Prosecutors in Ecuador have decided not to charge a man who survived a U.S. military attack in the Caribbean Sea last week and have already released him, according to an Ecuadorean official who spoke on condition of anonymity to discuss the sensitive matter.
The outcome came despite the Trump administration’s stance that people suspected of smuggling drugs from South America are “terrorists” who pose such a severe danger to the United States that it is lawful for the American military to summarily kill them as if they were soldiers in a war. In announcing that he was repatriating the man, Mr. Trump declared on Saturday that he would face “detention and prosecution.”
The man was one of two survivors of a U.S. military strike on a semi-submersible vessel on Thursday. The strike killed two people, Mr. Trump later said, but the Navy rescued two other men from the sea afterward and detained them aboard a warship while deciding what to do with them.
The administration opted to repatriate them to their home countries, one to Colombia and one to Ecuador, rather than bring them to the United States for prosecution or hold them in longer-term detention at the military prison at Guantánamo Bay, Cuba.
After the Ecuadorean survivor’s repatriation, two prosecutors who met with him decided to release him because he had not committed any crime in Ecuador’s territory, according to the official who said he had been freed.
The Ecuadorean man, whom The Associated Press identified as Andrés Fernando Tufiño, had also received medical evaluations and was in good health, the official said. The A.P. also cited a statement from the attorney general’s office that confirmed the official’s account.
By contrast, the other survivor has been hospitalized in Colombia with brain trauma and is breathing on a ventilator, Armando Benedetti, Colombia’s minister of the interior, said in a social media posting on Saturday night that identified him as Jeison Obando Pérez, 34. When he returns to consciousness, Mr. Benedetti said, he will be “processed by the justice system for drug trafficking.”
Mr. Trump’s policy of using the military to kill suspected drug smugglers in vessels in the Caribbean began with a strike on Sept. 2, framed as a campaign against Venezuelan drug cartels. As of Tuesday, the administration had announced seven such strikes that it said had killed 32 people. It has also built up military forces in the Caribbean and authorized covert C.I.A. action in Venezuela.
The legality of the U.S. strikes has been sharply contested. A range of outside legal specialists, including retired senior judge advocate general officers, have maintained that the strikes are illegal because the military cannot deliberately target civilians — even suspected criminals — who are not directly participating in hostilities.
Traditionally, the United States has dealt with suspected maritime smuggling as a law enforcement problem, using the Coast Guard — sometimes assisted by the Navy — to interdict boats. That follows a familiar pattern: Police officers arrest people they suspect of dealing drugs; it would be a crime for an officer to instead summarily kill such a suspect.
However, Mr. Trump and his administration maintain that he has legitimate power to order the military to kill drug smuggling suspects in the ocean because they pose an “imminent threat” and the president has determined that the country is in a formal armed conflict with the cartels, which his team has designated as terrorist groups.
The Trump administration has not provided a detailed legal theory to explain how it bridges the conceptual gap between the criminal activities of drug smuggling and the kind of armed attacks or hostilities associated with self-defense and armed conflict law.
Legal experts question the designation of drug cartels as terrorists, because cartels are motivated by profits and terrorists are motivated by ideology. In any case, the law that allows the executive branch to make such designations permits tactics like freezing a group’s bank accounts, but does not include legal authorization to attack their suspected members with military force.
In discussing the strikes, the administration has pointed to the deaths of about 100,000 Americans each year from drug overdoses. But the surge in such deaths has been caused by fentanyl, which comes almost entirely from Mexico; South America is instead a source of cocaine.
On Monday, the top Democrat on the House Armed Services Committee, Representative Adam Smith of Washington, called for a hearing to examine the policy.
The administration had “failed to demonstrate the legality of these strikes, provide transparency on the process used or even a list of cartels that have been designated as terrorist organizations,” Mr. Smith said. “We have also yet to see any evidence to support the president’s unilateral determinations that these vessels or their activities posed imminent threats to the United States of America that warranted military force rather than law enforcement-led interdiction.”
Genevieve Glatsky contributed reporting from Bogotá, Colombia, José María León Cabrera from Quito, Ecuador, and Eric Schmitt from Washington.
Charlie Savage writes about national security and legal policy for The Times.
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