The Pentagon was in a bind. The military had plucked two survivors from the Caribbean Sea in mid-October after striking a boat that U.S. officials said was carrying drugs, and it needed to figure out what to do with them.
On a call with counterparts at the State Department, Pentagon lawyers floated an idea. They asked whether the two survivors could be put into a notorious prison in El Salvador to which the Trump administration had sent hundreds of Venezuelan deportees, three officials said.
The State Department lawyers were stunned, one official said, and rejected the idea. The survivors ended up being repatriated to their home countries of Colombia and Ecuador.
A little under two weeks later, on Oct. 29, Pentagon officials convened another session about boat strike survivors, a video conference involving dozens of American diplomats from across the Western Hemisphere. The message was that any rescued survivors should be sent back to their home countries or to a third country, said three other officials, who, like others interviewed for this article, spoke on the condition of anonymity to discuss internal deliberations.
Behind that policy was a quieter goal: to ensure survivors did not end up in the U.S. judicial system, where court cases could force the administration to show evidence justifying President Trump’s military campaign in the region.
The previously unreported calls demonstrate the haphazard and sometimes tense nature of the process within the Trump administration to weigh what to do with the survivors of U.S. attacks on boats that the military asserts — without presenting evidence — are drug-smuggling vessels posing an immediate threat to Americans.
Pentagon officials largely kept State Department counterparts in the dark about strike operations, then scrambled to try to enlist diplomats to help deal with survivors, whom military officials referred to by specific terms that included “distressed mariners.” That phrase is usually used in a peacetime and civilian context.
The talks took place after the first attack on Sept. 2, when the U.S. military killed two survivors with a second strike. Pentagon officials have not fully explained the process for handling survivors to other agencies or Congress, even as the campaign has continued, killing at least 87 people in 22 attacks.
The very act of sending survivors to other countries, as the administration did after the attack in mid-October, raised a fundamental question about the administration’s premise for the strikes: If the administration has evidence to show that the people on the targeted boats are smuggling drugs and are a threat to Americans, then why is it not putting survivors on trial in U.S. courts?
The administration has so far provided little information in public to support its assertions about who is on the boats, what cargo they are carrying and where the vessels are headed. It has relied on arguing that the boats it suspects of carrying drugs — most likely cocaine if at all, and not the far deadlier fentanyl — pose an imminent threat to the United States.
Legal cases in the United States involving survivors would force the administration to present more information to try to back up its rationale for the attacks.
The administration maintains it is conducting a military operation in an “armed conflict” against drug cartels, though many legal experts say the campaign amounts to the summary execution of civilians.
Any information disclosed in a court proceeding could undermine arguments from administration officials about both the legality of the attacks and the political rationale for them, said Brian Finucane, a former State Department lawyer who is an expert in the law of armed conflict.
“From the administration’s point of view, there are good reasons to be averse to bringing survivors to Guantánamo Bay or to the continental United States,” he said.
If the U.S. military brings the survivors to the Navy-run prison at Guantánamo Bay, Cuba, lawyers defending them could file a habeas corpus lawsuit in U.S. federal court questioning whether there really is an armed conflict, for legal purposes, between the United States and cartels. Congress has not authorized the United States to engage in any such conflict.
On the Oct. 29 call, officials and lawyers from the Pentagon made it clear they did not want any rescued survivors brought into the U.S. detention and legal system, even for short-term holds. That included the prison at Guantánamo Bay, said an official with knowledge of the call.
The point of that call was for the Pentagon to impress on diplomats a practical need, officials said: More cases of rescued survivors were most likely on the way. Repatriation would be the goal.
The call took place on the same day as the 14th attack by the United States on boats in the Caribbean or the eastern Pacific, and after weeks of deliberations in the administration over how to handle those who managed to live beyond the military’s initial drone or warplane strikes.
It is unclear whether the message of the call reflected a change in policy within the Pentagon on how lethal to make the attacks and what to do with survivors, or wider recognition that first strikes sometimes failed to kill everyone being targeted.
The State Department and the Pentagon did not respond to requests for comment.
The U.S. military’s approach to survivors has drawn congressional scrutiny and fueled debate about the legality of the campaign. In the first attack, on Sept. 2, an admiral ordered a second missile strike that killed two survivors who had fallen into the water and then waved after struggling to climb atop the remains of a boat, said people who had seen a video of the attack.
Recent news reports on strike orders given in that attack by Defense Secretary Pete Hegseth and Frank M. Bradley, the admiral, have raised fresh questions in Congress and among legal experts of potential war crimes. The administration has said that both men acted legally.
Later, in the aftermath of an attack on a semi-submersible vessel on Oct. 16, the U.S. military picked up two survivors by helicopter. They were from Colombia and Ecuador.
The contrast between the decision to kill the survivors of the Sept. 2 strike and the choice to rescue the survivors of the Oct. 16 strike has also focused attention on whether the Pentagon changed its policy between those two attacks. Asked this past weekend about the difference in the way the situations were dealt with, Mr. Hegseth said: “We didn’t change our protocol. It was just a different circumstance.”
