The New York Times published a piece on the US Coast Guard operating essentially a fleet of prison ships, where they hold low-level smugglers caught in international waters — shackling them on ships for weeks or even months before arraignment in American courts.
The people under suspicion of trafficking drugs are kept on the Coast Guard boats for months on end, shackled for all that time, forced to defecate into plastic buckets. According to the interviewed their meals consisted of only small portions of black beans and rice, on occasion with a bit of spinach or chicken. The Coast Guard and the Department of Justice maintain that all detainees are treated humanely and with accordance to the law. The Coast Guard adds that it shackles detainees and conceals them while in port for their own safety and the safety of the crew. According to an official, hundreds of men have been held in these inhumane conditions for up to 90 days. Average detention time is now 18 days.
The protracted detention is justified by Coast Guard officials and federal prosecutors alike, who argue that the suspects are not formally under arrest when the Coast Guard detains them. While on board, they’re not read Miranda rights, not appointed lawyers, not allowed to contact their consulate or their families. They don’t appear to benefit from federal rules of criminal procedure that require that criminal suspects arrested outside the United States be presented before a judge “without unnecessary delay.” It is as if their rights are in suspension during their capture at sea. “It’s hard-wired into the Coast Guard’s minds,” says Eugene R. Fidell, a former Coast Guard lawyer who teaches at Yale Law School, “that usual law enforcement constraints don’t apply.”
The US uses loopholes in the law, as when boats are not registered to a country or flying a country’s flag, they are considered stateless, which allows US officials to board. Hundreds of these unmarked boats depart from Ecuador and Colombia each year. US authorities also have some 40 agreements with countries around the world to gain access to foreign vessels. For some countries, US prosecution removes a burden from their own legal systems; with other countries, the US has exerted pressure on governments to forge such agreements. Countries in the Americas and the Caribbean have generally allowed US officials to board and search ships that bear their flags.
The US Coast Guard never intended to operate a fleet of “floating Guantánamos,” as a former Coast Guard lawyer put it, according to the article. The lone branch of the military that serves as a law-enforcement agency has a long history of interdicting contraband, from Chinese opium smugglers to Prohibition rumrunners. For centuries, Coast Guard operations waited to arrest smugglers once they crossed into US territorial waters. Then, in the 1970s, as marijuana trafficking ballooned on the route from Colombia into the Caribbean before arriving in the United States, the US Congress responded by passing a set of laws, including the 1986 Maritime Drug Law Enforcement Act, that defined drug smuggling in international waters as a crime against the United States, even when there was no proof that the drugs, often carried on foreign boats, were bound for the United States. The Coast Guard was conscripted as the agency empowered to seek out suspected smugglers and bring them to American courts.
In 2012, the Department of Defense’s Southern Command, tasked with leading the war on drugs in the Americas, launched a multinational military campaign called Operation Martillo, or “hammer.” The goal was to shut down smuggling routes in the waters between South and Central America, stopping large shipments of cocaine carried on speedboats thousands of miles from the United States, long before they could be broken down and carried over land into Mexico and then into the United States. In 2016, under the Southern Command’s strategy, the Coast Guard, with intermittent help from the US Navy and international partners, detained 585 suspected drug smugglers, mostly in international waters. That year, 80 percent of these men were taken to the United States to face criminal charges, up from a third of detainees in 2012. In the 12 months that ended in September 2017, the Coast Guard captured more than 700 suspects and chained them aboard American ships.
Government officials say intelligence gained from small-time boatmen is key to investigating and dismantling larger transnational criminal networks. The Coast Guard has claimed that between 2002 and 2011, cases against these maritime smugglers helped the government secure three-quarters of its extraditions of Colombian drug kingpins. Affidavits filed more recently in criminal cases against three Mexican and Central American drug leaders, including the notorious cartel leader El Chapo, have noted boat interdictions as small points in larger constellations of evidence. By linking kingpins to boats, prosecutors can add maritime smuggling to the list of charges against them.
But the fishermen caught aboard these small smuggling boats, many detained on their first or second run, often have access to mere fragments of information about the people they’re working for. For the most part, they barely know the identity of their recruiter, sometimes just a first name or moniker, and nothing more. “They are not key widgets in this process,” said Bruce Bagley, a leading scholar on drug smuggling and a professor of political science at the University of Miami. By prosecuting them, he added, “you don’t slow down the broader operations.”
Maritime- and human-rights-law scholars caution that the delayed periods of detention employed by the United States in its antidrug campaign run counter to international human rights norms. “In a European context, what the US does would not meet the standard,” says Efthymios Papastavridis, a maritime-law scholar at Oxford University. “It would have to be measured against human rights and due-process law and this would be unlikely to pass the test.”
But Melanie Reid, a former federal prosecutor in the Department of Justice’s Dangerous Narcotics division, said the department’s position was that “the clock does not start ticking, in the procedural sense, until these people get to the United States and are arrested.” A senior Coast Guard lawyer wrote in a 2016 paper on maritime enforcement and human rights that “no remedy for these delays is generally available to defendants.”
Unlike domestic arrests, which stipulate that defendants be charged in the jurisdiction of their crime, maritime smugglers can be prosecuted anywhere, as long as it’s the first place they land or in the District of Columbia. American law-enforcement officials have developed a clear preference for prosecuting maritime smuggling cases in Florida, where federal agencies have set up interagency drug-task forces and prosecutors have expertise on maritime drug cases. Trying these cases in Florida may have made practical sense in the 1980s and even the 1990s, when the bulk of maritime interdictions took place in the Caribbean. But now that sea smuggling has shifted significantly to the Pacific, the desire to prosecute defendants in Florida’s federal courts has arguably played a role in the increasingly prolonged maritime detentions.
Orlando do Campo, a private defense lawyer in Miami, has been assigned by the courts to handle 23 cases of maritime smuggling. “It’s like a nature documentary where you see the hawk grab the fish out of water, and the fish is there saying, ‘What the hell am I doing in the air?’ ” do Campo said. “For them that’s Florida. ‘A few weeks ago, I was in Ecuador, then I went into the middle of the Pacific and now I’m here?’ It’s entirely surreal.”
Defendants charged under the Maritime Drug Law Enforcement Act, even mules, are rarely provided reduced sentences on mandatory minimums, as a suspect caught on US shores with the same quantities of drugs might be.