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)

By Thomas “Buddy” Bardenwerper

Introduction

Every day, U.S. Coast Guard cutters patrol the eastern Pacific Ocean and Caribbean Sea for drug smuggling vessels, seizing more cocaine than all other American law enforcement agencies combined. Federal prosecutors then bring charges against the detained smugglers under a controversial and confusing legal regime. By analyzing the lifecycle of a case – from interdiction to detention to prosecution – this two-part article explores (1) the extraterritorial jurisdiction established by the Maritime Drug Law Enforcement Act (MDLEA); (2) the practice of detaining suspected smugglers aboard Coast Guard cutters for weeks without formal arrest; and (3) the interaction between intelligence gathering and the trial penalty. In each of these instances, a different branch of the federal government is pushing against – if not overstepping – legal constraints in order to empower the Coast Guard in the fight against maritime drug smuggling. This is a fragile system, however, and should one of these government branches become squeamish, the whole apparatus could collapse.

Overview of the Coast Guard’s Counter-Maritime Drug Trafficking Mission

The Coast Guard is both an armed service and a federal law enforcement agency. While the Army, Air Force, Navy, and Marine Corps are barred from conducting law enforcement operations by the Posse Comitatus Act ¹ and other federal law,² the Coast Guard is not.³ Therefore, the Coast Guard has become the lead federal agency for maritime law enforcement on the high seas, which are those waters that fall outside of any nation’s twelve-nautical-mile territorial seas.⁴

The Coast Guard’s maritime law enforcement mission pits a small sea-going service of approximately 40,000 active duty members against powerful transnational criminal organizations (TCOs). TCOs use various means to transport cocaine north from coca producers in Colombia, Peru, and Bolivia to cocaine consumers in the United States. Maritime smuggling is a preferred option for transport that generally occurs in one of the following two ways: 1) Cocaine is transported by boat from the Pacific coast of South America to the Pacific coast of Central America, at which point shipments are divided into smaller loads for overland transit through Mexico and across the border; or, to a lesser extent, 2) cocaine is transported by boat from the Caribbean coast of South America to either the Caribbean coast of Central America or to various Caribbean islands for further transit – again, in smaller quantities – to the United States. Competition for these drug trafficking corridors has caused destabilizing violence throughout the hemisphere.

The modes of maritime transit can be roughly grouped into the following three categories: slow-movers, go-fasts, and hard-to-detects.⁵ “Slow-movers” include commercial fishing vessels and coastal freighters outfitted with secret compartments or parasitic devices. Oftentimes, only certain crewmembers are even aware that their vessel is being used for illegal purposes. “Go-fasts” are speedboats that carry contraband openly on deck and rely on speed and maneuverability to evade law enforcement assets. “Hard-to-detects” include low-profile and semi-submersible vessels that are virtually impossible to detect via visual or electronic sensors.

For any successful interdiction, the Coast Guard must be able to find the suspect vessel, stop it, and locate the contraband. The relative difficulty of these tasks varies depending on whether a particular case involves a slow-mover, a go-fast, or a hard-to-detect. In order to find the target of interest, Coast Guard operational planners rely on intelligence regarding the suspect vessel’s anticipated movements. In order to stop the target of interest, Coast Guard law enforcement teams then employ warning shots and disabling fire from agile small boats or helicopters. Finally, in order to locate the contraband, Coast Guard boarding teams use complex space accountability computations and state-of-the-art drug detection equipment.

This sophisticated operational and tactical regime only works when and where the Coast Guard has the legal authority to pursue its counter-maritime drug trafficking mission. Thanks to the aggressive legislation, favorable judicial holdings, and proactive executive actions that will be explored below, the Coast Guard enjoys a great degree of latitude in combatting TCOs on the high seas.

Far-Flung Interdictions and the Extraterritorial Jurisdiction of the MDLEA

The Coast Guard can only operate if it has jurisdiction.⁶ In those situations where there is a clear nexus with the United States – i.e. a target of interest is in U.S. territorial seas, the vessel itself is American-flagged, or the master is a U.S. citizen – jurisdiction is easily achieved. However, when none of those three boxes is checked – as they rarely are in drug smuggling cases – the legal picture is less clear. Given this lack of clarity, how is it that the Coast Guard can board non-U.S. vessels in non-U.S. waters to detain foreign nationals?

