Hearing of the Subcommittee on International Organizations, Human Rights, and Oversight of the House Foreign Affairs Committee - International Efforts to Combat Maritime Piracy

HEARING OF THE SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT OF THE HOUSE FOREIGN AFFAIRS COMMITTEE

SUBJECT: INTERNATIONAL EFFORTS TO COMBAT MARITIME PIRACY

CHAIRED BY: REP. BILL DELAHUNT (D-MA)

WITNESSES: STEPHEN D. MULL, SENIOR ADVISER TO THE UNDERSECRETARY FOR POLITICAL AFFAIRS, U.S. DEPARTMENT OF STATE; WILLIAM D. BAUMGARTNER, JUDGE ADVOCATE GENERAL AND CHIEF COUNSEL, UNITED STATES COAST GUARD.

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REP. DELAHUNT: The hearing will come to order.

It's my intention that this will be the first in a number of hearings that the subcommittee will hold on the issue of international maritime piracy, given its significance to our national security as well as its consequences for the global economy.

Earlier this month, our nation watched as the Maersk Alabama was hijacked off the coast of Somalia, and an American citizen, who's here in Washington today by the way, Captain Richard Phillips, he's over on the other side as we say, who happens also to be a graduate of the Massachusetts Maritime Academy, one of I think the finest maritime academy anywhere, happens to be in my district on Cape Cod.

Well, as we all know, he was held hostage for a number of days in a lifeboat. And shortly after his heroic rescue, another American vessel, the Liberty Sun, was also attacked by Somali pirates making good on the pirates' threat to target and attack American ships. While the Liberty Sun avoided the Maersk Alabama's fate, the attack is only further evidence that international piracy is a ongoing threat and must be addressed and should be addressed quickly.

While today the focus of public attention is off the coast of Somalia, some five years ago the hotspot was, in terms of piracy, was in the Straits of Malacca. Five years from now, it will likely be elsewhere in the world. And that underscores that it is imperative that we work to devise, design, if you will, a international architecture, an infrastructure, a blueprint that can permanently be utilized to deal with the threat of piracy wherever and whenever it emerges.

As I've been reading on this issue, I've come to learn that there appears to be no silver bullet, no panacea, no easy answer. And it's important, I believe, for us to listen to all of the various parties, the stakeholders, and to educate ourselves on the array of international issues implicated in maritime piracy.

Piracy presents a particularly difficult task, because it's not only an American problem, but an international problem that will need a coordinated response from the global community. Now, there are multiple opinions on how we can address this issue.

Some, like General Petraeus, has suggested we place armed guards on merchant vessels. Others have claimed that this would only increase the danger to seafarers. Well, instinctively, I'm inclined to agree with General Petraeus. What I do know is that this will be a multi-faceted problem that will require the full energy and engagement of the United States Congress. And if we fail to act now, piracy will continue to flourish and will have a political, and economic and humanitarian impact around the world.

Now, this subcommittee is tasked with the duty of oversight, which is a responsibility that I and my friend and colleague and ranking member Mr. Rohrabacher take most seriously. It will fall to this subcommittee to ensure that appropriate actions are being taken to address this serious problem, and that we are working in a way to protect our national security and particularly American citizens while at sea.

I am pleased to have learned that the State Department has moved very aggressively under the direction of Secretary Clinton to confront this challenge. The United Nations and our superb Navy and Coast Guard forces are also playing a key role and rising to the challenge. So this truly is an international problem that requires an international solution. We do not know -- should we carry the burden alone?

Now, let me just turn to my friend and colleague, the gentleman from California, Mr. Rohrabacher, for any statements he may care to make.

Dana?

REP. DANA ROHRABACHER (R-CA): Thank you very much Mr. Chairman, and thank you for holding this hearing. It's been an issue that has actually been around a lot longer than most Americans think. I can remember reading about this 20-30 years ago in various parts of the world, including part of the world that we've just recently been alerted to.

So I would like to remind the Chairman that as long as we've been on this committee, we've been hearing people who have come to us and have pointed out how U.S. development assistance is wasted quite often when it goes directly to a foreign government. And quite often the governments, especially in these developing countries, are corrupt or ineffective or incompetent.

But sometimes we have learned and quite often we have learned that providing aid to these people and making things better in a given area requires not going directly to the government, but instead directing resources toward the problem specifically. The more efficient use of our assistance, quite often, is going through private organizations or the private sector, rather than to affected governments.

For this reason, I believe that military assistance in the form of training, or transferring used Coast Guard ships to various African nations makes no sense. And will prove to be ineffective. I believe, instead, we must provide assistance that will make a difference -- that is done through the private sector in some way that will attack -- directly attack this problem.

For example, there are private sector alternatives such as Blackwater and other organizations that are set up basically as -- for such purposes as we're talking about. They've been -- we've been using them most recently and -- as guards for security details for our diplomats overseas. But they have capability of actually going in and providing security details for ships who are transporting themselves through hostile waters.

These organizations -- again, this is just -- they're just like NGOs and they have their specific purpose in mind. And they could -- and I believe -- provide an effective use of our resources to combat a problem and creating American jobs at the same time.

Most people on these private organizations like Blackwater have people who know the language and the culture in order to get the job done, and have many, many years of experience as compared to simply training some people in a -- for example, in this case, an African country training people and expecting that five months of training, or three months of training and some equipment supplies is going to make a large difference and enable them to meet a very serious challenge.

So my guess is that we shouldn't be wasting taxpayers' money in Africa by sending it to corrupt governments, but instead let's see if we can find a way as we do in humanitarian efforts to send Americans or the equivalent NGOs right at the problem by hiring and -- these folks, who can do the job.

And by private hiring -- by hiring private organizations, we will know exactly where the money is being spent and exactly what is being accomplished in a very measurable way rather than giving money to governments, which quite often -- you never know what happens once the money is transferred into their bank account.

So with that said I'm looking forward to being briefed on the nature of the problem and perhaps going over a few ideas for solutions as I've just mentioned.

Thank you, Mr. Chairman.

REP. DELAHUNT: Well, thank you Dana. And it might come as a surprise to you, but I don't know if I disagree with you. This is remarkable.

MR. : (Off mike.)

