By Jamie Jones and Ian Ralby

What good is the world’s most advanced “dark targeting” platform to uncover previously untraceable vessels if the local navy, coast guard, or marine police cannot stop the crime?

Instead of being wooed by “game-changing” technologies, maritime security professionals should focus on ensuring their organizations can perform critical functions first. Similarly, professionals who partner with chronically under-resourced organizations should focus on assisting with basic functions instead of dangling “silver bullets” that promise to solve all their woes.

The Problem

The maritime security sector is under a constant barrage of hype about “game-changing” technology, particularly when it comes to maritime domain awareness (MDA). Maritime domain awareness is the effective understanding of anything associated with the maritime domain that could impact security, safety, the economy, or the marine environment. Several technological platforms are purported to “revolutionize” MDA with the promise of significantly improving countries’ abilities to govern their waters. Prominent examples include synthetic aperture radar (SAR), radio frequency identification (RFID), electro-optical (EO) satellite imagery, and artificial intelligence (AI) algorithms that use data from the Automatic Identification System (AIS) to evaluate vessels’ historical actions and predict future behavior. One company purports to be able to “quickly develop machine learning models to solve problems taking place in the vastness of the world’s oceans.” Similarly, new satellite-based technology supplied by the Quad (the United States, Australia, India, and Japan) is expected to help smaller island nations govern their waters.

Being able to watch bad actors on the water is not the same as being able to do anything to stop them. By itself, MDA has little deterrent effect: the waters will still be ungoverned if a country has no way to legally or operationally act upon what it sees. While new MDA technology can be exciting, the siren song of “shiny new toys” risks confusing maritime voyeurism with more assertive and effective action. For many countries, simply watching bad actors harm without the ability to stop them is frustrating. The constant stream of new—but sometimes proprietary or otherwise incompatible—technology can even create a disincentive to act and enable policy procrastination. Some policymakers want the equivalent of closed caption television on the water before they are willing to take action against problems like human trafficking, illegal fishing, and smuggling of drugs and weapons.

Before jumping to advanced technology, it is vital to be able to rigorously and systematically analyze MDA data from any source; have a repeatable, documentable mechanism for sharing that analysis with operators who can act on it promptly; have the capacity to plan and execute interdiction operations in a manner that also collects and preserves evidence; have a well-defined process for handing a maritime case over to the land-based authorities; and, ultimately pursue a legal finish that includes a penalty commensurate with the offense.

Man in the Loop

MDA technology cannot supplant humans; most Maritime Operations Centers (MOCs) run by militaries and law enforcement agencies employ several MDA analysts round-the-clock. These experts are needed to interpret what they see and then communicate their analysis to authorities who can act on this information and knowledge. In countries that lack funding or technical infrastructure for flashy MDA platforms, humans are even more important to the maritime security equation.

A well-trained analyst can, and must, perform functions that technology cannot. For example, to understand what might be happening in the water, the analyst must understand what should be happening. Understanding this context requires knowledge of local customs and culture, knowledge of a particular area’s fishing patterns, shipping routes, the effects of weather, seasonal dynamics, and knowledge of what is “normal” for that area. Indeed, relying only on technology may give the country a false sense of security, seeing some of what is happening in its waters without an in-depth understanding of the context.

Analysts must also be trained in maritime enforcement jurisdiction so they can understand what activities the country can pursue in each of the maritime zones their country has claimed.

Perfect Awareness is Useless without Action

The latest MDA technology often comes with a hefty price tag. Synthetic Aperture Radar capability, for example, is expensive and even analysts who are skilled at using other MDA sources cannot simply look at the blurry images of what amounts to satellite-based radar and make sense of it. That said, a suitably trained analyst looking at such radar captures in combination with other technology to correlate it to AIS data can help gain a clearer understanding of what is happening at sea. But this means that the expensive SAR data has to be paired with other expensive technology and a well-trained analyst for it to be of value. Even if these systems are provided cost-free, and analysts can translate the data into a useful understanding of actionable anomalies, interdictions still cannot occur without vessels on the water.

With initiatives such as the Australian and Japanese Patrol Boat programs, numerous developing nations now have access to vessels well-suited for patrolling their waters. These vessels, however, require well-trained crews, along with funding for fuel and maintenance to make them useful. In some countries, the government’s entire maritime force is required just to operate the vessel, which understandably discourages the frequency of its use. Access to parts, maintenance, fuel, and provisions conspire to keep these vessels pier side. Consistent funding and training for crews and boarding officers to interdict suspect vessels are necessary.

Though not as alluring as slick MDA technology, funding for the basic needs required to patrol waters should be prioritized over new technologies. Without basic operational capacity and capability, no amount of MDA will make a country’s waters safer, more secure, more stable, or more prosperous.

The other component to action besides “boots on deck” is the legal finish or the successful adjudication of a maritime offense. Indeed, a meaningful penalization through an adjudicative process is often the only effective deterrent to criminal activity in a country’s waters.

