Captured Somali Pirate En Route to New York to Face Charges

By Jeralyn, Section Foreign Affairs
Posted on Mon Apr 20, 2009 at 05:42:45 PM EST
Tags: Somali Pirates (all tags)

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Update: Musi's mother was interviewed by the AP and is pleading for his release. She says he is 16 and was "swept up by "gangsters with money."

His mother is calling on President Barack Obama to pardon him or allow her to attend his trial.

If he needs character witnesses or mitigation witnesses, since he's indigent, the government will have to pay their travel expenses here. This sure is going to be an expensive trial for the U.S.

Update: Here's a good article on why Kenya was thought to be the place to try them. The US and EU recently signed agreeements with Kenya to try pirates. But, maybe there should be a special piracy tribunal, like the Hague. That would be expensive too. A former U.N. prosecutor who helped set up a special tribunal for Sierra Leone and indicted ousted Liberian President Charles Taylor says: [More...]

"The trend always has been to deal with it domestically. I would prefer to see it done by regional African states who are being impacted by these pirates."...Kenya is "probably the closest and best jurisdiction to do this," he said. "If I were the Obama administration, I would want to> see Africans doing something about this."

As to US jusrisdiction, "under international law, Wal-i-Musi can be prosecuted in the United States because the Maersk Alabama was flying a U.S. flag and Americans were attacked."

***

Abduhl Wal-i-Musi, the sole surviving pirate in the kidnapping of Captain Richard Phillips is en route to New York and expected to be brought before a U.S. Magistrate Judge tomorrow.

The government had considered handing him over instead to authorities in Kenya, which has an international agreement to prosecute pirates.

Officials decided to send him to trial in New York in part because the FBI office there has a history of handling cases in Africa involving major crimes against Americans, such as the al-Qaida bombings of two U.S. embassies in East Africa in 1998.

His mother says he is 16 years old but authorities say he's between 18 and 20.

As I've written before, Kenya has been handing down 20 year sentences to pirates. There is no valid reason to bring this young pirate to the U.S. for charges. Our indigent defense system is burdened enough with crimes that occur in the U.S. This is an inappropriate use of our judicial resources.

Just another show trial. I expected better from the Obama Justice Department. What if he turns out to be a conscripted child soldier? There will be plenty of egg to go around the faces at DOJ then.

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Captured Somali Pirate En Route to New York to Face Charges | 21 comments (21 topical)

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"There is no valid reason" (none / 0) (#1)
by sarcastic unnamed one on Mon Apr 20, 2009 at 05:59:55 PM EST

There is no valid reason to bring this young pirate to the U.S. for charges.

That opinion is certainly debatable.

I heard on NPR that this guy/kid needed med attention because the ship's engine mechanic, who was also from Africa, tried to talk this young boat-jacker/kidnapper out of doing what he was doing.

When the young thief would not be dissuaded, the mechanic stabbed him in the hand and neck.

What would happen (none / 0) (#2)
by bocajeff on Mon Apr 20, 2009 at 06:01:46 PM EST

If Kenya found him not guilty?

the same thing as if he's found not guilty here (none / 0) (#3)
by Jeralyn on Mon Apr 20, 2009 at 06:07:20 PM EST

but the chances of it are far less likely in Kenya which affords defendants very few rights.


Why would you, a committed defense attorney, (none / 0) (#4)
by sarcastic unnamed one on Mon Apr 20, 2009 at 06:33:09 PM EST

want this particular defendant tried in a system that gives him fewer rights, and, therefor, a lesser chance of a fair trial, than what he would get here in the US?


: I don't want him to have fewer rights (none / 0) (#13)
by Jeralyn on Mon Apr 20, 2009 at 07:34:26 PM EST

I answered the question about what would happen.
I've already explained my objection to trying him here...several times.

What gives Kenya the jurisdictional authority (none / 0) (#5)
by Socraticsilence on Mon Apr 20, 2009 at 06:38:53 PM EST

to try this guy? I mean is it like Spain and Human Rights Violations, or were the previous cases incidents in some way directly connected to Kenya? I have to say though I have problems with military tribunals, this would seem to meet the historical guidelines for one of those shipbased trial things that they used in days of yore. Actually has anyone checked, Piracy statutes in Federal law might be insanely draconian given the time when it was actually a major problem, and the fact that there was never any reason to reform them.

: US and Kenya signed agreement (none / 0) (#16)
by Jeralyn on Mon Apr 20, 2009 at 07:57:28 PM EST

In January, Kenya entered into an agreement with the United States to try pirates captured in the high seas. A similar agreement was signed with the European Union in March.
This law professor has a long law review on it you can download as a Word document, or read his latest news article here. He's not in favor of Kenyan court trying pirates seized by other countries. But, Kenya's penal code allows it:

Kenya Penal Code, (1967) Chapter 63 § 69 of the Laws of Kenya provides: "(1) Any person who, in territorial waters or upon the high seas, commits any act of piracy jure gentium is guilty of the offence of piracy."

