"Pirate attacks in the waters off the Horn of Africa, including those on U.S.-flagged vessels, have brought continued U.S. and international attention to the long-standing problem of piracy in the region. The United States has been an active participant in piracy interdiction and prevention operations focusing on the Horn of Africa region. As part of anti-piracy operations, the U.S. military has detained individuals accused of acts of piracy against U.S.-flagged vessels. In some instances these individuals have been released, others have been transferred to Kenya for criminal prosecution in the Kenyan courts, and some have been brought to the United States for criminal prosecution in the federal courts. [...] The United States Navy, after thwarting two separate alleged acts of piracy, transferred suspected pirates to Norfolk, VA, for criminal trials in the U.S. District Court for the Eastern District of VA, on charges of piracy. One of the trials, United States v. Hasan, ended with the defendants found guilty on numerous charges, including piracy. The other case, United States v. Said, is on appeal based on a court ruling dismissing the charge of piracy. A common issue between the two cases, and yet the greatest distinction, is how the two trial courts interpreted the definition of piracy under 18 U.S.C. § 1651. The Said court stated that the act of piracy, as defined by the law of nations, requires a robbery on the high seas. Thus, it appears that absent an actual robbery at sea, individuals may not be found guilty of the act of piracy under 18 U.S.C. § 1651. [...] In Hasan, the trial court ruled that the act of piracy, as defined by the law of nations, is reflected by Article 110 of UNCLOS [Unites Nations Convention on the Law of the Sea] and thus does not require an actual robbery at sea to be convicted of piracy. The divergent U.S. district court rulings may create uncertainty in how the offense of piracy is defined. Congress may provide guidance to the courts by clarifying the definition of piracy under 18 U.S.C. § 1651. However, in the absence of legislative clarification, the courts may arrive at differing interpretations."
CRS Report for Congress, R41455