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Piracy includes failed attempts, prosecutors tell 4th Circuit

NORFOLK, Va. — The convictions of five Somali pirates sentenced to life in prison should be upheld because the definition of piracy under international law includes failed attempts, according to a court filing by federal prosecutors.

The Somali men were sentenced to life in prison in March for attacking the USS Nicholas off the coast of Africa. At the time of their 2010 conviction, they were the first pirates successfully prosecuted in the United States in nearly 200 years.

Defense attorneys contend the men didn’t commit piracy under U.S. law because they didn’t board or rob the frigate. They have appealed their convictions, and the 4th U.S. Circuit Court of Appeals’ ruling on the issue could affect other piracy cases.

The U.S. is currently appealing the dismissal of piracy charges against five other Somalis for an attack on the USS Ashland. Those men did not board that ship, either.

Another Somali man is facing piracy charges in Virginia for acting as the chief negotiator for a band of pirates that attacked the yacht Quest, resulting in the deaths of four Americans. He operated from land in Somalia and never boarded the Quest or secured a ransom.

“Off the coast of Somalia, pirates attack merchant vessels in an effort to capture them and to hold the vessels and their crews for ransom. Sometimes these attacks are successful; many times they are not,” prosecutors wrote in a brief filed Friday in the USS Nicholas case. However, they argued, attacking a ship can constitute piracy under international law even if the ship is not boarded or robbed.

Defense attorneys contend that a U.S. Supreme Court ruling limits piracy to robbery at sea.

The U.S. statute mandating a life sentence for piracy states that piracy is defined by “the law of nations.” Defense attorneys argue in an appeals brief that the statute was in reference to the definition of piracy in 1819.

Prosecutors acknowledged that a word’s definition is presumed to have the meaning associated with it when the law was passed. But they contend that doesn’t apply here, saying that laws can include definitions that change over time — including an evolving definition of piracy under international law.

That’s because “Congress used the phrase ‘as defined by’ the law of nations to signify ongoing incorporation,” they wrote.

Oral arguments in the case are scheduled for Sept. 20.