Law students enrolled in a “substantive” criminal procedure course frequently sweat over the intricacies of search and seizure law within contexts familiar to the average land-lubber attorney – the home, the automobile, and the person strolling down the street. Perhaps some die-hard students will take the time to learn more obscure aspects of the Fourth Amendment such as administrative searches and the law of satellite reconnaissance. But who really bothers to learn anything about maritime search and seizure law? The idea of pirates, smugglers, and privateers in the twenty-first century is absurd to most people, including many attorneys. But, be forewarned! In the post 9/11 world the men and women in the United States Navy and United States Coast Guard are on call twenty-four hours a day monitoring commercial and private vessels on the high seas. [1] They are enforcing regulatory legislation developed by Congress and applicable to all tankers, container ships, and other vessels that are vital links between the United States and other markets around the world. [2]
Although many people are unaware of the functions of America’s sea forces outside of the war-making context, the Navy and Coast Guard are active 365 days a year protecting the borders of the United States. [3] This is done through active monitoring and boarding of international shipping that falls within lawful jurisdiction of the country. [4] The Navy and Coast Guard are distinct branches of the military with independent chains of command. [5] They frequently cooperate in joint operations within the maritime regulatory and law enforcement contexts. This happens often in waters surrounding the United States and its territories, where the country’s jurisdiction is the strongest. [6] Also, operations are ongoing throughout Latin America and South America, where the Navy and Coast Guard frequently work with local governments to interdict smugglers, drug runners, and assist in regulating vessels operating in the area. [7]
The two key questions of law applicable to American naval operations are (1) jurisdiction to conduct the regulatory activities performed and (2) what substantive powers Congress and international law grants to our forces to do their job. [8] Jurisdiction is somewhat more complex and is a close cousin of the constitutional principles surrounding searches and seizures. The substantive law exists generally within international treaties, maritime custom, and congressional enactments. [9] Congress’s legislation in this area and the military’s activities are analogous to the relationship between Congress and the federal administrative agencies. Congress develops policy and sets clear limits, and the military’s chain of command uses their expertise and skills to figure out where the rubber meets the road. [10]
Whether military forces have the authority to assert jurisdiction over a particular vessel depends on a number of factors including the presence of Admiralty jurisdiction generally, proximity of the suspect vessel in relation to American coastal waters, and the specific interest in the suspect vessel (i.e., whether the military has “probable cause” that the vessel is engaged in unlawful activity, whether they have “reasonable suspicion” of the same, and the like). [11] The Constitution bestows general admiralty jurisdiction on the federal courts, [12] and gives Congress the exclusive authority to defining the substantive requirements of regulatory shipping laws. [13] Congress has exercised its authority broadly by assigning crimes and offenses against the laws of the United States that occur outside the jurisdiction of the landmass of United States’ territory (such as a domestic flagged vessel, and island outcropping, an aircraft, and even in space) to fall within admiralty for purposes of regulation. [14] Supreme Court interpretation has further clarified this grant of jurisdiction to all areas outside of the United States on the high seas, as well as the Great Lakes. [15]
There are a variety of criminal and non-criminal statutes that grant substantive authority to the Coast Guard to board, search, and seize vessels and crewmembers that are not in compliance with the dictates of Congress. [16] Generally speaking, the closer a vessel is to the coasts of the United States, the greater the power to search without probable cause. [17] Further, if the vessel is registered and flying the flag of the United States, Coast Guard personnel may board ships and conduct inspections including more invasive searches if probable cause of a crime is suspected, [18] even if there is no substantial relationship between the criminal activity and the United States. [19]
The types of regulatory stops military vessels engage in are varied, from run of the mill Coast Guard safety inspections and document checks, [20] to large scale drug interdiction exercises. [21]. The U.S.S. Crommelin, an Oliver Hazard Perry-class guided missile frigate of the United States Navy, [22] has seen its share of these regulatory stops in South America and elsewhere. During the summer of 2004 the ship participated in one of the largest drug busts to that point, seizing more than 36000 pounds of cocaine worth over $ 36 million. [23] I recently interviewed the navigator on board, LTJG Jeff MacDougall of the United States Navy, and asked him some questions about the ship’s role in those activities. The interview appears in full below. [24]
Q: Who are you and what do you do for the Navy?
A: LTJG Jeff MacDougall, USN. I am Navigator on USS CROMMELIN (FFG 37).
