Where will captured Somali pirate get justice?

The high profile of the case suggests a trial in the United States, but the Justice Department might be wary of bringing the young suspect into the American court system.

By , Staff writer

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    A Kenyan police boat patrols the waters near the Maersk Alabama in Mombasa, Kenya, Monday. In rescuing the ship’s captain from his captors Sunday, the Navy took one pirate into custody. The US Justice Department is now weighing whether to try him in the US or in Kenya.
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Justice Department officials are examining a trove of evidence against the lone surviving Somali who allegedly helped hold an American captain for ransom off the coast of Somalia.

With a host of potential witnesses – the crew who retook the Maersk Alabama after the pirates boarded the ship, the crew of the destroyer USS Bainbridge which shadowed the pirate lifeboat, and Capt. Richard Phillips himself – the evidence against the alleged Somali pirate is likely to be particularly strong, analysts say.

The case offers President Obama an opportunity to punctuate the Navy's swift military response Sunday with an equally bold legal response – by affording the Somali suspect the full protections of a United States court of law. The concern is that aggressive US defense lawyers might tie up the case in a flurry of motions – including questions about the suspect's potential status as a minor.

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"Everyone agrees that pirates are bad, but the issue is what are you going to do with them," says Michael Passman, a lawyer with the Chicago firm Cassiday Schade and author of articles on piracy and the law.

Justice Department officials declined to comment Monday on the status of the case, and whether the suspect would eventually be sent to the US for trial. One matter that could complicate the case is the pirate's age. Defense officials estimate that all four alleged pirates were between the ages of 17 and 19. Under international and US law, younger defendants are generally not held to the same level of culpability as adults. Proving the precise age of the suspected pirate may be difficult, given the level of disorder in Somalia.

The high profile of the case, however, would make it unusual for the Obama administration to pass it on to Kenya, which has agreed to prosecute piracy cases in the Horn of Africa region, analysts say.

Until last week, no US ship, sailor, or citizen had been targeted by Somali pirates, who redirect largely defenseless merchant ships to the Somali coast and begin multimillion-dollar ransom negotiations.

"This was the first US-flag ship captured by pirates in a very long time," says Mr. Passman of Cassiday Schade.

The fact that the Maersk Alabama was a US-flag ship with an American crew and captain may tip the balance toward a US trial rather than a Kenya trial, analysts say.

"This is a case where the evidence of holding hostage an American citizen was available for the whole world to see," says James Gathii, an international-law professor at Albany Law School in New York and an expert on the Kenya justice system.

Professor Gathii says the Kenya court system is up to the challenge of prosecuting suspected pirates, but he says he believes strong public interest will result in a US trial.

"The problem the Department of Justice and Department of Defense might fear is the fact that a trial in the United States – unlike in Kenya – would mean the defendant would have high-flying attorneys who are likely to raise all sorts of defense motions and arguments about evidence," he says.

But a US trial would send positive signals to Kenya, Malaysia, and other countries that have taken firm steps against would-be pirates, says Passman. It would show that the US is willing to use its own legal system in the fight.

In January, Kenya signed a memorandum of understanding with the United States and the United Kingdom agreeing to prosecute suspected pirates in local courts under Kenyan law. The action helped resolve potential jurisdiction issues.

In 2006, a Kenyan court convicted 10 Somali citizens of piracy in the hijacking of an Indian dhow. In that case, the US Navy came to the rescue of the dhow crew, captured the suspected pirates, and transferred them to Kenya for trial. Each was sentenced to seven years in prison.

Following the January agreement, both the US and the European Union have turned over a second and third group of suspected pirates to the Kenyan court system.

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