http://hamptonroads.com/2010/11/federal-courts-norfolk-wrestle-over-defi\ nition-piracy?cid=mc <http://hamptonroads.com/2010/11/federal-courts-norfolk-wrestle-over-def\ inition-piracy?cid=mc> Federal judges in Norfolk wrestle over definition of piracy Posted to: Crime <http://hamptonroads.com/category/pilotonline.com/news/crime> Military <http://hamptonroads.com/category/pilotonline.com/military> News <http://hamptonroads.com/category/pilotonline.com/news> Norfolk <http://hamptonroads.com/category/norfolk> [X]
Click a thumbnail to view the full-size image. Buy Pilot photos here. <http://pictopia.com/perl/ptp/virginianp> <http://media.hamptonroads.com/cache/files/images/553771.jpg> <http://media.hamptonroads.com/cache/files/images/553781.jpg> <http://media.hamptonroads.com/cache/files/images/553791.jpg> <http://media.hamptonroads.com/cache/files/images/553801.jpg> Close Gallery A suspected pirates skiff burns after being destroyed near the amphibious dock landing ship Ashland. (U.S. Navy photo) attack no. 1 The incident Shortly after midnight April 1, the Nicholas, a Norfolk-based frigate, took small-arms fire from men in a small skiff. The Nicholas returned fire and then chased down the skiff and its mother ship, capturing five Somalis. The legal case U.S. District Judge Mark S. Davis upheld 14 charges of piracy and related charges. The trial begins Tuesday in Norfolk. attack no. 2 The incident Around 5 a.m. April 10, the Ashland, a Little Creek-based amphibious dock landing ship, took fire from men in a small boat. The Ashland shot back, setting fire to the skiff. Six Somalis were rescued and captured. One died. The legal case U.S. District Judge Raymond A. Jackson ruled piracy is defined by robbery at sea, based on a Supreme Court ruling in 1820. The case was halted and the government has appealed. By Tim McGlone <http://hamptonroads.com/2007/10/tim-mcglone> The Virginian-Pilot © November 8, 2010 NORFOLK For the first time since the 19th century, piracy suspects will go on trial in a federal court in a case that legal experts see as precedent-setting. Already there are conflicting rulings in the cases against two groups of Somali nationals charged with attacking Navy ships off the Horn of Africa earlier this year. But only one group is now going to trial. Jury selection in that case begins Tuesday in U.S. District Court. The other group must wait for a decision by the federal appeals court or, ultimately, the U.S. Supreme Court. U.S. District Judge Mark S. Davis last month upheld piracy and related charges in a 14-count indictment against the five Somalis charged in the April 1 attack on the Nicholas, a Norfolk-based frigate. Davis' conclusion was opposite the one reached by Judge Raymond A. Jackson, sitting two floors below Davis in the same courthouse, in August in a case involving the April 10 attack on the Ashland, based at Joint Expeditionary Base Little Creek. Jackson determined that he must interpret the piracy statute as it was meant at the time it was enacted, which was 1819. He found, citing an 1820 Supreme Court case, that piracy is defined only as robbery at sea. Since there was no robbery of the Ashland, he threw out the piracy charge. The government appealed and the case was halted. The conflicting decisions have set legal scholars abuzz. "These decisions in the federal court in Norfolk have stirred up quite a bit of interest," said University of Virginia Law School professor George Rutherglen. "It was last thoroughly litigated in the 19th century. Without a whole lot of precedent, the judges are reasoning from rather remote principles." The jury chosen this week will be asked to decide, for the first time in this country since 1819, whether someone is a pirate. Just after midnight on April 1, the Nicholas, while on anti-piracy patrol off the Somali coast, took fire from men in a small skiff. The Nicholas returned fire and then chased down the skiff and its mother ship, capturing five Somalis. Some of the Somalis are expected to say at the trial that they were fishermen kidnapped by the real pirates, who they say got away that day. Three boats were involved in the incident. When the Nicholas returned fire, one skiff sank while another escaped. The mother ship later sank while being towed by the Nicholas. Navy witnesses and federal agents will testify that several of the Somalis confessed to being pirates. One defendant, Abdi