BY JAMES LECHTER — “The penalty for attempted theft is life in prison.”  At first blush, this sounds draconian and savage.  An exploration of modern piracy suggests that this rule, if you’ll forgive the pun, floats.

Piracy is big business, and business is booming off the coast of Somalia. The worldwide community in 2010 suffered 445 pirate attacks, matching 2003 for an all-time high, with 92% of successful hijackings being done by Somali pirates[1]. 219 of the 445 (49%) attacks were Somali/Gulf of Aden attacks[2]. For Somali pirates, annual booty has been about $120,000,000 per year in net profit[3].

This figure is a screen capture of the International Maritime Bureau’s Piracy & Armed Robbery Map (2012)[4].  Red blips are successful attacks, and yellow are attempted. As one could imagine, traversing through the Gulf of Aden can be a risky prospect. In addition to being risky, it is also expensive.

Oceans Beyond Piracy suggests the total cost of piracy in 2011 was just under $7 billion dollars[5]:

• Fuel consumed for increased speeds of 18+ knots to evade pirates: $2.7 Billion
• Military operations, including vessels, equipment, and forces contributed by 30+ countries: $1.27 Billion
• Privately paid security and “ship hardening” to make vessels pirate resistant: $1.16 Billion
• Rerouting away from high-risk and war-risk areas: $680 Million
• Insurance, predominately war risk and kidnap and ransom: $635 Million
• Hazard pay during high-risk areas and back-pay for hostages: $195 Million
• 31 ransoms paid to Somali pirates, averaging $4-5 Million each: $160 Million
• Contributions to counter-piracy organizations: $21.3 Million
• Costs association with prosecution and imprisonment: $16.4 Million.
• Total: $6.84 Billion.

It is no surprise, then, that governments would want to contain this threat.  One such attempt was a sting operation in which the United States Navy Frigate USS Nicholas was made to appear as a merchant vessel.  As it turns out, she was a prize a pirate could not refuse.

On January 22, 2013 the Supreme Court of the United Stated denied certiorari to Dire v. United States, 133 S. Ct. 982 (2013).  The underlying case is United States v. Dire, 680 F.3d 446 (4th Cir. 2012), where on April 1, 2010, the USS Nicholas, a United States Navy Frigate, was disguised as a merchant vessel.  The Nicholas was approached by a skiff attended by defendants Abdi Wali Dire and Gabul Abdullahi Ali.  Other defendants remained on a mother-ship some distance away.  With the aid of night vision devices, the crew of the Nicholas saw that the skiff was armed with rocket propelled grenades and AK-47s.  When the defendant’s attack skiff was within 60 feet of the Nicholas, the defendants opened fire.  The crew of the Nicholas returned fire, resulting in a 30 second firefight.  The Navy frigate and her crew were able to apprehend the defendants on the skiff and soon after overtook the main vessel in this miniature pirate flotilla.  The defendants were separately questioned aboard the Nicholas and confessed to willingly participating in an attempt to hijack the vessel on April 4, 2010.

Defendants were convicted of piracy, plus a myriad of other criminal offenses, and sentenced to life, plus 80 years under the current federal law regarding piracy, 18 U.S.C.A. § 1651, which reads in its entirety: “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.”

Throughout the trial and in their appeal defendants continually assert the defense that their conduct did not constitute piracy because the crime of piracy should be narrowly construed as robbery at sea.  The argument goes that they only boarded the Nicholas as captives and took no property, ergo they did not commit piracy.

The trial court first[6] looked to Article I of the Constitution’s “Define and Punish” Clause,[7] which authorizes Congress to proscribe punishments for, three distinct sets of offenses: (1) “Piracies … committed on the high Seas,” (2) “Felonies committed on the high Seas,” and (3) “Offenses against the Law of Nations.” United States v. Shi, 525 F.3d 709, 721 (9th Cir.), cert. denied, ––– U.S. ––––, 129 S.Ct. 324, 172 L.Ed.2d 234 (2008) (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 158–59, 5 L.Ed. 57 (1820)).

“No other Supreme Court decision since Smith has directly addressed the definition of general piracy. In order to understand current law regarding piracy, it is important to understand these cases[8].”  In the end, Smith concluded that “… all writers concur, in holding, that robbery, or forcible depredations upon the sea, animo furandi[9], is piracy.”  It is important to note that animus furandi requires only intent to steal, compared to the Dire defendant’s whose defense is that they did not successfully accomplish robbery.

In the figure above, the yellow blips indicate attempted hijacking or robbery at sea.  In theory, each perpetrator, if guilty, should be sentenced to life in prison.

Where does this leave us?  The Supreme Court of the United States has denied certiorari on an opportunity to redefine piracy after 117 years[10].  No concrete insight can be gleamed from this, since the Supreme Court normally indicates nothing about the reasons for denying certiorari in the particular case, as was the case in Dire[11].  This author submits that Dire v. United States, 133 S. Ct. 982 (2013) is an invitation to discuss piracy for the next century with no change on the horizon.