The answer to this question is the Maritime Drug Law Enforcement Act (MDLEA), which Congress passed in 1986.⁷ Grounded in Congress’s Constitutional power to “define and punish Piracies and Felonies committed on the High Seas, and Offences against the Law of Nations,”⁸ the statute made “drug smuggling on the high seas a crime against the United States and [gave] the Coast Guard the authority to search for, detain, and bring suspected drug traffickers back to the United States for prosecution.”⁹ Under the conspiracy provision of the MDLEA, even members of trafficking networks who have never set foot on a boat can be extradited to the U.S.¹⁰ The most important – and controversial – portion of the MDLEA, however, is that section which extends U.S. jurisdiction over the following six categories of vessels: (1) a vessel without nationality (also known as “stateless”); (2) a vessel assimilated to without nationality;¹¹ (3) a foreign-flagged vessel if the flag state consents or waives objection to the enforcement of United States law; (4) a vessel in U.S. customs waters; (5) a vessel in the territorial seas of another nation if that nation consents to the enforcement of United States law; and (6) a vessel in the U.S. contiguous zone.¹²

The U.S. government had to be creative in justifying a statute with this degree of extraterritorial reach since universal jurisdiction does not apply to drug smuggling – it is not illegal under customary international law¹³ – and it is difficult to prove that a particular shipment of narcotics seized in the eastern Pacific Ocean or Caribbean Sea is destined for the United States. Instead, the ostensibly aggressive approach taken by the U.S. government can be tied to the protective principle of international law. Because of “the deleterious effects of drug trafficking in the United States and on regional stability,”¹⁴ the U.S. government considers itself justified in proactively combatting this threat through law enforcement operations well beyond its borders.¹⁵

Because most Western Hemisphere governments are in favor of fighting drug trafficking, there has been relatively little international pushback against the MDLEA. Furthermore, the reach of the MDLEA is heavily dependent upon the cooperation of international allies, especially with regards to those categories of vessels subject to U.S. jurisdiction. In exchange for economic and military aid, many source and transit zone nations have signed bilateral agreements with the United States.¹⁶ These agreements often give the U.S. Coast Guard the authority and jurisdiction to conduct operations in partner-state territorial seas or against partner-state-flagged vessels.¹⁷ Not surprisingly, this particularly ambitious jurisdictional aspect of the MDLEA has garnered significant scrutiny from U.S. courts.

MDLEA Jurisdiction over Foreign-Flagged Vessels Boarded with Flag-State Approval

Foreign nationals charged with violating the MDLEA have had varying degrees of success challenging the statute’s extraterritorial jurisdiction. While all circuits recognize U.S. jurisdiction over stateless vessels¹⁸ (and their occupants¹⁹) – which includes most go-fasts and virtually all hard-to-detects – there is disagreement regarding foreign-flagged vessels boarded by the Coast Guard with flag-state approval. The Ninth Circuit is the most defendant-friendly forum for this issue.

In United States v. Perlaza, the Ninth Circuit reversed the MDLEA convictions of Colombian nationals caught smuggling cocaine aboard a Colombian-flagged fishing vessel. The court held that although the Colombian government granted the Coast Guard permission to board the vessel and detain the crewmembers, the Fifth Amendment right of due process required that “for a United States court to properly exercise jurisdiction [over a foreign-flagged vessel], the Government still needs to establish some detrimental effect within, or nexus to, the United States.”²⁰ The court reasoned that a defendant aboard a foreign-flagged vessel “would have a legitimate expectation that because he has submitted himself to the laws of one nation, other nations will not be entitled to exercise jurisdiction without some nexus.”²¹ From the government’s perspective, this analysis has made the Ninth Circuit an undesirable forum for many MDLEA cases, an issue that will be discussed further below.

