Is the U.S. Violating the Constitution and International Law to Halt Drug Trade?

The United States of America has waged war against international drug smugglers in an effort to reduce the numerous threats they pose to an already dangerous society. The war is extremely costly, and at times, it seems as though the government is fighting a losing battle. As in all wars, tactical advantage is imperative. To gain an edge, it is often necessary to cross the lines drawn by the laws of war. The laws governing this war are set forth in the U.S. Constitution and the principles of international law. As the war wages on, the U.S. is becoming less intent on abiding by these laws in the interest of a brighter, safer nation. This article will explore just how far the U.S. has seen fit to cross the vivid lines drawn by its founders and the international community. For despite its legitimate objectives, the government must continue to respect both U.S. Constitutional principles and international law in its valiant quest to halt the drug trade.

The Drug Question
Despite strict enforcement of rigid statutes, drugs remain readily available in the U.S., both affordable and potent. These drugs are primarily smuggled into the country through the United States’ 300 ports of entry and 88,633 miles of coastline. Thus, the U.S. Coast Guard and Customs Service have been summoned by the federal government to play a major role in the interception of international drug traffic.

Drug abuse severely affects several aspects of American society. While more than half of the residents in federal prisons were convicted of drug offenses, drug-related crimes and violence are just some evidence of the physical and psychological dangers associated with drug abuse. The fact is that drugs remain an imminent threat to the home, school, workplace and community.

Every year in the U.S., billions of dollars are spent on illicit drugs, rather than legitimate businesses. Furthermore, the billions generated by the underground drug trade cost the IRS more than $8 billion in uncollected taxes. The Bureau of Justice Statistics has conservatively estimated that more than 75 million persons in the U.S. have used illegal drugs.

Production and Enforcement
The drug trade, like any legitimate business, relies on the simple concept of supply and demand. Thus, drug enforcement efforts have focused on making drugs more expensive and difficult to obtain. Methods such as eradicating crops, disrupting smuggling routes, and seizing drugs at the border cost the U.S. government billions of dollars. Despite the exorbitant amount of money spent on drug interdiction efforts each year, the U.S. Coast Guard and other agencies intercept only 5 to 15 percent of illicit drugs annually.

Transnational Ocean Boundaries
Under international law, the oceans of the world are divided into three zones. Extending three miles from a nation’s coast is what is called the territorial sea. Also known as the “three mile limit,” the territorial sea is the area in which the states possess sovereign rights under international law. The rights of the states within their territorial sea include jurisdiction over foreign warships and merchant ships, jurisdiction over police, customs, and revenue, the right to promulgate fishery regulations, and the right to establish defense zones. Although a country’s conduct may not cause “unreasonable interference” with the passage of a foreign vessel, these vessels must adhere to reasonable regulations promulgated by the sovereign state.

The territory that extends from three miles to twelve miles from the coast of a nation is known as the contiguous zone. Under international law, a state’s sovereignty does not extend into the contiguous zone, though international custom has allowed some leeway. Under U.S. law, U.S. customs waters extend 12 miles from the coastline and consist of both the territorial sea and contiguous zone.

Seaward of the contiguous zone is the high seas. The international 1958 Convention of the High Seas provided a general principle of noninterference: “The high seas being open to all nations, no state may validly purport to subject any part of them to its sovereignty.”

According to international law, no state may assert authority on the high seas. To maintain order on the high seas, each country is expected to regulate its own vessels. However, if there is reasonable suspicion that a ship is engaged in piracy, slave trading, or that it is the same nationality as the ship conducting the seizure, the noninterference provision of the Convention does not apply. Furthermore, “hot pursuit” of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Hot pursuit on the high seas may continue only as long as it remains uninterrupted.

In addition to international law and transnational boundaries, the United States is also bound by its federal Constitution. The U.S. Constitution has long been heralded as the “supreme law of the land.” The question that seems open to debate is whether it is also the “supreme law of the sea.”

The Fourth Amendment to the U.S. Constitution
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

A “search” has been broadly defined as “some exploratory investigation, or an invasion and quest, a looking for or seeking out,” while a “seizure” is “the act of physically taking and removing property.”

Case law regarding the Fourth Amendment is extensive. In the U.S. Supreme Court case of Katz v. United States, the Court held that the Fourth Amendment protects people and not places, making the relevant inquiry whether or not an individual has a reasonable expectation of privacy in the place to be searched.

Despite the existence of the Warrant Requirement, law enforcement officers need not obtain a warrant when it is not practical to do so. Based on his observations, an officer may take swift action without a warrant as long as he could show that specific actions, taken together with rational inferences from those facts, would reasonably warrant the intrusion.

Two standards have been enumerated by the U.S. Supreme Court. (1) Probable cause is defined as “the quantum of facts and circumstances within an officer’s knowledge that would cause a reasonable person to conclude that the particular individual has committed a crime, in the case of an arrest, or that specific items related to criminal activity will be found at a particular place, in the case of a search.” (2) Reasonable suspicion is something less than probable cause and can be established by showing that an officer was aware of specific facts which, taken together with rational inferences from those facts, reasonably warranted suspicion that the defendants were engaged in criminal activity.

