International Law - Universal Jurisdiction - D.C. Circuit Upholds Charges for Facilitator of Piracy under Universal Jurisdiction

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INTERNATIONAL LAW--UNIVERSAL JURISDICTION--D.C. CIRCUIT UPHOLDS CHARGES FOR FACILITATOR OF PIRACY UNDER UNIVERSAL JURISDICTION. --United States v. Ali, 718 F.3d 929 (D.C. Cir. 2013).

Piracy has long been considered the paradigmatic crime subject to universal jurisdiction, the principle that some crimes are so universally condemned that any nation may prosecute their perpetrators. (1) Yet prosecutors have been reluctant to exercise universal jurisdiction in piracy cases, almost never pursuing a case without some nexus to the prosecuting state. (2) recently, in United States v. Ali, (3) the D.C. Circuit invoked universal jurisdiction to uphold charges against a Somali national for aiding and abetting piracy and hostage taking, even though the crimes lacked a nexus to the United states. Ali came in the wake of the supreme Court's decisions in Kiobel v. Royal Dutch Petroleum Co. (4) and Morrison v. National Australia Bank, (5) which reinforced the presumption against extraterritorial application of domestic statutes in civil cases. Though the D.C. Circuit relied primarily on treaty interpretation, it could have strengthened its holding by situating itself within a line of precedent suggesting a lower bar for overcoming the presumption against extraterritoriality for criminal statutes. By potentially increasing U.S. courts' exercise of jurisdiction in criminal cases, the disparity between the presumption as applied in civil and criminal contexts shifts enforcement of international norms from private actors to state actors and perhaps better allows the United states to comply with its foreign policy obligations.

On November 7, 2008, a gang of Somali pirates launched an attack on the CEC Future, a Danish-owned merchant vessel flying a Bahamian flag, as it sailed the high seas between Somalia and Yemen. (6) Ali Mohamed Ali, a Somali citizen, was not among the group who hijacked the ship. (7) Instead, he boarded two days later off the Somali coast at Point Ras Binna. (8) With Ali aboard to act as interpreter, the pirates rerouted the Future to an area near the port of Eyl, where it remained anchored for the next sixty-nine days while Ali negotiated the pirates' demands with the ship's owners. (9) He obtained a $1.7 million ransom and left the Future with the rest of the pirates after they received the money on January 14, 2009. (10) Ali's share totaled $16,500, and he exacted an additional $75,000 from the shipowners as payment for his "services." (11)

In 2011, Ali came to the United states in his capacity as Minister of Education for the Republic of Somaliland (12) to attend what he believed to be an education conference in North Carolina. (13) In reality, federal prosecutors working on the case had fabricated the conference to lure Ali into the United states, and he was arrested on arrival. (14) Ali was indicted in the U.S. District Court for the District of Columbia for conspiracy to commit piracy as defined by the law of nations under 18 U.S.C. [section] [section] 371 and 1651, aiding and abetting piracy as defined by the law of nations under 18 U.S.C. [section] [section] 2 and 1651, and hostage taking through both conspiracy liability and aiding and abetting liability under 18 U.S.C. [section] [section] 2 and 1203. (15)

Ali moved to dismiss the indictment for failure to state an offense, alleging defects relating to international law and the extraterritorial application of U.S. statutes. (16) In assessing the government's charges, the district court had to contend with two substantive canons: the presumption against extraterritorial application of U.S. statutes and the so-called Charming Betsy canon (named for Murray v. Schooner Charming Betsy (17)). The presumption against extraterritoriality cautions judges against applying U.S. statutes on foreign soil absent clearly expressed congressional intent. (18) The Charming Betsy canon counsels judges that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. …