US Navy detains two survivors of strike against alleged drug boat

By Kylie Atwood, Natasha Bertrand, Zachary Cohen, Katie Bo Lillis, CNN

(CNN) — The US military is holding two survivors on a Navy ship after the US carried out a Thursday strike on an alleged drug boat in the Caribbean, according to three US officials.

The strike, which President Donald Trump confirmed Friday, was the sixth known strike on a boat allegedly involved in drug trafficking. But it appeared to mark the first time an attack had not killed everyone on board.

The detention marks the first time that the Trump administration’s military campaign targeting drug traffickers has resulted in the US holding prisoners, and it sets up a complicated legal and policy situation for the administration. It is unclear what the US is going to do with the survivors being held, the sources said.

The US has deployed scores of military assets to the Caribbean as it continues to promise further strikes on alleged drug boats, part of the administration’s effort to drive down drug flow into the US and pressure Nicolás Maduro, Venezuela’s authoritarian president.

Asked about what happened to the survivors of the strike during an event at the White House Friday, Trump did not address the status of the detainees but said that US forces had “attacked a submarine, and that was a drug carrying submarine built specifically for the transportation of massive amounts of drugs.”

“Just so you understand this was not an innocent group of people,” he said. “I don’t know too many people that have submarines, and that was an attack on a drug carrying loaded up submarine.”

Trump, who confirmed earlier in the week that he’d authorized the CIA to conduct covert action in Venezuela, also had harsh language for Maduro on Friday: “He doesn’t want to fuck around with the US.”

The threat came when Trump was asked about reports that Maduro offered preferential access to the nation’s natural resources in exchange for lowering the temperature after the US conducted the series of Caribbean strikes.

US Southern Command, which is responsible for military operations in the region, referred CNN to the White House for comment when asked about Thursday’s strike and the survivors.

Legality of strikes in question

The legality of the Trump administration’s operations in the Caribbean has been widely questioned. Secretary of State Marco Rubio – who has been both a driver and an architect of the policy – has argued that the US has the right to “wage war” against narco-terrorists. Earlier in the year, the administration designated multiple drug cartels and gangs operating in Latin America as foreign terrorist organizations.

The administration has also produced a classified legal opinion that justifies lethal strikes against a secret and expansive list of cartels and suspected drug traffickers, CNN has reported. Historically, however, those involved in drug trafficking were considered criminals with due process rights, with the Coast Guard interdicting drug-trafficking vessels and arresting smugglers.

The detaining of the alleged drug traffickers who were not killed in the strike this week sets up another legal dilemma for the administration. It’s unclear under what legal authority the US military can hold the men, said Brian Finucane, a former State Department lawyer who specializes in war powers issues.

The Trump administration has argued that the president has broad authorities under Article II of the Constitution to conduct the strikes against what it claims are “narco-terrorists,” but lawmakers on both sides of the aisle have questioned that theory. Congress, which maintains broad authority under Article I of the Constitution to declare war, has not authorized an armed conflict against drug traffickers.

The Bush administration advanced the theory that it could rely solely on Article II for its military detention authorities, Finucane said — but the Supreme Court never ruled on the matter, leaving the question of its lawfulness unresolved. The Bush administration was ultimately able to rely on a 2001 congressional authorization that deemed the United States to be at war with al Qaeda and its affiliates to hold military detainees.

The men held by the US Navy could hypothetically petition the courts to rule on the legality of their detention in what’s known as a habeas corpus claim, Finucane noted — a pathway followed by a number of detainees in the past that could reveal more information about the Trump administration’s secretive legal rationale for the strikes.

CNN’s Haley Britzky contributed to this report.

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