The borders of the U.S. have been designated as an exception to these standards by both Congress and the U.S. Supreme Court. Regardless of whether or not reasonable suspicion exists, U.S. authorities may conduct a search at the border simply because the vehicle is entering the U.S.

The Fourth Amendment to the U.S. Constitution is an invaluable safeguard of liberty on U.S. soil. However, it is difficult to determine how far and to whom this safeguard extends once the soil ends and the ocean begins.

Maritime Search and Seizure Policy
The principle U.S. statute prohibiting the international transport of illegal substances is the Maritime Drug Law Enforcement Act, which provides: “It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, to knowingly or intentionally manufacture or distribute, or to possess with intent to distribute a controlled substance.”

The customs waters of the U.S. extend 12 miles from the shore. Within these waters, the U.S. possesses plenary jurisdiction pursuant to the United States Code: “Any officer of the customs may at any time go on board of any vessel…within the customs waters…and examine the manifest and other documents and papers and examine, inspect, and search the vessel…and to this end may hail and stop such vessel or vehicle and use all necessary force to compel compliance.”

In United States v. Villamonte-Marques, the U.S. Supreme Court held that these routine document and safety inspections do not violate the Fourth Amendment. In its analysis, the Court noted the obvious differences between boats land vehicles.

International law provides more stringent standards. While both U.S. and foreign vessels must obey U.S. rules and regulations, the U.S. may not unreasonably interfere with the navigation of a foreign vessel within the “three mile limit.” International law further provides that, in the contiguous zone, the U.S. may exercise only “the control necessary to prevent the infringement of its customs, fiscal, immigration or sanitary regulations in U.S. territory or the territorial sea.”

Despite these international principles, the U.S. Maritime Drug Law Enforcement Act provides that international law will not be a defense in federal court to a vessel unlawfully seized under international law. Without having to adhere to international law, the U.S. Coast Guard may seize vessels of U.S. registry anywhere on the high seas in order to enforce the Act.

The courts of the U.S. have interpreted the Act so broadly as to allow the Coast Guard absolute authority to stop and board any U.S. vessel to conduct a document and safety inspection. While there is no standard required to search a U.S. vessel on the high seas, if circumstances do arise during the course of inspection to generate probable cause, the Coast Guard may make a thorough search of the vessel, seize evidence, and make arrests. This has been described as one of the most sweeping grants of police authority ever written into U.S. law.

United States Maritime Policy on Stateless Vessels
According to U.S. law, stateless vessels on the high seas can be stopped and boarded by the U.S. Coast Guard without any suspicion. Vessels not flying any nation’s flag are subject to the jurisdiction of the U.S. and to a limited search for the purpose of identification. Of course, if circumstances arise to generate probable cause, a thorough search of the vessel may be conducted.

According to international law, the U.S. is justified in its treatment of stateless vessels. Ships not flying under any nation’s flag do not have the protection of international law by virtue of their status as stateless vessels. Thus, they have no right to navigate freely on the high seas.

The U.S. Approach to Foreign Vessels on the High Seas
The most controversial situation in U.S. maritime search and seizure cases occurs when the U.S. stops and boards a vessel of foreign registry on the high seas. In essence, the U.S. disregards the Convention of the High Seas, which requires noninterference. U.S. Federal Courts consistently find that vessels engaged in a conspiracy to violate U.S. drug laws are subject to the jurisdiction of the U.S.

Constitutional law concerning Coast Guard searches of foreign vessels on the high seas is highly inconsistent. Although courts have held that the Fourth Amendment applies in cases involving foreign vessels, they have differed on the standard that should apply. Some courts hold that reasonable suspicion is necessary for the Coast Guard to board a foreign vessel on the high seas. Others hold that probable cause is required. Still others find that the U.S. Coast Guard may stop and search a foreign vessel on the high seas for any reason. Despite this important controversy, the U.S. Supreme Court has not taken the opportunity to decide what, if any, standard is necessary for the Coast Guard to search a foreign vessel in international waters.

Crimes in the Drug War
An analysis of the laws governing the war on drugs, the practices of the U.S. Coast Guard, and the decisions of the courts of the U.S. leads me to conclude that the U.S. has committed violations of both the U.S. Constitution and international law.

The United States of America must abide by the U.S. Constitution and principles of international law in its quest to halt the drug trade. However, like most laws, many of the laws governing the war on drugs are open to some interpretation. Given the severity of the drug problem in the U.S., courts often favor the U.S. Coast Guard over international defendants in the interpretation of these laws.

Does the necessity of the intrusions by the U.S. Coast Guard in U.S. customs waters outweigh the freedoms granted by the U.S. Constitution and international law? Many would argue that the illicit drugs that destroy the lives of so many U.S. citizens do not originate in the U.S. They are brought here by the same vessels the law seems so eager to protect. While individual rights are the touchstone of a free nation, they should not hinder the Government’s right, or the Government’s duty, to protect this society from the evils men have brought upon themselves.

I agree.

The crimes committed by the U.S. Government in the war on drugs are not so egregious as to warrant a change in U.S. policy. The sweeping powers given to the U.S. Coast Guard by Congress are essential if the U.S. is to remain serious in fighting this war. Since the Government’s focus on demand reduction has proven unsuccessful in decades past, the strategy must now shift to supply reduction. Only then can one hope for a reduction in violence on American streets caused by the use and abuse of illegal drugs.

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