Frank A. Rubino, ESQ.

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Appeals Court: Anti-Drug Smuggling Cases Are Illegal

Federal authorities often work closely with other countries to prosecute the "war on drugs." As part of these efforts, the U.S. Coast Guard, the Navy and other government offices have used a 1986 law to justify apprehending defendants in the territorial waters belonging to foreign countries. These defendants then face prosecution in the United States - often in Miami or other South Florida courts.

This week, however, the 11th Circuit Court of Appeals decided that this law represents an illegal overreaching on the part of Congress. For the time being, the government cannot keep arresting people in foreign waters for drug trafficking crimes.

The law considers most ocean areas to be international waters. However, the areas within 12 miles of any country's shore constitute territorial waters - essentially under that country's authority. Because many countries are happy for drug enforcement help, they often allow the U.S. government to police these areas looking for traffickers.

From a legal perspective, however, the government still needs authority to make these arrests. The Maritime Drug Law Enforcement Act claimed to provide that authority.

Under the 11th Circuit's decision, Congress went too far in enacting that law - so far that it is actually illegal. Congress has the power to punish crimes "against the Law of Nations." The "Law of Nations," also known as "customary international law," does not actually prohibit drug trafficking. Since Congress's authority to create international crimes depends on the crime also being a violation of "customary international law," it did not have the power to create a law to punish drug trafficking in foreign waters.

For now, this probably means that the government has to stop arresting defendants in foreign territorial waters. The decision may also have big consequences for pending cases and individuals who are serving sentences under the law. Prosecutors will certainly appeal the decision and the United States Supreme Court may ultimately have to resolve the question.

In the meantime, any individuals who are currently in detention after a foreign-waters arrest should seek assistance from an experienced criminal defense lawyer.

Source: Miami Herald, "The US Law Targeting Drug Smugglers In Foreign Waters Was Just Declared Illegal," Dec. 3, 2012

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