NORFOLK, Va. Nov. 9, 2010 -- For the first time since tales of swashbuckling villains first hit the popular consciousness in adventure novels, American jurors will weigh charges of "piracy under the law of nations" in a case of five Somali men accused of firing on a US warship.
It's one of the oldest laws on the books, dating back to the early part of the 19th Century, when congress first recognized the power of American courts to punish those who would plunder ships in international waters if the pirates are brought to the United States.
It also happens to be one of the most serious crimes in the US Code, carrying a mandatory life prison sentence upon conviction.
While other alleged pirates from Somalia have recently been brought into US courts, experts say the trial that begins with jury selection in Norfolk, Va. Tuesday marks the first time in at least 100 years, and perhaps since the earliest days of the Civil War, that American jurors will hear a case in which the defendants are charged with piracy, specifically, rather than lesser or related counts.
Though the Somali men are accused of violating 11 separate laws altogether, including a series of weapons and explosives charges, a guilty verdict on the single piracy count alone would result in a term of life behind bars.
Federal prosecutors say the Somalis thought they were attacking a merchant ship when they aimed their assault rifles at a US Navy frigate as it patrolled the Indian Ocean in the dead of night on April 1.
The sailors on board the USS Nicholas, which had been on patrol for pirates, fired back and captured the five men, bringing them to the frigate's home port of Norfolk, the world's largest naval base.
David Bouchard, a defense attorney for the Somalis, says the piracy statute should not apply in this case, since the men never got anywhere close to the Navy ship.
"I think [bringing the piracy charge is] the most absurd thing I've seen the federal government do," Bouchard told ABC News. "I find it incomprehensible."
Piracy Charge Stands
US District Court Judge Mark Davis disagreed with Bouchard's interpretation of the law, allowing the piracy charge to stand in a ruling late last month.
Bouchard intends to tell jurors that the five Somali men had no hopes of taking the naval vessel, which, he says, they clearly understood to be a warship.
"They didn't shoot at anybody, or try to hurt anybody. They were trying to signal the boat," Bouchard says, arguing that the accused pirates were themselves victims of kidnapping, put up to survey the larger ship by other Somali men who escaped in a craft of their own.
"They were fishermen who were abducted," Bouchard said.
He said his clients hoped to be "rescued."
"Forced Man Defense"
But Northwestern University law professor Eugene Kontorovich, one of the nation's foremost experts on maritime law, says the "so-called 'forced man' defense" is one of the oldest used in piracy cases.
"It goes back hundreds of years. People always claim that they were compelled to be a pirate, that they'd 'walk the plank' if they didn't," Kontorovich said.
The 14-count grand jury indictment alleges that each of the five Somalis were armed with assault rifles, and that one, 26-year-old Mohammed Hasan, carried a rocket-propelled grenade.
"The folks who are involved in these hijackings have been getting bolder and bolder," said John Wagner, deputy assistant director for criminal investigations and operations at the Naval Criminal Investigative Service, the civilian law enforcement agency which brought the complaint against the Somalis in this case.
Kontorovich, who could not be certain but believes this may be the first piracy case in the US since 1861, says the allegations "clearly" fit the definition of piracy under international law, even if the men did not board the ship they allegedly intended to attack.
"Clearly, this is piracy, and it's important for the United States to establish that this crime is piracy to help set the tone for prosecutions in other countries," Kontorovich said.
Under international law, any nation can bring piracy charges against hijackers on the high seas. Congress first passed a statute granting American courts this power in 1819. Often, experts say, Somali pirates interdicted by US naval vessels are brought to other countries -- namely Kenya -- for trial there. This prosecution of piracy in an American courtroom, perhaps because the alleged target was itself a US warship, marks a stark departure from the norm.
Somalis' Defense Attorney: Piracy Charge Unnecessary
To bolster his claim that the charge is too harsh, defense attorney Bouchard points to a similar case being heard in Norfolk, in which another federal judge threw out a piracy count in an alleged attack on the USS Ashland on April 10, ruling that there was not enough evidence to support the charge.
"They're wasting tons of money and effort, which is totally unnecessary," Bouchard says of prosecutors.
If his clients are convicted, they would be subject to a much harsher penalty than the only man convicted in the taking of the Maersk Alabama in 2009.
Abdiwali Abdiqadir Muse, the ringleader and sole survivor of the thwarted attack that saw the ship's captain being held captive for four days, pleaded guilty to hijacking and kidnapping charges in New York.
He faces a minimum of 27 years in prison.