By Steve Szkotak
Saturday, November 6, 2010; 7:02 PM
NORFOLK - Five Somali men accused of firing assault rifles at a Navy ship off the coast of Africa are set to appear in federal court here this week for what will be the first U.S. piracy trial in more than 100 years.
The suspected pirates are accused of shooting at what they thought was a merchant ship on April 1. Instead, prosecutors say, they fired on the USS Nicholas, a battle-tested 453-foot ship patrolling the pirate-infested waters.
Sailors aboard the vessel returned fire, forcing the attackers to flee in a small skiff. The suspects were eventually captured and brought to the United States. The trial will begin Tuesday and is expected to last about a month.
The suspects could face a more severe penalty than the Somali pirate convicted in the April 10 attack on the Maersk Alabama. That attack drew worldwide attention as the pirates held the captain of the U.S.-flagged ship hostage on a lifeboat for four days. Abdiwali Abdiqadir Muse, the ringleader, pleaded guilty in New York to charges of hijacking the ship and kidnapping. He faces a minimum of 27 years in prison.
The suspects in the USS Nicholas attack are charged with piracy, which carries a mandatory life sentence. Yet, for prosecutors, the charge might be difficult to prove because the suspected pirates did not board the vessel, which had a crew of 100 highly trained sailors.
The government acknowledges the five defendants did not take control of the frigate, which defense attorneys argue is necessary to prosecute the piracy count.
"They fired on a Navy ship. That's the whole case," said David Bouchard, an attorney for the Somali men. "They didn't go on the boat. They didn't shoot anybody. They didn't rob it."
In a similar but separate case involving a group of alleged pirates who are suspected of firing at the USS Ashland on April 10, a federal judge has thrown out the piracy charge, ruling there was not enough evidence to prove the charge. Prosecutors are appealing the judge's decision.
Prosecutors say an 1820 Supreme Court decision and contemporary international law show the Somali nationals' alleged actions constituted piracy.
U.S. District Judge Mark S. Davis has allowed the piracy charge in the USS Nicholas case to go ahead in Norfolk, home to the world's largest naval base and home port to the Nicholas.
Ken Randall, dean of the University of Alabama School of Law and a piracy law scholar, said the two judges have different views, but he thinks the government's prosecution will prevail because U.S. vessels were involved.
"From what I've seen, no, I don't think the piracy count is particularly challenging as a matter of law," Randall said. "Because the definition of piracy really has existed along similar lines for three, four centuries, and the alleged conduct seems to clearly fit that definition."
The USS Nicholas piracy trial would be the first in the United States in at least a century, legal and maritime scholars say. Other countries have recently held piracy trials, but one of the last in the United States was in 1861, when 13 Southern privateers aboard the Savannah were prosecuted in New York. The jury deadlocked, and the men were later exchanged with the South.
The defendants in the USS Nicholas case are also charged with plundering, firearms counts, assault and other charges.
These cases are part of a U.S. policy debate over how to deal with insurgents and criminals in Somalia, a poor, barely functioning nation suspected of harboring terrorists linked to al-Qaeda.
Somalia-based piracy continues despite an international flotilla that has reduced the number of hijackings in the Gulf of Aden and forced pirates farther south. Somalia has not had an effective government for 19 years, a reason piracy has been able to flourish.
Somalia's first secretary to the U.N. mission has called the international prosecution of Somali pirates "vigilante justice."
"I find it difficult to believe that the international community is rendered helpless by a bunch of teenagers, chewing khat [a narcotic] and armed with AK-47s and RPGs," Omar Jamal said.
- Associated Press