Ocean Governance

Pushing or Overstepping? Legal Boundaries in the Fight against Maritime Drug Smuggling, Pt. 2

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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

Podcast

Sea Control 295 — Russia’s Caspian Flotilla with MIDN 1/C Benoit Gorgemans

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By Jared Samuelson

MIDN 1/C Benoit Gorgemans joins the program to discuss his research and Proceedings article covering the history and development of the Russian Navy’s flotilla in the Caspian Sea.

Downloaded Sea Control 295 – Russia’s Caspian Flotilla with MIDN 1/C Benoit Gorgemans

Links

1. “The Caspian Flotilla: Russia’s Offensive Reinvention,” by MIDN 1/C Benoit Gorgemans, Proceedings, August 2021. 

Jared Samuelson is Co-Host and Executive Producer of the Sea Control podcast. Contact him at [email protected].

This episode was edited and produced by Keagan Ingersoll.

Middle East

Iranian Maritime Threats: An Opportunity for the U.S. Navy

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By Cameron Sothern

The volume of oil that flows through the Strait of Hormuz gives it geostrategic importance. According to the U.S. Energy Information Administration, “In 2018, its daily oil flow averaged 21 million barrels per day (b/d), or the equivalent of about 21% of global petroleum liquids consumption.”1 If freedom of navigation through the Strait of Hormuz were hampered, an energy crisis would ensue. Maritime insecurities anywhere are a threat to the circulation of global trade. In the Persian Gulf and its adjacent seas, these insecurities mostly originate from Iran and its proxy forces, such as the Houthis in Yemen. “By controlling the Strait of Hormuz and placing forces along the Bab el-Mandeb in Yemen, Iran can contest energy flows to US allies as well as to China.”2 This article identifies Iranian maritime threats and proposes a course of action for the U.S. Navy to continue and improve upon its efforts in the region to deter them.

Iranian Maritime Capabilities

The Islamic Republic is well suited to draw on the rich millennial heritage of Iranian society and culture and the significant heritage of the Islamic Revolution, particularly its indigenously derived and sustained participatory model of governance. Iran can use such strengths to help realize the deeply cherished national aspirations of the Iranian people, including the achievement of long-term development and regional ascendance commensurate with the country’s capacities and stature. —Iran Foreign Minister Mohammad Javad Zarif3

It is important to note that while the Islamic Republic of Iran is a relatively young state, its heritage stems from the legacy of the Persian Empire, and there are overtones of restoring a similar sense of greatness. Iran’s current strategic goal is to create a regionally hegemonic state. The goal is divided into four pillars: continuity of clerical rule, addressing internal and external threats, stabilizing regional influence, and attaining economic prosperity.4 Iran’s maritime and naval capabilities play an important role in supporting its strategic goal, especially when employed in the “gray zone.”5 By operating in the gray zone, Iran can make incremental changes to the status quo, which currently favors the U.S.-led International Rules Based Order (IRBO). When the United States and its partners in the region attempt to counter Iranian actions, Iran can fall back to its area of access denial, let things cool off, and reinitiate incremental changes.

Within the Persian Gulf, the naval arm of the Islamic Revolutionary Gard Corps, the Islamic Revolutionary Guard Corps Navy (IRGCN), operates hundreds of small craft that are used in swarm tactics and special operations. The vessels are cheaper and faster than conventional military vessels, allowing them to respond quickly and in mass anywhere in the Persian Gulf or Strait of Hormuz. The IRGCN harasses military and commercial vessels. Their tactics involve surrounding the targeted vessel and cutting across its bow. The IRGCN has also diverted and detained certain foreign vessels in response to economic sanctions. Examples of aggressive IRGCN actions since 2019 include attacks on Norwegian, Japanese, Saudi Arabian, and Israeli vessels. The IRGCN vessels are often emboldened by ambitious regional commanders, acting without orders from the state or supreme leader.

