By Drake Long

On April 29, a small seabed mining enterprise known as The Metals Company (TMC) formally submitted an application to NOAA to commence commercial-scale mining in an area of the ocean known as the Clarion-Clipperton Zone.

This followed an executive order issued by the White House explicitly ordering the expedition of seabed mining permits in international waters under the Deep Seabed Hard Mineral Resources Act – a little-known law passed in 1980. The Metals Company cited this law in its press release, stating it was submitting its commercial-recovery permit precisely under the terms of that act. On first glance, this would seem a strange, but necessary measure for the U.S. to procure critical minerals it sorely lacks.

There is no firm classification for what counts as a critical mineral. The Energy Act of 2020 defined critical minerals as “minerals, elements, substances, or materials” that were necessary for national or economic security of the United States, and if supply of said material were disrupted in some way, it would have dire implications for the U.S. manufacturing of defense goods or a negative effect on the overall U.S. economy. Nebulous as this category is, critical minerals have taken on new significance as of late due to the overwhelming dominance of China in the extraction and processing of them. As of 2025, China has the outsized ability to cut off, or severely constrain, the supply of 46 out of 84 different materials on the critical mineral list to the United States. Not coincidentally, China has also shown the willingness to use this dominant position in the commodity market, such as by restricting the sale of seven critical minerals to the U.S. back in April.

The seabed mining industry has stepped in and offered themselves as one of several proposed solutions to this problem. Unfortunately, these firms are mostly pitching false promises.

Seabed mining, for research purposes and experimentation, has occurred since 1970. What is unexpected about the current moment in the seabed mining industry is that companies are aggressively pursuing permits for commercial-recovery. That entails mining the seabed for profit – and elevating the practice to an industrial activity at the bottom of the sea.

For the past two years, I have been researching and writing a book on states’ interests in the seabed, and emerging issues affecting those parts of the seabed under international waters that were first dubbed “a common heritage of mankind” at the United Nations in 1967. Commercial activity on the seabed is a touchy subject due to concerns about its effects on deep-sea habitats. During most of my time researching this book project, the wind has been at the back of the environmentalist movement.

There are three types of deep sea environments considered viable for seabed mining: Hydrothermal vents that naturally grow polymetallic sulphides, metalliferous muds in shallower parts of the seabed, and abyssal plains with volcanic crusts or large, scattered deposits of polymetallic nodules. The most notable example of the latter is the Clarion Clipperton Zone, a vast area in the South Pacific under the jurisdiction of the International Seabed Authority, where TMC has applied for a plot to commercially mine in.

All three of these environments are some of the most fragile on the planet, with organisms and ecology completely untouched by human activity until recently. Research over the past five years has shown that everything from dustclouds to the mere noise generated by seabed mining activity can destroy seabed habitats and take an extremely long time to recover from.

The vast, vast majority of undersea life that would be affected by this activity is completely unknown – all scientists I spoke to in the course of research noted that there is insufficient information on undersea life to accurately characterize the environmental impact of seabed mining in the South Pacific, and research continues to reveal the fragility and uniqueness of life deep beneath the sea. Because of this, energy has been building behind a moratorium on seabed mining entirely and as of 2025, 37 countries have joined that movement, with others requesting a likeminded ‘precautionary pause’ instead.

A U.S. permit for commercial mining in the Clarion Clipperton Zone would seem to signal a turn against this anti-mining tide. However, the reality is more nuanced – governments looking to seabed mining for new sources of critical minerals are likely setting themselves up for disappointment and should review the series of events that brought the seabed-watching community here for signs of failure in the future. More than anything else, this latest push by private seabed mining companies is a desperation move to revive a rapidly failing speculative business model.

To start, one should think of the seabed in one of two categories: the international seabed, dubbed ‘the Area’ by the United Nations Convention on the Law of the Sea (UNCLOS), and the seabed that a country enjoys economic rights to under UNCLOS, as part of its continental shelf. The International Seabed Authority is a unique international legal body tasked with overseeing the former.

The International Seabed: Tough Crust to Crack

Momentum for seabed mining in international waters died in August 2024 with the election of a new Secretary-General of the ISA. That election capped off a years-long push to expedite commercial-scale seabed mining since June of 2021, when the tiny Pacific Island nation of Nauru said it would grant a license to a subsidiary of The Metals Company to begin seabed mining in the Clarion-Clipperton Zone.

