When a group of armed pirates invaded a merchant vessel off the coast of Somalia in 2008, a man named Ali Mohamed Ali wasn’t anywhere near the attack.
Ali was on land then, in Somalia, where he lived and worked as an education official. Two days later, he boarded the vessel to serve as the negotiator and interpreter between the ship’s Danish owners and the Somali pirates. He received tens of thousands of dollars for his role as the intermediary. The pirates, who held the crew and the ship for 71 days, received $1.7 million in ransom.
Lured to the United States on a ruse about an education conference, Ali was arrested in April 2011 at Dulles International Airport and charged in Washington’s federal district court with a host of crimes, including piracy and hostage-taking. But the case hit a wall in July when a trial judge gutted the rare prosecution, dismissing three charges and limiting the breadth of the piracy count.
Now, prosecutors are fighting on appeal to revive the case, which marked only the second time a negotiator has ever been charged in a piracy case. The litigation tests the international scope of federal high-seas piracy laws and the ability of prosecutors to target alleged facilitators who aren’t alleged to have been involved in the armed hijackings themselves. The U.S. Court of Appeals for the D.C. Circuit will hear the dispute in November.
Ali’s lawyers, including Matthew Peed of Washington’s Clinton & Peed, argue that Ali, an English-speaking public official in a self-declared republic in Somalia, was never in international waters and shouldn’t be prosecuted for any role in the seizure of the ship, which was carrying cargo for a subsidiary of the Houston-based engineering and construction company McDermott International Inc.
Prosecutors, Peed said, are trying to expand the reach of established international piracy law to go after financiers and planners who are not on the high seas.
“That’s the hammer the prosecutors want to keep in their tool box,” Peed said. If Ali loses in the appeal and is ultimately tried and convicted for piracy, he faces a mandatory sentence of life in prison.
U.S. District Judge Ellen Segal Huvelle in July disagreed with the prosecutors’ arguments, saying that “construing a general piracy statute as reaching conduct that occurs within a state’s territorial jurisdiction would arguably violate international law.”
The judge also questioned the nexus of the alleged crime to America, noting that “the government has not claimed that Ali or his alleged co-conspirators intended to have any effect on the United States by their actions.”
Huvelle ordered Ali’s release from custody, citing the government’s weak case. But prosecutors successfully convinced the D.C. Circuit, in an emergency action, to keep Ali jailed pending trial. Prosecutors called Ali a flight risk and argued that if he were to flee, returning him to the United States would pose a challenge.
The government’s legal team, including Assistant U.S. Attorney David Goodhand, contend that Ali agreed in advance of the violent undertaking to serve as a negotiator for the pirates. Prosecutors said in court papers filed October 1 in the D.C. Circuit that Ali facilitated a “continuing” pirate offense on and off the high seas, knowingly assisting in a criminal venture “by serving as the pirates’ always-available, on demand” negotiator and interpreter.
“Under the district court’s formulation, only those pirates who entered the high seas in the skiffs could be prosecuted for piracy, not those who stayed behind on the mother ship or, for example, the land-based financiers of such mother ships,” Goodhand said. “But modern-day piracy is about much more than those skiff-riding individuals who attach and hijack ships on the high seas.”
A U.S. State Department official, Andrew Shapiro, said in a March speech in Washington about piracy off the Horn of Africa that “in a globalized world, the impact of piracy in one area of the world can cause a ripple effect greater in magnitude than ever before.”
The government’s strategy, he said, includes deterring piracy through prosecution and prison terms and “debilitating the networks that support piracy operations.” From January 2011 to March 2012, Shapiro said, there was a 70 percent decline of ships held hostage — from 31 ships to eight.
If prosecutors prevail and Ali is tried for aiding and abetting pirates, jurors could get to hear from the captain of the vessel. Andrey Nozhkin, the captain and a potential witness in the case, said in an affidavit last year he “appreciated and respected” the job Ali performed. Ali told Nozhkin he wasn’t a pirate, but the captain, in the court papers, didn’t take a position one way or the other.
“Ali’s actions seemed to be against the pirates and in favor of the crew, but it is always possible that Ali was a genius actor or that there were hidden motives behind his behavior,” Nozhkin said.
Mike Scarcella can be contacted at firstname.lastname@example.org.
Matthew Peed: Ali’s lawyer says DOJ seeks to expand reach of settled piracy law.
Ellen Segal Huvelle: She dismissed and limited some charges, saying that “construing a general piracy statute as reaching conduct that occurs within a state’s territorial jurisdiction would arguably violate international law.”