In Trump’s drug war, prisoners may be too much of a legal headache, experts say

By Idrees Ali and Phil Stewart

WASHINGTON (Reuters) -When two alleged drug traffickers survived a U.S. military strike last week in the Caribbean, they left the Trump administration with a decision to make: send them back home, or find a way to keep them detained.

The U.S. last month started a campaign of attacks in the Caribbean that the Trump administration has described as “a non-international armed conflict” against narco-terrorism. 

Yet legal experts aren’t surprised that the U.S. government opted against using the term “prisoners of war” to describe the two survivors of a Thursday attack by the U.S. military on a semi-submersible vessel. 

Rather than holding them, the United States sent them back to their home countries, U.S. President Donald Trump said Saturday. The move, which was first reported by Reuters, suggests that for now U.S. officials don’t want to grapple with legal issues surrounding military detention for any alleged drug traffickers captured during the Caribbean operations, legal experts said.  

“I think the administration took what it would have viewed as the least worst option,” said Brian Finucane, a senior adviser with the International Crisis Group. 

“Sending these people home is a way for the administration (to) turn the page on this embarrassing episode,” he added. 

Thursday’s strike was unlike any other the U.S. military has undertaken since it began its attacks in the southern Caribbean in early September.

U.S. officials, speaking on the condition of anonymity, said the aim of the strike was to destroy the semi-submersible. Such ships are commonly used by drug traffickers since they travel under the surface of the water and are hard to identify visually from a distance.

While two people were killed, two others survived and were brought onto a U.S. Navy warship after being rescued by helicopter. 

Still, even if the U.S. had ample evidence the two people were involved in drug trafficking, that would not create a clear case for long-term military detention, making a prisoner of war declaration difficult, even if just rhetorically.

“Since there is no actual armed conflict, there is no law of armed conflict authority to hold them regardless what we call them,” said Rachel VanLandingham, a former Air Force lawyer now at Southwestern Law School.

A current U.S. military lawyer told Reuters that the basis for the long-term military detention of the survivors would have been difficult to argue in court. 

Even though the Trump administration has told Congress that it is “a non-international armed conflict” with drug cartels, the official said that had little bearing in international and domestic law.

Still, the Trump administration has defied the consensus of legal experts in the past, including by pursuing the deadly strikes on suspected drug trafficking vessels.

The administration’s decision to return the survivors was made within a day, a U.S. official told Reuters, speaking on condition of anonymity, turning the matter over to Secretary of State Marco Rubio and diplomats to sort out the repatriation. 

LITTLE AUTHORITY TO HOLD THEM?

Legal experts say the Trump administration did have other options besides repatriation.

It could have tried to argue that the survivors were unlawful combatants and detained them at Guantanamo Bay detention center in Cuba or even tried to prosecute them in a U.S. court.

But keeping them in military detention would have opened the United States to a complex set of legal and political problems, experts said.

The detainees could have asserted rights under the U.S. legal system, invoking habeas corpus, and challenged the legality of their detention in U.S. federal court.

Finucane, who was with the Office of the Legal Adviser at the State Department, said going to court would have required the administration to reveal evidence that “likely would have resulted in disclosure (of) information that undermined its narrative about these strikes.” 

That could have raised political questions in Washington, where Democratic lawmakers have called for more information on the strikes, which have killed 32 people.

“The attacks on the boats in the Caribbean have been illegal. If the survivors had appeared in either court or a military tribunal that would have instantly been made clear,” Democratic Congressman Jim Himes said.  

The administration has provided little information about the Caribbean strikes so far, including the quantity of drugs the vessels carried or any details about the individuals killed. The most recent attack took place Friday and killed three people, Defense Secretary Pete Hegseth said. 

Colombian President Gustavo Petro has accused the United States of attacking a fisherman’s vessel in a September strike, which escalated on Sunday into a war of words with Trump on social media. 

Legal experts have questioned why the U.S. military is carrying out the strikes, instead of the Coast Guard, which is the main U.S. maritime law enforcement agency, and why other efforts to halt the shipments aren’t made before resorting to deadly strikes.

(Reporting by Idrees Ali and Phil Stewart; Editing by Sergio Non, Edward Klamann and Lincoln Feast.)