Submersibles And Transnational Criminal Organizations

In 2007, the U.S. Coast Guard approached a crudely constructed, aqua-blue vessel, containing nearly six tons of cocaine. The four crewmen aboard the self-propelled semi-submersible (SPSS) appeared to be well aware that they could avoid criminal prosecution if they destroyed all evidence of their drug trafficking before law enforcement officials arrived. As the boarding team neared the SPSS, the crew opened the scuttling valves to sink the fiber-glassed submersible. However, the Coast Guard was fortunate in this case; the crewmembers were unable to scuttle the eleven bales of cocaine valued at more than $350 million, though they did manage to sink their vessel before the boarding team arrived. The interdiction, while successful, underscored two gaps in U.S. drug trafficking law at the time: first, that drug smugglers could skirt prosecution if law enforcement officials failed to recover evidence of illegal activity; and, second, that the existing enforcement structure did not account for the national security danger that a new vehicle—the SPSS—presented. The ensuing legislative action to close these gaps is a narrative regarding the illicit narcotics industry, its intersection with other threats, and the law. The use of submersibles by traffickers is on the rise and presents a transnational security threat. From 2001 through 2010, approximately 175 documented drug transits from South America to global destinations occurred on SPSS-type platforms. While transporting illicit cargo in the maritime domain is not new, the stealthy SPSS—a long-range vessel that is extremely difficult to identify and track—raised significant national security concerns. “If [SPSS vessels] can smuggle drugs, what else can they smuggle?” asked Drug Enforcement Administration spokesman Rusty Payne. In 2008, Congressman Daniel E. Lungren of California asserted that the SPSS is one of the most “‘significant threats we face in maritime law enforcement today,’” but noted that without a law proscribing the operation of these platforms, narco-traffickers often avoid criminal consequences. The United States closed the legal gap in 2008 with the passage of the Drug Trafficking Vessel Interdiction Act (DTVIA). This federal statute criminalizes the operation of fully submersible or semisubmersible vessels that are without nationality and are navigating or have navigated outside of a nation’s territorial sea with the intent to evade detection. Essentially, the conveyance was outlawed regardless of its contents. At present, dozens of defendants have been convicted under the DTVIA, yet scant legal review of DTVIA’s constitutionality, either academically or judicially, existed prior to four Eleventh Circuit opinions issued in the first half of 2011. In these cases, the courts considered whether the DTVIA exceeds congressional authority, whether its application violates due process, whether its text is too vague, and whether the statute improperly shifts the burden of proof to the defendant. Although limited in number, these rulings provide guidance for addressing other asymmetric maritime threats that are increasingly transnational, complex, and lethal. This Article examines the economic and environmental incentives that led to the development of semi- and fully-submersibles, the DTVIA’s legislative history and enactment, the issues raised in the appellate cases that affirmed the Act’s constitutionality, and the unresolved legal and operational issues to address the SPSS threat. Part II details the international narco-trafficking business and the rise of the SPSS as a drug-smuggling tool, as well as the logistical difficulties faced by drug enforcement agencies. Part III discusses the existing domestic and international efforts to confront the international drug trade. Part IV outlines the swift congressional response to the SPSS threat—the DTVIA. In turn, Part V examines the judicial review of appeals arising out of the DTVIA