Q: How did you decide on the Navy instead of another service?
A: Family tradition, both my father and grandfather were in the Navy.
Q: Are you planning on making a career out of it?
A: No, I plan to get out after about 5 to 6 years (three tours).
Q: So, what does the Navy do in regards to regulating shipping on the high seas?
A: The Navy will only “regulate” shipping if it is known that a particular vessel is carrying an illegal cargo. For example, narcotics, illegal weapons, etc. In this case, we may be tasked to stop and board the vessel, then conduct a search to account for all crew and attempt to locate any contraband.
Author’s Note: Navy and Coast Guard ships require probable cause to board non-U.S. flagged vessels, and probable cause to search non-public areas of U.S.-flagged vessels. As a general rule, once probable cause is establish the Coast Guard has the authority by act of Congress to board any vessel and seize any object or person on board. [25] Note however that the Supreme Court has long held it prudent for the vessel’s country of registry to be notified and the matter turned over to them if the crime does not “affect the peace and dignity of the (United States).” [26]
Q: How does this compared with the mission of the Coast Guard?
A: The Coast Guard is capable of performing the same mission.
Q: Does the Navy work with the Coast Guard? How to they interact?
A: The Navy and Coast Guard operate jointly in many of these operations, both with vessels from each service coordinating to intercept the suspect vessels.
Q: What type of vessels do you look for? What kinds of traits seem suspicious?
A: We use land-based intelligence to develop search areas, and ID vessels suspected of carrying contraband. We then use this information to search for the particular suspect vessel. Aside from our intel, other traits we could look for include high-powered radios, satellite phones or other overly expensive equipment on small fishing vessels, excess quantities of fuel (used for the long voyages), vessels operating outside of established shipping lanes or fishing zones.
Q: What is the typical way a naval vessel would hail another? Is this similar to the way civilian vessels hail each other?
A: We call one another up by hull number or position if hull is unknown (eg, “Warship five-nine this is Warship three-seven, over” vs “Warship in position two-one degrees two minutes north, one-five-seven degrees five-six minutes west, this is Warship three-seven four nautical miles off your port bow, over.”) Civilians call one another by vessel name if it is known, or by position if it is unknown.
Q: In what instances would the Navy or coast Guard board a civilian vessel? Are drugs always involved, or are commercial carriers also subject to boarding?
A: To the best of my knowledge, any vessel can be boarded if there is a reasonable belief that it is carrying contraband, but this requires authority from the local Coast Guard district who receives their direction from above them and goes through necessary diplomatic channels depending on the vessel’s flag (what country they are registered in).
Q: What is the scope of the boarding's search when conducted?
A: Everything is searched. Every possible storage space, fuel tanks are drained and searched, and false bulkheads (fake walls) are located and taken down if they exist.
Q: Do you think that the Navy and Coast Guard's role in this regulatory function is the best way to go about doing things?
A: They do a good job of completing the mission while still respecting individual rights. For instance, if contraband is found, the detainees are treated humanely, washed, given clean clothes and food and water. Throughout the process, they are treated as suspects just as any American would be.
Q: Do you every work with the militaries or law enforcement agencies of foreign countries in working in this role?
A: Yes, we help train many countries Navies and Coast Guards to perform this mission. We also conduct exercises to promote joint operability (our ability to work together despite language barriers and differences in operating procedures).
Q: Do you think civilian shipping lines are doing enough to defend against terrorism?
A: They are very limited in what they can do. They rely on the Navies and Coast Guards of the areas they are sailing through for defense. I a terrorist were to attack a freighter, it would be difficult to stop it unless we had prior warning of it and could deter the attack with the presence of warships. We do conduct exercises to test our ability (and that of local militaries) to defend against specific threats to shipping (eg, an attack on the Panama Canal).
Q: What about domestic port authorities? How does the security here in America (according to your own observations) compare with port security in foreign countries?
A: Security is entirely dependent on the port you are in. When a Navy warship goes to a foreign port, security is high, because we pay for it.
Q: One last thing: are there any modern-day pirates left? Does the Navy and Coast Guard every come across them?
A: Yes. Piracy still exists in many areas of the world, and they prey on everything from small pleasure craft to cruise liners to container vessels.
