A New Law Counters the Semisubmersible Smuggling Threat
By Douglas A. Kash, J.D., and Eli White
During the past few years, the U.S. law enforcement and intelligence communities have seen the genesis and maturation of a relatively new technique for smuggling drugs into the country. Smugglers from South America have launched self-propelled semisubmersible (SPSS) vessels (alternatively referred to as a “low profile signature evading threat”) operated by a small crew carrying vast quantities of cocaine. These submersibles typically deliver drugs to other vessels at sea and then are scuttled after off-loading. Ultimately, the cargo is shipped via land routes into the United States. Indeed, in other applications, this method can potentially facilitate the covert delivery of weapons of mass destruction (WMD), terrorists, illegal aliens, and any other item or criminal small enough to fit in the vessel. One U.S. Coast Guard official has estimated that up to three SPSSs carry drugs along the Pacific coast each week.1 The existing Maritime Drug Law Enforcement Act (MDLEA)2 had not adequately addressed this new method of transporting narcotics. Therefore, new tools were needed to counter this emerging threat.
On October 13, 2008, the president signed into law the Drug Trafficking Vessel Interdiction Act of 2008 (DTVIA).3 This law was enacted in direct response to the use of SPSS vessels to transport vast amounts of illegal drugs through international waters to the United States. Congress has concluded that the growing use of these vessels is “a serious international problem, facilita[ting] transnational crime, including drug trafficking, and terrorism, [as well as posing] a specific threat to the safety of maritime navigation and the security of the United States.”4 Accordingly, Congress passed the DTVIA, imposing criminal and civil penalties for the knowing operation, attempt, or conspiracy to operate a submersible or semisubmersible vessel that is without nationality in international waters, with the intent to evade detection. This law enables prosecutors to bring criminal charges in the United States even if the vessel and cargo were not recovered. Moreover, for a conviction under the law, the vessel need not be operating in a sovereign nation’s territorial waters as long as the operators use the vessel or engage in a conspiracy to use an unflagged vessel with the intent to evade detection.
The Problem
It is noted that other agencies in the U.S. intelligence and law enforcement communities have statistics and estimates that are different from the ones reported herein. On average, SPSS vessels range from 40 to 80 feet in length and are capable of carrying four crew members and more than four-12 metric tons of drugs at a time.5 In addition, they can travel at a speed of up to 13 knots and a distance of 2,500 nautical miles without having to refuel.6 The vessels are specifically designed with low-signature wood and fiberglass construction to evade detection, thus making them incredibly difficult to identify.7 The structure of an SPSS is purposely shaped to minimize the vessel’s wake, while exhaust pipes are designed to minimize its thermal signature. In addition, it rides close to the surface, with approximately one foot of the craft showing above water, thus significantly reducing the likelihood of visual detection.8 However, it is important to note that there is no single design or type of SPSS because they are built by more than one group in different locations and undergo continual design modifications.
Mr. Kash serves as a senior attorney with the DEA’s Domestic Criminal Law Section.
Eli White is a third-year student at the University of Illinois College of Law and served as a DEA legal intern during the summer of 2009.
Although SPSSs have proven to be incredibly difficult to detect and identify, law enforcement personnel have had some success in capturing crews and disrupting planned operations. One of the more audacious plans was discovered during a 2006 joint Italy-Colombia undercover operation in which agents found a half-built SPSS intended to transship drugs from Colombia to Italy.9 It was estimated that the vessel, which cost 1 to 2 million dollars to construct and operate, was capable of carrying 10 tons of cocaine worth $500 million on the street.1011 A typical SPSS crew is paid a minimum of $10,000, with some being paid up to $100,000 for a single delivery. Assuming one kilogram is worth $20,000 wholesale in the United States, a 10-ton vessel can carry $20 million worth of product.
