Will Obama Prosecute the Captured Somali 'Pirate' in a US Court?

The airwaves, newspapers and websites have been saturated with coverage of the rescue of Captain Richard Phillips, the U.S. citizen who was being held by four Somali “pirates” on a small lifeboat in the Indian Ocean, following the unsuccessful attempt by the Somalis to take control of the US-flagged vessel, the Maersk Alabama, a ship owned by a Pentagon contractor.

While details are still emerging, there are definitely some serious questions looming about how the decision to use lethal military force was put into play -- in particular three key questions:

1. The legality of the killing of the three Somali men;

2. The political decision to kill them in light of long term potential consequences;

3: The legal status of the fourth Somali “pirate” allegedly in U.S. custody.

First the background: We are told that on Friday, President Obama gave the military the green light to use lethal force to rescue Phillips. We also know that a group of “Somali elders” believed they were negotiating with the U.S. to try to bring about a peaceful resolution to the crisis. Reports indicate that the Somali elders asked that the four Somalis be allowed to return freely to Somalia without being prosecuted in exchange for releasing Phillips. That was reportedly rejected by the U.S. On Sunday, the Somalis were told the negotiations were over and that the Americans “had another action.” Shortly after that, lethal force was used -- with Navy SEAL snipers on board the USS Bainbridge shooting dead three of the Somali men. The Navy says the snipers took the action because they believed Phillips’s life was in “imminent danger” -- this allegedly came when a Somali was pointing an AK-47 at Phillips’s back. A fourth Somali citizen is in custody, though it is unclear when exactly he was taken by the U.S. Reports indicate that he had been stabbed in the hand in the initial “pirate” raid on the Maersk Alabama and, before the Sunday raid, had voluntarily left the lifeboat holding Phillips to seek medical attention from the U.S. warships and/or to negotiate with the U.S. side.

I have been in touch with two well-respected legal scholars, Francis Boyle from the University of Illinois College of Law and Scott Horton, a military and constitutional law expert. Both agree that the U.S. had legal justification to use lethal force against the “pirates.” Boyle said, “Technically, piracy is a felony under U.S. law. And deadly force can be used against someone involved in the commission of an ongoing felony.”

For his part, Horton said: “The legal rule historically is that pirates on the high seas are fair game for any country’s military.  In this case they kidnapped a captain and threatened to kill him, so the use of lethal force against them was fine from a legal perspective. (The bigger question was whether it was a wise thing to do, of course, but that requires an assessment of the entire tactical situation, about which I don’t know enough).”

On that question, Vice Admiral Bill Gortney, head of the U.S. Navy’s Bahrain-based Fifth Fleet, seemed to realize that there may be significant consequences for the decision to kill the Somali men. “This could escalate violence in this part of the world, no question about it,” Gortney said. As Reuters reported, “Somali pirates have generally not harmed their hostages and officials fear they could now act more violently.”

As one "pirate" said, "The French and the Americans will regret starting this killing. We do not kill, but take only ransom. We shall do something to anyone we see as French or American from now." Another added, "As long as there is no just government in Somalia, we will still be the coast guard… If we get an American, we will take revenge."