The First and Eleventh Circuits – which handle many MDLEA cases through Puerto Rico and Florida, respectively – have not required a U.S. nexus for MDLEA prosecutions of foreign nationals detained aboard foreign-flagged vessels boarded with flag-state approval. In United States v. Trapp, for example, the District of Puerto Rico denied a motion to dismiss an MDLEA indictment brought by foreign nationals detained aboard a Grenadian-flagged vessel on the high seas after Grenada “waive[d] its primary right to exercise jurisdiction over the [vessel], its cargo, and its crew to the extent necessary for the enforcement of United States law.”²² The court held that the “MDLEA contains no explicit requirement that there be a nexus between a defendant’s criminal conduct and the United States” and that “a vessel ‘subject to the jurisdiction of the United States’ is defined to include ‘a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States.’”²³

Likewise, the Eleventh Circuit has found the application of the MDLEA to foreign-flagged vessels boarded with flag-state approval to be constitutional²⁴ because (1) Congress allowed for this in § 70502(c)(1)(C) of the MDLEA;²⁵and (2) the MDLEA is grounded in the “protective principle,” which “does not require that there be proof of an actual or intended effect within the United States.”²⁶ By not finding any Fifth Amendment concerns with this critical aspect of the MDLEA’s extraterritorial jurisdiction, the First and Eleventh Circuits are government-friendly venues for this particular strain of cases. Therefore, it is unsurprising that the U.S. Attorney’s Offices for the Middle District of Florida and the District of Puerto Rico have permanent billets for Coast Guard lawyers.

MDLEA Jurisdiction over Vessels Boarded in Foreign Territorial Seas with Coastal State Approval

The application of the MDLEA to defendants interdicted in a foreign nation’s territorial seas with that nation’s approval was recently held unconstitutional by the government-friendly Eleventh Circuit in United States v. Davila-Mendoza, a case involving a Coast Guard interdiction made in Jamaican territorial seas with the approval of the Jamaican government.²⁷ The court held that the MDLEA was unconstitutionally applied in Jamaica’s territorial seas – regardless of whether or not Jamaica had consented – because extraterritorial jurisdiction beyond the high seas was not justified by the “Foreign Commerce Clause,” the “Necessary and Proper Clause,”²⁸ the “law of nations,”²⁹ or the “Define and Punish clause.”³⁰ Whether this ruling stands, however, remains to be seen, as the case may be appealed to the Supreme Court.³¹ If it does stand, existing bilateral agreements between the United States and many of its regional allies will lose some of their potency since Coast Guard cutters will no longer be able to target smuggling vessels located within those partner nations’ territorial seas.

MDLEA Jurisdiction Takeaways

All circuits agree that the MDLEA applies to foreign nationals smuggling drugs on the high seas aboard stateless vessels. However, prosecutions become more difficult in the Ninth Circuit if a foreign-flagged vessel is involved and are impossible in any circuit if the interdiction is made in foreign territorial seas. Nonetheless, the reach of the MDLEA is impressive. Through aggressive lawmaking and international deal-making, the U.S. government has created a legal environment that allows its maritime forces to dominate the eastern Pacific Ocean and Caribbean Sea. Both the domestic need for a robust law enforcement presence and the lack of any meaningful international resistance – save from perhaps Venezuela – has made this expansive dominion possible, one upon which the U.S. maritime counter-drug mission is built.

The second installment of this article will discuss the prolonged detention of suspected smugglers aboard Coast Guard cutters and the interaction between intelligence gathering and the trial penalty during prosecution. Read Part Two here.

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] 18 U.S.C. § 1385 (1994) (“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”).

[2] 10 U.S.C. § 275 (2016) (“The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”).

[3] 14 U.S.C. § 102 (2018) (“The Coast Guard shall enforce or assist in the enforcement of all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States.”).

[4] 33 C.F.R. § 2.32(a) (2020) (“For purposes of special maritime and territorial jurisdiction of the United States […] high seas means all waters seaward of the territorial sea baseline.”).

[5] While “go-fast” is a commonly used term, the author came up with “slow-mover” and “hard-to-detect” for ease of explanation.

[6] 14 U.S.C. § 89 (2018) (“The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States.”).

[7] 46 U.S.C. §§ 70501-08 (2008).

[8] United States v. Campbell, 743 F.3d 802, 805 (11th Cir. 2014) (quoting U.S. Const. Art. 1, § 8, cl. 10).

[9] Stringer, Morgan, The U.S. Coast Guard Is Arresting Drug Traffickers in Ecuadorian Waters. How Does That Work?, The Water Log 7 (The University of Mississippi Press, 2018).

[10] See e.g. United States v. Ballestas, 795 F.3d 138, 145 (D.C. Cir. 2015) (holding that because the substantive offense established by § 70503(a) of the MDLEA applies extraterritorially, so too does the conspiracy offense established by § 70506(b)); United States v. Mosquera-Murillo, 902 F.3d 285, 289 (D.C. Cir. 2018) (“We have held that a defendant can violate the [MDLEA’s] conspiracy provision without personally setting foot on board a covered vessel.”).

