Prosecution Of Pirate Raises Many Questions

The surviving Somali pirate from the thwarted hijacking of the Maersk Alabama was to be charged Tuesday in U.S. federal court. Stephen Rademaker, former assistant secretary of state for international security, talks about how the government might makes its case.

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ROBERT SIEGEL, Host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MICHELE NORRIS, Host:

And I'm Michele Norris. The sole surviving Somali from the Maersk Alabama piracy standoff was arraigned today in federal court. The Somali teenager wore handcuffs and a chain around his waist as he was led inside by federal agents. He also wore a broad smile as he walked past a gaggle of cameras. Today the judge ruled that the young man is at least 18, despite his family's claim that he was only 16, and he will now stand trial as an adult.

But he faces what are believed to be the first piracy charges in the U.S. in more than a century. That's probably had attorneys on both sides scrambling through some very dusty law books. Stephen Rademaker is a former assistant secretary of State for International Security. He says the U.S. government sometimes allows other countries to prosecute pirates. But Rademaker told me this case was different. The attack was on an American ship, so the young man was brought to New York.

STEPHEN RADEMAKER: That was probably the critical consideration to the decision makers in the U.S. government about whether to bring him back to the United States or not. There have been other cases where the U.S. have seized pirates and turned them over to the Kenyon authorities to be prosecuted in Kenya. And we have - our government has negotiated a memorandum of understanding with the government of Kenya to provide for Kenya to exercise its criminal jurisdiction over pirates caught on the high seas.

This memorandum is available even in cases where there's no other connection to Kenya, because under international law, there's no doubt that all governments have the jurisdiction under international law to prosecute pirates if they come into their custody.

NORRIS: Why New York?

RADEMAKER: My guess is that this deals with a crime on the high seas, a fairly obscure criminal statute criminalizing piracy on the high seas, the greater expertise in New York courts than elsewhere on questions of maritime law.

NORRIS: What exactly is he charged with?

RADEMAKER: There are several U.S. statutes that criminalize piracy. He will be prosecuted under the one that criminalizes piracy, one directed against a U.S. vessel.

NORRIS: There is a question about how he came into U.S. custody. A prominent civil rights attorney, Ron Kuby, is suggesting that the U.S. could possibly be holding him unlawfully because he boarded the Bainbridge, the U.S. Navy vessel under a truce. And they're saying that that may complicate this case.

RADEMAKER: We'll see what happens with that, but the ordinary principle that applies in U.S. criminal court in the United States is that it doesn't really matter how a defendant came to be before the court. And, in fact, the Supreme Court has upheld renditions of prisoners from overseas where they were in plain violation of extradition treaties that were in effect. So if that is true - if that is constitutional under the United States, then some theory that there was a truce between the United States and pirates that was in effect at that time that this individual boarded a U.S. Naval vessel, I would be very surprised if the court gave much credit to that argument.

NORRIS: What are the potential complications in trying this case for the prosecution and also for the defense?

RADEMAKER: I think the age of the defendant will be a complicating factor for the prosecution. I think the novelty of the charge in U.S. courts. I think ultimately there will be an important question about what becomes of him when he's finished his sentence and his return to Somali or whether he gets to stay in the United States. And you may be aware that a number of countries have actually decided not to bring pirates back to their territory for fear that the ultimate effect would be to reward them by giving them asylum in their country.

NORRIS: And possible complications for the defense.

RADEMAKER: Well I think the defense will throw any argument they can out. And then this one that you just suggested about a truce. They will be going to the international legal textbooks to try and come up with interesting novel arguments that the prosecutors would not have anticipated.

NORRIS: Mr. Rademaker, thanks so much for coming in to talk to us.

RADEMAKER: Okay. My pleasure, thank you.

NORRIS: Steven Rademaker is a former assistant secretary of State for International Security.

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