If Iran were to attempt to control the Strait of Hormuz, it would rely heavily on the capabilities of the IRGCN. As stated above, Iran can move in and out of its area of access denial; but it also has the capacity to expand this area. In such a scenario, the IRGCN would likely lay naval mines and board or attack commercial vessels. Moreover, while not an exclusively maritime capability, Iran has shown an affinity for the use of unmanned aerial systems (UAS) to attack land-based infrastructure in the region. Regarding Iran, General McKenzie Jr. stated in the CENTCOM posture statement, “For the first time since the Korean War, we are operating without complete air superiority.”6 Iran has employed many of these tactics in the past without consequence, and the protentional for them to do so in a less limited manner could send shock waves through global markets.

Iran relies on two other maritime forces to support its state strategy. The Islamic Republic of Iran Navy (IRIN) is a traditional naval force comprised of surface ships and submarines. The IRIN operates in the Persian Gulf, Caspian Sea, Gulf of Oman, and beyond. The IRIN is an aging fleet and does not present a major security threat. It participates in counter piracy and escort operations in the Gulf of Aden and northern Indian Ocean; however, it is mostly employed by Iran as a diplomatic tool. The IRIN can train with Chinese and Russian naval forces, allowing Iran to project limited power outside of the region. The IRIN has also made port calls in Sri Lanka and China. For now, Iran’s maintenance of a green-water navy is more of a status and reputation builder than a threat to maritime security.

In addition to the IRIN, Iran maintains state control of the Islamic Republic of Iran Shipping Line (IRISL). Iran manufactures much of its own military equipment and relies heavily on the IRISL to export it to Iranian proxies and state actors, often in violation of international sanctions. “Iran’s biggest customers include Syria, Hizballah in Lebanon, and Iraqi Shia militias, but Iran has also provided weapons to the Houthis in Yemen, Palestinian groups, and the Taliban in Afghanistan… other state customers of Iranian military equipment have included Iraq and Sudan…”7 The military equipment includes small arms, ammunition, artillery systems, armored vehicles, equipment for unmanned explosive boats, and communications equipment. These exports benefit the Iranian economy; expand Iranian influence and power; and, when used by proxy forces, support Iranian military objectives.

Breaking Down Iran’s Maritime Threats

Iran’s geographic position and maritime capabilities have allowed the state to continue its pursuit of altering the status quo.8 Recurringly, Iran has acted aggressively to create short-term tension, while retaining the ability to prolong and diversify its actions as a means to avoid escalation to war. It is commonly agreed that Iran’s desire to avoid direct warfare is a result of its experience in the 1980 Iran-Iraq War, in which both sides of the conflict lost tens of thousands.9 In this conflict, Iran learned the necessity of a passive defense. Passive defense tactics focus on denial and deception to mitigate vulnerabilities and increase survivability, ensuring a strong retaliation. “Examples of this [denial and deception] include, using camouflage and concealment, hiding, and dispersing forces, building underground facilities, and developing highly mobile units.”10

These tactics contribute to Iran’s deterrent strategy, which seeks to highlight how long and costly a direct conflict with Iran would be. The denial and deception aspects of passive defense are also used by the IRGCN. “The IRGCN is the primary operator of Iran’s hundreds of fast attack craft (FAC) and fast inshore attack craft (FIAC). These platforms have been the mainstay of the IRGCN since its inception in the 1980s, although the Iranian FAC/FIAC inventory has grown significantly in terms of size and lethality since that time.”11 These vessels are highly mobile and allow for the dispersion of equipment and personnel along Iran’s coastline in the Persian Gulf, which would help mitigate Iran’s losses should they endure a strike.

Iran’s maritime threats closely align with contemporary academic knowledge regarding hybridized maritime threats. The four necessary components of hybridized aggression in the maritime domain are: a state with major power, deniable but clear orchestration on behalf of the state, illegal action, and control over levels of aggression to match responses.12 Iran has performed elements of hybridized maritime aggression in the past, especially through its proxies. In early March 2021, Houthi forces in Yemen used over a dozen drones to attack the Ras Tanura oil facility in Saudi Arabia.13 “The Houthis are increasing their missile salvos against Saudi Arabia because they have no fear of shortages. As the Biden administration and the UN have pointed out, the rebels can draw on covert shipments of Iranian-supplied drone engines, ballistic missile motors, and electronics.”14 The attack on the oil port shows Iran’s ability to direct proxy attacks on maritime infrastructure.