Author’s Note: Modern day pirates are very active in the southeast Asia region where commercial shipping lines bring a large volume of traffic to the area. [27] This is also a problem around the horn of Africa, where a recent United Nations relief ship was boarded by force. [28] The Canadian Broadcasting Company has noted that “Somali pirates are trained fighters, often dressed in military fatigues, using speedboats equipped with satellite phones and Global Positioning System equipment. They are typically armed with automatic weapons, anti-tank rocket launchers and various types of grenades, according to the UN Monitoring Group on Somalia.” [29]
The author would like to extend a special thanks to Lt. MacDougall, whom without his help this article would not have been possible. More thanks goes out to all active, reserve, and retired American military personnel who have contributed to the continued security and vitality of the United States of America.
Endnotes:
[1] See United States Navy, The U.S. Navy (2007), http://www.navy.mil; United States Coast Guard,USCG Home Page (2007), http://www.uscg.mil.
[2] See generally THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 1.12 (Hornbook ed., 2004).
[3] See text accompanying note 1, supra.
[4] 19 U.S.C. § 1581(a) (2007).
[5] 14 U.S.C. § 3 (2007) (stating that the Coast Guard is organized under the Department of Homeland Security in peacetime).
[6] See United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983) (noting that inspections of vessels in United States waters has traditionally been permissible without probable cause or even reasonable suspicion, but probable cause is required to search the “private areas” of the vessel); cited in SCHOEMBAUM, supra note 2, at § 1.12; see also L. Stephen Cox, Sources of American Maritime Criminal Law, 26 TUL. MAR. L.J. 145 (2001).
[7] See Global Security, U.S. Military Operations: Counterdrug Operations (2007),http://www.globalsecurity.org/military/ops/drug-ops.htm.
[8] See SCHOENBAUM, supra note 2, at § 1.12.
[9] See id.
[10] See generally RICHARD J. PIERCE, JR., 1 ADMINISTRATIVE LAW TREATISE, § 2.4 (2002).
[11] See text accompanying note 6, supra.
[12] U.S. CONST. art. III, § 2.
[13] U.S. CONST. art. I, § 8 (providing Congress authority to fight piracy and other crimes on the high seas with appropriate laws, and to regulate commerce among the several states).
[14] 18 U.S.C. § 7 (2007).
[15] United States v. Rogers, 150 U.S. 249, 261 (1893); United States v. Grush, 26 F. Cas. 48, 51 (D. Mass. 1829); but cf. In re Air Crash Off of Long Island, 209 F.3d 200, 207 (2d Cir. 2000) (criticizing previous cases for not holding to the common law’s accepted definition of jurisdiction in the high seas).
[16] See 19 U.S.C. § 1581 (2007) (specific enforcement provisions for the Coast Guard relating to boarding of vessels); 14 U.S.C. § 89(a) (2007) (“Coast Guard Enforcement Statute,” relating to the powers of the Coast Guard during peace time law enforcement activities); 21 U.S.C. § 955, et. seq. (2007) (“Marijuana on the High Seas” Act); 46 U.S.C. § 1901, et. seq. (“Maritime Drug Law Enforcement Act”); see also SCHOENBAUM, supra note 2, at § 1.12.
[17] United States v. Rogers, supra note 15, at 261.
[18] See United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983).
[19] United States v. Julio-Diaz, 678 F.2d 1031 (11th Cir. 1982); cited in SCHOENBAUM, supra note 2, at § 1.12.
[20] See SCHOENBAUM, supra note 2, at § 4.2 n. 15.
[21] See text accompanying note 7, supra.
[22] United States Navy, Welcome to the Official Website of the U.S.S. Crommelin, (2007),http://www.crommelin.navy.mil/.
[23] Cmdr. Daniel W. Roberts, USS Crommelin Scores First Narcotics Seizure, NAVY NEWSTAND, (July 6, 2004), available at http://www.news.navy.mil/search/display.asp?story_id=14107.
[24] Via email to author, April 2007.
[25] See 19 U.S.C. § 1581(a) (2007).
[26] See Mali v. Keeper of the Common Jail, 120 U.S. 1 (1887), cited in SCHOENBAUM, supra note 2, at § 1.12 n. 9.
[27] See Piracy, WIKIPEDIA, (April 18, 2007), http://en.wikipedia.org/wiki/Piracy.
[28] Pirates Hijack Food Aid Ship Off Somali Coast, CBC NEWS, (February 25, 2007),http://www.cbc.ca/world/story/2007/02/25/somalia.html.
[29] Id.