The flurry of executive orders from the White House in January included one ordering the State Department to designate “certain international cartels” as foreign terrorist organizations, or FTOs. These cartels are responsible for thousands of deaths each year in Mexico and other countries, and they traffic fentanyl, methamphetamine, heroin, cocaine, and other drugs to the United States in vast quantities. They also spread terror in their own countries and at times abroad, intimidating judges, politicians, and ordinary people in order to ensure they can carry on their lucrative business without interference. Canadian Prime Minister Justin Trudeau also agreed to list cartels as terrorist organizations as part of the negotiations to avoid U.S. tariffs this month.
Despite the horrific nature of cartel violence, designating them as terrorist groups would be a mistake. Many are already designated as transnational criminal organizations, or TCOs, and/or through the Foreign Narcotics Kingpin Designation Act. An FTO designation would not significantly increase policy leverage beyond what these offer. More troubling, an FTO designation would harm U.S. businesses and relations with countries such as Mexico, pose a significant risk of government overreach, and offer little payoff in return.
The flurry of executive orders from the White House in January included one ordering the State Department to designate “certain international cartels” as foreign terrorist organizations, or FTOs. These cartels are responsible for thousands of deaths each year in Mexico and other countries, and they traffic fentanyl, methamphetamine, heroin, cocaine, and other drugs to the United States in vast quantities. They also spread terror in their own countries and at times abroad, intimidating judges, politicians, and ordinary people in order to ensure they can carry on their lucrative business without interference. Canadian Prime Minister Justin Trudeau also agreed to list cartels as terrorist organizations as part of the negotiations to avoid U.S. tariffs this month.
Despite the horrific nature of cartel violence, designating them as terrorist groups would be a mistake. Many are already designated as transnational criminal organizations, or TCOs, and/or through the Foreign Narcotics Kingpin Designation Act. An FTO designation would not significantly increase policy leverage beyond what these offer. More troubling, an FTO designation would harm U.S. businesses and relations with countries such as Mexico, pose a significant risk of government overreach, and offer little payoff in return.
In some ways, these cartels do resemble terrorist groups. They terrorize their victims, often innocent civilians. They participate in illicit networks and engage in drug trafficking, just as terrorist groups do, to raise money for their activities.
The difference is their agenda. Terrorists seek political change, while criminals want to make money. To date, the FTO and TCO designations followed the logic of this distinction and were meant to be mutually exclusive. For the first time, the Trump administration is poised to pursue a dual designation—labeling organized criminal groups as terrorist organizations.
Drawing from the Immigration and Nationality Act, an FTO designation freezes all of a group’s assets under the control of U.S. financial institutions, prevents its members from traveling to the United States, and allows their deportation. Perhaps most importantly, it makes it a crime for U.S. citizens and others to knowingly provide material support for the group. Material support means not only weapons and money but also time and the labor of individuals. This clause has allowed the United States to prosecute individuals engaged in the kind of support for an FTO that would not otherwise be illegal, such as planning to travel to Syria to train with the Islamic State or fundraising for a group such as Hezbollah.
Most of these authorities are already available to use against designated TCOs. Both the TCO and the Kingpin Act designations—the latter of which allows the U.S. government to impose economic penalties on top foreign drug traffickers and their associates—involve asset freezes. Americans are prohibited from engaging in transactions with a TCO. Notably, the Kingpin designation also allows “derivative” designations, meaning the Treasury Department can designate those who provide assistance to or act on behalf of a designated trafficker, similar to the ability to designate those who provide support for a specially designated global terrorist through Executive Order 13224. There is even a similar rewards for justice program offering up to $25 million for information that leads to the arrest of high-profile organized criminals.