Behind a properly trained and funded boarding team are investigators trained in maritime cases. The investigators are critical to putting together a prosecutable case. Furthermore, prosecutors must be well-versed and well-trained in maritime law to successfully prosecute maritime crimes. And finally, the law itself must be fit for purpose, addressing the full spectrum of maritime offenses that are being pursued by criminal actors in the country’s waters.

The legal finish requires human resources. Human resources planning is difficult: it takes time to plan how many operations the country may need to conduct each year, and how many people need to be in place and trained to enable said operations. It requires recruiting the right people, funding their training, and then also a plan for retaining them once they are trained. Indeed, human resources are a significant, but necessary investment. Planning and funding for human resources may not sound as glamorous as showcasing the latest drone or artificial intelligence platform. But without human resources, the technology leaves the State’s deterrent capabilities impotent.

Conclusion

Flashy new technologies can be fun to play with, and some are truly useful. Still, they are only part of the equation for providing maritime security, and not necessarily the most important. To be useful, these tools must be paired with institutional capacity to analyze data, share information, plan and execute operations, collect evidence, handover to land authorities, conduct investigations, prosecute, adjudicate, penalize, and, when necessary, both legislate and regulate to account for changes in the security environment. Indeed, it is healthy and helpful to be skeptical of how much any technology will “solve” problems that require human expertise and human responses to be wielded effectively. It behooves those with meager budgets, and those trying to help partners with meager budgets, to focus funding and attention on building the skills and institutions needed to use the MDA technology that is already available, as well as whatever the future may hold. Every State should strive for maximum efficiency, effectiveness, and impact regarding maritime security concerns it can already see before pursuing a heightened visibility that may leave it watching bad actors without the wherewithal to stop them. 

Jamie Jones is a legal institutional capacity-building attorney with the Defense Institute of International Legal Studies (DIILS) focusing on maritime security in the Pacific Island Nations. She earned her undergraduate degree in agriculture from Kansas State University, a master’s degree in national security and strategic studies from the U.S. Naval War College, and her law degree from Washburn University’s School of Law. 

Dr. Ian Ralby is a recognized expert in maritime and resource security. He has worked in more than 95 countries around the world, often assisting them with developing their maritime domain awareness capacity. He holds a JD from William & Mary and a PhD from the University of Cambridge. 

The views presented in this article are the author’s own and do not necessarily represent the views of any other organization.

Featured Image: The ship Xin Lian Yun Gang seen in the Port of Rotterdam. (Photo via Wikimedia Commons)

By Thomas “Buddy” Bardenwerper

This is part two of an article posted on November 8, 2021. The first installment provided an overview of the U.S. Coast Guard’s counter-maritime drug trafficking mission and analyzed the extraterritorial jurisdiction created by the Maritime Drug Law Enforcement Act. This installment discusses the prolonged detention of suspected smugglers aboard Coast Guard cutters and the interaction between intelligence gathering and the trial penalty during prosecution.

Lengthy Detentions and Federal Rule of Criminal Procedure 5(a)

Once the Coast Guard has made a successful drug interdiction, the smugglers are embarked upon the patrolling Coast Guard cutter as detainees. Rarely, if ever, will these individuals be formally placed under arrest while at sea, meaning they will neither be read their Miranda rights nor interrogated. It is not until detainees are disembarked on U.S. soil – days or weeks later – that they are formally placed under arrest, usually by Drug Enforcement Administration (DEA) or Homeland Security Investigations (HSI) agents. Delaying formal arrest avoids the Fed. Rule of Crim. Procedure 5(a)(1)(B) requirement that “a person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.”¹

Lengthy Detentions

These prolonged detentions have come under considerable scrutiny in recent years. Most notably, the New York Times Magazine chronicled how, in a span of six years, “more than 2,700 men […] have been taken from boats suspected of smuggling Colombian cocaine to Central America, to be carried around the ocean for weeks or months as the American ships continue their patrols.”² These decisions regarding where and when to transfer detainees ashore are not solely left to the discretion of the Coast Guard, however, but are instead made by the Department of Justice and its subordinate agencies.³ These organizations justify the long detention periods by pointing out the logistical hurdles associated with patrolling over six million square miles of ocean and the fact that most Latin American countries do not allow air transfer of detainees to the United States. If the U.S. government is serious about combating the unrelenting flow of northbound cocaine with only a handful of Coast Guard cutters deployed at any given time, such assets cannot be taken out of the fight for several days just to transit one smuggling crew to port.