REP. DELAHUNT: (Inaudible) -- our hearings -- and I would inform our witnesses that during the course of the previous term, this subcommittee conducted some 52 hearings. This happens to be our first. Maybe we're just tired, Dana, at this point in time. But this is a serious issue. And let me be very candid, I'm coming to this to learn and to listen to all of the stakeholders as I've said.

I have some concerns particularly about what I'm -- perceived to be a program that is more attuned to recreational, our commercial fishermen catch and release. But I'm sure that will be addressed. By catch and release, I mean, while pirates have been apprehended when they are -- it would appear that in many, many cases that there's a practice of releasing them if not forthwith, one split -- in a very short -- in a very short timeframe.

But enough said, let me introduce our witnesses. You know, as I said having served in the Coast Guard myself, it's a particular honor to welcome Admiral Baumgartner here today. I want you to know I was a radarman third class. And it gives me great pleasure to look down on an admiral at this point in time.

He serves as the judge advocate general and general counsel of the United States Coast Guard. In this capacity, he is the Coast Guard's senior legal advisor and is responsible for all aspects of the Coast Guard's legal program. He's a graduate of the U.S. Coast Guard Academy, holds an MBA from the University of New Orleans, and a law degree, magna cum laude from Harvard Law School. I also understand he was an editor on the Law Review, a considerable achievement.

And next, I'm pleased to welcome Ambassador Stephen Mull, senior adviser to the undersecretary for political affairs of the U.S. State Department. Ambassador Mull has oversight responsibility for the Office of the Undersecretary of State for Arms Control and International Security Affairs, and its related State Department bureaus.

One of the positions he previously served was acting assistant secretary for political military affairs from January 2007 until August 2008, and as U.S. ambassador to Lithuania from 2003 until 2006. He's a career member of the Senior Foreign Service in the class of Minister-Counselor.

And I don't know if my colleague is aware, but our friend from, and colleague from California Ellen Tauscher has been nominated by the president to be Ambassador Mull's boss. I know that you will find it a great experience working with the Congresswoman, soon to be secretary, Tauscher.

But let's proceed. And this is a very informal process that we have in this subcommittee. It's really -- as Dana Rohrabacher has said, "It's the committee without rules," which means that you can take as much time as you want given the fact there's only two of you. And we will attempt to conclude this in -- hearing in time for you, Ambassador Mull, to make your 2:15 appointment.

Why don't we begin with Ambassador Mull.

MR. MULL: Well, thank you very much Mr. Chairman and Mr. Ranking Member for the opportunity to come and meet with you, and in fact in an informal setting, discuss this really important challenge. I think in the interest of your time and in the interest of moving towards a more free flowing exchange of ideas back and forth -- because we're very eager to hear your ideas -- I would ask that my formal testimony be entered into the record. And I will just provide a quick overview --

REP. DELAHUNT: Without objection.

MR. MULL: -- of what's in it. The -- it's a very interesting problem of piracy in Somalia, because it features a convergence of really the very first national interest of the United States from our very founding, very important to Massachusetts for ensuring freedom of the seas.

And it converges with this very 21st century phenomenon of asymmetric threats to our security interest. And this convergence is all through the prism of the need to keep energy flowing and keep humanitarian supplies flowing to one of the simultaneously most destitute and most strategically important corners of the globe.

Our approach within the administration, we have basically one strategic goal. We want to protect America's right and the world's right to freedom of the seas through enhanced international cooperation in stopping these pirate attacks and building a lasting maritime security regime that we think will serve all of our interests in the end.

Now, we've adopted a number of tactics to -- in pursuit of that goal. We worked very closely in the United Nations to pass a series of UN Security Council resolutions. Most recently on December 16th, UN Security Council Resolution 1851, which in fact granted significant authority to the international community to intervene to stop pirate attacks.

We've also, right on the heels of that, took the lead in creating an International Contact Group on the threat of piracy off the coast of Somalia that is going to include 28 states and six international organizations, and which has met regularly since the beginning of the year.

We've encouraged increased ship deployments, both through our own example and our own U.S. Navy and Coast Guard presence there in the region, but also working with other states to the point where we have -- recently have had as many as 40 ships patrolling this area.

We've established a maritime security protective area through which ships can transit under greater security transit conditions. We've worked -- a big problem as we can talk about later is figuring out what to do with the pirates once we apprehend them. And so we've worked to secure an agreement with Kenya that Kenya will gladly take the pirates that we apprehend and prosecute them.

We also have a number of other discussions going on with other states in the region to do the same thing. And of course, as in the case of Captain Phillips, we are going to be prosecuting the pirate that survived the rescue attempt.

The Coast Guard and the Maritime Administration have, as the admiral will mention, have done an exemplary job of working with the industry, because they have to play a very important role in their own defense against these attacks. And I think we've achieved quite a bit there, especially under the Coast Guard's leadership.

We also can't lose sight of the fact that piracy's really a symptom of a much broader problem in Somalia that's going to take a lot of international attention and resources to fix. And so we have enhanced our activism on those -- on that basket of issues as well.

I think the combination of these tactics has produced some success already. We just -- since January 1st, all the various ships participating in this effort have succeeded in 15 interdictions of pirate vessels. This is in contrast to only eight in all of 2008. So already we've just about doubled -- we're not even half way through the year yet; we've doubled successful interdictions. And we've apprehended a number of pirates. Fifty-two of them are now awaiting trial in Kenya.

But in spite of the successes, there's a lot of challenges. This is a wide swath of sea -- a-million-and-a half square nautical miles anywhere you draw -- to -- where you draw the boundaries. And so, you know, no amount of ships is ever going to prevent every attack of piracy.

We also, as you alluded to Mr. Chairman, have problems with all of the countries. There's a broad consensus in participating in this, this common effort to deter pirate attacks, but each country has their own set and their own understanding of what their national legal authorities are. And so we feel very comfortable as Americans apprehending pirates on the high seas and bringing them to trial. Other countries do not. And so we're working to try and fill those gaps to make sure that catch and release won't happen in the future.

Since the attack on the Alabama, Secretary Clinton and President Obama have asked that we work much harder in a number of directions. And so what we're in the process of looking forward to now, in the next couple of weeks, is we're going to convene an emergency session of the contact group that I mentioned earlier; it will meet in New York in a few weeks time. And at that meeting, we're going to press contributors for even more forces in the region to the extent that they can contribute.

