The U.S. Navy has rescued two survivors of an American military strike on a semi-submersible vessel suspected of smuggling drugs in the Caribbean Sea and is holding them aboard a Navy ship there, two U.S. officials said on Friday.
The Navy for now is detaining the two people aboard a warship in international waters, marking the first time the military has found itself holding prisoners from President Trump’s six-week-old campaign of targeting suspected drug runners as if they were combatants in a war.
The Trump administration now faces a dilemma about whether to release the two people, claim it can hold them as indefinite wartime detainees, or transfer them to civilian law enforcement officials for prosecution — a major and messy set of new legal and policy problems that could bring judicial scrutiny to the legally contested basis for its unfolding military campaign.
Since early September, the U.S. military has attacked at least six vessels that the Trump administration has said, without putting forward evidence, were carrying drugs. The first five were speedboats, but the most recent strike targeted a submersible vessel, the officials said.
The latest strike, on Thursday, killed two other people aboard the vessel, the officials said, speaking on the condition of anonymity to discuss operational matters. But after the attack, surveillance video showed that there were survivors in the water.
A Navy search-and-rescue helicopter retrieved the two survivors and flew them to one of the eight Navy warships that had been dispatched to the region. The Trump administration has been building up firepower in the Caribbean Sea amid its escalating campaign against drugs and mounting pressure on the government of Nicolás Maduro, Venezuela’s authoritarian president.
The five strikes Mr. Trump has acknowledged killed 27 people, so the death toll has now reached at least 29. The nationalities of two survivors is unclear.
The Trump administration had not announced or acknowledged the latest strike as of Friday morning. By contrast, for each of the five previous known boat attacks since early September, Mr. Trump boasted of the operations, declared how many people they had killed, and swiftly posted surveillance videos showing the vessels in the sea being blown up.
The fact of the attack and that there were survivors was earlier reported by Reuters. The Pentagon and the White House did not comment on the matter.
For now, said Brian Finucane, a former State Department lawyer and a specialist in the laws of armed conflict, the administration will have to wrestle with how long the prisoners can be held aboard the Navy vessel before they must be transferred somewhere. He noted that the Pentagon tends to be institutionally opposed to the headaches of detainee operations.
Two options for a quick disposition would be simply to release the pair or transfer them to the custody of another country’s government.
But if the administration wants to continue holding them, that would raise the question of how to do so — including whether to hand them off to civilian law enforcement authorities or claim a right to hold them as military prisoners.
If it does hold them in continued military custody, which would be in keeping with its claim to be at war with drug cartels, it might take the two detainees to the American prison at the Navy base in Guantánamo Bay, Cuba.
The base could be an attractive choice for policymakers in terms of its physical capacity to hold the two people. It already has the infrastructure — prison cells, a guard force, medical staff and other logistical support — to hold wartime detainees in longer-term detention without trial.
But that carries broader legal risks.
To legally justify his administration’s shift from having the Coast Guard interdict and search boats suspected of drug smuggling to attacking them and summarily killing the people aboard them, President Trump has informed Congress that the United States is engaged in a formal “armed conflict” with drug cartels his team has labeled terrorist organizations and that suspected smugglers for such groups are “unlawful combatants.”
A broad range of legal specialists in domestic and international law governing the use of force have contested the legitimacy of that claim. Congress has not authorized an armed conflict, and the administration has not explained how trafficking in an illicit consumer product counts as a use of armed force that could trigger a legal state of war.
But to date, there has not been a basis for federal courts to address whether the administration or its critics are correct. That could change if the Trump administration has the people taken to Guantánamo.
Litigation over terrorism detainees brought there by the Bush administration has established that U.S. courts have jurisdiction to hear lawsuits challenging the basis of holding detainees in military detention there.
That means if the Trump administration brings the survivors there, lawyers could file a habeas corpus lawsuit on their behalf in federal court raising the question of whether there really is an armed conflict, for legal purposes, between the United States and drug cartels.
Any judicial ruling that there is not really an armed conflict would not only mean the U.S. military would have to release the survivors. It would also undercut the administration’s argument that its entire recent spate of summary killings of suspected drug smugglers was lawful.
Mr. Finucane also noted that holding the two detainees as wartime detainees would mean having to give the International Committee of the Red Cross access to them, as a matter of both domestic and international law.
The administration could also try to prosecute the two. One option is the military commissions system at Guantánamo, but there is no congressional authorization to use it on drug cartel suspects. The system has also proved dysfunctional at getting contested cases to trial.
Alternatively, the administration could transfer the detainees to civilian law enforcement for eventual prosecution.
But it is not clear whether there is any courtroom-admissible evidence that the survivors of the attack engaged in criminal wrongdoing. Even if their vessel was carrying drugs, the evidence may have been destroyed in the attack.
That problem might be solved if the survivors confess to a crime under interrogation. But trying to get such confessions would raise another issue: whether to use law enforcement procedures, like giving them access to defense lawyers, to ensure that anything they might say would be admissible in court.
Eric Schmitt is a national security correspondent for The Times. He has reported on U.S. military affairs and counterterrorism for more than three decades.
Charlie Savage writes about national security and legal policy for The Times.
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