Defendants have had little success challenging the legality of their extended stays aboard Coast Guard cutters. In United States v. Cabezas-Montano, the Eleventh Circuit denied an Ecuadorian national’s argument that the 49-day delay between his initial detention in the eastern Pacific and his presentment before a magistrate in Florida violated both Fed. Rule Crim. Pro. 5(a) and the Fourth Amendment right to a probable cause determination.⁴ As to the first claim, the court noted that “various factors are considered in determining whether a delay was unnecessary, including: (1) the distance between the location of the defendant’s arrest in international waters and the U.S. port he was brought to; (2) the time between the defendant’s arrival at the U.S. port and his presentment to the magistrate judge; (3) any evidence of mistreatment or improper interrogation during the delay; and (4) any reason for the delay, like exigent circumstances or emergencies.”⁵ Because (1) the distance from the Pacific coast of Guatemala to Florida was “quite lengthy;” (2) there was only a one-day delay between the detainee’s arrival in Key West and presentment before a magistrate; and (3) there was no evidence of mistreatment or interrogation, the defendant “failed to carry his burden that the particular delay here was ‘unnecessary’ and thus a [Fed. Rule Crim. Pro.] 5(a) violation.”⁶ The court also dismissed the Fourth Amendment claim since such protection “does not apply to searches and seizures (arrests) by the United States of a non-citizen/non-resident alien arrested in international waters or a foreign country.”⁷

Possible Forum Shopping

Some believe that the Coast Guard’s practice of transporting detained smugglers vast distances – and in some cases through the Panama Canal – to the government-friendly Eleventh Circuit amounts to impermissible forum shopping. In Cabezas-Montano, however, the Eleventh Circuit denied the defendant’s claim “that the government purposely delayed his presentment to a magistrate judge in order to forum shop because federal courts in California require the government to prove a U.S. ‘nexus’ to establish subject-matter jurisdiction, whereas Florida courts do not.”⁸ According to the court, even if such an incentive existed, “The MDLEA does not prohibit the government from taking offenders to Florida rather than California [because] a person violating the MDLEA ‘may be tried in any district,’ ‘if the offense was begun or committed upon the high seas.’”⁹

The government fended off an even stronger allegation of forum shopping in Alvarez-Cuan v. United States, a Middle District of Florida case in which a smuggler challenged his MDLEA conviction. Alvarez-Cuan argued that he should have been tried in the District of Puerto Rico vice the Middle District of Florida since a Coast Guard cutter upon which he was embarked pulled into port in San Juan before his eventual transfer ashore in Tampa.¹⁰ The court denied his motion on procedural grounds, but noted that the jurisdictional claim was without merit since the MDLEA “makes clear […] that the accused may be tried in any district.”¹¹ In arriving at this conclusion, the court cited precedent in United States v. Gonzales-Cahvec.

In Gonzales-Cahvec, the Eleventh Circuit held that the MDLEA’s forum provision was properly grounded in Art. III, Sec. 2 of the Constitution, which states that when a crime is “not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”¹² However, the Eleventh Circuit went on to say that jurisdiction over Gonzales-Cahvec was properly established in the Southern District of Florida because that is where he “first entered the United States.”¹³ While seemingly sensible, this logic does not support the Middle District of Florida’s ruling in Alvarez-Cuan—the prior case—because Alvarez-Cuan “first entered the United States” in the District of Puerto Rico when the cutter transited U.S. territorial seas on its way to the pier in San Juan. Or perhaps the cases are distinguishable because Alvarez-Cuan was not physically transferred ashore? The Middle District of Florida did not say.

Detention Takeaways

For the time being, the Coast Guard’s dual practices of lengthy smuggler detention and government-friendly venue selection seem resilient to legal attack. Lengthy detentions will likely continue to stand – unless they are particularly egregious – because judges know that the maritime counter-drug mission would be logistically impossible if cutters had to rush detainees ashore after every interdiction. Convenient forum selection will likely continue to stand because the only judges and justices who can deem such a practice unlawful sit on either the government-friendly Eleventh Circuit or the majority conservative Supreme Court. However, while the government in general and the Coast Guard in particular benefit from this status quo, both entities would do well to develop long range contingency plans in the event that the judiciary someday changes course.

Intelligence, Prosecution, and the Sixth Amendment

When Coast Guard cutters patrol the eastern Pacific and Caribbean for drug smugglers, they are not operating blindly thanks to Joint Interagency Task Force – South (JIATF-S),¹⁴ a “multi-agency, international alliance [based out of Key West] whose mission is to cover 42 million square miles of territory primarily in Central and South America to stem the flow of illegal drugs and to disrupt and dismantle sophisticated narco-trafficking networks.”¹⁵ While the actual mechanics of JIATF-S’s mission execution are classified, suffice it to say that JIATF-S collects intelligence from its federal and international component organizations; evaluates and synthesizes this information; and briefs operational units. The Coast Guard cutters in theater will then coordinate with their shoreside command centers to determine – in conjunction with Coast Guard, Navy, and CBP surveillance aircraft – which smuggling ventures to target for interdiction.¹⁶

Much of the actionable intelligence that powers JIATF-S originates from domestic and overseas DEA, HSI, and FBI investigations, as well as cooperation agreements brokered by federal prosecutors. The U.S. Attorney’s Office for the Middle District of Florida has played a leading role in these efforts through its Organized Crime and Drug Enforcement Task Force (OCDETF) known as Operation Panama Express. As of 2016, Operation Panama Express had a conviction rate of 97 percent and sentences averaging over ten years.¹⁷ With this track record, it is unsurprising that so many MDLEA offenders are tried in the Middle District of Florida. But more important from a law enforcement perspective is the intelligence that these prosecutions produce, intelligence that has contributed to the arrest and extradition of a majority of all Colombian Consolidated Priority Organizational Targets, or “drug kingpins,”¹⁸ not to mention hundreds of additional low-level maritime drug smugglers.