We're going to identify those gaps that I talked about to eliminate catch and release, so that when pirates are caught, they're delivered swiftly to justice. We are going to press very hard that victims have a responsibility in pursuing prosecutions. If a country's vessel is attacked, we believe that that flag -- state of that vessel has a responsibility to pursue justice against those pirates. So we're not bundling all of the pirates to place like Kenya. In other words, share the responsibility a little bit more broadly.

We're also exploring, very preliminarily, with our colleagues in the Treasury Department, what we might be able to do to track and freeze assets of pirates. This, of course, is very difficult, because asset flows to pirates are typically contained in suitcases stuffed with $100 bills or euros flung on to the decks of ships from helicopters as a part of ransom payments. But nevertheless, we believe that there are some directions that we can work, probably not appropriate to discuss in this setting, but we're looking at it very carefully.

And then finally, you may ask why is -- despite all these efforts, why are the number of attacks going up? Well, the point is people have been paying ransom enabling pirates to buy more sophisticated weapons to organize themselves better. We're redoubling our efforts with our, particularly our European allies to say there should be no concessions to pirates.

There's significant opposition to this, because people believe that -- some believe it's an acceptable business cost, other believes that that you don't want to put human lives in jeopardy. And in fact, pirates had not really been taking lives up until now. So it's something that we're going to keep discussing; it's a difficult problem.

The -- it is difficult and complex as we talked about, Mr. Chairman, at the beginning. But the truth is we have something really strong going for us, and that's a strong international consensus that this is something that threatens all of us.

And we really hope that we can build on that consensus to overcome some of these practical difficulties and make a real impact in shutting down this threat, not only to us and our citizens, but really to the world shipping community, as well as the states in the region.

So I'll stop there and look very much forward to hearing your ideas and answering your questions.

REP. DELAHUNT: Thank you Ambassador.

Admiral Baumgartner.

RADM. BAUMGARTNER: Mr. Chairman and Representative Rohrabacher, before I begin I want to assure the chairman that any good admiral understands and knows in his soul that the third class petty officers do the real work of the Coast Guard, not the admirals. And you have my admiration for your service and doing the actual real work of the Coast Guard.

I do appreciate the opportunity to appear before the subcommittee to discuss piracy and the Coast Guard's role in addressing this threat to freedom of navigation, the safety of international shipping, and I think most importantly the lives of the seafarers who are so crucial to our international economy.

And I do ask that my written statement be included in the record.

REP. DELAHUNT: Without objection. And Admiral, I just want to recognize the presence of our colleague from New Jersey who happens to chair the Africa subcommittee -- not happens to, but has really made a significant contribution of the time to Congress's understanding of issues implicated in the continent of Africa and that's Mr. Don Payne.

RADM. BAUMGARTNER: Good afternoon sir.

REP. DELAHUNT: Please proceed.

RADM. BAUMGARTNER: Piracy is one of the oldest universal crimes. And under international law, every nation has the legal authority to bring pirates to justice. This authority however, does not guarantee success in coordinated international action, as the Ambassador mentioned is essential.

The National Strategy for Countering Piracy off the Horn of Africa acknowledges that lasting solutions require significant improvements in the governance, rule of law -- that's critical -- security and economic development of Somalia. However, there are a lot of steps that can be taken in the near term. And the national strategy lays out these steps in three basic lines of action.

The first entails preventative and precautionary measures to render piracy less attractive. Most importantly, measures to make commercial vessels more difficult targets for pirates. In this regard, the United States and the Coast Guard have worked closely with our government and industry partners via the International Maritime Organization ad hoc consultations, the International Contact Group on piracy off the coast of Somalia. We're doing this to produce practical and effective solutions.

Nothing illustrates the inextricable link between safety and security like the issue of piracy. And I would stress that this is critically important, because once the pirates are on board the vessel, as we all know, the dynamic on the water changes considerably and the dangers to the crew of the vessel and the vessel itself go up dramatically once the pirates are on aboard and in control.

The second line of action focuses on operations to interrupt and terminate piracy. Toward this end, this -- as we all know, the Central Command has established Combined Task Force 151, to deter, disrupt, and suppress piracy in this region.

For several months, Coast Guard law enforcement detachments have been operating under this combined task force, augmenting and training U.S. Naval vessel boarding search and seizure teams in various Maritime Interdiction Operations mission areas. Currently, the Coast Guard 378-foot high endurance cutter Boutwell is operating under Combined Task Force 151 and will be conducting counter-piracy operations in this area.

The third line of action focuses on effective prosecution of pirates.

Specific measures include the development of regional anti-piracy agreements, promotion of existing international agreements such as the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation -- that's a mouthful, but we call it SUA for short, and also the enhancement of regional partner capabilities.

These efforts are well under way. In January, as the ambassador mentioned, the United States signed an MOU with Kenya under which Kenya will accept custody of suspects and seize property for either trial in their country or transport to another. Kenya has already agreed to prosecute several pirates captured by joint U.S. Coast Guard Navy teams. Under similar arrangements, the United Kingdom, European Union countries have also turned pirates over to Kenya to be tried in their courts. SUA convention, I mentioned before, is a valuable tool in these efforts.

Earlier this year, at a meeting convened by the International Maritime Organization in Djibouti, 21 regional nations adopted an agreement for cooperation in the interdiction, investigation and prosecution of pirates as well as the establishment of information and training centers. Although not an -- eligible to be a party to this instrument, the U.S. delegation led by the Coast Guard played an important supporting role in the effort. We sincerely hope that there'll be other nations that step up as Kenya has done and provide additional support in the region.

As the nation's primary maritime safety and law enforcement agency and a branch of the armed forces, Coast Guard has a unique and significant role in responding to piracy. Coast Guard leads U.S. piracy -- anti-piracy efforts at the International Maritime Organization. The service establishes and enforces requirements for vessel security plans under the Maritime Transportation Security Act and the International Ship and Port Facility Code.

In the recent incidents with the Maersk Alabama and the Liberty Sun, the plans that those vessels and those companies developed pursuant to the Maritime Transportation Security Act were critical in their successful responses to those pirate attacks.

