| A policy that incentivizes murder is morally obscene. As obvious as this may be, that is nonetheless where we are. | | As I have described elsewhere, the Trump administration has taken to blowing up boatloads of presumptively innocent people on the open seas. So far, seven attacks have been publicly reported. In the most recent attack, two people survived. The administration took them into military custody but quickly repatriated them to Ecuador and Colombia, respectively, though the administration had to know that both would be promptly released. | | I’m sure the Trump administration would’ve rather detained the survivors. But the administration can’t do what it wants and won’t do what it can, so it released them as the least bad option—an option that forced itself on the administration only because the two survived. Based on my very long experience defending foreign nationals detained by the U.S. military, I suspect very strongly that this is how it all came to pass. | | *** | | Whenever state or federal officials in this country take someone into custody, they have two choices: they can continue to hold them, or they can let them go. Let’s assume the administration’s first impulse with these two survivors was not to release them, but to detain them. Then what? | | At least for now, detention by state or federal authorities requires an adequate process backed by legal authority. Though it is not true in totalitarian states, in this country, the government cannot deprive a person of their liberty without legal authority. This has been a bedrock principle of the rule of law since long before the nation’s founding. As an essential corollary to this principle, the government cannot maintain a detention beyond a brief period unless it begins a process that will fairly establish the detention’s validity. | | To be valid, this process must—at a minimum—provide the detained person with the opportunity to contest the legal and factual basis of their imprisonment. They must be able to show, in other words, that the government has no legal authority to act against them (no legal basis for the detention), and that even if it had the authority, that the person detained is not within the class of people against whom the government may act (no factual basis for the detention). | | To be sure, the details of such a process will depend a great deal on what the government is trying to accomplish. If, for instance, the government believes the person committed a crime and wants to send them to jail or prison, it must invoke the criminal law to justify the detention. The government must present the person in open court and file charges against them, usually within 48 hours. After that, the entire architecture of the criminal process kicks into play, including the right to counsel, the presumption of innocence, the right of the accused to know the evidence against them and confront their accusers, the right to an appeal, etc. | | In other contexts, the process established by law to justify a detention is considerably less protective of a person’s rights. In immigration cases, for instance, the objective is not to establish criminal liability but to expel the person from the country, and the process to effectuate the expulsion is much more perfunctory. But even in those circumstances, the government cannot deprive a person of their liberty without prior legal authority and a process that is sufficient to justify the detention. And that process cannot be sufficient unless, at a bare minimum, there is an opportunity to challenge the legal and factual basis for the detention. | | So, how do these foundational principles apply in the case of the two survivors? | | Can the U.S. Hold Survivors in Military Custody? | | The administration claims the United States is at war with drug cartels and that the attacks on the boats are military actions. As many have observed, this is legal drivel; the government can certainly prosecute people caught smuggling drugs on the open seas (more on that below), but it cannot simply line them up against a wall and shoot them, which is effectively what they have done, seven times. But so long as these illegal strikes kill everyone aboard, no one has been able to challenge them in court. All that changed, however, when two people survived. The Trump administration no doubt asked itself whether it could hold the survivors in military custody, as though they were combatants. And when they were first rescued, that’s exactly what happened: they were held in military custody and labeled “enemy combatants,” like the prisoners at Guantanamo. | | But any plan to hold these two in military custody was complicated by Rasul v. Bush (2004). After 9/11, the Bush administration tried to hold prisoners in military custody and without legal process at the U.S. Naval Station at Guantanamo. In Rasul, the Supreme Court refused to allow it. The Court held that prisoners at Guantanamo have the right to challenge the legal and factual basis of their detention in federal court in Washington, D.C. (Full disclosure: I was lead counsel in Rasul.) So, even if these two survivors had been flown to Guantanamo and detained at the military prison, they still would have been entitled to challenge the legal and factual basis for their detention in Washington, where many lawyers—myself included—were fully prepared to represent them. | | And the administration must know that it would have lost that litigation, just as it lost Rasul. No court will uphold the ridiculous claim that we are at war with drug cartels, and that this undeclared and unauthorized “war” somehow vests the President with the legal authority to kill presumptively innocent people or imprison them without legal process. In the absence of legal authority, the United