Trial Penalty

Operation Panama Express – like any U.S. Attorney’s Office – gathers intelligence by making deals with defendants awaiting trial. In exchange for a defendant’s cooperation and guilty plea, the prosecution will recommend a lesser sentence to the trial judge. This process is largely made possible by the threat of a “trial penalty,” which is the “substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial.”¹⁹ Other than winning at trial, the only way for an MDLEA defendant to avoid the 21 U.S.C. § 960 ten-year mandatory minimum is to cooperate ²⁰ because “the court has authority to sentence below the mandatory minimum only upon a government motion based upon the defendant’s ‘substantial assistance’ to the prosecution.”²¹ Under this legal regime, “the prosecutor holds the key to the jailhouse door,”²² and the pressure upon a defendant to forego his Sixth Amendment right to trial can be overwhelming.

This practice of leveraging mandatory minimums to compel defendants to waive their Sixth Amendment right to trial and cooperate is not unique to MDLEA prosecutions. However, the practice is especially effective in the MDLEA context since these defendants are at a particular disadvantage should they go to trial. First, with the exception of co-defendants, there are rarely any firsthand witnesses to refute the testimony of law enforcement. Second, the U.S. government expends its limited resources on prosecuting only the most clear-cut cases. And third, these prosecutions can be so repetitive that desensitized judicial actors in venues like the Middle District of Florida may overlook weaknesses in the government’s case. Really, there exists only one long-shot defense, and that is to attack the court’s subject matter or personal jurisdiction, as seen in the discussion in Part One about extraterritoriality.

Just because many defendants will knowingly and willfully plead guilty in the face of these unfavorable conditions does not make the practice uncontroversial. According to the National Association of Criminal Defense Lawyers, less than three percent of criminal prosecutions go to trial.²³ As Judge John Gleeson writes, using mandatory minimum sentences not for their intended purpose of “impos[ing] harsher punishments on a select group of the most culpable defendants,” but rather to “strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial” undermines “the integrity of our criminal justice system.”²⁴ First, the risk of losing trial and facing an enormous sentence will compel even innocent defendants to plead guilty; and second, even culpable defendants are deprived of their Sixth Amendment right to force the government to prove its case beyond a reasonable doubt.²⁵

Safety Valve Relief

Looking forward, however, there may be one other way for suspected drug smugglers to avoid the ten-year minimum sentence associated with MDLEA convictions. A circuit split has developed with the D.C. Circuit now recognizing the applicability of 18 U.S.C. §3553 “safety valve” relief to defendants convicted of MDLEA violations. This legislation “permits a sentencing court to disregard a statutory minimum sentence for the benefit of a low-level, nonviolent, cooperative defendant with a minimal prior criminal record, convicted under several mandatory minimum controlled substance offenses.”²⁶ In United States v. Mosquera-Murillo, the D.C. Circuit extended safety valve relief to appellants previously convicted of violating the MDLEA even though the MDLEA is not “‘an offense under’ any of [18 U.S.C. §3553(f)’s] five enumerated [controlled substance] provisions.”²⁷ The court reasoned that the appellants were eligible for relief nonetheless since MDLEA defendants are sentenced pursuant to 21 U.S.C. § 960 – which is one of the safety valve’s “five enumerated provisions.”²⁸

Because the D.C. Circuit handles so few MDLEA prosecutions, it is unclear what practical effect – if any – its holding will have on the vast majority of defendants. The Eleventh Circuit, for example, still precludes such defendants from invoking safety valve relief. In United States v. Valois, the court held that just because safety valve relief is “available to [non-MDLEA] defendants convicted of drug trafficking within the United States,” the safety valve’s exclusion of MDLEA defendants “does not violate the equal-protection guarantee of the Fifth Amendment.”²⁹ The court justified this holding through rational basis review, saying that “Congress had ‘legitimate reasons to craft strict sentences for violations of [the MDLEA],’” reasons that included “concerns about foreign relations and global obligations” as well as the need to deter “drug trafficking on the vast expanses of international waters.”³⁰

The Ninth and First Circuits agree. Despite its pro-defendant understandings of other aspects of the MDLEA, the Ninth Circuit – using the expressio unius canon of construction – has held that “the plain statutory language indicates that the safety valve provision in 18 U.S.C. § 3553(f) does not apply to violations of [the MDLEA].”³¹ While the First Circuit has not “addressed directly whether a defendant convicted of an MDLEA offense is eligible for safety valve relief,” the District of Puerto Rico recently reiterated that “MDLEA offenses are not section 960 offenses” because Congress repeatedly “omitted MDLEA offenses from section 960” during multiple revisions of the latter statute.³² However, it should be noted that this case is pending appeal. Therefore, until the case law changes in any of these circuits, the vast majority of MDLEA defendants will remain ineligible for safety valve relief.