Also

the Kenyan Parliament recently passed the Merchant Shipping Bill, which incorporates the offence of piracy jure gentium as well as new offences of robbery and hijacking of ships on the high seas and in Kenya's territorial waters consistently with Kenya's obligation under the Convention on Suppression of Unlawful Acts on the Sea (SUA),

Heh (none / 0) (#6)
by Steve M on Mon Apr 20, 2009 at 06:41:49 PM EST

I have a court proceeding in the SDNY tomorrow. I certainly hope we won't be delayed in seeing the Magistrate because he's busy arraigning the Somalian pirate! Er, well, the alleged pirate.

I'm personally in agreement with the decision to charge him here. We've betrayed the ideals of our justice system far too often during the past eight years and there's no time like the present to show the world that we are still capable of administering justice fairly and freely.

My question is where (none / 0) (#7)
by Socraticsilence on Mon Apr 20, 2009 at 06:47:58 PM EST

do you find a qualified defense, or heck Prosecutor familar with Piracy related issues, I mean seriously, talk all you want about terrorism but that's been a low level problem for decades- Piracy on the High Seas- when's the last time there was an actual case of it brought in the US?


: Dunno (none / 0) (#9)
by Steve M on Mon Apr 20, 2009 at 06:50:49 PM EST

but there are an awful lot of experts on maritime law out there, particularly here in New York. Maybe not specifically the criminal law of piracy, but heck, there's a lot of relatively novel prosecutions that get brought. It's not like we're talking about 8-dimensional geometry here.

Please Twitter if the alleged pilate (none / 0) (#8)
by oculus on Mon Apr 20, 2009 at 06:50:46 PM EST

makes a personal appearance.


No can do (none / 0) (#10)
by Steve M on Mon Apr 20, 2009 at 06:51:43 PM EST

No electronic devices in the federal courthouse! The other day I had to surrender a wireless card that happened to be in my laptop bag - not sure what use the card would be without a computer to plug it into, but they're tough over there.


: Federal district court here (none / 0) (#11)
by oculus on Mon Apr 20, 2009 at 06:54:27 PM EST

temporarily impounded cell phones at security for awhile. Kind of difficult to make calls during a settlement conference, espec. as court staff doesn't permit using court phone lines. So, that rule was abandoned.

: we get to bring in cell phones, camera phones and (none / 0) (#14)
by Jeralyn on Mon Apr 20, 2009 at 07:36:01 PM EST

wireless and laptops....provided we have a "green card" from the clerk's office saying we're an attorney admitted in the District.

Okay (none / 0) (#12)
by Socraticsilence on Mon Apr 20, 2009 at 07:10:56 PM EST

according to the 1958 Geneva Convention on the High Sea's- a Pirate can either be tried by any national body without objection the home state of the Pirate Vessel. Ha, the authority to prosecute piracy is mentioned explicitly in the Constitution Art. 1 Section 8 Clause 10- whoa Piracy carries a Life Sentence- 18 USC 1651, crazy old school.

: Piraacy... (none / 0) (#15)
by Jerrymcl89 on Mon Apr 20, 2009 at 07:51:25 PM EST

... is an issue which does not lend itself to mercy. The best way to deal with it is harshly. I It needs to be made an unattractive lifestyle choice.

Piraacy? (none / 0) (#17)
by rea on Mon Apr 20, 2009 at 08:07:48 PM EST

... is an issue which does not lend itself to mercy. The best way to deal with it is harshly. I It needs to be made an unattractive lifestyle choice.

Of course, much the same thing could be said about any crime you care to name--say, tax evasion.

: Well, I think that's true... (none / 0) (#18)
by Jerrymcl89 on Mon Apr 20, 2009 at 08:12:00 PM EST

... but when you are carrying weapons on somebody else's ship miles out to sea, guilt beyond a reasonable doubt is pretty well established. It's less of a gray area than most things.

The first pretrial motion (none / 0) (#19)
by Peter G on Mon Apr 20, 2009 at 08:34:32 PM EST

... is for an evidentiary hearing on the motion to dismiss based on his date of birth. Govt will have to prove he was over 18 at the time of the alleged offense. I had one such case (not piracy, but a client who claimed to be under 18) when I was an assistant federal public defender in the mid-70s. IIRC, once juvenile status is claimed and until proven otherwise, they had to keep my guy separate from all over-18 detainees. We won, again IIRC, and the charges were just dismissed. Pretty sure that would be the case here; I find it hard to picture him being transferred to NYC juvenile court or something (no jurisdiction there either). Otherwise, it's a federal juvenile delinquency prosecution, where -- correct me someone if I'm wrong here -- jurisdiction ends and he has to be released when he turns 21. Does that Kenyan treaty jurisdiction apply if in fact he is/was under 18?

Vice Versa (none / 0) (#20)
by waldenpond on Mon Apr 20, 2009 at 09:21:28 PM EST

It is equally important to provide for the safety of witnesses. I don't see this government sending citizens to Kenya to testify, the logistics to keep them safe would be difficult.

Tex2's comments and link deleted (none / 0) (#21)
by Jeralyn on Tue Apr 21, 2009 at 11:22:22 AM EST

for obvious reasons.

And for what happens after serving a jail sentence, the pirate would be deported home after completing his sentence -- just like every other undocumented person convicted of an aggravated offense in this country. First you do the time (on our dime)then you get deported.