Washington - The federal judge overseeing the case of a Somali man accused of negotiating a ransom payment during a 2008 pirate takeover of a Danish merchant ship told prosecutors they had engaged in "inexcusable behaviour," and suggested they will have a hard time winning a conviction.
US District Judge Ellen Huvelle was furious when prosecutors told her at a status hearing last week that the alleged pirate, Ali Mohamed Ali, had been in international waters for only 24 to 28 minutes and they can't specify how he facilitated piracy during that time.
"It's astounding to me," Huvelle told a prosecutor at Friday's hearing, according to a court transcript. "I have the pleading where they [prosecutors] said this is no problem, you're going to prove that he was on international waters. I didn't know that you'd prove it for less than 24 hours."
Ali's trial is scheduled to begin next week.
"Now with five days to go and the guy's liberty at stake, I am told that we don't — he didn't do anything that we can specify on the high seas," Huvelle said. "That to me is unbelievably inexcusable behavior."
The judge got angrier as the hearing continued and bluntly dressed down prosecutors.
She said she wanted it "known to whoever reviews this in your office or the Court of Appeals that I feel the government has misled me badly."
"The criminal law does not exist to go to push something to the outer limits," Huvelle added. "That's not what a criminal case is about. You should not be prosecuting a case that you cannot win. It is an outrage."
Prosecutor Gregg A Maisel tried to assuage Huvelle: "We have made our best honest efforts. We have not misled the court."
Ali was arrested last year at Dulles International Airport, en route from Somalia to an educational conference in Raleigh, North Carolina. According to a filing on Monday by Ali's lawyer, Matthew J Peed, federal agents had invited Ali to the country and purchased a roundtrip plane ticket for him.
Ali was charged with conspiracy to commit piracy; piracy under the law of nations; conspiracy to commit hostage taking; and hostage taking. On 13 July, Huvelle dismissed the conspiracy to commit piracy count, but Ali still faces up to life in prison if convicted on the remaining counts.
The judge also ruled that for the other piracy count, the government would have to prove that Ali "intentionally facilitated acts of piracy while he was on the high seas" — and not in Somalia's territorial waters or somewhere else. Last week, the government filed a motion asking her to reconsider that ruling. Prosecutors said Huvelle didn't have the benefit of United Nations legal experts and independent scholars whom the government said have declared that a UN convention on law of the sea is not restricted to a particular "geographic scope".
Huvelle told a prosecutor to "have a seat" as she announced she would not reconsider her ruling.
"This guy has been held on your representations since April 2011; is that correct?" she said. "And now you think that there's a legal problem. If you had any concern about it, you should have raised it before now."
Huvelle said she might still reconsider the hostage-taking counts too. She said her 13 July opinion was "premised on factual representations made by the government that now turn out to be pretty weak".
Prosecutors say Somali pirates seized the CEC Future on 7 November 2008, in the Gulf of Aden, and forced the captain to sail to locations where Ali and others got on. Ali then demanded $7m from the ship's owners for release of the vessel and crew, the indictment said. Prosecutors say that more than two months later the pirates were paid a $1.7m ransom and the 13 crew members, vessel and cargo were released.
Prosecutors say that Jama Idle Ibrahim, sentenced last year to 25 years for his role in the attack, will be a government witness against Ali.
Huvelle demanded to know what Ibrahim had on Ali.
"I don't want to spend up to two months and use up the taxpayers' money for a case that won't have the legs to stand on," she said.
She told prosecutors that, among other choices, they could go to trial on the remaining three counts or appeal her ruling, but if they appealed, she would release Ali.
Prosecutor Maisel countered that, lacking legal status, Ali would have to remain in US Immigration and Customs Enforcement custody.
"Not if I can stop it," Huvelle said.
She added: "You brought him here. You bamboozled him here.... So you fought tooth and nail to lock him up. You brought him here under false pretences, now you tell me he can't be free while you take up an extremely novel difficult legal principle."