States government simply has no right to deprive anyone of their liberty, and a federal judge sworn to uphold the Constitution would have told them as much. And even if the administration could contrive some legal authority to detain these two people—if, for instance, Congress were to retroactively authorize the use of military force against alleged drug smugglers—the administration would still be obligated to present evidence that connected the survivors to drug smuggling. I doubt very seriously that such evidence exists, and if it does, I am even more skeptical that the government would be willing to present it in federal court. Perhaps that evidence existed at one time—perhaps there were drugs on that boat—but it is now at the bottom of the ocean. | | Of course, the administration may try to evade Rasul. It may try to hold survivors somewhere even more remote or more inaccessible than Guantanamo, like the brig of a U.S. warship. It may also try to hold them in strict isolation, without disclosing their identity or making them available to the Red Cross. The purpose of all this secrecy is to frustrate the ability of lawyers like me from preparing and filing litigation on the prisoners’ behalf. But practices like this are doubly doomed. First, the detentions would eventually come to light, as they always do. Even the black sites—the secret prisons around the world where the CIA detained and tortured the so-called “high value” detainees after 9/11—were eventually uncovered. (Full disclosure: I represent Abu Zubaydah, the first prisoner held in a black site and tortured by the CIA.) And second, once the detentions were known, a court would rightly hold that the very act of hiding the prisoners reaffirms why they are within the jurisdiction of the federal courts, since a contrary ruling encourages the government to disappear people. | | In short, as much as the administration might want to hold the survivors in military custody, that route is simply not available to it. The government would have to defend the detentions in court, where it would be told in no uncertain terms that it has not established either the legal or factual basis for the detentions. Along the way, the very act of losing the case—that is, of being told by a federal court that the detentions were unlawful and that President was acting far beyond his constitutional authority—would help delegitimize the entire policy, just as the Supreme Court decision in Rasul helped delegitimize the detentions at Guantanamo. | | Would the U.S. Prosecute Survivors in Federal Court? | | Of course, military custody is not the only option. A number of federal statutes give the United States government the power to interdict alleged drug runners in international waters and prosecute them in federal court. The Coast Guard has had that authority for decades and uses it routinely to seize vessels in international waters, and to arrest the crew and charge them with violations of federal law. If federal prosecutors had probable cause to believe the two survivors were part of a drug smuggling operation—that is, if they had such proof that would warrant a reasonable person in the belief that a crime had been committed—the United States could have brought them into federal court and charged them with violations of the federal criminal law. | | Ah, but here’s the rub. Though the criminal law gives the Trump administration the legal authority to detain and prosecute the survivors, the government doesn’t want to invoke the criminal law. It doesn’t want to present facts in open court and subject its evidence to the crucible of adversarial testing. It doesn’t want to pit its case against a well-trained adversary who has adequate time and resources to prepare a defense. It doesn’t want to appear before a neutral federal judge with lifetime tenure, who applies fixed rules of evidence and procedure. It doesn’t want to provide the survivors of this attack with the presumption of innocence, nor is it willing to assume the burden of proving its case to a jury beyond a reasonable doubt. And most importantly, it doesn’t want to communicate to the world that drug smuggling is a problem best handled by the criminal law. In short, even if a federal prosecutor could prove the survivors committed a crime, which I very much doubt, the Trump administration is simply unwilling to subject itself to the restraints imposed by the criminal law. It doesn’t want what we have come to think of as a fair trial. | | *** | | In the end, the administration cannot do what it wants, which is to hold the survivors in military custody without legal process, and will not do what it can, which is to subject itself to the rigors of a federal prosecution. This left it with no good options other than repatriation. | | But of course, from the administration’s perspective, this problem goes away if the two had not survived. | | Like the Bush administration after 9/11, the Trump administration wants the latitude that it believes comes from being at war. But Trump’s claim is considerably more tenuous; after September 11, Congress authorized President George W. Bush to use military force against al Qaeda and its associated forces, but Trump can claim no comparable authorization. He thinks he doesn’t need it, and that he has the unrestrained power of the strongest strongman, who may do as he likes, when and where he likes it. | | From the administration’s perspective, survivors reveal the limits of this monarchical arrogance, and I’m left to fear how many others will be hauled from the waters of the Caribbean. |
| In the spirit of thoughtful conversation, if you have any reactions to this or any of my essays, feel free to share them with me at [email protected]. |
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