An Antidote to Catch-and-Release Antipiracy Efforts

Courtesy of the Washington Post, a long-overdue development on the piracy front. The United States has charged the surviving pirate from the Maersk Alabama incident in federal court. The charges, courtesy of the Post:

"piracy under the law of nations, which carries a mandatory life sentence, as well as four lesser charges, including conspiracy and brandishing and firing a gun during a conspiracy. He is believed to be the first person to be charged in the United States with piracy in almost a century."

In many ways, the timing of this prosecution couldn't be better. Obviously, it's gratifying to see that no punches will be pulled when a U.S.-flagged vessel is attacked. Furthermore, a successful prosecution would send some much-needed signals to certain of our European allies. The contrast with the recent Dutch catch-and-release debacle is stark.

Lawyers have a tendency toward conservatism. It's part of our professional training, and there's a tendency not to act until there's been time to research and draft a memo. Consequently, I've always admired the operational lawyers capable of giving useful advice, in real time, to military commanders. But that said, I've been wondering precisely what complexities might be convincing lawyers advising various NATO governments that prosecuting pirates isn't worth the trouble. We're starting to see an answer.

The defendant, Abduwali Abdukhadir Muse, has already advancing two interesting legal arguments. First, he's argued (unsuccessfully) that he's 15, and should not be tried as an adult. Given the state of affairs in Somalia, straightforward questions like a defendant's date-of-birth are requiring rulings by federal magistrates. Second, his attorney has suggested that "as part of Somalia's civil war, Muse himself may have been captured by the pirates and forced to participate in their mission." This argument is interesting on its face, but more importantly, it's an evidenciary nightmare. It's going to be very difficult (and expensive) to find credible witnesses on either side of that question.

Definitely a case to watch, as this trial will set the tone for future prosecutions. In many ways, the law-enforcement approach to anti-piracy operations will stand or fall based on this case. Success or failure will, of course, be key. But the prosecutors' bigger problem is showing the world that these cases can be brought and won quickly and at a reasonable cost.

Thankfully, Magistrate Judge Andrew J. Peck, who is overseeing this stage of the case, has a well-earned reputation for keeping attorneys to a strict schedule.