How to Define Piracy (Cont’d): A Critique of U.S. v. Said

[We are pleased to have David Glazier, a professor of law at Loyola Law School Los Angeles, share his thoughts on the U.S. District Court’s recent interpretation of the piracy statute in U.S. v. Said]

As I read Judge Jackson’s decision, the crux of his holding boils down to the following syllogism:

(1) Federal criminal statutes must be interpreted according to the meaning of the words at the time they were enacted;

(2) The language in the current piracy statute was originally enacted in 1819; therefore,

(3) The current definition of piracy must be that understood in 1819.

The facts stated in the indictment are simply that “at least one person on Defendants’ skiff shot a firearm” at the USS Ashland. This act must either fall within the legal definition of piracy or the judge must dismiss this count. A literal reading of the Smith language excludes mere attempts at robbery, hence the decision to dismiss.

It would be relatively straightforward IF the 1819 statute (now 18 U.S.C. § 1651) stated the elements of the crime of piracy. Unfortunately it only refers to “piracy as defined by the law of nations.” Judge Jackson determines that the U.S. Supreme Court’s 1820 decision in U.S. v. Smith, upholding the validity of the 1819 statute while declaring that piracy is “robbery or forcible depredations . . . upon the sea” provides the applicable definition. While the court discusses subsequent cases and scholarship, it is dicta under the decision’s logic, and most sources simply refer back to Smith anyway.

I see two flaws in the court’s logic.

First, as Eugene Kontorovich has already noted, the Smith holding simply states that robbery is piracy (all that was necessary under the facts of that case); it doesn’t say that only robbery is piracy.

Second, since the 1819 statute refers to the law of nations rather than to a specific definition of piracy, what logically ought to be locked in by the rule of interpretation the court relies upon is the reference to the law of nations, not the definition of piracy contained therein. While the court does find some modern sources stating that the definition of piracy is unsettled in customary international law, that view flies in the face of the two widely ratified treaties, the 1958 High Seas Convention and the 1982 UN Convention on the Law of the Sea which include the same definition in reasonably precise language. Given Senate advice and consent to the ratification of the 1958 treaty, it seems to me that language fairly becomes the operative definition of piracy for U.S. courts under the last in time rule and the supremacy clause. So even a judge with an aversion to international law in general can ground their decision in written federal law. Oddly, however, the court treats these two widely ratified treaties, including one that is the law of the land, as mere secondary sources entitled to no more weight than scholarly commentary. I think that is a fundamental error.

The treaty language, ratified by both the U.S. and Somalia, surely satisfies the constitutional due process requirement which the court noted requires fair warning that the defendant’s conduct is proscribed. Surely it is fairer to hold a Somali defendant to notice of a treaty his (admittedly dysfunctional) nation has ratified than to a foreign 1820 Supreme Court decision. I haven’t read any of the parties’ filings, but from the text of the opinion it appears that both sides engaged in a battle of law office history, using often obscure historical examples to bolster their positions. I would hope that on appeal, and certainly in the other ongoing Norfolk piracy case with similar facts, the government will argue for the application of the treaty language as effective law rather than as a mere secondary source.

My crystal ball predicts the Fourth Circuit will reverse if the government makes more coherent arguments on appeal.