After two alleged drug traffickers survived a US military strike last week in the Caribbean, they left the Donald Trump administration with a dilemma: send them back to their homeland or find a way to detain them, reports "Reuters".
Last month, the US launched a campaign of attacks in the Caribbean that the Trump administration described as a "unarmed conflict of no international character" against narcoterrorism.
Yet legal experts are not surprised that the US government chose not to use the term "prisoners of war" to describe the two survivors of the attack by US military personnel on Thursday.
Instead of detaining them, the United States sent them back to their home countries, as US President Donald Trump specified on Saturday. The move suggests that for now, U.S. officials do not want to deal with legal issues related to the military detention of suspected drug traffickers captured during operations in the Caribbean.
"I think the administration has chosen what it would consider the least bad option," said Brian Finucane, a senior adviser at the International Crisis Group.
"Sending these people home is a way for the administration to turn the page on this embarrassing episode," he added.
Thursday's strike was unlike any other carried out by the U.S. military since it began its attacks in the southern Caribbean in early September.
U.S. officials, who spoke on condition of anonymity, said the strike was aimed at destroying the semi-submarine. Such vessels are often used by drug traffickers because they travel below the surface of the water and are difficult to visually identify from a distance.
Two people were killed, and two others survived and were taken aboard a U.S. Navy ship after being rescued by helicopter.
However, even if the U.S. had sufficient evidence that the two were involved in drug trafficking, it would not have created a clear basis for long-term military detention, which would have made it difficult to declare them prisoners of war, even rhetorically.
"Because there is no actual armed conflict, there is no law of armed conflict to detain them, no matter what we call them," stressed Rachel VanLandingham, a former Air Force lawyer now at Southwestern University School of Law.
A current U.S. military lawyer said that the basis for long-term military detention of the survivors would be difficult to challenge in court.
Although the Trump administration has told Congress that this is an "non-international armed conflict" with drug cartels, the official said that has little bearing on international and domestic law.
However, the Trump administration has in the past ignored the consensus of legal experts, including after launching deadly strikes on suspected drug trafficking boats.
The administration's decision to return the survivors was made within a day, said a U.S. official who spoke on condition of anonymity. She has referred the matter to Secretary of State Marco Rubio and diplomats to arrange repatriation.
Little detention authority?
Legal experts say the Trump administration had other options besides repatriation.
It could have declared the survivors unlawful combatants and held them at the Guantanamo Bay detention center in Cuba, or even tried to prosecute them in a U.S. court.
But holding them in military custody would expose the United States to a complex set of legal and political problems.
The detainees could assert rights under the U.S. legal system, invoking habeas corpus, and challenge the legality of their detention in U.S. federal court.
Finucane, who was in the State Department's office of legal counsel, explained that putting them on trial would required the administration to present evidence that "would likely lead to the disclosure of information that undermines its narrative about these strikes."
That could raise political questions in Washington, where Democratic lawmakers have called for more information about the strikes that killed 32 people.
"The attacks on the boats in the Caribbean were illegal. If the survivors had appeared in court or in a military tribunal, that would have been immediately clear," said Democratic Congressman Jim Himes.
The administration has so far provided little information about the Caribbean strikes, including the amount of drugs the boats were carrying or any details about those killed. The latest attack took place on Friday and killed three people, Defense Secretary Pete Hegseth said.
Colombian President Gustavo Petro accused the United States of attacking a fishing boat in a September strike that escalated into a war of words with Trump on social media.
Legal experts have questioned why the strikes are being carried out by the U.S. military rather than the Coast Guard, the country’s primary maritime law enforcement agency, and why other efforts are not being made to intercept supplies before resorting to deadly attacks.