When Nauru threatened to grant TMC its license, it triggered a ‘two-year rule’ within the UN document establishing ISA procedures that stated the ISA had to finalize its regulations, or Mining Code, by the two-year mark after a commercial license was granted. If it failed to do so, it was ambiguous as to what authority the ISA would have to halt operations if The Metals Company went ahead and mined anyway.

Despite the sudden urgency, the Mining Code was not finished by the July 2023 deadline. To stave off the possibility of Nauru and the private sector pushing forward with unregulated, commercial-scale mining, most members of the ISA unified and used that year’s ISA Council meeting to kick the can down the road and issue a revised timeline for the formal adoption of the Mining Code instead. That timeline called for the Mining Code to be finished by the end of July 2025 – and the ISA ultimately did not succeed in doing so, to little surprise to those I have spoken to who regularly observe ISA proceedings.

This was not the best outcome for the private seabed mining industry, especially as the initial pause on deregulated mining occurred nearly concurrent with the finalization of another UN treaty titled the Boundaries Beyond National Jurisdiction (BBNJ) Agreement, which will come into effect in January 2026.

The BBNJ, much like the ISA itself, was created to settle unfinished business from the original conference that established UNCLOS. Namely, how to safeguard and treat all areas of the ocean outside of a country’s allotted maritime territory. This included international waters and the seabed within the ISA’s jurisdiction. While the draft Mining Code contains regulations intended to minimize the environmental impact of extractive activity on the seafloor, the BBNJ Agreement is far more stringent in terms of deterring seabed mining on the basis of protecting deep-sea ecological diversity. With its passage, mining companies already facing one set of regulations now need to contend with an eventual second.

The 2024 ISA Secretary-General election was the final factor signaling the nadir of the international seabed mining enterprise. The previous ISA Secretary-General, frustrations aside, was generally regarded among members as more of a seabed mining enthusiast than not, and for this reason he was nominated for an unprecedented third term by the pro-mining Kiribati even though he was a British citizen. He lost to Leticia Carvalho, who has made it clear she will not rush a Mining Code and has continually stressed the need for proper regulation of seabed mining above all else.

This brings us to the present. Seabed mining under the ISA process in international waters remains an aspiration for now.

The Continental Shelf: Sovereign, Not Soft

Given their status as glorified start-ups in a speculative industry with a shallow pool of capital to draw from, seabed mining companies making headlines today cannot wait for a Mining Code to be finalized, nor can they deal with all the provisions and legal issues the BBNJ Agreement will saddle them with. For a time, they instead turned to the lower-hanging fruit – mining the continental shelf that is strictly within a country’s jurisdiction.

The ISA, Mining Code, and UNCLOS are complicating factors for seabed mining only in international waters. Within the 200-nautical mile zone of a country’s continental shelf, national governments instead determine whether companies can mine their seafloor.

The logical next step for any company looking to mine the seabed then is to pursue mining licenses on a country’s continental shelf, outside any regulations the ISA or BBNJ could create. To clarify, a country’s continental shelf under UNCLOS is a legal, and not a geophysical, limit. Any country can claim a continental shelf out to 200 nautical miles from their coastline, and this can extend an additional 150 nautical miles outward if certain criteria are met. In the scientific sense, this means a country has economic rights to an area of the deep sea that is inclusive of a continental shelf, continental slope, continental rise – and even the deep seabed. All of these physical features are rolled into one legal definition of a “continental shelf” under UNCLOS.

While somewhat confusing, what this means in practice is that some countries have economic rights to areas of the deep seabed that are ripe for seabed mining. The ideal countries for the entrepreneurial seabed wildcatter to pursue would have massive maritime entitlements under UNCLOS close to known seabed reserves, lax regulation, and a small economy eager for foreign investment.

