David Glazier on a New Piracy Decision, U.S. v. Hasan

The following is a guest post by David Glazier, an Associate Professor at Loyola Law School in Los Angeles.

As Opinio Juris readers likely recall, there are two ongoing federal prosecutions in Norfolk, Virginia before different judges of Somali pirates who made the boneheaded mistakes of attempting attacks on two separate U.S. Navy warships. (Hey, it was dark!)  In the first case, U.S. v. Said, (previously discussed on this blog by Julian, Kevin, and I in posts here, here, here, and here) Judge Raymond A. Jackson threw out the piracy charge against a group that tried to attack the USS Ashland, an amphibious landing ship, ruling that the statutory reference, 18 U.S.C. § 1651, “Piracy Under the Law of Nations,” must be limited to the definition understood at the time the law was enacted (1819!) and that piracy only constituted robbery on the high seas per the 1820 Supreme Court decision United States v. Smith.  Since the attack was unsuccessful, no robbery took place and the judge thus dismissed the piracy charge although allowing other related charges to go forward.  That result is now on interlocutory appeal to the Fourth Circuit by the prosecution.

In the second case, U.S. v. Hasan, Judge Mark S. Davis reached the opposite conclusion in a rather comprehensive 98 page opinion just handed down, holding that the federal piracy statute’s reference to piracy as defined by the law of nations incorporates the current definition found in the 1958 High Seas Treaty and 1982 UN Convention on the Law of the Sea, which is broad enough to include unsuccessful attacks within its ambit.  He thus ruled that the attempted attack on the frigate USS Nicholas can be prosecuted as piracy.  Judge Davis cited Sosa v. Alvarez-Machain as support for his view that the customary international law to be applied by U.S. courts can evolve over time, and makes extensive use of the work of past Opinio Juris guest commentator Eugene Kontorovich. This decision is not subject to appellate review until after the trial, but my sense is that the district court opinion is intended to aid the Fourth Circuit in reaching what I think is the correct result in Said — that the treaty language is controlling.  Since Somalia is a party to UNCLOS (as are 160 other nations), it hardly seems unfair to consider the pirates to have fair notice of its provisions, whereas it seems more of a stretch to consider them on notice of an 1820 decision of a foreign supreme court.

Judge Davis’s opinion in Hasan is available here.