Iran also uses state forces to perform hybridized maritime aggression. While the most blatant example is the use of the IRGCN to place limpet mines on commercial vessels, the conduct of IRGCN vessels at sea also qualifies. In late April of 2021, several Iranian FIAC quickly approached the USS Firebolt and the USCGC Baranof, “To an unnecessarily close range with unknown intent, including a closest point of 68 yards.”15 The article continued, “The U.S. crews issued multiple warnings via bridge-to-bridge radio and loud-hailer devices, but the IRGCN vessels continued their close-range maneuvers.” Again, in May 2021, thirteen Iranian FAC rapidly approached U.S. Navy and U.S. Coast Guard vessels that were transiting the Strait of Hormuz. After failing to respond to radio and horn signals, and coming within 300 yards of U.S. vessels, USCGC Maui fired warning shots towards the Iranian FAC.16

The conduct of these vessels was hazardous and violated the 1972 Convention on the International Regulations for Preventing Collisions at Sea, which establishes standard practices for vessels maneuvering in proximity to one another. The Iranian FAC/FIAC acted without regard for proper communication, signaling, or the safety of life at sea. Although none of the incidents resulted in a collision or loss of life, the risk was significant, as was the potential to escalate tensions between the United States and Iran to dangerous levels. The variety of Iran’s maritime aggression, from proxy attacks on oil ports to dangerous maneuvering at sea, highlights Iran’s ability to use varying levels of maritime tactics and fulfills the requirements to categorize Iran as a hybrid actor in the maritime domain.

A Course of Action for the U.S. Navy

Several actors and ongoing initiatives are working towards greater security in the Persian Gulf. These include U.S. Central Command (CENTCOM) and its naval element, U.S. Naval Forces Central Command, which oversees the operations of U.S. 5th Fleet and Combined Maritime Forces (CMF). Comprising 34 member states, “CMF’s main focus areas are counter-narcotics, counter-smuggling, suppressing piracy, encouraging regional cooperation, and engaging with regional and other partners to strengthen relevant capabilities in order to improve overall security and stability, and promoting a safe maritime environment free from illicit non-state actors.”17 Additionally, the International Maritime Security Construct (IMSC) was formed in July 2019 to provide updated information for merchant vessels that transit the Strait of Hormuz and Persian Gulf.

Many states benefit from the security provided by these initiatives and contribute to them, but the U.S. Navy plays an especially important leadership role. In addition to the frequent presence of a U.S. carrier strike group and independently deployed destroyers within and outside of the Persian Gulf, the latter of which often support CMF operations, the United States has led the multinational Combined Task Force 152 (CTF 152), one of three task forces under the CMF, 10 times. CTF 152 oversees maritime security operations within the Persian Gulf. Other states that have commanded CTF 152 have done so four times or less.18 Due to its large capacity and leadership experience, there are several things that the U.S. Navy should do, or oversee, to further increase Persian Gulf security.

The U.S. Navy should continue to increase its mine countermeasure and air defense capabilities. Anti-mine capabilities will create higher assurances of safe navigation and further mitigate the threat of naval mines. It is already part of CENTCOM’s effort to increase the number of Avenger-class mine countermeasure ships and Sea Dragon helicopters to protect the navigation of vessels in the Persian Gulf.19

The threat of drones, rockets, and missiles to vessels, port facilities, and other key points. The U.S. Navy should work with CENTCOM and regional states to solidify potential targets and work collaboratively on air defense. The March 2021 drone attack on Ras Tanura oil facility was thwarted by Saudi Arabia, who received early warning from U.S. systems and a U.S. airborne early warning aircraft.20 This has also been identified by CENTCOM as a significant threat and area for further regional development.

