- The Washington Times - Friday, April 10, 2009

FBI negotiators worked with Navy officials Thursday to end the hostage crisis off the coast of Somalia, while the Justice Department attempted to figure how it might handle the pirates holding the captain of a U.S. cargo ship.

U.S. Attorney General Eric H. Holder Jr. was stumped when asked by reporters what steps would be taken against the Somali pirates if they were captured — a legal situation the United States has not faced in more than 200 years.

“I think it’s too early to tell at this point,” Mr. Holder said. “There’s not been an act of piracy, I think, against a United States vessel for hundreds of years. So I’m not sure exactly what happens. We’ll obviously do what we have to do to ensure that the maritime right of this nation is protected.”

Negotiators sought to free Richard Phillips of Underhill, Vt., who appears to have given himself up to the pirates to protect the rest of his crew. The pirates hijacked his U.S.-flagged cargo ship on Wednesday, then escaped with him in a lifeboat when the U.S. crew retook the vessel.

The lifeboat ran out of gas Thursday and drifted with the wind and currents as negotiations continued.

President Obama did not comment Thursday on the crisis when asked by reporters.

Mr. Holder said the “FBI is in touch with people in the Navy to try to assist in that situation” and they are in contact with people on the scene off the coast of Africa.

FBI spokesman Richard Kolko said the bureau is “fully engaged in this matter” and that its hostage rescue team, known as HRT, was assisting in negotiations.

The team, a branch of the agency’s Critical Incident Response Group, can be deployed anywhere in the world within hours of notification by the FBI director or a designated representative. Agents are charged with rescuing U.S. citizens and others being held by a hostile force, either terrorist or criminal in nature.

A U.S. Navy destroyer reached the scene earlier Thursday

Doug Burnett, a maritime lawyer, said Barbary pirates off the coast of northern Africa in the early 1800s were the last pirates to attack U.S. ships. Though he said court records show U.S. Navy warships pursued pirates as late as the 1830s.

“Since then, we have not had any acts that I am aware of, of any pirates attacking or taking a U.S.-flagged ship,” he said.

U.S. piracy laws are almost as old — they haven’t been updated since 1848, he said.

Mr. Burnett said the law is somewhat narrow, applying only to cases of piracy in which a ship is owned by a U.S. citizen, carrying cargo owned by a U.S. citizen or flying a U.S. flag.

The current case would be the first involving Somali pirates in which U.S. law would apply.

The U.S. has reached a memorandum of understanding with Kenya to prosecute Somali pirates.

“Because there is no legal system in Somalia,” said James Thou Gathii, a law professor at Albany Law School, “they were looking for neighboring countries to take up the slack because Somalia couldn’t do it.”

Ten Somali pirates captured by the U.S. Navy in 2006 were each sentenced to seven years in prison, said Mr. Gathii, who recently wrote a law review article about Kenyan courts handling these cases.