Traditionally, some Pacific Island countries (PICs) seemed to be auditioning for this role. Countries like Kiribati and the Cook Islands have overtly signaled their openness to the industry. The Cook Islands alone has a massive continental shelf, nearly 2 million square kilometers in size, spread between 15 tiny islands. Its continental shelf abuts the Clarion Clipperton Zone, where most known reserves lie. It held the first ever Underwater Minerals Conference in September to bring industry and governments together solely to discuss the prospects for seabed mining. Kiribati took the extraordinary step of abolishing a 115,000-square mile marine protected area around the Phoenix Islands, partially to allow for the possibility of seabed mining and other extractive activities there. And other Pacific Island countries such as Nauru, as previously mentioned, pushed the ISA to allow for commercial mining as soon as possible.

Probably the most important thing to examine during this period is the failure of private companies to actualize a seabed mining industry in Cook Islands. Despite having considerable history in the country, a very friendly government, and more-than-a-little ability to shape regulations there in their favor, the Cook Islands ultimately chose a different partner for its deep sea mining ambitions – the People’s Republic of China. The two countries signed an MOU in February that prominently featured exploration, extraction, and development of minerals on the Cook Islands’ vast continental shelf.

The reason private companies are now cut out of the Cook Islands market in favor of China is the same reason relaxing regulations on seabed mining ultimately benefits China in the long-run. China offers a suite of sweeteners alongside any mining deals that the private sector cannot compete with. This is as true with its terrestrial mining and oil-gas giants as it is with the speculative seabed mining industry. China simply has more money and capacity.

Wildcatters Versus Titans

Seabed mining is often touted as a means to alleviate the U.S. dependence on China for critical minerals. The Metals Company CEO said as much during his congressional testimony in April. This is heavily misleading. There are substantial reserves of these metals on the seafloor and close to shore in some spots, including on an area of the Gorda Ridge identified by the Central Intelligence Agency in the 1980s. But China’s dominance in the rare earths market does not come from its reserves. It comes from its processing capability. Over 80 percent of all rare earths on the world market are processed by Chinese companies. China processes over 90 percent of all graphite, and about 67 percent of the world’s cobalt and lithium, all of which are critical minerals for emerging commercial and military technologies.

The numbers do not differ much, no matter what mineral one looks at. China has cornered the market on simple processing of many different ores, and while other countries such as the DRC, Myanmar, and Australia all have significant reserves of these metals on their own, they overwhelmingly are still shipped to China for processing.

There is little reason to see how opening a new reserve of critical minerals changes this dynamic at all – especially because processing seabed minerals costs quite a bit more. The initial step in processing ore is to simply separate the actual usable mineral from anything else. Water depth, salinity, and a variety of other environmental factors can make deep-sea minerals, even when extracted, difficult to separate out in this way, and processing facilities normally used for terrestrial ore cannot put them on the same production line. This means that any commercial-scale processor for these critical minerals would probably operate at a loss without massive, well-financed state-backing.

This is the sort of thing China, with its vertically-integrated supply chains for all aspects of metal extraction and processing, as well as its patient capital approach to bankrolling initially unprofitable commercial enterprises, would be able to do. It is not something the private sector is prepared to do. Other strong contenders for building a seabed mineral processing industry are Norway, India, and Japan – both countries with well-trod, well-funded industrial policies that fit the scale of the profitability problem with seabed mining. These countries are also non-coincidentally pioneering their seabed mining models with the help of aggressive state-backing and public institutions, crowding out the previous private sector players.

Even if one came into a large processing industry quickly, there are already reserves of critical minerals out there that are not owned by China – and they are terrestrial, not undersea, which points to another aspect of seabed mining that should give pause to advocates. Seabed mining is sometimes described as more environmentally-friendly than the mining that goes on inland. Truthfully, terrestrial mining on land is horrifically destructive, and in areas with large cobalt reserves like the DRC, child exploitation and unsafe working conditions are rampant. If there was a way to limit these activities, that would be a benefit to humankind. Seabed mining advocates state that if their industry were deregulated, terrestrial mining could end, and these minerals could instead be mined off the seafloor.

However, there is no evidence that terrestrial mining would stop even if seabed mining were permitted. In the course of writing a book on the topic, I have not encountered a single person in or familiar with the critical mineral mining industry that believes any mines on land would close if new reserves from the seabed started circulating. There is no incentive for any mining company working in cobalt or REE reserves to do so.