An additional approach to limiting Iranian proxy groups is the continuation of patrols by CTF 150 and CTF 152, which patrol within and outside of the Persian Gulf, respectively. These patrols often intercept weapons and narcotics shipments, although they are not explicitly targeting shipments from Iran. In May 2021, the U.S. Navy and U.S. Coast Guard intercepted, “…dozens of advanced Russian-made anti-tank guided missiles, thousands of Chinese Type 56 assault rifles, and hundreds of PKM machine guns, sniper rifles and rocket-propelled grenades launchers.”21 Participation in CMF is not mandatory, but the United States could encourage additional states to participate and help manage their contributions.

The U.S. Navy should continue to work with other naval forces and regional states to quantify Iranian capabilities. Quantifying Iran’s capabilities will help decision makers in the U.S. Navy, U.S. government, and U.S. partners to create more accurate risk assessments in order to dispatch the most appropriate resources to mitigate or respond to threats.

There are diverging legal perspectives between the United States and Iran regarding passage through the Strait of Hormuz. The U.S. Navy should continue to exercise its right to transit passage through the Strait of Hormuz. Iran recognizes its own maritime laws, which incorporate a modified version of innocent passage through the Strait of Hormuz.22 The United States recognizes the Strait of Hormuz as an international strait and does not recognize the strait as territorial waters of Iran. Therefore, the United States makes its passages according to transit passage, which is the movement of a vessel from one part of the high seas/Exclusive Economic Zone (EEZ) to another part of the high seas/EEZ. In transit passage, U.S. vessels and aircraft maintain normal operations, such as flying in a defensive formation.

Conclusion

In combination, these actions could further mitigate and deter Iranian maritime threats while supporting the IRBO. As a highly capable and influential naval force, the U.S. Navy should continue to strongly advocate for and lead maritime security efforts in the Persian Gulf and its adjacent seas. An increased naval approach to the region will provide the United States flexibility and mobility in addressing challenges. While Iranian maritime threats present an immediate challenge in the Persian Gulf, they also prompt larger questions about how the U.S. Navy can better address gray zone operations and hybrid aggression in the maritime domain. Considering the economic and military strength of the United States relative to Iran, the United States should focus on Iran to gain insights into effective strategies that could apply to similar challenges elsewhere, such as those posed by Russia in the Black Sea and China in the South China Sea.

Cameron Sothern is a 2021 graduate of the California State University Maritime Academy. He holds a BA in Global Studies and Maritime Affairs summa cum laude and has been accept to attend the U.S. Navy’s Officer Candidate School in November. 

References

[1] Barden, J. (2019, June). The Strait of Hormuz is the world’s most important oil transit chokepoint. U.S. Energy Information Administration. https://www.eia.gov/todayinenergy/detail.php?id=39932#

[2] Clark, B., Walton, T. A., & Cropsey, S. (2020). American Sea Power at a Crossroads: A Plan to Restore the US Navy’s Maritime Advantage. Hudson Institute, 72.

[3] Zarif, M. J. (2014). What Iran Really Wants: Iranian Foreign Policy in the Rouhani Era. Foreign Affairs, 93(3), 49–59. https://www-jstor-org.ezproxy.csum.edu/stable/24483405?seq=5#metadata_info_tab_contents

[4, 7, 11] Defense Intelligence Agency. (2019). Iran military power: Ensuring regime survival and securing regional dominance. Defense Intelligence Agency.

[5] Mazaar, M.J. (2015). “Mastering the Gray Zone: Understanding a Changing Era of Conflict.” Strategic Studies Institute and U.S. War College Press, p.1–7. https://publications.armywarcollege.edu/pubs/2372.pdf

[6, 19] General McKenzie Jr., K. (2021, April). POSTURE STATEMENT OF GENERAL KENNETH F. MCKENZIE, JR., COMMANDER, UNITED STATES CENTRAL COMMAND BEFORE THE SENATE ARMED SERVICES COMMITTEE. U.S. Central Command. https://www.centcom.mil/ABOUT-US/POSTURE-STATEMENT/