Trial Penalty and Relief Takeaways

Just as the government has pushed the bounds of extraterritoriality and due process, it has also pushed the bounds of a defendant’s Sixth Amendment right to trial by leveraging the trial penalty to induce guilty pleas and cooperation. This strategy is not unique to maritime law enforcement, but it is particularly effective in relation to this mission. Given the vast swaths of ocean that a small number of Coast Guard assets patrol, intelligence gained through defendant cooperation is vital in positioning these cutters in the right place at the right time. While other circuits may eventually follow the D.C. Circuit’s lead with regards to extending safety valve relief to MDLEA defendants, such a change is unlikely to alter the dynamics of the maritime counter-drug mission. However, should there be a national push against the use of the trial penalty to compel cooperation in all criminal cases, law enforcement would suddenly find itself operating blindly in the ongoing struggle against maritime drug smuggling.

Conclusion

All three branches of the U.S. government have helped create a maritime law enforcement apparatus specially designed to combat the trafficking of South American cocaine. The executive has contributed an aggressive and proficient Coast Guard; the legislature has produced the MDLEA; and the judiciary has provided government-friendly interpretations of statutes and the Constitution. Of these three legs that support the struggle against maritime drug smuggling, the most fragile is the last. Should judicial opinion shift regarding the legality of (1) the MDLEA’s extraterritorial jurisdiction; (2) the prolonged detentions of smugglers aboard Coast Guard cutters and their prosecutions in geographically far-flung judicial districts; or (3) the use of the trial penalty to compel guilty pleas and cooperation, the struggle against maritime drug smuggling will fundamentally change. A more narrowly tailored MDLEA would result in the contraction of de-facto U.S. maritime borders and/or a reduction in the categories of vessels that the Coast Guard could target. A less permissive approach to prolonged detentions would lead to less efficient Coast Guard patrols. And, finally, a rejection of the trial penalty would foreclose valuable sources of intelligence.

It is tempting to say that any one of these changes would shift the balance of the maritime counter-drug mission, but that would be inaccurate. The mission is already out of balance – any of these changes would only make the endeavor more Sisyphean. Indeed, even in today’s favorable legal environment, several hundred known smuggling ventures go untargeted each year.³³ There are just too few cutters and too many square miles of ocean. For the calculus to change, either Americans must curb their appetite for cocaine or their government must legalize and regulate the drug. Until either of these changes happen, the cycle of Coast Guard interdictions, detentions, and prosecutions will continue to play itself out, with lawyers arguing the points raised in this article, low-ranking South American traffickers heading to U.S. prisons, and cartels profiting from the illegal trade.

Thomas “Buddy” Bardenwerper (@TBardenwerper89) served for five years as a Coast Guard officer assigned to cutters homeported in Maine and Puerto Rico. Thanks to the GI Bill and Yellow Ribbon Program, Bardenwerper will graduate with a joint degree from Harvard Law School and the Harvard Kennedy School of Government this spring. His maritime migration-related novel Mona Passage will be published by Syracuse University Press in December.

References

[1] Fed. R. Crim. Pro. 5(a)(1)(B).

[2] Seth Freed Wessler, “The Coast Guard’s ‘Floating Guantánamos,’” in The New York Times Magazine, November 20, 2017.

[3] Id.

[4] United States v. Cabezas-Montano, 949 F.3d 567, 590-94 (11th Cir. 2020).

[5] Id. at 591 (citing United States v. Purvis, 768 F.2d 1237, 1238-39 (11th Cir. 1985)).

[6] Id. at 592.

[7] Id. at 593 (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990)).

[8] Id. at 590.

[9] Id. at 591 (quoting 46 U.S.C. § 70504(b)(2)).

[10] Alvarez-Cuan v. United States, 8:20-cv-414-T-27AEP, 2020 WL 5407559 at *5 (M.D. Fla. 2020).

[11] Id. at *6.

[12] United States v. Gonzales-Cahvec, 750 Fed.Appx. 853, 855 (11th Cir. 2018).

[13] Id. at 855.

[14] House of Representatives Hearing Before the Subcommittee on Coast Guard and Maritime Transportation, “Western Hemisphere Drug Interdictions: Why Maintaining Coast Guard Operations Matter,” June 4, 2019 at vii (“A typical operation begins with the collection of intelligence on drug trafficking activities. This is used to help cue or tip the operational unit to narrow its patrol area and decrease its response time.”).

[15] Task Force Works to Stem Flow of Illicit Drug Trafficking and Dismantle Criminal Networks, FBI.gov (December 7, 2016), https://www.fbi.gov/news/stories/task-force-works-to-stem-flow-of-illicit-drug-trafficking.

[16] House of Representatives Hearing at vii (“Next, CBP, Coast Guard, DoD, or allied nation Maritime Patrol Aircraft (MPA) are launched to detect drug smuggling activities, sort through potential targets, and monitor the suspect vessel(s).”).

[17] Tampa-based federal prosecutors, investigators recognized for their efforts to combat drug trafficking, Coast Guard News (September 8, 2016) https://coastguardnews.com/tampa-based-federal-prosecutors-investigators-recognized-for-their-efforts-to-combat-drug-trafficking/2016/09/08/.

[18] Id.

