Shooting bullets into the hull of the boat
As one of our district's Spanish-speaking attorneys, other than the U.S. Attorney that prosecutes most of these cases, I have probably handled more Maritime Drug Law Enforcement Act (MDLEA) cases than anyone. The first one of these cases began with my surprise that we could pluck somebody out of the ocean somewhere very far away, someone who is not in route to the United States, and proclaim that we have jurisdiction over them to enforce drug laws. "Surely, that can't be right. Is it?"
Over the last decade or so we criminal defense lawyers have litigated that issue - and everything else, from jurisdiction, law of the seas, standing, venue, economic zones, territorial boundaries, archipelagic boundaries, etc. - and each time we have arrived at the point that the United States is pretty much like the Roman Empire, it can roam all over the high seas and do whatever it wants. We reached that point through a process that I'm not real comfortable with, but at least it was a process.
Imposing a capital punishment on the 11 lives in the boat sunk last week off the coast of Venezuela was a crime. It was, in the immediate sense a crime against them, but on a larger plane it's part of the serial crimes being waged against the United States by a crew of hooligans obeying the fantasies of an infantile wannabe who along with his posse are channeling "there's a new sheriff in town" behavior out of something akin to a Tom Clancy novel. Forget niceties such as civility, we're now at the point we've abandoned any pretense that we're going to follow laws, even a law as ridiculous as the MDLEA.
Without getting too far into the weeds, here's what the MDLEA does and what, at a minimum, due process it affords. Here's a daisy chain of MDLEA bullet points and what it prohibits: certain acts on board a "covered vessel" (a covered vessel is a vessel subject to the jurisdiction of the United States); "Subject to the jurisdiction of the United States" includes a vessel registered to a foreign nation (if that nation consents or waives objection to the enforcement of the United States laws); or, a vessel without a flag (and therefore a vessel without jurisdiction).
Before reaching that point, though, requires probable cause, a reasonable suspicion that the vessel is engaged in illegal activity. As to this boat, it has four engines on it, so that immediately would raise suspicion. Eleven people on the boat, that's a bit much. I Can't get a good shot of the interior of the boat, but the crews on on these boats usually have a maximum if six people. Were there photos of oil (fuel) drums, packages, etc.? (They may have been on its way to the mothership. If so, that makes this - leaving aside the inhumanity part - suspect that it has little to do with anything but theater.
To insure the principle of freedom of the seas, international law generally prohibits any country from asserting jurisdiction over foreign vessels on the high seas. The first step would have been for a helicopter to get a cutter in the area. Sometimes the Coast Guard has personnel on foreign (British, Dutch) ships. They will radio the Coast Guard command and then a series of interchanges can happen: does the ship have a flag?; Did you query that country for permission? ("vessel subject to the jurisdiction of the United States" includes a vessel registered to a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States. 46 U.S.C.S. § 70502(c)(1)(C)); and, finally, did the Secretary of State's designate certify the response of the foreign nation to the claim of registry . 46 U.S.C.S. § 70502(d)(2)) Here's an interview with the Coast Guard Commander we would usually deal with.
Once approved, the Coast Guard sets out to stop, investigate, and if necessary, arrest the crew and its contents. This will include videos shot from the convoy helicopter, the Cutter, and the Zodiac boarding crew. Sometimes engine disabling or warning shots will be fired to force compliance. What follows, as befits their military discipline, is an almost-perfectly documented criminal case: videos, Coast Guard crew statements, suspect statements, drug field tests, logs, contemporaneous notes, diagrams, etc.
Whether or not this was really a drug boat or was just ferrying immigrants (or were part of Tren de Aragua, or whatever scenario they can conjure up) what those of us that do this kind of work know is that these cartels will often impress people sometimes against their will. There may be one or two people that are actually the owners or an integral part of the conspiracy but the crew are mostly just people that have been shanghaied either economically or through force. The cartels need people that are familiar with boats and that's usually hard-scrabble fishermen. They will offer them a large amount of money. Some have been held captive against their wills for months. Some lured out of places like Guatemala or Ecuador with offers of legitimate work and held in a compound in some remote place in Mexico. Families are threatened. The list goes on.