And one of the things that has been highlighted many times, and I just would want to stress again, is that those -- masters of those vessels practiced those plans over and over again, drilled their crews. And I'm most familiar with the Maersk Alabama, but the crew executed the plan exactly as they were supposed to, and that was absolutely critical to the positive result in that case.

Both the International Maritime Organization and the Coast Guard are currently revising our directives on piracy-specific security measures. Just Monday, we presented a revised -- a proposal for revised measures to a group of industry leaders. And we are awaiting their feedback on those specific new security measures.

In addition, we engage in international training to enhance the capacity of other nations to take action against pirates; open their waters and then their courts. Significantly, the Coast Guard has just published a revised Model Maritime Service Code that developing nations may use as a template to establish the laws and institutions necessary to counter piracy.

This is particularly important as the Ambassador noted. The international law regime is very robust in the area of piracy. However, where it falls down or may fall down on occasion is whether individual nations have adopted the domestic law that they need to do their role in suppressing piracy.

The Model Maritime Service Code, one of its goals is to give a template to those countries so that they can establish the right domestic laws with the right jurisdiction the right agencies and so forth to take action on piracy and other similar types of crimes at sea.

As I conclude, I want to emphasize piracy is a multi-faceted threat. The response requires a broad array of legal authorities, operational capabilities, skills, and competencies, as well as the participation of numerous U.S. Government, international, and commercial entities. The Coast Guard, as an armed force, our principal maritime law enforcement agency and our principal regulatory agency for maritime safety and security has a unique role to play and remains committed to this effort.

Thank you for the opportunity to address the committee, and I look forward to questions and dialogues.

REP. DELAHUNT: Well, thank you very much, Admiral. And like I said, we are very informal here. So this is more of a conversation. And if a question is posed to one and the other witness has a desire to interrupt please feel free to do that.

You indicate that the problem is with the domestic legal authorities, in terms of the prosecution of those that are apprehended. It's my understanding that even absent conventions, the SUA, the Geneva Convention, that it's customary international law that piracy, in and of itself, confers jurisdiction and the right to prosecute individual nation-states.

But I guess, what you're telling me is that other nations would require some sort of domestic legal authority and could not proceed just simply under customary international law to prosecute those that were apprehended. Is that a correct statement? Am I -- or am I misstating it or don't I -- am I misunderstanding? Admiral.

RADM. BAUMGARTNER: No -- I think that that's pretty accurate. Here in the United States, despite the fact that we would have authority under the 1958 Geneva Convention on the high seas for example, or the SUA convention, we would have international authority to take action here. If we did not have the actual sections in title 18 of the U.S. Code, we would not necessarily have a crime to prosecute in our court.

There are other specific procedural issues that come up from time to time with different nations. If the nation is not prepared to prosecute, should I say far-flung or crimes that are committed away from their shores, say on the high seas or other places, they will find that there are sometimes procedural impediments that -- in their own criminal processes where they simply don't -- or haven't thought ahead, or aren't prepared to deal with a delay in between the arrest of an individual and the time they're brought in front of a court, and many other particular issues like that.

In the United States, I can speak to some things in particular, the -- we do have these regimes in place. And for that, I think, we can thank the narcotics business. We have the maritime law enforcement -- I'm sorry, the Maritime Drug Law Enforcement Act, which has forward-leaning and forward-thinking jurisdictional provisions and does accommodate those kinds of difficult and unusual scenarios.

That's the type of thing that is lacking from time to time in different countries' domestic laws.

REP. DELAHUNT: Ambassador.

MR. MULL: I would add, in addition to agreeing with everything the admiral said, there are often very discrete policy or political questions involved as well. Some national prosecutors will decide, well, yes, we recognize that an attack on the high seas is something that we could prosecute, but our nationals weren't involved. Our -- none of our flagged ships were attacked in this. We're -- even though we might've detained or somehow apprehended these pirates, we're not going to prosecute them, because we don't have the resources to do it.

And then there are other political questions. There's a anecdote I like to tell about one of our own Navy ships that picked up a Somali pirate, was kept onboard in the brig, and he started knocking and -- wanting to talk to somebody. And one of the officers of the ship went down and said yes. And the detainee said, you know, this brig is much nicer than where I live in Somalia. May my family please come and stay with me here?

And it illustrates -- it's partly funny, but it also illustrates that for many people if you arrest them and then take them into custody, there may be national laws that prevent their return. If they're found not guilty, they'll say that they faced persecution or terrible living conditions in Somalia, they would like asylum, or they will just remain there in the country, then it'd become a problem for that particular nation.

So all of these combinations, I think, really make many countries reluctant to play activist role. But we think there's a responsibility that we have commonly to ensure freedom of the seas. And so we're going to keep working with our partners to show them the templates that the admiral mentioned and to keep policy pressure on them to change their approach.

REP. DELAHUNT: It would appear you indicated that there is a -- maybe I'm again, not describing it accurately, but a model legislation that's used in an effort to have other nation-states adopt so that the proper domestic legal authority exists. And I didn't hear -- is that then produced by the Coast Guard, or has it been -- is it a product of the Office of Legal Counsel of State Department, or is it -- where was it generated? I think you referenced it. Admiral?

RADM. BAUMGARTNER: Yes, sir. There may be many things, many products that help along those lines. What I was referring to is a product that the Coast Guard produces; it's called the Model Maritime Service Code.

And it is designed to be -- to run the full gamut of what a country would need to set up their marine safety regime, their fisheries enforcement regime, their maritime law enforcement regimes. Maritime security would extend to piracy, counter-drug operation, but also have a template on what type of agency they might set up to do the same kind of thing as well.

So it's actually a fairly robust document, but it does have the specific things in there that a country --

REP. DELAHUNT: But it does not provide, if you will, a model law that could be emulated or replicated in other nation-states?

RADM. BAUMGARTNER: Oh yes sir, it does.

REP. DELAHUNT: Oh, it does?

RADM. BAUMGARTNER: It does. Yes, sir. Depending upon the legal structure in a particular country, it could take -- they could take sections of it simply verbatim and enact it; it's designed that way.

REP. DELAHUNT: You know, what I found interesting is that -- and we're talking some western democracies. I think I just read recently that Netherlands, you know, apprehended, and then in a relatively short period of time released a number of, you know, of these pirates. And it became a -- an issue of, you know, public debate -- political debate in the Netherlands.