On a call soon after the Oct. 16 attack, Pentagon lawyers proposed to State Department lawyers that the U.S. government send the two survivors to the Terrorism Confinement Center in El Salvador, or CECOT, a maximum-security site known for years for inhumane conditions.
Early this year, Secretary of State Marco Rubio reached an agreement with the president of El Salvador, Nayib Bukele, for the United States to pay Mr. Bukele’s government $4.76 million to temporarily hold up to 300 Venezuelan deportees from the United States.
The Trump administration said the deportees were members of a Venezuelan gang, Tren de Aragua, though many had no obvious ties or significant criminal records. Some of those deportees described widespread torture and abuse at the prison. The administration has had to grapple with prominent legal challenges to its deportations there.
In the mid-October call, State Department lawyers, surprised by the Pentagon’s question about transferring survivors to the prison, raised to their military counterparts the thorny issues around the site, one official said. Pentagon lawyers dropped the idea.
Pentagon officials then made separate calls to U.S. diplomats in Colombia and Ecuador to talk about repatriating the two survivors, another official said.
The Oct. 16 attack remains the only known episode of the United States’ picking up survivors. When Mr. Trump ordered them to be sent back to Colombia and Ecuador, he said they would be prosecuted. That has not happened to either one, and the Colombian man disappeared after a week in a hospital.
On Oct. 27, the American military spotted a survivor clinging to wreckage in the water after a U.S. attack in the eastern Pacific, and alerted a nearby Mexican military boat, the Pentagon said. The Mexican authorities never found anyone.
Two days later, Pentagon officials made their push by video to enlist U.S. diplomats across Latin America to find places for survivors outside the United States.
They said on the Oct. 29 call that diplomats would need to arrange to send those survivors back to their home countries, as the U.S. government had done in the Oct. 16 episode, or to negotiate with a third country to take survivors. That is what the administration is doing with many detained immigrants and migrants from the United States, sometimes by paying other nations to take the people, like in El Salvador.
One career diplomat on the Oct. 29 call, John McNamara, the head of the embassy in Bogotá, Colombia, had already worked on sending the Colombian survivor of the mid-October strike to his home country. He talked about those negotiations on the call, two officials with knowledge of the discussions said.
Pentagon officials on that call said that people in the boats the United States was attacking in the region were “unlawful combatants” or “unprivileged belligerents” — a term that has been used by the U.S. government to describe combatants not in conventional uniforms, such as members of Al Qaeda or the Islamic State.
The U.S. government is legally obligated to give even these irregular combatants some humanitarian rights under the Geneva Conventions. That applies to survivors in the water after a strike, in what the law calls a “shipwreck” scenario, Mr. Finucane said. (Like many legal experts, he has said the entire campaign is illegal because the United States is not in an armed conflict with cartels and is killing civilians.)
On the Oct. 29 call, Pentagon officials did not rely on the term “shipwreck,” but they repeatedly referred to survivors in the water as “distressed mariners,” one official said.
Mark Nevitt, a former Navy lawyer, said that it was strange that Pentagon officials were using a term usually applied to civilians who required help at sea in peacetime, and that perhaps they were employing it to emphasize a need for repatriation rather than detention.
“If we’re in a war, they should be using the term ‘shipwrecked survivors,’” said Mr. Nevitt, now a law professor at Emory University. “My theory is they might not want to get into the messy issues involving detention and habeas corpus lawsuits.”
Pentagon officials also said on the Oct. 29 call that diplomats might need to ask countries to help rescue survivors at sea, the official said.
Even outside the boat strike campaign itself, the administration has signaled general disinterest in prosecuting lower-level suspects for drug cartel-related activity.
Interdictions of boats suspected of smuggling drugs have typically been handled by the Coast Guard, which sometimes works with law enforcement agencies to send people it takes into custody to be prosecuted in the United States.
In February, after Attorney General Pam Bondi was confirmed, she signed a policy directive saying that the Justice Department was deprioritizing prosecutions of people suspected of being “low-level” drug cartel members so that it could focus its resources on leaders or those who had been personally involved in violence against Americans.
The memo said that if low-level suspects inside the United States could be removed through immigration proceedings without “incurring the time and resource costs associated with criminal prosecution,” that would be the preferred approach. For similar reasons, she said the Justice Department was generally no longer interested in prosecuting low-level smuggling suspects picked up by the Coast Guard in international waters.
It is unclear whether that memo has influenced the administration’s thinking on survivors of the U.S. military’s boat strikes. But for diplomats in the region, the policy is clear: keep any survivors out of the United States.
Reporting was contributed by Simon Romero from Bogotá, Colombia; Jack Nicas from Mexico City; and Charlie Savage and Carol Rosenberg from Washington.
Damien Cave leads The Times’s new bureau in Ho Chi Minh City, Vietnam, covering shifts in power across Asia and the wider world.
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