[11] Article 6.2 of the United Nations Convention on the High Seas (1958) (“A ship which sails under the flags of two or more states, using them according to convenience, may not claim any of the nationalities in question with respect to any other state, and may be assimilated to a ship without nationality.”).

[12] 46 U.S.C. § 70502(c) (2008).

[13] Aaron Casavant, In Defense of the U.S. Maritime Drug Law Enforcement Act: A Justification for the Law’s Extraterritorial Reach, 8 Harv. Nat’l. Security J. 191, 197 (2017).

[14] Casavant, 197.

[15] See 46 U.S.C. § 70501 (2008) (“Congress finds and declares that (1) trafficking in controlled substances aboard vessels is a serious international problem, is universally condemned, and presents a specific threat to security and societal well-being of the United States.”).

[16] Joseph Kramek, Bilateral Maritime Counter-Drug and Immigrant Interdiction Agreements: Is This the World of the Future?, 31:1 U. of Miami Inter-American L. Rev. 121, 146  (2000).

[17] Id. at 124.

[18] See e.g. United States v. Perlaza, 439 F.3d 1149, 1161 (9th Cir. 2006) (“There is one exception, however, to this ‘constitutional jurisdiction’ requirement: ‘if a vessel is deemed stateless, there is no requirement that the government demonstrate a nexus between those on board and the United States before exercising jurisdiction over them.’”); United States v. Van Der End, 943 F.3d 98, 105 (2d. Cir. 2019) (“MDLEA prosecutions involving stateless vessels do not present the same concerns that are present in the extraterritorial application of typical criminal statutes [because] stateless ‘vessels are international pariahs’ that ‘subject themselves to the jurisdiction of all nations.”).

[19] See United States v. Aybar-Ulloa, 987 F.3d 1, 1 (1st Cir. 2021) (“International law accepts the criminal prosecution by the United States of persons like Aybar, who was seized by the United States while trafficking cocaine on a stateless vessel on the high seas, just as if they were trafficking on a United States-flagged ship”.”); United States v. Cabezas-Montano, 949 F.3d 567, 587 (11th Cir. 2020) (“The Fifth Amendment’s Due Process Clause does not prohibit the trial and conviction of aliens captured on the high seas while drug trafficking because the MDLEA provides clear notice that all nations prohibit and condemn drug trafficking aboard stateless vessels on the high seas.”).

[20] Perlaza, 439 F.3d at 1169.

[21] Id. (quoting United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998)).

[22] United States v. Trapp, Crim. No. 16-159, 2017 WL 2821904 at *1 (D.P.R. 2017).

[23] Id. at *2 (quoting 46 U.S.C. § 70502(c)(1)(C)).

[24] See United States v. Castillo, 899 F.3d 1208, 1212 (11th Cir. 2018) (upholding the MDLEA conviction and sentence of a foreign national detained aboard a Guatemalan-flagged vessel).

[25] 46 U.S.C. § 70502(c)(1)(C) (2008) (“A ‘vessel subject to the jurisdiction of the United States’ includes a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States.”).

[26] United States v. Garcia, 182 F.Appx. 873, 876 (11th Cir. 2006) (quoting United States v. Gonzalez, 776 F.2d 931, 938 (11th Cir. 1985)).

[27] United States v. Davila-Mendoza, 972 F.3d 1264 (11th Cir. 2020).

[28] Id. at 1267.

[29] United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1258 (11th Cir. 2012).

[30] Id. at 1249-53.

[31] Josh Blackman, Eleventh Circuit Panel finds that Maritime Drug Law Enforcement Act exceeds Congress’s Powers under the Foreign Commerce Clause and the Necessary and Proper Clause Powers, Reason Magazine (September 12, 2020), https://reason.com/volokh/2020/09/12/eleventh-circuit-panel-finds-that-maritime-drug-law-enforcement-act-exceeds-congresss-powers-under-the-foreign-commerce-clause-and-the-necessary-and-proper-clause-powers/.

Featured Image: Coast Guard Cutter Bertholf boarding teams interdict a low-profile go-fast vessel in November 2019 while patrolling international waters of the Eastern Pacific Ocean. (Image credit:Petty Officer 2nd Class Paul Krug)