[8] Eisensdadt, M. (2020-b, January). Operating in the Gray Zone: Countering Iran’s Asymmetric Way of War. The Washington Institute. https://www.washingtoninstitute.org/policy-analysis/operating-gray-zone-countering-irans-asymmetric-way-war

[9] Kurzman, C. (2013, October). Death Tolls of the Iran-Iraq War – Charles Kurzman. Death Tolls of the Iran-Iraq War. https://kurzman.unc.edu/death-tolls-of-the-iran-iraq-war/

[10] Office of Naval Intelligence. (2017). Iranian Naval Forces: A Tale of Two Navies ((DOPSR Case 17-S-0836)). https://www.oni.navy.mil/Portals/12/Intel%20agencies/iran/Iran%20022217SP.pdf

[12]  Ralby, I. (2017). Examining Hybrid Maritime Threats. Combined Joint Operations from the Sea Centre of Excellence: Cutting the Bow Wave, 13–17. http://www.cjoscoe.org/infosite/wp-content/uploads/2017/04/CJOS_COE_Cutting_the_Bow_Wave_2017_Final_compressed_v2.pdf

[13-14, 20] Knights, M. (2021, March). Continued Houthi Strikes Threaten Saudi Oil and the Global Economic Recovery. The Washington Institute. https://www.washingtoninstitute.org/policy-analysis/continued-houthi-strikes-threaten-saudi-oil-and-global-economic-recovery

[15] U.S. Navy Office of Information. (2021, April). IRGCN Interaction with U.S. Naval Vessels in the North Arabian Gulf. United States Navy. https://www.navy.mil/Press-Office/Press-Releases/display-pressreleases/Article/2587098/irgcn-interaction-with-us-naval-vessels-in-the-north-arabian-gulf/

[16] U.S. 5th Fleet Public Affairs. (2021-a, May). Unsafe and Unprofessional Interaction with IRGCN FIAC in Strait of Hormuz. U.S. Naval Forces Central Command. https://www.cusnc.navy.mil/Media/News/Display/Article/2602006/unsafe-and-unprofessional-interaction-with-irgcn-fiac-in-strait-of-hormuz/

[17-18] Combined Maritime Forces. (2021, May). CTF 152: Gulf Maritime Security. CTF 152: GULF MARITIME SECURITY. https://combinedmaritimeforces.com/ctf-152-gulf-security-cooperation/

[21] U.S. 5th Fleet Public Affairs. (2021-b, May). USS Monterey Seizes Illicit Weapons in the North Arabian Sea. U.S. Naval Forces Central Command. https://www.cusnc.navy.mil/Media/News/Display/Article/2600829/uss-monterey-seizes-illicit-weapons-in-the-north-arabian-sea/

[22] Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 433. https://treaties.un.org/doc/Publication/UNTS/Volume%201833/volume-1833-A-31363-English.pdf

Featured image: April 2020 – Iranian Islamic Revolutionary Guard Corps Navy (IRGCN) vessels approach the guided-missile destroyer USS Paul Hamilton (DDG 60) at close range while conducting joint interoperability operations in support of maritime security in the U.S. 5th Fleet area of responsibility. (Credit: U.S. Navy)

Podcast

Sea Control 294 – EU Fisheries Governance with Dr. Alin Kadfak and Dr. Anna Antonova

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By Jared Samuelson

Dr. Alin Kadfak and Dr. Anna Antonova join us to discuss their article from the October issue of Marine Policy, “Sustainable Networks: Modes of Governance in the EU’s External Fisheries Policy Relations Under the IUU Regulation in Thailand and the SFPA with Senegal.”

Download Sea Control 294 – EU Fisheries Governance with Dr. Alin Kadfak & Dr. Anna Antonova

Links

1. “Sustainable Networks: Modes of governance in the EU’s external fisheries policy relations under the IUU Regulation in Thailand and the SFPA with Senegal,” by Alin Kadfak and Anna Antonova. Marine Policy, Vol. 132, October 2021.

Jared Samuelson is Co-Host and Executive Producer of the Sea Control podcast. Contact him at [email protected].

This episode was edited and produced by Marie Williams.

Fostering the Discussion on Securing the Seas.