ROBERT SIEGEL, host:
As we said earlier, one pirate remains in American custody today. Now, NPR's Ari Shapiro reports on U.S. options for prosecuting him.
ARI SHAPIRO: While no one wants to make light of piracy, attorneys will tell you that from a legal standpoint, this case is really fun. In the United States, piracy has a rare position among crimes. It is actually enshrined in the Constitution. David Laufman is an attorney in Washington.
Mr. DAVID LAUFMAN (Attorney): Article 1, Section 8, Clause 10 of the Constitution says, the Congress shall have power to define and punish piracies committed on the high seas.
SHAPIRO: Thomas Jefferson and John Adams had to deal with pirates. And Laufman says, there's another way piracy is different from most other crimes.
Mr. LAUFMAN: Piracy is an example of a crime for which there has, for centuries, been international consensus that states have extraterritorial jurisdiction.
SHAPIRO: 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 they could charge him with something else, 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 we've never tried a Somali pirate here before, and there are some unique challenges.
Neil Quartaro is a New York attorney who specializes in maritime law.
Mr. NEIL QUARTARO (Attorney): If you bring them back and try them nationally, once that sentence is complete, what do you do with them? 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.
SHAPIRO: There may be political pressure to put him on trial in the United States. After all, the incident has received a lot of media attention.
Mr. QUARTARO: That said, 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.
SHAPIRO: So, if the United States decides not to try this captive in an American court, what other options are there? Well, Kenya for one. Kenya has signed agreements with the U.S. and Europe to accept and prosecute suspected pirates. Professor John Norton Moore directs the Center for Oceans Law and Policy at the University of Virginia Law School.
Professor JOHN NORTON MOORE (Director, Center for Oceans Law and Policy, University of Virginia Law School): It is a country with some greater stability than some of the other countries in the region, and was a country that had some willingness to try the pirates.
SHAPIRO: We have no public examples of the U.S. ever handing over a pirate to the Kenyans in the past, but maritime law expert Neil Quartaro thinks it's the most likely scenario in this case.
Mr. QUARTARO: The new Obama administration is anxious to be seen as a internationalist administration.
SHAPIRO: Handing over a pirate to someone else for trial could be a strong symbolic gesture. There's also the problem of his age. American officials suspect he could be as young as 16. It's rare for the U.S. to try juveniles in federal court. Professor Moore of UVA says we have to remember that the person in custody is not the leader of a pirate network.
Prof. MOORE: You're really prosecuting the equivalent of drug mules. 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.
SHAPIRO: The Justice Department is considering all of these factors. Spokesman Dean Boyd would only say the Justice Department is reviewing the evidence and other issues to determine whether to seek prosecution in the United States.
Ari Shapiro, NPR News, Washington.
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