And it's also my understanding that Russia has apprehended, again, a number of pirates. And a decision has not been made as to how their cases should be disposed of. I wonder if they've reached a decision. You have that on the one -- on one hand, and then you have the French taking a much more aggressive approach than it would appear that the United States and the United Kingdom -- am I describing that accurately?

And am I correct in stating that there's a lot of work to do to create a consistent legal regimen or regime in terms of how these cases should be investigated and prosecuted, and some sort of understanding as to an appropriate sanction, which from my perspective is, should be very severe, simply to send a message that there is a significant consequence for this kinds of behavior?

MR. MULL: We -- when we began our diplomacy in January to create this contact group of countries over the way they coordinate their efforts, we successfully persuaded our European partners that this was a major flaw in the world's response to piracy. And we persuaded them to agree to establish a legal working group that met in Copenhagen in March to start examining these discrepancies. And then we're going to be meeting again next week, again in the same group to see how far we've come and to identify these.

REP. DELAHUNT: It's one of those -- I -- if I may?

MR. MULL: Please.

REP. DELAHUNT: The -- I think I read -- were there four working groups?

MR. MULL: That's right.

REP. DELAHUNT: And I take it this is one of them.

MR. MULL: It's working group number two.

REP. DELAHUNT: Working group -- and who is the lead in that working group? The Danes?

MR. MULL: The Danes have been the convener of this.

REP. DELAHUNT: The conveners.

MR. MULL: But it's -- they're rotating, you know, every time it meets, there's a different host who organizes the meeting and pulls it together. And State Department is -- the U.S. government is represented at these deliberations.

REP. DELAHUNT: And who is representing the United States?

MR. MULL: The -- we have been sending an assistant legal advisor of the State Department who have been asked to participate in those.

REP. DELAHUNT: And could --

MR. MULL: With other agency participation.

REP. DELAHUNT: Right. I take it the Coast Guard is represented there as well?

RADM. BAUMGARTNER: We've been heavily involved in the run up and in the preparations and so forth; so, yes.

REP. DELAHUNT: Are we making progress, Ambassador, I guess, is the question?

MR. MULL: Well, as you might imagine, you know, pulling together 28 countries and trying to get them to be more like us is always a challenge. And -- but it's slow progress, but I think there is progress in terms of identifying the gaps. I'll tell you what helps a lot is the high profile that this issue has gotten in the press.

We've noticed just since the Alabama case, in the meetings we had, particularly with our European partners, there's much more readiness to talk with us about the dangers from ransom, about the dangers of catch and release. And just after the incident with the Dutch that you described, sir, the Dutch foreign minister met with Secretary Clinton and told the press that Netherlands is going to be doing better on questions like this in the future. So I'm optimistic.

REP. DELAHUNT: Do you agree or disagree with the statement that if we don't solve this particular problem, this might be the most significant problem in terms of dealing. And I'm not saying that, you know, even if we do our best in terms of best practices, in terms of intervention, in terms of dealing with Somalia as a failed state, all of those issues, if we don't have a coherent legal regime that imposes substantial sanctions to serve as deterrents, we're going to continue to have problems.

I mean, I would presume that a pirate who is released is -- goes back to Somalia and is in the next skiff out. And I think it's important.

Let me ask you this question. A, do you agree with that, both of you, and how can we, Congress, play a role? I was musing that, you know, clearly -- particularly, this committee, but other committees too, often engage in inter-parliamentary exchanges.

I know that, you know, Congressman Rohrabacher and I, we have been in Russia. We traveled together. We've been in Germany simply to raise this issue with our counterparts in the Duma or in the German Bundestag. Does that aid or does that reinforce what you are attempting to do? And let me hear your response.

MR. MULL: Well, Mr. Chairman, I completely agree that that this is an absolutely vital key to solving the problems. So I think you've perceived it exactly right. The -- and in terms of what the Congress can do, I think through your international engagement and the trips that you make overseas in the inter-parliamentary fora that you participate in, I think, you could really help a lot by publicizing and drawing your counterpart's attention to the need to have a more harmonious legal approach.

I guess, this isn't the responsibility of the United States, or Russia, or Netherlands.

It is really all of our responsibility, and we need a common set of tools, and authorities, and capabilities if we're going to succeed.

REP. DELAHUNT: I would note that this particular committee has jurisdiction over multilateral organizations including the United Nations, which obviously implicate the IMO. And I know Mr. Rohrabacher and I would be -- and I'm speaking for him here, would be more than willing to observe, participate, and support the executive's efforts at the U.N., with the IMO, or any other organization.

With that let me yield to my friend, Mr. Rohrabacher.

REP. ROHRABACHER: Thank you very much, Mr. Chairman.

How many people have lost their lives? We had these pirates killings some of the people they've taken over in some of these ships in the last year or so?

MR. MULL: There've been a couple of sailors who have died not because they were executed by the pirates, but because they were ill. And so there have been no hostages in the recent last two years that have their lives because they were executed by pirates.

REP. ROHRABACHER: Okay. But -- so there's been a ransom paid, and thus the ransom was paid and hostages weren't killed. Has there been anyone who hasn't paid their ransom and having the people released?

MR. MULL: Well, certainly we didn't pay ransom for the Maersk Alabama and I don't think we ever would. Beyond that, you know, I'm not -- I --

REP. ROHRABACHER: Okay.

RADM. BAUMGARTNER: Obviously, I mean, the French have launched some operations as well to --

(Cross talk)

REP. ROHRABACHER: I mean, yeah, but it's not been released by us, but by an act. But if there's been a situation where the pirates captured someone, asked for a ransom; they weren't given the ransom so -- but the pirates just gave up and let them go?

RADM. BAUMGARTNER: There's no incident that I'm aware of at all. And some of the vessels have been held there quite some time. I'm just looking here at a list. There's some that were captured in August and are still being held. I think that from an economic standpoint, the vessel owners looking at the hostages there, it's -- paying the ransom is an expedient way to get their vessel back, to get their crew members released, to get their cargo back on its way.

REP. ROHRABACHER: Oh, I'm sure that they are very concerned that the pirates are holding these hostages. With the legal working group in Copenhagen, I'm sure they're just sitting on the edge of their chair waiting for the report before they make up their mind if they are going to take hostages.

The -- is there any relationship between these terrorists -- between terrorist organizations, and -especially Islamic terrorist organizations and these Somali pirates?