Prior to the enactment of the DTVIA, the Coast Guard and other law enforcement personnel captured multiple SPSS vessels carrying vast amounts of illegal drugs. In one seizure conducted on September 19, 2008, the Coast Guard intercepted a 60-foot SPSS traveling approximately 350 miles off the coast of Guatemala carrying 295 bales of cocaine, weighing 6.6 tons, with an estimated value of $196 million.12 One military commentator estimated that although drug traffickers launched 23 SPSSs between 2000 and 2007, in the first six months of fiscal year 2008, more than 45 SPSSs were launched from Colombia.13
The Need for DTVIA
Though the seizure of illegal drugs in the September 19, 2008, example and other similar interceptions allowed the operators of the SPSS to be charged under existing drug laws, prior to the enactment of the DTVIA, persons transporting drugs in an SPSS who successfully scuttled their vessel escaped criminal charges. Scuttling refers to the purposeful sinking of the vessel by opening valves, flooding the interior, and, thus, sending all of the drugs or other contraband to the bottom of the ocean. With the drugs disposed of, law enforcement personnel lacked evidence of criminal wrongdoing under the MDLEA and were forced to treat the situation as a mere castaway rescue mission, picking up the occupants from the ocean and returning them to their home country.
Today, it is estimated that more than one-third of all maritime cocaine flow via the Eastern Pacific area of South America entering the United States is shipped via SPSSs.14 According to at least one U.S. military official, there is an expectation that up to 90 SPSSs will be launched this year from South America with the capacity to haul hundreds of tons of cocaine with a street value of untold billions.15 These frightening scenarios, coupled with the fact that a successful scuttle by an SPSS crew would provide law enforcement with no legal course of action, led to the introduction and passage of the DTVIA.
The Statute
The new DTVIA provides in pertinent part:
Whoever knowingly operates, or attempts or conspires to operate by any means, or embarks in any submersible vessel or semisubmersible vessel that is without nationality and that is navigating or has navigated into, through, or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country’s territorial sea with an adjacent country, with the intent to evade detection, shall be fined under this title, imprisoned not more than 15 years, or both.16
To obtain conviction under § 2285(a), the government must prove all elements of the crime, which consist of 1) a knowing mens rea (guilty knowledge and criminal intent) with regard to the operation, attempted operation, or conspiracy to operate 2) a submersible or semisubmersible vessel, 3) the vessel is without nationality, 4) the vessel is or has navigated into, through, or from international waters, 5) with the intent to evade detection. Elements 2 and 5 are further defined in other sections of the U.S. Code.17 Specifically, a “[s]emisubmersible vessel” is “any watercraft constructed or adapted to be capable of operating with most of its hull and bulk under the surface of the water, including both manned and unmanned watercraft,”18 while a “submersible vessel” is defined as “a vessel that is capable of operating completely below the surface of the water, including both manned and unmanned watercraft.”19 In addition, intent to evade detection can be found where one or more of the following factors, among others, present prima facie evidence to conclude that a vessel has evasion as its purpose:
1) The construction or adaptation of the vessel in a manner that facilitates smuggling, including:
a) the configuration of the vessel to ride low in the water or present a low hull profile to avoid being detected visually or by radar;…
e) the presence of materials used to reduce or alter the heat or radar signature of the vessel and avoid detection;
f) the presence of a camouflaging paint scheme, or of materials used to camouflage the vessel, to avoid detection; or
g) the display of false vessel registration numbers, false indicia of vessel nationality, false vessel name, or false vessel homeport;….
4) The operation of the vessel without lights during times lights are required to be displayed under applicable law or regulation and in a manner of navigation consistent with smuggling tactics used to avoid detection by law enforcement authorities.
5) The failure of the vessel to stop or respond or heave to when hailed by government authority, especially where the vessel conducts evasive maneuvering when hailed.
