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The Fourth Pirate

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When Navy SEALs aboard the USS Bainbridge rescued Captain Richard Phillips on Sunday, they killed three Somali pirates and captured a fourth. Almost immediately, senior military and intelligence officials made clear their intention to transfer him out of Navy custody, charge him with crimes, and try him in a United States or Kenyan court.

"He's in military custody right now," an FBI spokesman said on Sunday. "That will change as this becomes more of a criminal issue than a military issue."

Why does it seem so easy to bring charges against Somali pirates in federal court, but so hard to do the same with suspected terrorists held at Guantanamo Bay?

Part of the answer has to do with law, or lack thereof. For centuries, piracy has been recognized as a crime against the "law of nations." Pirates can be captured on the high seas by any country's navy, and tried and convicted in that country's courts. As the original "crime" under international law, piracy is universally condemned, and until recently there has been remarkable consistency between countries on how to punish pirates. Indeed, Article I of the U.S. Constitution grants Congress the power to "define and punish piracies and felonies committed on the high seas." Congress moved quickly; in 1790, it made piracy a crime punishable by death.

Less clarity exists with respect to the terror suspects held at Guantanamo or Afghanistan's Bagram Air Base. Many individuals detained by U.S. personnel were not violating any laws when they were captured. Some were engaged in open hostilities against U.S. or coalition forces, but this complicated matters; since the U.S. has not ratified the First Additional Protocol to the Geneva Conventions, Bush administration lawyers were able to create a new category of "enemy combatants," distinct from soldiers or civilians, and outside the formal laws of war. Moreover, terror suspects apprehended within the territory of another state cannot be readily brought within the jurisdiction of the United States, unlike pirates captured on the high seas.

These difficulties, in part, led the Bush Administration to establish its now-infamous detention program, holding suspected terrorists, without charge, in "black sites" and at Guantanamo for years on end. But the indefinite, extra-legal detention of individuals in U.S. custody has created more problems than it has solved. The Supreme Court has ruled that detainees at Guantanamo may petition for habeas corpus review in federal court. Upon reviewing the evidence, federal judges have subsequently ruled that some detainees must be released. On April 2, a federal judge held that foreign nationals captured outside Afghanistan but held at Bagram also have a right to challenge their detention in U.S. courts. With so much evidence tainted by torture and other mistreatment, it is likely that many detainees will be ordered released; where they will go is a sensitive political and diplomatic question with no easy answer.

It is impossible to rewind the clock on the War on Terror. But we can learn something from the emerging consensus on what to do with the fourth Somali pirate. This individual will likely spend several days in military custody before he is sent to a jail in Nairobi or New York. He will likely be indicted, arraigned, tried and convicted under existing laws, in open court, with the opportunity to be heard and defend himself. At no point in this process will he be put outside the reach of the law; no one is talking about extraordinary rendition or secret detention.

Future terror suspects should be dealt with in the same way. Even before last week's standoff was over, FBI investigators declared the Maersk Alabama a crime scene. Instead of whisking the captured pirate off into a legal black hole, authorities got started building a criminal case against him. The same can be done for those caught conspiring to commit acts of terror. And for the rare cases where criminal prosecution proves impractical, the U.S. should ratify the First and Second Additional Protocols to the Geneva Conventions, which provide a comprehensive set of legal rules for the treatment of detainees. Stateless criminals -- whether pirates or terrorists -- must always be punished within the bounds of the law.