[19] The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers (July 10, 2018), https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct.

[20] 21 U.S.C. § 960(b)(1)(B)(ii) (2018) (“in the case of a violation of subsection (a) of this section involving 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine […] the person committing such violation shall be sentenced to a term of imprisonment not less than 10 years”).

[21] John Jeffries, Jr. and John Gleeson, The Federalization of Organized Crime: The Advantages of Federal Prosecution, 46 Hastings L. J. 1095, 1119 (1995).

[22] Id. at 1119.

[23] John Gleeson, “Forward” to The Trial Penalty, 3.

[24] Id.

[25] Id.

[26] Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions, Congressional Research Service (February 22, 2019), https://fas.org/sgp/crs/misc/R41326.pdf.

[27] United States v. Mosquera-Murillo, 902 F.3d 285, 292 (D.C. Cir. 2018).

[28] Id.

[29] United States v. Valois, 915 F.3d 717, 729 (11th Cir. 2019).

[30] Id. at 729 (quoting United States v. Castillo, 899 F.3d 1208 (11th Cir. 2018)).

[31] United States v. Gamboa-Cardenas, 508 F.3d 491, 496-97 (9th Cir. 2007).

[32] United States v. Espinal-Mieses, 313 F.Supp.3d 376, 384 (D.P.R. 2018).

[33] Congressional Testimony at x (“In his May 1, 2019, testimony to the U.S. House Committee on the Armed Services, SOUTHCOM Commander Admiral Craig Faller stated that last year JIATF-S was only able to disrupt about 6% of known drug movements.”).

Featured Image: MEDITERRANEAN SEA (April 23, 2021) The crews of the U.S. Coast Guard Legend-class national security cutter Hamilton (WMSL 753) and the Italian coast guard Dattilo-class offshore patrol vessel Ubaldo Diciotti (CP 941) conduct simulated search and rescue exercises and helicopter hoist operations in the Mediterranean Sea, April 23, 2021. (U.S. Coast Guard photo by Lt. Andrew Breen) see less | View Image Page

By Jan Stockbruegger and Christian Bueger

Great power competition with China and Russia dominates debates in Washington. Few analysts therefore paid attention when U.S. Secretary of State Antony Blinken joined Russian President Vladimir Putin and other leaders at the UN Security Council for a high-level debate on “Enhancing Maritime Security — A Case for International Cooperation” (China was represented by its UN ambassador). As expected, disagreements over basic maritime rules and norms dominated the debate. While the United States criticized Russia and China for unlawfully restricting freedom of navigation, China accused the United States of escalating conflict in the South China Sea. Yet the debate also demonstrated that the leading states share a common view on other maritime threats. The United States agreed with China and Russia not only that piracy, smuggling, and climate change undermine stability at sea, but also that states need to work closely together to address these threats and protect global maritime trade. What does this consensus suggest for U.S. strategy?

We argue that the United States should build on the consensus reached during the UN Security Council debate to enhance global maritime security, working multilaterally with China, Russia, and other states to address criminal and environmental threats at sea. The United States has traditionally protected trade routes and freedom of navigation. Securing the maritime commons is also part of the 2020 Tri-Service Maritime Strategy to maintain order at sea. Yet the U.S. Navy cannot secure the world’s oceans without the support of other states, including China and Russia. Certainly, little agreement can be expected with China and Russia on maritime disputes or their use of gray zone tactics to undermine international rules. However, China and Russia depend on seaborne trade, and they are keen to fight piracy and other threats to shipping and stability at sea. Strengthening collaboration with China and Russia on diplomatic and technical levels will therefore be vital to protect global maritime trade.

The case of maritime security has broader implications for U.S. strategy. The United States needs to defend the rules-based order against China and Russia, but it also needs to work with its adversaries to address transnational challenges such as climate change and pandemics. The maritime security case demonstrates that this balancing act is possible. The United States can – and must – both compete and cooperate with its adversaries to secure the global commons. Below we draw on the Security Council debate to analyze the maritime security landscape. We identify the joint interests of China, Russia, and the United States in protecting maritime trade, and we show how the United States can cooperate with its adversaries to ensure safety and security at sea.

Maritime competition is back

One of the reasons for the new urgency of maritime matters is the rise of maritime great power competition and the proliferation of gray zone tactics and attacks at sea. China’s growing naval and anti-access/area denial capabilities threaten U.S. dominance in the Western Pacific, but Iran and Russia have also increased their military operations at sea. China, Russia, and Iran have so far refrained from conducting aggressive maritime operations that could escalate conflict with the U.S. Navy. However, they increasingly conduct covert operations and deploy civilian or irregular forces – such as fishing vessels, coast guards, and militias – to intimidate other states and harass U.S. and allied forces at sea.

An incident that is paradigmatic for this new trend is the drone attack on the Israeli owned oil tanker MV Mercer Street in the Gulf of Oman only days before the debate. The attack, in which two sailors were killed, was the latest in a series of maritime incidents in the shadow war between Israel and Iran. An Iranian vessel was hit by a mine in the Red Sea in April 2021, for instance, and the United States believes that Iran’s Revolutionary Guards were behind attacks on four tankers in the Persian Gulf in 2019.