6) The declaration to government authority of apparently false information about the vessel, crew, or voyage or the failure to identify the vessel by name or country of registration when requested to do so by government authority.20
An affirmative defense is recognized where the defendant proves by a preponderance of the evidence that at the time of the offense, one of the following was true:
1) the vessel used in the offense was of the United States or lawfully registered in another nation, and the individual in charge of the vessel so claimed;
2) the vessel was classed and designed in accordance with the rules of a classification society;
3) the vessel was lawfully operating in a government regulated or licensed activity; or
4) the vessel was equipped with and using an automatic identification, vessel monitoring or long range identification and tracking system.21
Further, the statute provides that a defendant satisfies his burden to demonstrate an affirmative defense where he produces specifically identified documents evidencing the existence of one of the factors listed above.22 In addition, subsection d further clarifies that where a claim of nationality or registry of the vessel is made so as to negate the presence of that element of the crime, that claim is recognized only where it is shown 1) the vessel possesses and produces documentary evidence of its nationality as provided in article 5 of the 1958 Convention on the High Seas; 2) the vessel is flying its nation’s ensign or flag; or 3) the individual in charge of the vessel makes a verbal claim of nationality or registry.23 Ironically, though the statute relies on the provisos of the 1958 Convention on the High Seas, the United States never has ratified the treaty. The 1958 Convention was effectively replaced, along with three other treaties, by the U.N. Convention of the Law of the Sea that became effective in 1994.24
A criminal conviction under the DTVIA is punishable by up to 15 years’ imprisonment in addition to a fine.25 Under the proposed sentencing guidelines, tiered enhancements can be applied for failure to heave, an attempt to sink the vessel, and the sinking of the vessel.27 The potential DTVIA sentences are marginally less than under the MDLEA. The hope is that the DTVIA will encourage smugglers to abandon their voyages before they even get under way. Additionally, civil liability may result in a penalty of up to $1,000,000.26 Under the proposed sentencing guidelines, tiered enhancements can be applied for failure to heave, an attempt to sink the vessel, and the sinking of the vessel.27 The potential DTVIA sentences are marginally less than under the MDLEA. The hope is that the DTVIA will encourage smugglers to abandon their voyages before they even get under way.
Application of the DTVIA
Since December 2008, law enforcement agencies have encountered six SPSS vessels that were scuttled and sunk by its occupants in an attempt to avoid detection. Two cases brought under § 2285 resulted in conditional guilty pleas, with defense counsel filing motions alleging 1) the extraterritorial application of the DTVIA is unconstitutional; and 2) the statutory element requiring a showing that defendant “attempt[ed] to evade detection” is unconstitutionally vague. In one of the two cases, the trial court denied both motions, but the issues are expected to be brought up on appeal to the U.S. Court of Appeals for the Eleventh Circuit.
In a third case, four defendants were found guilty of violating § 2285 in a bench trial and were scheduled to be sentenced in 2009. The defendants were apprehended after exiting their SPSS, donning life jackets, and deploying a life raft in response to being spotted by a law enforcement helicopter.
The remaining cases of scuttled SPSS vessels are currently pending and are likely to be charged under Title 46, the MDLEA, rather than the DTVIA. In one of those cases, a defendant confessed that drugs were aboard the vessel, thus providing evidence to support a Title 46 charge. The other two cases of SPSS vessels scuttled in May 2009 likely will be charged under Title 46 with incriminating statements or other evidence supporting such action.
Conclusion
SPSS vessels are arguably nothing more than water-borne propelled containers carrying different payloads. These specific types of crafts have no legitimate uses, and their potential for causing damage—whether through drug trafficking, illegal aliens, or some other contraband—causes a great deal of concern.28 The development of larger, longer-range fully submersible vessels, including those operated by remote control with GPS guidance, are underway. Without a crew to arrest and prosecute, law enforcement authorities will have a far more difficult time pursuing those responsible for launching their poison into American cities. The hypothetical doomsday scenarios include the delivery and detonation of a WMD off the U.S. coast, resulting in the loss of countless persons. It is, therefore, incumbent upon governments to arm the law enforcement and intelligence communities with all legal means, including legislation, to defend their citizens. The drugs brought in by smugglers find their way to every large city and small village in the United States, thus the need for federal legislation.
New-age radar technology, unmanned aerial vehicles and naval surface vessels, remote laser infrared detection, acoustic sensors, and satellites are technologies being developed and deployed by U.S intelligence, military, and law enforcement entities.29 Along with traditional law enforcement techniques (including undercover investigations, confidential source exploitation, and postarrest interrogations), the United States is trying to defeat the latest smuggling methodologies and prosecute the purveyors of narcotics.
