (DSP-61) when entering U.S. ports. The option that provides the most flexibility for an owner or operator of a vessel would be to obtain a DSP-73 temporary export license in accordance with 22 CFR 123.5. (Please note that in order to apply for a DSP-73, you must first register with the Department of State. Information on registering is available below.) This license is valid for up to four years, may be used for multiple entries and exits, and would require the operator to identify and list on the license application the firearms or other defense articles (e.g., ammunition) to be carried aboard the vessel. Once the license is obtained the operator could then stow the firearms on board the vessel in a U.S. port and keep them stored aboard the vessel until needed for use within the High Risk Waters by the crew or contracted security teams. Prior to entering or exiting the United States the license holder or their authorized freight forwarder would present the DSP-73 to CBP officials as part of clearing customs. Prior to leaving the United States the license holder or their authorized freight forwarder would have to submit the Electronic Export Information (EEI) through the Automated Export System.

To be sure, this only applies to U.S. vessels carrying firearms when departing U.S. ports and there is a personal exemption detailed in the post. 

Right Service to Combat Piracy - Coast Guard or Navy...How About Both?

Last week, I posted an Op-Ed from Newsweek asserting that the Coast Guard was the better service to address Somali piracy (post here).  The "war" on drugs has required the use of Coast Guard Law Enforcement Detachments (LEDETs) embarked on Navy ships (typically, less capable frigates) to extend the reach of U.S. law enforcement without requiring the nation to build more Coast Guard cutters.  The model works well and has been employed in the Persian Gulf since the first Gulf War.  In fact, the first Coast Guardsman killed in combat since Vietnam, Petty Officer Nathan Bruckenthal, lost his life with two sailors while intervening in a suicide bomb attack on an Iraqi oil platform in 2004.

Per the Navy's post on flickr.com:

GULF OF ADEN (May 13, 2009) Members of a visit, board, search and seizure (VBSS) team from the guided-missile cruiser USS Gettysburg (CG 64) and U.S. Coast Tactical Law Enforcement Team South Detachment 409 capture suspected pirates after responding to a merchant vessel distress signal while operating in the Combined Maritime Forces (CMF) area of responsibility as part of Combined Task Force (CTF) 151. CTF 151 is a multinational task force established to conduct counter-piracy operations under a mission-based mandate throughout the CMF area of responsibility to actively deter, disrupt and suppress piracy in order to protect global maritime security and secure freedom of navigation for the benefit of all nations. (U.S. Navy photo by Mass Communication Specialist 1st Class Eric L. Beauregard/Released) 

 

 

 

Newsweek Article - More Opinions On Somali Piracy - Coast Guard vs. Navy

Found this interesting article in Newsweek which suggests that the U.S. Coast Guard and not the Navy is better suited to address the Somali piracy situation.

The counterpiracy plan outlined Wednesday by Secretary of State Hillary Clinton was short on specifics, but long on nuance. Clinton committed to tracking and freezing the Somali bandits' finances—something that could prove difficult—while also working with shipping conglomerates and insurance companies to address "gaps in their self-defense measures." With a heavy military presence in the region all but off the table, given officials' remarks on the subject, what could that mean?

John Patch, a retired Navy commander who now teaches at the U.S. Army War College, has one possible answer. In the past few months, Patch has repeatedly said the global security threat posed by pirates is "overstated." But if Washington now feels compelled to respond to the surge in piracy in the Gulf of Aden, Patch argues, the best approach would be to treat the problem as a law-enforcement issue, not a military mission. NEWSWEEK's Katie Paul spoke to him about why, if the U.S. is to play any armed role in responding to the Somali pirates, the Coast Guard might be its best bet.

While the Coast Guard is likely the best maritime military force worldwide to address Somali piracy, bar none, it is plainly too small to take on another mission.  Law Enforcement Detachment (LEDETs) embarked on Navy or other allied ships could provide a crucial, internationally viable response to the pirate threat.  Endgame remains a vexing issue and absent political will for prosecution/incarceration in other countries, the Gulf of Aden's cat and mouse game will continue.

Op-Ed on Somali Piracy and International Law

The Pacific Business News published an Op-Ed I drafted on International Law and Somali Piracy. (PBN has published here).

 

My text is repeated below:

 

Until recently, we viewed “piracy” to be teenagers downloading internet songs or copying a DVD.  Now, armed hijackings, crews and cargos held hostage in the Gulf of Aden bring real piracy to the forefront.  Modern pirates sail “go-fasts” and instead of cutlasses or flintlocks, they are armed with AK-47s and rocket-propelled grenades.

For 18 months, Somali pirates with easy access to a major international shipping lane have attacked merchant ships, including, in April, a U.S.ship carrying humanitarian cargo. The captain was taken hostage and was rescued by the U.S. Navy. Somali pirates have grabbed the world stage when coastal nations’ stability is threatened by global financial crises.  Other criminal organizations, to include terrorist ones, are assuredly watching these events and considering piracy as a revenue source.  To date, world naval powers, especially the United States, are understandably reluctant to exercise criminal jurisdiction over bandits, yet it is overdue.

Realistic responses to piracy involve multi-national military and law enforcement intervention. The United Nations International Maritime Organization currently discourages carriage of firearms on merchant vessels and potential gunfights may trouble insurance companies.  Professional security and non-lethal technology could prove too expensive for smaller vessels.  Avoiding the Gulf of Aden altogether will substantially drive up shipping costs.

The U.S. Congress has enacted domestic and international piracy laws through powers granted by the Constitution “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” Under the Law of the Sea, piracy is a universal crime and any nation can prosecute pirates.  The U.S. recognizes the Law of the Sea treaty provisions on sea and air piracy as “customary international law,” but it has never ratified the treaty.

The case of Shi Lei, which touches Hawaii, is an example of how the U.S. legal system, through an international agreement, resolved an international crime. U.S. authorities apprehended Shi Lei, a Chinese cook, killed the captain and first mate, then took control of the Seychelles-flagged, Taiwanese-owned fishing vessel Full Means No. 2. 

Shi Lei’s crime was not traditional piracy.  However, the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Treaty extends coastal countries’ jurisdiction to prosecute certain crimes on the high seas.  The U.S. is a signatory with the necessary domestic law required by the treaty. So, Shi Lei was prosecuted in Honolulu.

The U.S. provided Shi Lei with a defense attorney.  He was prosecuted, convicted and, exercised his right to appeal, even to the U.S. Supreme Court. In this case, the U.S.established that its legal system can assist in peaceable, fair resolution of matters arising outside any nation’s territory.

The United States should use its international stature to develop agreements that both protect national interests and ensure a legal framework to address emerging transnational issues like piracy, environmental protection and Arctic warming.  The Senate should ratify the Law of the Sea treaty.  And, the legal infrastructure of U.S. coastal states, like Hawaii, should be ready to resolve inevitable civil and criminal maritime issues.