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.