The very pirates who terrorized the crew of the Maersk Alabama may have been caught and released by the U.S. or navies in the past year.

Given the robust military reaction to the seizure of an American vessel, most people would be surprised to learn that the response of the United States and other nations patrolling the Gulf of Aden to pirate attacks over the past year has been to either avoid arresting the pirates in the first place, or to put them back in the water once caught. Indeed, some European countries have even given pirates in broke-down boats a lift back to port. After all, international law (the UNCLOS treaty) demands solicitude for "distressed mariners."

The reason for such a strange piracy policy is that the legal obstacles to successfully prosecuting are so daunting that Western nations would rather not risk it. The title of my forthcoming essay in the California Law Review is taken from a quote from the German Foreign Minister, who explained the catch-and-release policy by saying no one wanted a "Guantanamo on the Sea."

According to news reports, the Administration is debating whether to try the captured pirate in the U.S. or to transfer him to Kenya. The U.S and Britain had made a deal with Kenya to transfer captured pirates there, so that they could be tried under universal jurisdiction. This is analogous to the rendition or third-country solution to the Guantanamo problem, and is similarly limited by Kenya’s unwillingness to be a pirate holding pen. There are numerous problems with this plan, and it is to early to judges its success, as no trial has yet finished.

Yet the current case is unique because it involves an attack on a U.S. vessel. America has jurisdiction not because of the universal status of piracy but because the attack happened on what is constructively considered its territory, involving its nationals. Much like the attacks on U.S. embassies in Kenya and Tanzania, there could be no clearer case for U.S. prosecution. Such piracy cases are quite rare because there are very few U.S. flagged commercial vessels.

Given that the bombers of the U.S. embassy in Kenya were brought here for trial - at great expense - sending this pirate to Kenya, with which he has no connection, would be a great admission of defeat for the U.S. legal system. It would be particularly ironic at a time when Guantanamo terrorists are being transferred for to U.S. civilian courts for trial.

The fact that the Administration is entertaining the possibility of deferring this prosecution to Kenya seems to confirm my view that the no one has any appetite for such cases because of their difficulty. Yet even I am surprised that Kenya is entertained as a possibility here. It is one thing to be deterred by high costs when the case does not involve ones own nationals – there, the direct benefits are low. But here, it is hard to imagine the Attorney General passing on such a case. Indeed, France and Holland have brought pirates that attacked their vessels for trial in their domestic court.

Still, one can imagine the concerns Attorney General Holder has. Surely the young pirate will say – like many captured Guantanamo detainees – that he knew nothing of his shipmates plan; he thought they were just going fishing. In the few cases that have already begun in Kenya, pirates have claimed they have been tortured, and that their Islamic rites have been disrespected. With a good U.S. defense attorney, a pirate brought to America could really refine this pitch. (The forthcoming essay discusses these and other difficulties at much greater length).

In any case, where will one find a lawyer or translators who speak the defendant’s Somali dialect? Will the officers of the U.S.S. Bainbridge, the crew of the Alabama, and the Navy SEALS have to be brought in as witnesses? If so, it will interfere both with the policing of the seas and the Alabama’s mission of providing relief supplies.

NOTE: I will not be able to respond to posts or emails until Thursday night.

The pirate captured by the Navy last week in the rescue of the Maersk Alabama will apparently be prosecuted in federal court in New York. It will be a fascinating case (if he doesn't plead guilty): perhaps the first piracy prosecution in the United States since the late 19th century, in the first prosecution of a foreigner in a much longer time.

He may be charged under the federal piracy statute, which carries a life sentence for piracy against US vessels. However, he may also be charged under 18 U.S.C. § 2280, which codifies the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the “Maritime Safety Convention”). That treaty was drafted as a response to the Achille Lauro hijacking by Palestinian terrorists in the mid-1980s. The treaty criminalizes acts of violence on or against international shipping, which is a broader range of conduct than piracy. While it was intended as a response to international maritime terrorism, it could just as well be used against piracy itself.

There are a few reasons the Justice Department might choose to act under the treaty as well. They may wish to breathe life into the rather moribund treaty, which has once been used as a basis for prosecution anywhere in the world. It could be useful in other piracy cases that do not fit the technical definition of piracy, i.e., where the attack occurs in Somali territorial waters. (Ruth Wedgewood argues the federal piracy statute needs to be updated to explicitly include waters within a nation’s exclusive economic zone, but the Maritime Safety Convention clearly applies an exclusive economic zone seems to obviate the need for such reform.)

The prosecution would not be the first American case 18 U.S.C. § 2280. As I describe in the forthcoming International Decisions: United States v. Shi, 103 AMERICAN JOURNAL OF INTERNATIONAL LAW __ (July, 2009), in a case finally resolved by the Ninth Circuit last year, the statue was used in a universal jurisdiction prosecution of a Chinese cook on a Seychelles-flagged fishing trawler who went postal, killed the officers and briefly took over the vessel. The defendant was not charged with piracy because under international law it does not include mutiny and other true internal disturbances on a ship. However, the Ninth Circuit in a fit of romanticism erroneously invoked piracy law on appeal.

Taking into New York and trying him will almost certainly cost more than the $1 million average ransom for pirated vessel. This doesn’t make it a bad idea, if it deters subsequent pirates. That depends in part on whether there is capacity to prosecute Pirates on a large scale. If this is a one-off thing, it will deter no one.

While I have written about the likely difficulty of prosecuting pirates, I anticipate this case to be a relatively straightforward one. The crime in question was at the center of global attention for a week. This guy was likely filmed by several Navy drones, aircraft and other assets. And given the groundbreaking nature of the case, I'm sure vast efforts will be taken to get it right.

But this is just one pirate. Hundreds have been captured and released by the NATO-lead coalition. It is not clear if this prosecution could be replicated on such a scale, and in many less-well documented cases.

One thing is certain. The defendant has won second prize in the piracy lottery. So far, deterrence is not on the horizon. From the moment he was captured by US forces, the alleged pirate's life expectancy went up by decades. In the coming months, years and maybe decades, he is likely to get the best nutrition and accommodation he or anyone he knows has ever had. Given that he did not kill or injure anyone, a life sentence is very unlikely. If he serves 15 years in a federal prison and is then allowed to remain in America, he will likely come out the healthiest, most educated and perhaps oldest former Somali pirate around.