Yet China and Russia have also used gray zone tactics to secure contested waters. China has built military outposts in the South China Sea, and it regularly deploys its coast guard and maritime militias to protect Chinese fishing vessels in disputed waters. China’s maritime forces have harassed Filipino and Vietnamese fishing vessels, as well as the USNS Impeccable, a surveillance vessel operated by the U.S. Navy. Russia has deployed its coast guard to secure waters around the Crimean Peninsula, which it annexed from Ukraine in 2014. In 2018, the Russian Coast Guard captured three Ukrainian Navy vessels in the Sea of Azov.

China’s, Russia’s, and Iran’s gray zone tactics threaten vital U.S. and global interests in the maritime domain. U.S. Secretary of State Blinken therefore warned that “Conflict in the South China Sea or in any ocean would have serious global consequences for security and for commerce,” and that “States are (…) provocatively and unlawfully advancing their interests in the Persian Gulf and the Black Sea.” Russia largely ignored these accusations, but China responded angrily. China not only claimed that the “Security Council is not the right place to discuss the issue of the South China Sea,” but it also accused the United States of undermining “peace and stability in the South China Sea.”

Piracy is a major concern, but other crimes matter too

While China and Russia contest freedom of navigation, piracy remains a bigger threat to global shipping. From 2005 to 2012, Somali pirates attacked nearly 1,000 vessels in the Gulf of Aden and Western Indian Ocean. The World Bank estimated that piracy off Somalia cost the global economy $18 billion annually. Somali piracy has since been eliminated, but piracy remains a major threat in Southeast Asia and West Africa. According to the ICC International Maritime Bureau, an industry body, 195 ships were attacked by pirates worldwide in 2020.Last year, pirates kidnapped 130 seamen in the Gulf of Guinea, which is the world’s epicenter for maritime kidnappings.

Piracy is part of the larger problem of “blue crime,” which also includes illicit migration, maritime smuggling, and other criminal activities at sea. Human trafficking is a major problem in the Mediterranean, for example, where hundreds of migrants have drowned over the last few years. Smuggling of narcotics fuels corruption and drug abuse and led to increased rates of addiction, HIV/AIDS infection, and domestic violence in coastal communities in the Indian Ocean and other regions. Additionally, the smuggling of small arms and light weapons, which fuel conflict from Afghanistan to Somalia, often relies on maritime routes. A number of other illicit cargos are trafficked at sea, including counterfeit products, antiquities, wildlife, hardwood timber, and waste. Armed groups such as al-Shababa sometimes tax maritime smuggling activities to fund their operations.

In contrast to gray zone tactics, there is broad consensus among leading states that blue crime is a major threat to stability at sea. Ambassador Dai Bing, China’s representative at the UN Security Council, noted that “Criminal activities such as piracy, armed robbery, human and drug trafficking at sea, and maritime weapon smuggling are rampant, all of which have further destabilized relevant regions.” U.S. Secretary of State Blinken agrees: “Non-state actors also pose serious risk to maritime safety and security, from pirates and illicit maritime traffickers in the Gulf of Aden and the Indian Ocean, to pirates and armed robbers in the Gulf of Guinea, to drug traffickers in the Caribbean Sea and the Eastern Pacific.”

The environmental security agenda has arrived at sea

The emphasis on blue crime is not surprising given the centrality of piracy and trafficking to the maritime security agenda. Yet the degree to which Security Council members emphasized environmental challenges was noteworthy. Two issues featured prominently in the Security Council debate: illegal fishing and climate change. Illegal, unreported, and unregulated fishing is perhaps the most prevalent environmental crime at sea. It includes not only fishing in the waters of a state without its permission, but also fishing in marine protected areas and other fishing practices that are prohibited under national laws or international conventions. Interpol has estimated that up to USD 23.5 billion is lost to illegal fishing each year. Illegal fishing also leads to overfishing and threatens the livelihoods of coastal communities. Indian Prime Minister Narendra Modi therefore urged council members to “take joint steps against overfishing and marine poaching.”

Analysts also increasingly worry about the impact of climate change on the marine environment and coastal economies. The warming of the oceans, for instance, will weaken ecosystems and alter the abundance, diversity, and distribution of marine species. Furthermore, climate change increases the risk of flooding and other natural disasters, and threatens coastal ports, infrastructures, and communities. Other threats to the marine environment include pollution and oil spills from ships (e.g. the 2020 Wakashio oil spill) and offshore petroleum operations (e.g. the 2020 Deepwater Horizon oil spill). Vietnam warned the Security Council that “climate change and sea level rise and pollution of the marine environment, especially by plastic debris and degradation of the marine ecosystem, have caused serious and long-term consequences.”