MR. MULL: There has been no indication. It's a question that we examine very critically every single day. And thus far we have not seen any evidence of a link. The al-Shabaab group in Somalia, in fact has made pronouncements against the pirates. Since the incident with the Maersk Alabama, there were threats that -- from some of the pirates who said that they would now ensure retaliation, violent retaliation against American interests.

Whether or not terrorist groups could perceive that as an opportunity to get themselves involved in piracy is a very real concern that we continue to watch. But we haven't seen that link yet.

REP. ROHRABACHER: So it's your testimony the al-Shabaab group is not -- you do not have evidence of them being engaged with the Somali pirates?

MR. MULL: No.

REP. ROHRABACHER: Okay.

REP. DELAHUNT: Would the gentleman yield for a minute?

REP. ROHRABACHER: Certainly.

REP. DELAHUNT: I think I read somewhere where there was criticism from that particular group or possibly another that condemned the piracy attacks as being un-Islamic. Is that correct?

MR. MULL: Yes, sir.

REP. DELAHUNT: I yield back.

REP. ROHRABACHER: Okay. There is a quote from Sheik Hassan Abdullah Hersi al-Turki, the leader of the al-Shabaab link, whatever they call this group. It's a group, I cannot pronounce it, but it's been designated by the State Department as a terrorist organization. And this Sheik says, "I can say the pirates are part of the Mujahideen, religious fighters, because they are in a war with Christians and Christian countries who want to misuse the Somali coast." That doesn't -- is there anything else that sounds like there's a link there or --

MR. MULL: No, we have heard sentiments like that expressed, but we have not seen any evidence of formal funding, or operational planning, or encouragement and targeting as of yet. But it's because of statements like that, that we watch this very closely.

REP. ROHRABACHER: Okay. Kenya wants to take these prisoners. What's the punishment if found guilty?

MR. MULL: Well, none of these files -- there have been preliminary hearings. None of them, of the 52 suspects now there, have come to a conclusion yet. So I don't know what their sentences if convicted will be, but -- (off mike) -- yeah, is it -- there was a -- (off mike) -- okay, yeah, there were some seven -- I'm sorry, there were some convictions in 2006 for which seven-year sentences were given.

REP. ROHRABACHER: Seven-year sentences. So I don't know what their -- what the situation is with time off for good behavior or anything in that country. I have no idea. Maybe not, who knows. But seven years for piracy, which is equivalent of kidnapping I would think -- it would be very similar. What's the punishment in the United States for someone who would be convicted of a similar crime?

RADM. BAUMGARTNER: Piracy in the United States could include life imprisonment.

REP. ROHRABACHER: Right, okay. It would seem to me that that would have more of an impact than seven years in prison. Of course, seven years in a Kenyan prison may be equivalent of a lifetime in the United States. Let me just get back to one point about -- rather than looking at the pirates as sort of independent players, the Puntland government, is it profiting from these pirates, the Puntland government and -- or the Ethiopian government because I understand that that's where they are operating out of that -- under that auspices?

MR. MULL: Yes. The -- our information indicates that the vast majority of pirate attacks are launched from organizations that are located within the Puntland area. The governor of Puntland has just in the past month expressed his eagerness for some of the security assistance you were mentioning earlier, Mr. Rohrabacher in your opening statement, volunteering to take on a more activist role to undertake law enforcement in the area.

But at the same time I think it's indisputable that the vast -- relatively vast sums that are now flowing in and out of that area as a result of ransom payments does benefit, not just the pirates, but also the people that live there.

So --

REP. ROHRABACHER: Would you write off the possibility that the head of the Puntland government and maybe some high officials in there are actually confederates? Meaning they're just sort of, they're letting this happen and benefiting from it?

MR. MULL: In this open session, I could neither rule --

REP. ROHRABACHER: All right, I get you, okay. So let's find out how does the Puntland government become the Puntland government? Is this based on a free election or are these the people who are put into power by the Ethiopian intervention?

MR. MULL: I'm not, unfortunately, an expert on internal Somali politics, but I understand that this leadership emerged from a preexisting clan structure, that the leadership is chosen through clan counsels who live in that autonomous region of the country.

REP. ROHRABACHER: Right, who are allied with either the certain Somali interests or allied with certain Ethiopian interests, and then that would help them. It's my understanding that the current government was actually allied with the Ethiopian efforts there and is of any indication of the Somali government in exile, which is now in Eritrea, which is a -- been catalogued by us as a radical Islamic group. Have they -- you say, we don't have any evidence of Islamic extremism being part of this, but does that mean that the Somali government in exile has not been tied to this?

MR. MULL: Are you referring to their transitional federal government or the --

REP. ROHRABACHER: Yes, the Somali government in Eritrea, that's in exile in Eritrea.

MR. MULL: I think that's another organization. I'll have to check into that further, sir.

REP. ROHRABACHER: All right.

MR. MULL: I'm not familiar with that particular organization, but I think that the Transitional Federal Government, the TFG is now set up again in Mogadishu. And I'll have to check into that and get back.

REP. ROHRABACHER: Yeah. What I'm -- I guess, what I'm getting to is that perhaps the United States sided with the government in Ethiopia after the current Islamic call of the government of Ethiopia. Those people who lost the elections in Ethiopia were embraced by our own government. And the next thing we know, they are carrying our water by invading Somalia.

And next thing we know is the area in which a government was placed in power by that government, Ethiopian occupation ends up overseeing an area in which piracy is being conducted on international vessels. It seems to me that some -- if you look back far enough, that really calls into question our relationship with Ethiopia as well as what's going on in Somalia. And that's just a thought.

Now, back to my one point, then I'll yield back my time, and that is the possible use of -- you see, there's been 40 vessels out there from various countries in order to thwart this piracy. Now, it seems to me that what we're talking about is a very easy -- I mean, I know whatever challenge it is, we have to have layers (ph), European layers working in Copenhagen in the working group.

I understand how important that is to defeating this enemy. But in terms of the actual military confrontation that's going on, or let's say, with armed confrontations going on, couldn't these people be deterred by just having private security guards on the ships or having someone hired by the shipping companies to keep a protective cover in that part of the world?

