MIAMI — A little-noticed federal appeals court ruling this year threatens a key weapon in the United States’ war on drugs: A decades-old law that gives the U.S. broad authority to make high-seas arrests anywhere in the world, even if the drugs aren’t bound for American shores.
It’s a law that’s used to round up and imprison hundreds of foreigners every year, mostly poor, semi-literate fishermen from Central and South America who make up the drug trade’s lowest rungs.
“It is a waste of U.S. taxpayer dollars to have these costly misadventures as we play drug police to the world,” said Eric Vos, head of the public defender’s office in Puerto Rico that brought the court challenge.
At issue is the Maritime Drug Law Enforcement Act, which defines drug smuggling in international waters as a crime against the United States and gives the U.S. unique arrest powers anywhere on the seas — whenever it determines a vessel is “without nationality.”
But how a vessel is deemed stateless sometimes gets messy.
The was the case for the Costa Rican plaintiff Jeffri Dávila-Reyes, whose appeal prompted the ruling. The Coast Guard chased down his speedboat in the western Caribbean in 2015 as he and two cousins were allegedly transporting five to 15 kilos of cocaine.
They identified their vessel as hailing from Costa Rica, according to the FBI’s summary of the investigation, but they lacked any documentation. When the U.S. asked the Costa Rican government to confirm the vessel’s registry, it responded 12 weeks after the bust that it could neither confirm nor refute the claim.
A few weeks later the men were charged and eventually pleaded guilty to possessing narcotics “on board a vessel subject to the jurisdiction of the United States.”
But a three-judge panel of the First Circuit Court of Appeals in Boston ruled in January that one of the law’s provisions — disavowing a captain’s claim of nationality — were an unconstitutional extension of U.S. policing powers beyond America’s borders.
Tellingly, almost none of those arrested under the law had ever set foot in the U.S. nor were they charged with trying to import cocaine. In Dávila-Reyes’ case, the cocaine he was accused of transporting was purportedly headed to Jamaica.
Despite the ruling that threw out his conviction, Dávila-Reyes remains behind bars seven years into a 10-year sentence as the Justice Department seeks reconsideration by all of the First Circuit’s nine judges.
In a series of recent letters to The Associated Press from federal prison, Davila-Reyes reflected on how he only got involved in smuggling as a way to escape poverty in his homeland after years of hand-blistering construction work for $10 a day. He said taking a chance on smuggling offered him $6,000.
“Nobody can be blamed for being born poor,” he wrote.
From the moment President Richard Nixon declared “war on drugs” in 1971, the U.S. Coast Guard has been at the forefront of the campaign to stop illegal narcotics from entering the U.S. Today, it spends more than $2 billion annually as part of that effort.
But, almost from the start, that goal has proven elusive.
Cocaine prices, a gauge of supply, have been hovering at historical lows for more than a decade as cocaine production from Colombia has soared to record highs. In a good year, barely 10% of cocaine shipments in the waters off Central and South America — where the bulk of the world’s cocaine is trafficked — are actually seized or destroyed, according to the U.S. government’s own estimates.
Despite that poor record, U.S. officials continue to tout their success at sea. A 2020 Coast Guard report said at-sea interdictions are the most effective way to combat cartels and criminal networks. Since 2017, the amount of cocaine it has seized or destroyed exceeds 959 metric tons.
Prosecutions under the Maritime Drug Law Enforcement Act exploded last year to 296 — nearly five times the number a decade ago, according to Syracuse University’s Transactional Records Access Clearinghouse, which collects Justice Department data. But since each case involves multiple defendants, the actual number of foreigners detained at sea last year was 635 — the highest tally since 2017.
Critics of U.S. drug policy say most such smugglers fell into the job because of poverty and are hardly worth locking up for so long when legions of their poor compatriots stand ready to take their place.
“These are not masterminds like Pablo Escobar or Chapo Guzman,” said Kendra McSweeney, an Ohio State University geographer who has spent years researching U.S. drug policies.
Neither the Coast Guard nor Justice Department would comment on Dávila-Reyes’ appeal but experts say it’s too early to judge the fallout from the landmark ruling.
Currently Vos’ office in Puerto Rico is preparing 14 motions for dismissal in other boat cases on behalf of jailed defendants from Colombia, Venezuela and the Dominican Republic. The ruling has also been cited in at least five proceedings outside the First Circuit.
“It’s definitely a chink in the armor,” said Roger Cabrera, a court-appointed attorney in Miami seeking who has filed one of the appeals. “But like most chinks, I’m sure the federal government is already looking for a workaround.”
For now, U.S. law enforcement continues to conduct regular search and seizures on the high seas with little indication of concern.
In court filings, attorneys for the U.S. government have argued in part that holding up interdictions to wait for an unequivocal denial of registry from a foreign nation before declaring a vessel stateless would be impractical.
“Anyone involved with bringing dangerous drugs into the United States will be held accountable, no matter their position in the drug-distribution network,” said Justice Department spokeswoman Nicole Navas Oxman.