On the contrary, some speculated that it would lead to more, not less, terrestrial mining. If seabed mining introduced new reserves into world markets, mining companies could just cut corners or mine more on-land to ensure they still made a profit – and in many cases may not need to do so, as seabed reserves are slower to introduce to the market and more expensive to extract. Many of the companies backing seabed mining are more traditional mining companies in any case, and nobody I am aware of believes they are investing in the seabed mining industry with the intent to shutter their most profitable enterprises elsewhere. For countries that have large on-land reserves of critical minerals but lack the technology or know-how to engage in seabed mining, the market logic behind halting mining is nonexistent.

Conclusion: The Wild, Wild South Pacific

Most observers of the seabed mining industry I have interviewed are keenly aware of companies like TMC, their business history, and their profit margins. They tend to view their business models as unworkable, and vulnerable to a host of legal and political pressures. Private seabed mining companies do not own their own equipment and ships, instead requiring other companies like Allseas to provide it for their use instead. They are understood to be constantly running out of cash, given how the commercial seabed mining industry is nonexistent, and are thus starving without constant injections of private capital. There is more than a little desperation in the way these companies are working now to secure mineral rights and commercialize seabed mining.

Private seabed mining companies have tried two approaches so far. Step one was to work the international institutions to get a favorable regulatory environment, which has failed so far. Step two was to work with sovereign nations to mine their continental shelf, which is endangered by the entry of bigger players.

The third step appears to be finding legal loopholes. To clarify, commercial mining in international waters under the ISA process is not possible right now. But the United States did not ratify UNCLOS, and is not a member of the ISA. This is why TMC submitted a permit under a domestic U.S. law, and not through the ISA. Any permit it grants a private company to mine in the Clarion Clipperton Zone, which is under the ISA’s jurisdiction, would be legally dubious and represents the private sector taking advantage of that grey area to get around the normal approval process – an approval process that was actually crafted by the United States during UNCLOS negotiations in the first place.

Using domestic U.S. law to mine international waters is dubious. Legal analysts are looking at the viability of this for the time being, and the emerging consensus is that TMC may be opening itself up to a raft of punitive measures by UNCLOS signatories that it, its business partners, its supply chain partners, and any other affiliated bodies, operate in. Any minerals it extracts could be of dubious value at best.

Yet the strongest national security argument against commercial seabed mining remains an understanding of who actually benefits from it. The leaders of a seabed mining industry will not be the first-movers like TMC, or any other small private actor.

The largest, most well-funded seabed mining company would be China Minmetals, a highly-prominent Chinese state-owned enterprise pumping an incredible amount of money into seabed mining technology and with its own exploration licenses issued by the ISA. If the purpose of permitting seabed mining is to reduce dependence on China, what does it mean when China also enters the seabed mining industry, and to great success? Companies like Minmetals also have the benefit of a processing and final product assembly supply chain tied to its terrestrial mining component.

While smaller companies like TMC have already conducted exploratory mining, there is no profitable path toward commercial-scale seabed mining for them. They are start-ups still in a speculative industry. They have tested and proven the technology, but for the reasons stated above, they would make less of a profit and at a steep cost than any terrestrial mining company. While intermittently backed by mining and large maritime shipping companies, there is not a consistent flow of capital to maintain operations forever, nor is it reliable enough to scale into a profitable industry from. Maersk notably abandoned TMC in 2023 after environmental concerns over seabed mining heated up and the broader seabed mining enterprise started to come into question.

The current step toward permitting under U.S. law should not be considered wind in the sails of the private seabed mining sector. It is instead a desperation move, and not one guaranteed to work out. Absent state backing, these companies cannot survive, and it is for this reason they continually sell to unaware countries the promise that with a little reciprocal support, they can turn into leaders of a new, emerging industry.

But this is not likely to happen. The smaller companies testing the technology now instead seem to be paving the way for a much larger company, such as Minmetals or its Japanese, Indian, or perhaps Norwegian counterparts, to move in the future and successfully scale upward to the commercial level.

Drake Long is currently writing a book on international seabed issues, the deep-sea domain, and security. He is also a non-resident Senior Associate with the China Warfighting Initiative, Marine Corps War College. The views expressed here are the author’s own and do not represent official views of Marine Corps University or any government department.

Featured Photo: Manganese nodules embedded in the seabed (mage courtesy of the NOAA Office of Ocean Exploration and Research, 2019 Southeastern U.S. Deep-sea Exploration)

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