Cooperation is the Strategy

No state, not even the United States, is strong enough to protect the world’s oceans alone. The oceans cover 70 percent of the earth’s surface. Every day, thousands of vessels pass through contested waters, and maritime smuggling, illegal fishing, and rising sea levels threaten coastal communities and maritime operations around the world. These threats are transnational. Pirates attack vessels in international waters, smugglers operate across national jurisdictions,  and oil spills and illegal fishing operations often take place in internationally recognized protected areas. Securing the world’s oceans therefore requires states to cooperate and build international maritime infrastructure. This includes coast guard and maritime patrol vessels, communication and surveillance networks, and systems to manage marine resources and respond to accidents and environmental disasters at sea.

The United States has long led international efforts to enhance safety and security at sea. The United States initiated the Contact Group on Piracy off the Coast of Somalia, for example, and it also facilitated the adaptation of the 2004 International Ship and Port Facility Security Code at the International Maritime Organization. In West Africa and Southeast Asia, the United States helps regional states strengthen their maritime capacities and protect their waters against piracy and illicit fishing and trafficking operations.

Yet China and Russia have also joined international efforts to protect maritime trade. They have participated in the Contact Group on Somali piracy and deployed naval forces to protect international shipping in the Gulf of Aden. Moreover, China is a member of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAPP), while Russia has participated in debates on maritime security at the ASEAN Regional Forum.

During the Security Council debate, China promised “to deepen pragmatic cooperation in combating piracy and maritime law enforcement in our joint efforts to achieve peace and tranquility in the oceans.” And Russian President Vladimir Putin not only reaffirmed Russia’s commitment “to the common task of countering crime at sea in all its forms,” but he also proposed the creation of a “special structure within the UN that would directly address problems related to combatting maritime crime in various regions.”

Beyond competition

The United States should take Russia’s and China’s offers seriously and work with its adversaries to protect the maritime commons. China and Russia will not support efforts to address maritime disputes, gray zone tactics, or illegal fishing in contested waters. Yet they are interested in working with the United States and other states to tackle piracy and maritime crime, and perhaps also to address environmental threats such as climate change and pollution.

Maritime security cooperation with China and Russia can be difficult. China was initially reluctant to share information and coordinate closely with U.S.-led counter-piracy efforts in the Gulf of Aden. The United States should therefore follow up on Russia’s proposal at the UN Security Council and establish a high-level political framework for maritime security operations. The United States could, for example, help construct a new technocratic mechanism at the UN to facilitate information sharing and the exchange of best practices in maritime governance and capacity building. The organization’s mandate would be limited to non-controversial issues such as piracy, trafficking, pollution, and climate change. China might agree to discussing maritime security in the Persian Gulf, where most of its oil originates; but illegal fishing and maritime disputes in the South China Sea would need to be excluded to ensure its support for the mechanism. International organizations, civil society, and industry groups should also be included to reinforce the technocratic and problem-driven nature of the initiative. The UN mechanism would complement ongoing regional efforts by providing a forum for global coordination and helping to form a broad consensus on maritime security governance across regions.

Critics might argue that China and Russia will exploit maritime security cooperation to project naval power and increase their geopolitical influence. China, for example, used counter-piracy operations to practice forward deployment and establish its first overseas naval base in Djibouti. China and Russia are also trying to dominate international organizations and undermine U.S. interests by supporting authoritarian regimes. Moreover, critics might argue that the proposed mechanism does not address China’s and Russia’s efforts to undermine the rule of law at sea, which are the greatest threat to order and stability on the world’s oceans.

These counterarguments are valid, but they ignore the fact that China and Russia are too powerful and important to be excluded from global maritime governance. China is already the largest investor and trading nation in Africa and Southeast Asia, and Russia has increased its global influence in recent years. Moreover, China’s and Russia’s large navies can help protect dangerous shipping lanes and support coastal management and maritime capacity building activities. Working with China and Russia on countering maritime crime does not prevent the United States from defending its interests and protecting global maritime rules and norms. The United States can continue its freedom of navigation operations in the South China Sea, for example, and mobilize like-minded nations through initiatives such as the Quad or the G7.

Finally, facilitating global maritime security cooperation under U.S. leadership with support from like-minded states, including the EU and India, would legitimize and help stabilize international order. It would demonstrate that U.S.-leadership is not exclusively directed against China or Russia, or about dominance. Instead, the United States would show that it takes seriously the concerns and problems of other nations, and that it is prepared to work with its adversaries to provide global public goods.

The maritime security case shows that the Biden administration needs to move beyond great power competition as its guide to foreign policy. Challenging threats to the rules-based order, no matter where they originate, is vitally important; but the United States also must cooperate with its adversaries, especially China and Russia, to secure the global commons and tackle other transnational threats, such as climate change and global pandemics.

Jan Stockbruegger is a Dean’s Faculty Fellow at Brown University’s Department of Political Science.

Christian Bueger is a Professor of International Relations at Copenhagen University and the Director of SafeSeas.

Featured image: An oil tanker is on fire in the sea of Oman, Thursday, June 13, 2019. Two oil tankers near the strategic Strait of Hormuz were reportedly attacked on Thursday, an assault that left one ablaze and adrift as sailors were evacuated from both vessels and the U.S. Navy rushed to assist amid heightened tensions between Washington and Tehran. (Credit: AP Photo/ISNA)