RADM. BAUMGARTNER: Well, sir, you're right that security on the vessels does have an impact. And however it's a very complex thing as to how you put security on there armed or unarmed security. Armed security is something that we have -- we are spending a lot of time right now in our government reviewing all of the ins and outs of armed security teams on board vessels.

It raises a whole host of questions. It is being done by different companies right now. And in some of them it's being done successfully to deter attacks. It does require an awful lot of coordination, a lot of forethought, a lot of training. Having normal merchant seamen pick up weapons and then expect them to fight off pirates with rocked-propelled grenades and AK-47s is not necessarily going to work very well.

On the other hand, trained, well-trained private security or independent security teams that have practiced together, understand fields of fire, understand the basic rules for self-defense, when they can fire and when they can't fire at pirates that are approaching them. All of those things can definitely -- could definitely help. There are many other problems though.

The cargo on many vessels is totally incompatible with having a firefight. Obviously, petroleum products, other hazardous chemicals so forth; a very difficult thing and very -- and could be very dangerous. There are other nations that have very different views on this issue, and there are many nations in the interest that think that this raises a danger to the crews and to the vessel and will take this whole thing to a different level.

REP. ROHRABACHER: Those are the European allies who want to send the lawyers in. They're the ones --

RADM. BAUMGARTNER: Well, there are many of them, sir. And there are also insurance interests that have a tremendous influence in what countries -- companies do in this particular area.

REP. ROHRABACHER: I understand the insurance interest and our European friends who think that we can hug people and be nice with them and then they won't hurt us. We can just set everything down legally, they'll disappear.

RADM. BAUMGARTNER: (Laughs.)

REP. ROHRABACHER: That's not going to happen. There are people in this world like those pirates. And I will tell you, pirates throughout our history have been the scum of the sea. And they are willing to -- and historically have been willing to murder and kill. And these are the pirates, I believe, who have the same willingness to do that. And I think it's up to us to have courage now.

We can phase-down this type of threat and take care of it. God help us for anything much more substantial. I would suggest that we can even do that through the private sector. Let's -- I would recommend that we actually have a policy of encouraging ships that are going in this area to hire a private security protection. And I think that it would disappear, the problem would disappear.

RADM. BAUMGARTNER: Yes, sir. As I mentioned, this is actively being discussed and engaged in and what exact position, and many of the things that you just said are right on the top of our plate and actively being worked with all of the government agencies and industry and all of those interests involved right now, particularly with U.S. vessels.

REP. ROHRABACHER: Yes, thank you.

REP. DELAHUNT: And let me go now to the gentleman from New Jersey, Mr. Payne. But before I do, in the event that any of our European friends are either in the audience or observing through C- SPAN or whatever, I think it should be noted that the French, for example, who I know are admired by my friend from California, probably the most aggressive in terms of militarily and by force dealing with this issue.

And in fact, maybe, this is inaccurate, but I understand the French have actually offered military escorts to the various vessels transiting through the Red Sea in the Gulf of Eden, in the Cape of Good Hope at a price obviously.

But is that a misstatement or are the French actually willing to provide military escorts on private ships for a price? Have either one of you heard of that?

MR. MULL: That the French government would pay for a private security firm to --

REP. DELAHUNT: No. In other words the French government would --

MR. MULL: Ride on the ships, the military --

REP. DELAHUNT: Would place on private vessels, French military, presumably special operation teams that would be paid for by private vessels.

RADM. BAUMGARTNER: I'm not personally familiar with this, but I've been informed that there has been some discussion from the French and perhaps the Belgians on that issue. But I don't really have any more --

REP. DELAHUNT: If you could follow-up, I'll be interested, given, you know --

Mr. Payne?

REP. DONALD M. PAYNE (D-NJ): Yes, thank you, Mr. Chairman and I commend you for having this hearing. Now, this is a pretty complicated issue that they're dealing with. The -- for my colleague from California, you know, the old pirates who were the scum of the earth and all that stuff, they don't live in -- they don't stay out on the water like the old pirates used to do.

You know pirates used to just -- they buy ships and roam around the world. These pirates don't live on boats, you know, they try to, I guess, get the booty and go back to land. So there is a difference in the lifestyle. You know, they're not the way it used to be. But -- and actually, from what I've been able to understand, it's really some, you know, kind of, cartels, criminal cartels that are -- these are not.

I believe the last thing on the minds of these hijackers is some ideology of some Islamic, you know. It has absolutely nothing to do with Islamist, and anti-West, and al-Qaeda linked and all that. As a matter of fact, it's been indicated there is absolutely no one in Somalia other than the criminal cartels that are doing it that appreciate that it's happening.

The current government of Sheikh Sharif Ahmed, the -- even the government up in Puntland, and in Somaliland, and in Mogadishu, Sheikh Sharif Ahmed, none of them want it. The only people, I guess, that are benefiting is this group of criminals who have found a way to make some money.

They are not giving to the Red Cross. I mean, you know, it's not assisting Somalis in general. It's making some criminals, maybe, some of the old warlords, you know, wealthy.

But I -- you know, I guess, time is running out and the vote's coming on. I did have an opportunity to speak with a broad group of people in Mogadishu a day or two after the ship was released.

And actually -- and I mentioned very clearly at a press conference that -- with the prime minister -- that I thought that the actions of President Obama, and the Navy, and the SEALs was appropriate, and that criminality cannot be tolerated and there has to be assertive action to end it. If there's no deterrent to end this, it will just continue.

And there was absolutely no dissent from about 25 media people. So the government, in particular, doesn't see piracy -- as a matter of fact, they said it's just wasting a lot of time and effort to try to get the pirates out in the ocean. They said you got to deal with them on the ground, period. And that's the way that you can eliminate it before they go.

And they have a plan which they feel they could handle it. As a matter of fact, you know, Sheikh Sharif and the Islamic Courts Union ended the piracy during the six months they were in charge. But the U.S. backed Ethiopia to go in and dislodge the ICU when they left. And that's when the piracy became emboldened.

So I think that it can be dealt with if the new government is, you know, they're interested in having some training of their militia from, maybe, in Kenya somewhere or Uganda. And they are very assured that they can eliminate it on the ground.

And I think that would make a lot more sense. You know the three groups in Somalia, you have the government, you have the pirates, and you have al-Shabaab. Now Shabaab is allegedly trying to get a foothold and link to al-Qaeda.

