Applying Lessons from the Golden Age of Piracy: How to Use Specialized U.S. Tribunals to Prosecute Pirates in the Modern Era

Maritime piracy, far from being a quaint historical relic of the eighteenth century, is alive and well in the modern world. Because of the considerable effects of piracy on international trade and security, the fight against piracy extends into the courtroom, but actual prosecutions are few. Any effective strategy for reducing maritime piracy must include the prosecution of suspected pirates because prosecution, conviction, and prison sentences would impose additional costs on pirates, thereby deterring their activity.

Given the threat posed by modern maritime piracy, there is a broad recognition in the United States at all levels of government that piracy is a national security threat. U.S. antipiracy laws are over 100 years old, however, and the realities of modern piracy have exposed flaws in a system originally created to deal with pirates in the age of sail. Although trials for piracy are ongoing in the federal courts, there are far too few prosecutions by American authorities given the scale of modern maritime piracy and America’s position as the world’s leading naval power.

This Note will argue that the United States is not currently using one historically successful model of piracy prosecutions. In the eighteenth century, Great Britain established special antipiracy courts that could be convened anywhere in the world and that were composed of British naval officers or colonial government officials. This Note proposes adapting that model to the twenty-first century by amending the Military Commissions Act of 2009 to add piracy to the list of crimes subject to trial by military commission.