Home -> Law Blog Directory -> Legal News Blogs -> Law Blog - WSJ.com

OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Bankruptcy (866) 635-1838
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402

Legal News

: Law Blog - WSJ.com

Somali Gets Charged Under a Musty, Dusty Old Statute

By Ashby Jones

ADVERTISEMENTS

muse Word came down about 90 minutes ago that federal prosecutors in New York had charged a Somali teenager, Abduwali Abdukhadir Muse, with piracy and other criminal counts in the U.S. in the hostage-taking of the captain of an American-flagged cargo ship earlier this month. Click here for the story, from the Dow Jones Newswires Chad Bray; here for a LB post from earlier today; here for the criminal complaint.

Muse was charged in the criminal complaint with piracy, conspiracy to seize a ship by force, and several other charges.

To our minds, the most interesting charge is the first: Piracy. It’s not every day that federal prosecutors file that charge against an accused, and the history of the statute 18 U.S.C. Sec. 1651, shows it: Legal experts believe the law, initially passed in 1819, was last invoked in 1935.

The law is sort of chilling in its simplicity. Its 33 words read:

Piracy under law of nations

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

For a little more information on the law, we checked in with Beth Van Schaack, an expert on international criminal law at Santa Clara University School of Law.

First of all, said Van Schaack, the law is pretty plainly constitutional. Section 8 of Article I of the Constitution specifically gives Congress the right “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”

Interestingly, however, Sec. 1651 says that the crime of piracy shall not be defined by Congress, rather by “the law of nations,” in other words, says Van Schaack, international law. Van Schaack says for this reason, the law was challenged fairly soon after it was passed–since it was rare for the U.S. to defer to other nations to define its own criminal laws. However, it was upheld as written.

So which law of nations should federal prosecutors look to for guidance? Van Schaack says that it’s a bit up in the air. The last international treaty that discusses piracy that the U.S. ratified was the 1958 Law of the Sea treaty. (A later one, the Convention of the Law of the Sea, which took shape in 1982, but was never ratified by the U.S.)

If Muse is found guilty, Van Schaack says the judge will have no choice other than to impose the punishment stipulated in the statute: life imprisonment. “Even if there are mitigating factors, a judge is stuck,” she said.

Often, the youth of a defendant might constitute a mitigating factor. There was conflicting testimony over whether Muse was at least 18, but a federal judge ruled Tuesday that he was.

Van Schaack says that Congress could go back and change the statute to afford a judge the discretion to impose something less than a life sentence. Such a change, even though it would take place after crime has allegedly been committed and the defendant charged, might not run afoul of the Ex Post Facto clause of the Constitution. "Generally, there are no Ex Post Facto problems when Congress changes a law after the fact to make it more lenient," she says.

Photo: Getty Images