It’s unsurprising that the government would not feel bound to convert the military action here into a law-enforcement action if it doesn’t have to.
The Trump administration has apparently chosen to repatriate survivors of our military’s drug-interdiction campaign off the coast of Venezuela. Liberals and other opponents are crowing that this shows Trump must not have evidence to support his view that these are drug traffickers and not, say, Colombian fishermen, but this misapprehends the costs and benefits of trying these modern-day pirates of the Caribbean. It also gets wrong the nature of the actions: these are military activities and not law enforcement, therefore it is understandable that the government wouldn’t deem it necessary to engage in law enforcement at the same time. Even if it did, though, there are many good reasons why the government would not want to try these individuals, even with strong evidence of wrongdoing on its side.
The Department of Justice surely does not want to get dragged into a lengthy and costly dispute about the legality of these actions if it doesn’t have to be. Far from a concession, this is frequently a prudent course of action for the executive branch. For example, Bill Barr explained once how he evaded judicial review in his rapid repatriation of Cuban prison rioters: “And I said, ‘Get a plane down there because they’re going right to tonight or tomorrow morning. They’re going to first thing,’ and by [then they] were already being put on the plane to [go] before the civil rights lawyers and all these people could come with injunctions and stuff.”
I have no idea on what basis a judge would declare such activities unlawful in the course of a prosecution. But for the last ten months, judges have shown themselves to be nothing if not creative in opposing the Trump administration. There are judges around the country trying to take the executive branch into receivership, telling it whom to hire, what money to spend, and even how it can command militia. Why wouldn’t they also want to take charge of these operations to put a stop to them, if given a chance? Indeed, putting Trump aside, it’s not unprecedented for district judges to try and micromanage our naval forces in the Caribbean.
Apart from the real possibility of landing in front of a “resistance judge,” charging the survivors would be a complex trial with few tangible benefits. There are a few different charges that could be brought here — material support of terrorism, the Maritime Drug Law Enforcement Act (MDLEA), or an illegal-importation conspiracy under 21 U.S.C. § 959. Some of these, like MDLEA and § 959 almost always involve cooperation from a foreign country, which we won’t get here. While the survivors were engaged in what the government has deemed a terroristic enterprise that’s contrary to national security, under domestic criminal law, they’re probably drug couriers. So regardless of the charges, mere drug couriers (with no criminal-history points) are looking very mild prison time under the sentencing guidelines. Which means we’d go through the trouble of putting them on trial for sentences that could be as low as time served. Why bother?
These could be complex cases, even if the stakes are low. The MDLEA, for example, is a jurisdictional thicket, frequently amended by Congress in response to court decisions that struggle to make sense of its extraterritorial application to foreigners in international water. Most of our evidence is likely derived from intelligence collection, which means the trial would be conducted under the Classified Information Procedures Act. Whatever confessions we extracted from the couriers would present its own set of legal problems given the Fifth Amendment rights even foreign terrorists enjoy. And who knows what a liberal judge would do with physical evidence gleaned after the attack: there isn’t good precedent on point for evidence taken from the wreckage of a cigarette boat that was hit with an extrajudicial hellfire missile. Many judges would be only too eager to establish a rule that you don’t get to admit evidence obtained in the course of committing — what the defense will call — a war crime.
Which is to say, why expend prosecutorial resources and incur legal risk all to secure light sentences against low-level mopes? Unlike, say, an ISIS jihadist, who needs to be incapacitated to avoid recidivism, it’s very unlikely these guys will be going anywhere near the water for a very long time.
In dealing with a national-security threat, such as the piratical terrorists of the Venezuelan cartels, the law-enforcement capabilities are complementary to the military ones. Each can be used in different circumstances to maintain security through deterrence or incapacitation. The use of one capability does not imply the need for the other.
It’s therefore unsurprising that the government would not feel bound to convert the military action here into a law-enforcement action if it doesn’t have to for security purposes. After all, the real mission is deterrence, and it’s not clear how the remote possibility of a light American prison sentence deters narcoterrorists more than the real possibility of being sent to the bottom of the Caribbean. The failure to prosecute here doesn’t mean that there isn’t evidence; it just means that prosecution doesn’t advance national security in this instance.