The Prohibitionist's Burden

Congress has repealed the Fourth Amendment for everyone on a ship

By Mike Krause & Dave Kopel. Mike Krause is a research associate with the Independence Institute & a veteran of the U.S. Coast Guard where among other duties, he served as boat coxswain for drug patrols in the Caribbean Sea. Dave Kopel is research director at the Independence Institute, and author of a chapter in the Cato Institute book After Prohibition: An Adult Approach to Drug Policy in the Twenty-first Century.

July 10, 2001 8:55 a.m., National Review Online. More by Kopel on the Drug War.

Italian translation.

In May 3rd, the U.S. Coast Guard boarded the Belize ship Svesda Maru in international waters, seized over 26,000 pounds of cocaine, and the crew into the United States for prosecution. The bust was hailed as the largest maritime drug seizure ever and is sure to be used by some as evidence that we are winning the war on drugs. Actually, it's better evidence that imperialism is one of the side effects of the U.S. government's addiction to the drug war.

Over the last five years, the Coast Guard has been involved in the seizure of over 490,000 pounds of cocaine with value of over 17 billion dollars, not counting the latest seizure. Yet today in America, cocaine is cheaper and purer than it was 15 years ago.

In 1997, the Coast Guard claimed a 16% cocaine seizure rate. The U.S. National Drug Control Strategy calls for reducing the supply of cocaine by 25% in 2002 and by 50% in 2007 — but this is like a Soviet five-year economic plan which promised to double steel production and triple grain harvests. What the Svesda Maru bust suggests is that more cocaine is actually getting through than ever before. The more drug shipments carrying more cocaine, the more ships for the Coast Guard to catch.

The Svesda Maru was spotted by a U.S. Customs airplane, stopped by a U.S. Navy Guided Missile Frigate some 1,500 miles from U.S. shores and boarded by an accompanying Coast Guard Law Enforcement Detachment (LEDET) who searched the ship for five days before being relieved by an actual Coast Guard Cutter, whose crew found the drugs.

The U.S. Code (Title 14, sect. 89) gives the Coast Guard the authority to "At any time, to go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ships documents and examine, inspect and search the vessel…" In other words, Congress has repealed the Fourth Amendment for everyone on a ship.

The Coast Guard can come onboard and snoop around whenever it wants. Recreational boaters in coastal waters tell numerous stories about the Coast Guard inviting itself onto fishing boats, sailing sloops, and every other kind of boat, in order to start looking about for a stray joint, as a pretext to seize ship. Federal forfeiture laws promote this form of legalized piracy.

But how did the Navy get involved in this? What about the federal law (the Posse Comitatus Act) which forbids the military to participate in law enforcement? What about the principle that turning the military into a police agency is a disaster for freedom and due process — as many other countries have learned the hard way?

During peacetime, the Coast Guard is part of the Department of Transportation, not part of the Navy. So the Coast Guard doesn't have to obey the Posse Comitatus Act. Thus, what the Navy does is put some Coast Guard personnel on Navy ships. Then, when U.S. Navy guided missile frigate wants to stop being a warship and become a world's police cruiser, it hoists a Coast Guard flag, and magically become a legitimate law enforcement platform.

"Coast Guard" naval operations have put the Coast Guard very far from America's coast: in Ecuador, Guatemala, and even on the rivers of land-locked Bolivia. (Likewise, the United States Border Patrol has also been sent to Bolivia.) The Coast Guard gets the credit for the bust, but it is the Navy and the Navy's drug interdiction budget that runs the drug war at sea.

One of the authors, Mike Krause, served in the Coast Guard from 1989-1991, including five joint agency Caribbean patrols on the Coast Guard Cutter Hamilton. If the Hamilton wanted to board a foreign vessel in international waters to look for drugs, the crew would simply ask. Now why would the master of a ship, outside U.S. territorial waters, consent to the U.S. Navy/Coast Guard boarding his ship? Because it is more coercion than consent.

The Hamilton was 378-feet long and in addition to her main 3-inch gun and an array of M-60 machine gun mounts, she carried six harpoon missiles on her bow. The captain of a ship in the middle of the ocean would be hard-pressed to turn down a request from a warship capable of blowing him out of the water. This would be similar to a squad of police on your front porch pointing guns in your general direction, then "asking" to come inside and look around.

But even if a ship's captain refused, it really doesn't matter. The Coast Guard already has blanket permission from some nations to board foreign flagged ships.

The Svesda Maru was caught in the "Transit Zone", a six million square mile area that includes the Caribbean Sea, the Gulf of Mexico, and the Eastern Pacific Ocean, over which the U.S. seeks to enforce international anti-smuggling laws, even over foreign vessels and in cooperating nations' sovereign waters.

Testifying before Congress in 1999, Coast Guard Rear Admiral Ernest Riutta explained that Article 17 of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires "cooperation to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea."

Article 17 is the basis for U.S. agreements with nations within the "zone," which give the U.S. authority to board and search vessels of a signatory nation in international waters and to pursue, stop and search vessels in sovereign waters. About two dozen nations, including Belize have signed such agreements with the U.S.

But is Belize a cooperating nation, or simply afraid of being on the bad side of the U.S.? In 1999, Belize was removed from the State Department's list of major drug-transit countries. This is important because it eases the threat of being decertified as a cooperating nation and potential loss of U.S. backed international development aid. ("Development aid" is often a euphemism for money taken from U.S. taxpayers and given to corrupt governments and their local allies. Only a small fraction of development aid benefits poor people in the recipient country.)

According to the State Dept. Narcotics report, U.S. tax dollars have gone to train Belize's' new Counter Narcotics Task Force, renovation of the Belize City Police Station, the forming of a Joint Information Coordination Center in Belize and a Police Canine Unit. Allowing their rich Uncle Sam to board and seize their ships seems the least they can do.

But while the Coast Guard (and the Navy and the Customs Service) are busy policing the waters of supposedly sovereign nations, who is looking after the U.S. shores? All those Coast Guard personnel in non-coastal Bolivia or in the waters of Belize aren't available to help victims of boating accidents, contain oil spills, or perform the other duties of an agency whose job is to guard the American coast, not to patrol the jungles of Bolivia.

And while Latin American governments have always been eager to surrender their sovereignty in exchange for American government money that goes straight into their pockets, the innocent people of Latin America — the ones who find U.S. Navy cannons pointed at them, and whose fishing boats get searched for hours or days while the "Coast" Guard searches for drugs and fish go somewhere else — may begin to wonder why they are being subjected to American military law enforcement in a futile effort to prevent some Americans from consuming politically incorrect substances.

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