Mohammed Gurewardher, said he was hired to cook and assist with navigation, according to court filings. They have since recanted those confessions, saying they were abused while on board the Nicholas. Gurewardher says the Navy threatened to feed him to the sharks if he didn't confess. If convicted of the most serious charge of piracy, each faces mandatory life in prison. Other related charges carry penalties of five to 25 years. The case against the Somalis charged in the April 10 attack on the Ashland, an amphibious dock landing ship, remains in legal limbo after the government's appeal of Jackson's decision to toss the piracy charge. (The government is allowed to appeal, but the defense in the other case cannot until after the trial.) With so little case law on piracy, it wasn't surprising to Loyola Law School professor David Glazier that the two judges reached opposite conclusions. "The challenge here is that piracy has been prosecuted in U.S. courts so few times," he said. "The judges feel that, rightfully so, there is a lot of room for interpretation." But, after reading both cases, Glazier believes "Judge Davis got it right" in the Nicholas case in finding that the definition of piracy has evolved from its 1819 origin. Davis' 98-page opinion includes a history lesson on the origins of piracy law. The opinion, the judge wrote, "sweeps broadly, providing a thorough discussion of all the issues." Jackson's succinct 21-page ruling dismisses the government's position as unconstitutional. Kevin Jon Heller, a senior lecturer at Australia's Melbourne Law School, called Jackson's decision both right and wrong. "I think Judge Jackson's decision makes complete sense," Heller, who is representing former Bosnian Serb leader Radovan Karadzic at his war crimes trial in The Hague, wrote in a blog post at opiniojuris.org. "The U.S. should not be able to make use of international law only when it is convenient, relying on it when it wants to sentence pirates to life imprisonment, ignoring it when it wants to avoid trying 'terrorists' in civilian courts." But, like Glazier, Heller believes Jackson was wrong in failing to consider international definitions, including treaties, of piracy. With so little case law to cite, the two judges both turned to legal scholars for help. Eugene Kontorovich of Northwestern University's School of Law was cited by both judges. "I was an expert on this before it became cool," Kontorovich joked. He said both opinions "make sense," but, like Glazier, he leans toward Davis' findings. Jackson makes a number of good points, he said, including where to draw the line. What if someone fires a sling shot, or bow and arrow, or even throws a rock at a ship? Is that an attempt at piracy? "You can see where Judge Jackson is coming from, but nonetheless, in the case of piracy the definition is quite clear," he said. "Under today's international law it seems very clear that piracy includes things that aren't successful - any illegal acts of violence." The government just filed its brief appealing Jackson's decision before the 4th U.S. Circuit Court of Appeals. Last week, it added Davis' opinion to its request to have Jackson's opinion overturned. The government noted in its appeal that there is a sense of urgency on the issue. The number of successful attacks has risen every year for four years now. And off the Somali coast, pirates have expanded their territory, heading north into the Red Sea and further east toward India. The International Chamber of Commerce reported 42 pirate incidents worldwide last month alone. A Rand Corp. study reported that Somali pirates made about $150 million in ransom money from ship owners last year. Tim McGlone, (757) 446-2343, tim.mcgl...@pilotonline.com <mailto:tim.mcgl...@pilotonline.com> [Non-text portions of this message have been removed] ------------------------------------ -------------------------- Want to discuss this topic? Head on over to our discussion list, discuss-os...@yahoogroups.com. -------------------------- Brooks Isoldi, editor biso...@intellnet.org http://www.intellnet.org Post message: osint@yahoogroups.com Subscribe: osint-subscr...@yahoogroups.com Unsubscribe: osint-unsubscr...@yahoogroups.com *** FAIR USE NOTICE. This message contains copyrighted material whose use has not been specifically authorized by the copyright owner. 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