Tag Archives | Somalia

Thanksgiving for Purported Pirates in Russia and the U.S.

It is a happy Thanksgiving for defendants in two very different piracy cases – the trial of Ali, a Somali education official arrested while attending an education conference in the U.S., and the crew of Greenpeace’s ship Arctic Sunrise, arrested by Russia last month while minding Russia’s business on an oil rig. I’ve written about both here before.

Both very different cases have one thing in common – aggressive charges of piracy for conduct that has never been treated as such.

Russia had arrested the Greenpeace provocateurs on the high seas for piracy, though their actions clearly did not constitute the crime. However, piracy is the only legal basis for seizing a vessel on the high seas. Afterwards,hooliganism charges were substituted for piracy, making the “Arctic 30″ a kind of international Pussy Riot.

Holland, the flag state, brought Russia before the International Tribunal for the Law of the Sea, which just ordered Moscow to promptly release the vessel and crew. While the latter are now out on bail (but must stay in Russia), Russia has announced that it will not comply with the prompt release order (see Julian Ku’s discussion). Interestingly, Russia had complied with ITLOS rulings in two prior cases. But that was before the U.S.’s withdraw from global power invited Russia to strut like a Power again. (And its neighbors have noticed, and already turned from the West and come to kiss the ring.)

I’ve written about Ali’s case before: he was charged with piracy on the high seas, though his only role was as an ex post negotiator. No one had ever been charged for “high seas” piracy for after-the-fact dry land activity – the essence of piracy is its location. And this is especially true in a universal jurisdiction [...]

Continue Reading 0

Belgium’s Remarkable Capture of Pirate Ringleader

Belgium has captured a senior Somali pirate kingpin in a remarkable operation. The leader of a pirate group, he had long been sought for hijacking a Belgian vessel in 2009. Now, undercover agents lured him and an associate to the Low Countries by pretending to be documentary film makers interested in making a movie about him.

The remarkable affair highlights some points about universal jurisdiction and pirate kingpins.

Belgium’s commendable efforts to catch those involved contrast highlights a big difference between universal and traditional jurisdiction: the bad guys have to be caught before being brought to justice, and no one wants to invest much effort in other people’s – or the “global community’s” bad guys.

Though there is a lot of talk about pirate kingpins, they almost never face prosecution, because catching them would generally require getting on the ground in Somalia. Indeed, this seems to be the biggest – and only – pirate boss yet captured.
The U.S. has caught and convicted one real pirate leader, responsible for a murderous attack on a U.S. yacht; he was apparently nabbed in Somalia by federal agents.

The Belgian case poses a fascinating contrast to a U.S. gambit to catch a pirate kingpin. Ali Mohamend Ali, whose case I’ve written about, was arrested while attending an education conference in North Carolina – he was an education ministry official (not a staged conference, a real one). But Ali wasn’t really a pirate, let alone a kingpin, just someone paid to negotiate the ransom. Two years after his arrest, his trial will begin in the D.C. Federal District Court, appropriately enough on Halloween, when lots of people get dressed up as pirates.

Ali himself is the subject of a documentary (in which I also appear) made before his legal troubles began; in the [...]

Continue Reading 0

Pirates on Screen: My First Role

Somali pirates, and the broader contexts of state failure and the maritime economy, are the subject of the new documentary film “Stolen Seas.” It has just had its first U.S. release at Cinema Village in New York. The filmmaker quite adventurously spent significant time with Somali pirates on land and at sea, to good effect. He also less adventurously interviewed me. Hopefully it will get wider release and I’ll be able to see it for myself. [...]

Continue Reading 0

War & Treaty Powers Applied to al-Shabab Fighters

Continuing the analysis of possible Art. I authority for applying the Material Support of Terrrorism statute to three Somali nationals fighting on behalf of al-Shabab in Somalia, with no identifiable link to the U.S. – other than being brought here for trial.

War Powers
The U.S. is not at war with Shabab. They are at war with our pals, Somalia’s notional Transitional government, in a civil war to which we are not a party. It is important to distinguish enemies in the “really hate” sense to war in the constructive or declarative sense.

True, Shabad has aligned itself with Al-Queda. Do the War Powers allow banning anyone in the world from fighting in a conflict to which the U.S. is not a party, but on behalf of a force sympathetic or allied with forces hostile to the U.S.? I don’t know, but my first reaction is that is a stretch. By such logic one could say that the ACA, by making healthier Americans, would make for better soldiers.

Note how this discussion recapitulates government’s move in Hamdan II: first it the argued “material support” rule was an exercise of Offenses Clause powers, then in last minute downgraded D&P to second-stringer, and brought out the general war powers for Art. I support.

With the Supreme Court having declared a limit on the Commerce Clause, the Treaty Power may remain the broadest, least defined governmental power. I do not think general treaties denouncing terrorism would be enough; they specifically do not do what the U.S. wants to do here – establish universal jurisdiction over the crime. Much easier would be to sign a quick executive agreement with the nominal government of part of Somalia, over which the U.S. presumably has a lot of control as it struggles between being nominal and dead. [...]

Continue Reading 0

Foreign Commerce Authority for Universal Jurisdiction over Terrorists

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted [...]

Continue Reading 0

Material Support Statute: A Neutrality Act for Everyone

In the next few days, I’ll discuss possible sources of Art. I authority for the the federal prosecution of three foreigners for fighting on the side of al-Shabab in Somalia, and brought forcibly to the U.S. for trial. Previously, I’ve argued that this prosecution cannot be sustained under the Offenses Clause. But first lets put this in historical and political context.

The use of the material support statute to prosecute foreign fighters in foreign wars is certainly novel, but it has a a historical cousin, which highlights the unusualness of the present prosecution in Brooklyn.

The Neutrality Proclamation of 1793, and subsequent Act, banned Americans from participating, or providing what we might call material support, to the belligerents in the Napoleonic Wars. The idea was such involvement could drag the U.S. into the war. The measures were extremely controversial, leading to the Pacificus-Helvedius debate between Hamilton and Madison. One of the secondary questions was the source of constitutional authority: it was variously placed in what I’d call the “dormant war power” – violations of neutrality by citizens undermined Congress’s prerogative of choosing our wars – or various treaty obligations to the particular warring states. Foreign commerce would do too. (I discuss the Art. I basis for the law in Part II.D.2 of this new article.)

The extraterritorial application of the Material Support statute to foreigners engaged in foreign wars essentially applies the Neutrality Act to the world. Not only must Americans stay of the of designated conflicts, everyone else must to. Of course, the effect is the opposite of the Neutrality Act: instead of distancing the US from foreign wars, it imports them into U.S. court rooms.

It is interesting to note that two of the men have Swedish citizenship, and the third had British citizenship. He became a [...]

Continue Reading 0

The Offenses Clause & Universal Jurisdiction Over Terrorists

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.

While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law [...]

Continue Reading 0