Yale Law School

The Yale Law School Media Freedom and Information Access Clinic, as known as MFIA Clinic, filed a complaint on Jan. 18, 2019, against the Department of Homeland Security and the Coast Guard to gather information on Coast Guard arrests and detainments on international waters.

The complaint was filed on behalf of journalist Seth Freed Wessler, the plaintiff who wrote a 2017 feature in New York Times magazine called “The Coast Guard’s ‘Floating Guantánamos’” exposing the Coast Guard’s long detainments of drug traffickers. According to David Murdter LAW ’19, a law student who works in the clinic, the Coast Guard rejected Wessler’s request for the list of the detainees’ names. The MFIA Clinic — which aims to increase government transparency, defend the essential work of news gatherers and protect freedom of expression — plans to argue that refusing to publish names of the people arrested is violating the public’s right to access.

“[The Coast Guard] arrests [drug traffickers], takes them on board Coast Guard ships, and in a number of cases, blows up their vessels,” said Sarah Levine LAW ’20, a member of the MFIA Clinic who has worked on the Coast Guard case since the publication of Wessler’s feature. “The people detained on vessels are not cartel leaders or big mafia leaders but more often, exploited fisherman from Ecuador and Columbia. Once arrested, they are held aboard these vessels incommunicado: they don’t have access to counsel, can’t tell families where they are.”

Wessler, a reporting fellow with Type Investigations, documented the Coast Guard’s targeting of low-level smugglers in international waters as part of the expansion of the U.S. war on drugs. In 1986, Congress passed the Maritime Drug Law Enforcement Act, which authorized the Coast Guard to arrest any person on the open ocean who is trafficking drugs. According to Levine, however, there is no requirement in the law that drugs must have any connection to the United States. The Coast Guard has full operational authority on international waters to arrest “reportedly trafficking” ships.

In fact, Wessler reported a documented case in which a town held funerals for traveling fisherman because they did not know their location for months.

In some cases, detainees are held aboard vessels for many than 70 days, violating their right to a speedy trial. While cynics claim that the delay arises from logistics, Levine, who called the details of Wessler’s feature “horrifying,” suggested that the Coast Guard is acting “strategically.”

“We have found cases where the Coast Guard brings people all the way around the U.S. to the Southern district of New York,” Levine said. “The reason that happens is because the 9th circuit on the West Coast is the only circuit thus far that has required showing that drugs are actually headed to U.S. to sustain a prosecution.”

In its case, the clinic will draw on historical precedent of access to names and dates of arrests, going back to the Founding Fathers, and a logical reasoning for that arrest, showing benefit to the public and law enforcement.

But the government shutdown is slowing the clinic’s legal process, leading to a backlog of judicial cases. Once the government has been served, it has 60 days to respond. Levin believes that the government will file a motion to dismiss, and while the timeline depends on the judge’s discretion and type of evidence, MFIA Clinic hopes the court will rule in the next six months or a year on this practice.

“If the public isn’t answered of who the government is arresting, if the government is arresting in secret, the government is free to engage in practices that may be seen as unconscionable by the public,” Murdter said.

Levine said the suit intends to change the Coast Guard’s behavior.

“It is important for transparency, accountability, influencing how taxpayers want the Coast Guard acting, how the Defense Council interacts with counsels, and [Wessler] finding out something he has legitimate journalistic interest in reporting that he hasn’t been able to find out,” Levine said. “What would it mean if we lose this case? The Court tacitly approving that a government agency can detain another person secretly and indefinitely without releasing their names.”

Yale Law School MFIA Clinic is an initiative of the Information Society Project at the Law School and is funded by the Floyd Abrams Institute for Freedom of Expression.

Samuel Turner | samuel.turner@yale.edu