Appeals Court Orders Released Somali Pirate Negotiator Back Into Custody

Somali pirate negotiator Ali Mohamed Ali scored a big victory last week when a U.S. District Court Judge ordered him released on bond subject to home detention pending trial, primarily due to the excessive length of his pretrial detention (28 months.) The Court's opinion is here.

The Government filed an emergency request for a stay pending appeal, which has been granted by the Appeals court.

PER CURIAM ORDER filed [1455209] granting motion to return appellee to custody [1455046-2]; The district court is directed to enter an order returning appellee immediately to the custody of the United States; Granting request to expedite briefing; Setting briefing schedule: Appellant’s Memorandum of Law and Fact due 09/09/2013. Appellee’s Memorandum of Law and Fact due on 09/12/2013.

Ali is now back in custody. Ali's case has been the subject of several appeals, including one over jurisdiction. He was assisting the victims of the pirated Danish ship and its owner by negotiating with the pirates for the release of hostages.

The appeals court ordered two counts dismissed but retained two charges.

Ali can be tried for aiding and abetting, and hostage taking. Ali was only on the high seas for "minutes" until the Danish vessel entered Somali territorial waters, but the aiding and abetting piracy statute does not include any geographical limit, "strongly suggesting a facilitative act need not occur on the high seas so long as its predicate offense has."

The appeals court decision is here. The Government does not dispute that Ali is not a pirate. In ordering him released on bond last week, in addition to finding Ali is not alleged to be a pirate, is not a flight risk or a danger to the community, the Court relied on due process grounds.

[T]he Court also notes that pretrial detention is the exception to the “‘general rule’ of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial.” ... Pretrial detention “has a detrimental impact on the individual.” ... “It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time.”

...A pretrial detainee generally is “hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.” ... This hindrance is heightened where the defendant is also the key defense witness. Pretrial detention limits defense counsels’ access to their client and thus limits counsels’ ability to prepare effectively for trial and to prepare the defendant to testify.

Moreover, the physical and psychological toll of pretrial detention, particularly a detention lasting for several years, where the defendant is effectively cut off from everyone but his ttorneys, can significantly affect a defendant’s ability to participate in his own defense.

The Court also raised the issue of the erroneous placement of Ali in solitary for 10 days due to a violation he was later found not to have committed -- he was alleged to been in possession of a thumb drive with educational GED documents on them.

Ali’s ten days in solitary confinement, only to be found not guilty of the alleged violation – though not the fault of the prosecution – exemplifies the exceedingly harsh conditions that pretrial detainees face while awaiting trial.

The Court also found the Government was responsible for at least 13 months of the delay by appealing another pre-trial order regarding jurisdiction and the high seas. It also found the Government unnecessarily delayed release of classified information and waited until the eve of trial to file a superseding indictment.

The Government is proceeding against Ali on a novel legal theory.

...the complexities inherent in this case come from its legal novelty, including the government’s expansive use of universal jurisdiction to prosecute a defendant who is a foreign national, for crimes committed on foreign soil against victims who are foreign nationals. Moreover, unlike the usual case of piracy (see supra note 6), there is extensive favorable information, including classified information and other evidence of Ali’s activities on behalf of victims of piracy and on behalf of the U.S. government, that supports the defendant’s claim that he did not act with the necessary mens rea.

The Government used a ruse to trick Ali into traveling to the U.S.

In April 2011, more than two years after the release of the CEC Future, Ali – then acting Director General of the Ministry of Education in Somaliland, a self-declared republic within Somalia – traveled from Somalia to the United States to attend an educational conference in Raleigh, North Carolina. Unbeknownst to Ali, U.S. officials had concocted the conference as a ruse to secure his presence within the United States. U.S. officials arrested Ali when he landed at Dulles International Airport on April 20, 2011,

Unlike most of the Somali pirates brought to the U.S. for trial:

On appeal, the government recognized that Ali lived in the United States for twenty-six years, married an American citizen, and has friends and family members in the Washington metropolitan area.

If convicted, Ali faces life in prison. As to the outcome of the incident with which he is charged: The hostages were released unharmed after payment of a 1.7 million ransom.

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