The hijackers are criminals that have cartels in there, you know. So those two groups have money. The only group that has no money is the government and they are they ones that want to end piracy.

And we can't get the West to engage with the government. They say we can handle this. Believe me, we will have no problem. And as a matter of fact, we've even got some intelligence from the West even assist us in locating them or seeing when they are planning to leave land. We will wipe them right out.

And -- but the only ones that have no resources is the government. So you know we could spend a lot of money trying to go over all these oceans to try to run these guys down.

And I'm not so sure the insurance companies care very much any way. They're not hurting. As a matter of fact, I think we ought to investigate the increased profits that the insurance companies are making with this new surcharge that they are charging. And of course, the shipping companies just put a surcharge on each container.

REP. DELAHUNT: Would the gentleman yield?

REP. PAYNE: Yeah.

REP. DELAHUNT: I think that suggestion is one that we will pursue. And as I indicated before you arrived, Mr. Payne, what I anticipate is just a thoughtful, but thorough review of all of these issues because it is somewhat complex. And I don't disagree with the plausible theory that maybe insurance carriers are part of the problem and therefore a part of the solution here.

REP. PAYNE: Oh, yeah, no question about it. The -- you know, and contrary to what I think the gentleman from California, there's been no -- you know, the relation between the pirates and the crew. I mean it's just -- you know, they are all sitting there waiting when the insurance company -- when are they going to pay the ransom, so when I could go back to land and the other guys can get on with their business, drop their crew and go on.

And so the hold-up is not with the -- and as you mentioned, there's been no reports of mistreatment on the part of the crews of these ships from the hijackers, you know. And --

REP. DELAHUNT: Would the gentleman yield for one moment?

REP. PAYNE: Yeah.

REP. DELAHUNT: Just to note. And I think it's a very important point that you're bringing up about insurance. If insurance -- has the insurance gone up dramatically on these ships, to insure these ships?

RADM. BAUMGARTNER: The -- my information suggests that the surcharge that Congressman Payne referred to has primarily been imposed by European insurers. American insurers have not yet taken that measure yet. But then it's also because American insurance policies typically don't cover ransom payments the way European --

REP. DELAHUNT: Of course, if the insurance rates are going to go up, maybe there is your source of revenue for paying for naval protection. There to go.

REP. PAYNE: Oh, absolutely. And also the, you know, the flags of convenience.

You really don't know who the ship really belongs to be honest because they fly under the flags of convenience of either Panama, or Liberia, or Guam. And so it's very difficult to know whose -- you know, of course, it was clear with the Maersk Line.

But I'm sure that some of the other ships out there are owned by American businesses. It's just that they have international crews, which also may be another thing that the insurance companies really don't care that much necessarily about.

You know, some of the treatments of these seamen are not the best either. And many of them from Third World countries with no rights and they are not going to complain. You know, it's the best thing they got, is they got a meal going; they get a little something when the ship goes somewhere and they can get home.

So I don't see whether there is necessarily a tremendous amount of concern really for the crew. I mean, the crew is about the easiest thing those ships can get. I mean they -- people are waiting in the Philippines or in other countries around the world to be seamen.

And that's why the ILO and the flags of convenience has been a debate over in Geneva for decades about the -- even the safety of the ships and the conditions because when they fly under the flag of convenience, there is no jurisdiction from the countries that are doing the business.

So I am just concluding. We're running out of time. I think that the leadership of Puntland, Somaliland, Somalia really want to see this end because it does absolutely nothing for the country which are in terrible straits in the first place.

I mean, Somalia has been abandoned for 15 years, and it's certainly not going to get anybody investing in Somalia with these gangsters doing what they are doing. And so I think that if -- and you're thinking, you know, the Department of Defense and the Navy and all that in your discussions --

Like I said, I've been talking to these fellows up in Eritrea in August and in Mogadishu as you know a couple of weeks ago. They really want this thing to end because they really are trying to see if they can -- you know, all the fish are gone after over allegedly over fishing from Asian trawlers.

That's just depleted the fishing -- allege that there has been dumping of toxic. You know, you got no government, you got no one to say stop dumping that. You got no coast guard. So it's allegedly been dumping toxics and all kinds of things off the coast of Somalia.

So it certainly doesn't condone criminal behavior. However, there needs to be some kind of -- if you got a failed state, you know, you got to deal with it. We're dealing -- trying to deal with Afghanistan, which is a lot worse than Somalia, believe me, and Iraq.

So I would hope that in the thinking we would kind of figure out if we do something on the ground, we might be able to save a lot of increased insurance rates and our ships riding all around the oceans. It's pretty big, you know. I'll --

REP. DELAHUNT: Would the gentleman yield?

REP. PAYNE: Yeah, I'll -- yield back.

REP. DELAHUNT: Thank you. And I think your point is well taken. I mean, I would agree there has to be a comprehensive approach here. But I think what we need is to understand the various pieces so that some time in the future we're able to have a more well-informed discussion with the agencies in the executive branch.

I know that this is a learning curve really for all of us. But I think something that you said, Mr. Payne, really has to be underscored is that those who dismiss an increasing reality, which is that they are failed states that exist. There is extreme danger.

And despite the fact that Somalia is on a different continent thousands of miles away from the United States, we are impacted. And we have stakes that are failed or near failure right here in our own backyard.

I'm just thinking of Haiti, for example. And that's why it's important, I think, to create an architecture, a blue print, if you will, of a plan that can be utilized in any situation where piracy emerges as a significant problem.

And we ought to take the time, given the high profile that this issue has now developed, to really understand the problem, discuss it with all other stakeholders, and proceed in a very thoughtful manner. And let me conclude with that.

And thank you for your participation, Mr. Payne.

And to thank our witnesses, I can assure you we're going to ask you to return. We're not going to be -- we're not going to impose a burden on you, but bear with us as you guide us to a more full and ample understanding of how we address this problem, which has severe consequences for our national security and for our economy.

I also, before I take the gavel, I want to thank some interns that have really done us well. And if they could stand, Carla? Carla Rohass (ph) and Leone, Leone Blanchet (ph). Today it's -- they worked here assiduously. This is their first hearing and it's also their last day. But I want to thank them publicly for the good work that they have done.

And with that we're adjourned. Thank you.

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