American officials now have one pirate in custody and a legal dilemma about how best to prosecute him. For legal observers, this case presents an exciting — and complicated — set of challenges.
Piracy has a rare position among crimes in the United States. It is actually enshrined in the Constitution. Article 1, Section 8, Clause 10 says Congress shall have power "to define and punish piracies committed on the high seas."
And, Washington attorney David Laufman says, piracy is one of the few crimes "for which there has for centuries been an international consensus that states have extraterritorial jurisdiction."
In other words, any country can prosecute pirates, no matter where the bandits attack. That means the U.S. has the legal authority to bring the captive back here for trial. Prosecutors could charge him with piracy, or with a related crime, like hostage-taking. Either crime could bring a life sentence. Just last year, American prosecutors charged rebels in Colombia with taking American hostages, so the U.S. judicial system has some experience in this area. But American courts have never tried a Somali pirate before, and experts say there are some unique challenges.
"If you bring them back and try them nationally, once that sentence is complete what do you do with them?" asks Neil Quartaro, a New York attorney who specializes in maritime law. "You can't return them to Somalia; it's a failed state. There's no one to give them to. So what you've probably created now is a refugee. It looks to me like you have an immigration problem at the end of that sentence."
There may be political pressure to put the pirate on trial in the United States. After all, the incident has received a lot of media attention. However, says Quartaro, "the pressure is not going to be all that great. There has not been a loss of U.S. life such that the public indignation would be raised to such a level that I think the administration would feel overwhelming pressure to transport this person back."
If the United States decides not to try this pirate in an American court, Kenya presents another option. Kenya has signed agreements with the U.S. and Europe to accept and prosecute suspected pirates. "It's a country with some greater stability than some of the other countries in the region," says Professor John Norton Moore of the Center for Oceans Law and Policy at the University of Virginia Law School. "It was a country that had some willingness to try the pirates."
There are no public examples of the U.S. ever handing over a pirate to the Kenyans for trial in the past, but maritime law expert Quartaro thinks it's the most likely scenario in this case. "The new Obama administration is anxious to be seen as an internationalist administration," says Quartaro, and handing over the pirate to someone else for trial could be a strong symbolic gesture.
The pirate's age presents another problem. American officials suspect he could be as young as 16. In the U.S., juveniles rarely stand trial in federal court.
Moore says it's important to remember that the person in custody is not the leader of a pirate network. "You're really prosecuting the equivalent of drug mules," says Moore. "It's a group of more senior characters that are probably no longer going to sea that are simply recruiting the younger ones and hoping that every fourth or fifth will hit pay dirt for them, with many of the others being expendable."
The Justice Department is considering all these factors.
"The Justice Department is reviewing the evidence and other issues to determine whether to seek prosecution in the United States," according to a written statement from spokesman Dean Boyd.