The enactment of the DTVIA is a potentially strong tool to deter the use of SPSS vessels to transport large amounts of drugs into the United States. Evidence of growing international cooperation occurred during the summer of 2009, when the Colombian Congress passed legislation making it a crime to construct SPSSs (12 years in prison) and for utilizing such vessels (14 years in prison).30 By allowing for convictions resulting in heavy criminal and civil penalties, even where occupants successfully sink an SPSS prior to the seizure of any illegal narcotics, criminals are no longer permitted to merely travel back home after a failed trafficking attempt.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
The authors thank Special Agent Bill Hanlon, DEA Headquarters; and Lieutenant Daren Babula, Naval Intelligence Officer, Joint Interagency Task Force South, for their critical assistance in the development of this article.
Endnotes
1 Kristen Noel, “New Law Would Help Drug Enforcement, Coast Guard Officer Says,” http://www.GlobalSecurity.Org/security/library/news/2008/10/sec-081002-afps01.htm (accessed on October 15, 2008).
2 46 U.S.C. 70501 et. seq.
3 Pub. L. 110-407, § 101 (2008).
4 Id. at Title I, Section 101.
5 The Self-Propelled Semisubmersibles Threat, http://www.southcom.mil/AppsSC/factFiles.php?id=83 (last visited November 16, 2009); John C. Marcario, New Law for New Threat, SEAPOWER, March 2009 at 38. However, other commentators claim the vessels can carry up to 15 tons of cocaine. See Capt. Wade F. Wilkenson, A New Underwater Threat, Proceedings, U.S. Naval Institute, October 2008, 34.
6 Commander, U.S. Naval Forces Southern Command/U.S. Fourth Fleet, Semisubmersible Drug Vessel Intercepted by U.S. Navy, Coast Guard Team, http://www.Southcom.mil/appssc/news.php?storyID=1387 (accessed on November 16, 2009).
7 http://www.southcom.mil/Appsc/factfilesphp?id=83.
8 William Booth and Juan Ferero, “Plying the Pacific, Subs Surface as Key Tool of Drug Cartels,” The Washington Post, June 6, 2009, A1, A7.
9 Nick Pisa, Drug Cops Foil Mafia Plot to Smuggle $870m of Cocaine by Submarine, March 30, 2006, http://www.cdnn.info/news/industry/i060330.html (accessed on August 10, 2009).
10 Id.
11 Wade F. Wilkenson, 34.
12 Second cocaine sub fished out by U.S., http://www.msnbc.msn.com/id/26795833/print/1/ displaymode/1098/ (accessed on August 6, 2009).
13 Captain Wade F. Wilkerson, A New Underwater Threat, October 14, 2008, http://www.military.com/forums/0,15240,177265,00.html (accessed on November 16, 2009).
14 Id. See also Cocaine Smuggling in 2008, Office of National Drug Control Policy, ONDCP-01-09, August 2009.
15 Id.
16 18 U.S.C. § 2285(a)(West 2009).
17 See 18 U.S.C. § 2285(b), (h) (West, 2009).
18 46 U.S.C. § 70502(f)(1) (West 2009).
19 Id. at (f)(2).
20 46 U.S.C. § 70507(b) (2009).
21 18 U.S.C. § 2285(e) (2009).
22 Id.
23 18 U.S.C. § 2285(d)(2009).
24 http://www.un.org/Depts/los/convention_agreements/texts/unclos/preamble.htm (accessed on August 19, 2009).
25 18 U.S.C. § 2285(a) (2009).
26 46 U.S.C § 70508(d) (2009).
27 Amendments to the Sentencing Guidelines May 1, 2009 (Effective November 1, 2009), http://www.ussc.gov/guideline.htm (accessed on August 25, 2009).
28 There is no available information to indicate that SPSSs have been used for any purpose other than shipping drugs.
29 Wade F. Wilkerson, 36.
30 Jeremy McDermott, “Colombia Out to Sink Cocaine Barons by Nabbing ‘Drug Subs,’” June 20, 2009, http://www.the scotsman.scotsman.com/world/Colombia-out-to-sink-cocaine.5385360.jp (accessed on September 9, 2009).