Since September, the United States has launched what President Donald Trump’s administration has described as an “armed conflict” against “narco-terrorist cartels” operating in the Caribbean. U.S. forces have attacked suspected drug-carrying vessels off the coast of Venezuela six times, killing at least 29 people in total. The most recent strike occurred on October 16, targeting a semi-submersible believed to be “carrying a large amount of narcotics bound for the United States.”
In earlier raids, everyone aboard the targeted “narco-boats” was killed after being struck by U.S. missiles. But during last week’s operation, two suspects survived — the first time that had happened. Two others aboard the semi-submersible were killed. The surviving suspects were taken into custody by U.S. forces and transferred to a Navy ship. Now, the U.S. government must decide whether to treat them as prisoners of war or repatriate them.
Even if Washington can prove their involvement in drug trafficking, that alone does not constitute a clear criminal case justifying long-term detention — making it difficult for the U.S. to claim they are prisoners of war.
“Because there is no actual armed conflict, the United States has no legal authority to detain them, regardless of what the Trump administration calls them,” said Rachel VanLandingham, a former Air Force lawyer and current professor at Southwestern Law School.
A U.S. military attorney, speaking anonymously, said it would be extremely difficult to justify prolonged detention of the suspects in court. Although the Trump administration has told Congress that this is a “non-international armed conflict” against drug cartels, the lawyer noted that such terminology holds little meaning under international or domestic law.
Legal experts say the administration still has other options — such as classifying the two men as “unlawful combatants” and sending them to the Guantanamo Bay detention facility in Cuba, or prosecuting them in a U.S. court.
However, detaining them would expose Washington to a host of legal and political complications. The prisoners could demand rights under U.S. law, including the right to challenge the legality of their detention in court.
Brian Finucane, a senior adviser at the International Crisis Group, said that if the case reached a courtroom, the Trump administration would be forced to present evidence justifying the detentions — a move that could “risk revealing information that undermines its own rationale for the narco-submarine raids.”
The issue is also politically sensitive. Democratic lawmakers have been pressing the government to release details about the anti-drug operations, which have drawn strong condemnation from Venezuela.
“These attacks on vessels in the Caribbean are illegal. If the survivors ever appear before a civilian or military court, that will become immediately clear,” said Democratic Congressman Jim Himes.
So far, the Trump administration has released little information about the raids, including the quantities of drugs allegedly seized or the identities of those killed. Facing mounting legal obstacles, the administration ultimately opted for the simpler solution of returning the two surviving suspects to Ecuador and Colombia for local authorities to detain and prosecute.
The decision, legal experts say, shows that Washington is unwilling — at least for now — to confront the legal fallout from its Caribbean anti-drug campaign.
“I think the administration chose what it saw as the least bad option,” said Finucane, who previously served in the State Department’s Office of the Legal Adviser. “Sending the men home was a way to sidestep the legal headaches altogether.”
Last week, President Trump claimed that “at least 25,000 Americans would have died” if the intercepted submersible had reached U.S. shores — referring to the vessel targeted in the latest strike. However, as in previous cases, his administration provided no evidence to support that assertion.