Admittedly, the TCO designation does not have quite the same material support clause as an FTO one. But much of the cartels’ activity is already illegal, given the nexus to narcotics, drug trafficking, and other criminal activity. Moreover, support for a TCO is punishable by criminal penalties up to 20 years in prison or $1 million in criminal fines. Violators of the Kingpin Act can face criminal penalties of up to 30 years in prison and/or a $5-10 million fine. The FTO material support clause is broader and offers sweeping investigatory and prosecution authorities. But in the context of cartels, that clause is susceptible to overreach and could have adverse consequences.
The new executive order does not provide any criteria to explain when a TCO will be deemed an FTO. But if major cartels in Mexico and elsewhere are listed, the impact on many U.S. companies and U.S.-Mexico business relations could be considerable. Well before the Oct. 7, 2023, Hamas attack on Israel, banks and payment processors such as PayPal avoided doing business in the West Bank, fearing that their services might be used by terrorist groups—and that they would be held liable for any resulting violence. With the new executive order, U.S. businesses must worry that when they work with a business in Mexico, it might have links to cartels, which are deeply embedded in Mexico’s economy. Banks and payment processors that help transfer remittances to Mexico would be vulnerable to prosecution. All this will make U.S. businesses more cautious, especially about new ventures, given the tremendous litigation risk.
A zealous prosecutor could also use the new material support power to prosecute Americans who purchase drugs—or avocados—from designated cartels. Their crime would no longer be limited to possession of narcotics (or pursuit of the best guacamole); it would count as material support for a terrorist organization. It sounds far-fetched, but the United States has aggressively gone after U.S. residents who aided the Islamic State, including prosecuting a woman who provided packets of hot cocoa as well as a small amount of money to a group member. Justice Department officials in past administrations did not usually take such an expansive view, but such an approach is easier to imagine today. Making America’s drug epidemic a terrorism problem will not solve the drug crisis. Instead, it will dramatically increase the number of Americans prosecuted for drug-related offenses—and lengthen prison sentences for those convicted.
The designation will also harm U.S. relations with countries in Latin America well beyond the economic realm. By switching the narrative from crime to terrorism, there is an implication that these governments are knowingly harboring terrorists, a far more damning charge than simply having ties to criminal organizations. Not surprisingly, regional governments are highly critical of U.S. President Donald Trump’s order.
An FTO designation suggests that the United States would treat cartels the way it once treated al Qaeda, engaging in comprehensive intelligence gathering against them. But the truth is an FTO designation does not provide any authorities to increase intelligence collection. Nor do FTO designations make a group an intelligence priority. In fact, there are several FTOs, such as the largely defunct Tamil Tigers, that the United States does not prioritize at all in its intelligence collection.
Importantly, the Trump administration doesn’t need an FTO designation in order to collect more intelligence on cartels. It simply needs to make them a higher priority in the National Intelligence Priorities Framework. The president determines the “top-tier” intelligence priorities.
Another myth is that an FTO designation provides additional authorities to use military force, creating the impression that drone strikes and Navy SEAL team raids on cartel leaders might soon follow. There are no such legal authorities that come with an FTO designation. If an FTO provided more military tools, the Afghan Taliban would certainly have been designated an FTO during 20 years of war in Afghanistan. But it never was. Politically, labeling a group “terrorists” may help justify military action and play better to U.S. audiences, but an FTO designation, by itself, does not provide expanded authorities.
Cartels are indeed national security threats, but expanding the aperture of who is a terrorist, mislabeling cartels as terrorists, and conflating two different threats is the wrong approach. The Trump administration would be better served by bolstering the authorities associated with a TCO designation. This might include carefully expanding the penalties for supporting a TCO. Even more important is resourcing. The United States can devote more intelligence assets to cartels, strengthening anti-corruption and anti-bribery programs, increasing funding for counter-drug programs in Mexico and other countries, expanding training efforts of allied military and intelligence services, and otherwise increasing the prioritization of cartels.
But if the executive order to designate cartels as FTOs isn’t the best way to deal with the cartels, why was it crafted in the first place? The text of the order might contain a clue. Among other things, it directs the attorney general and the secretary of homeland security “to make operational preparations regarding the implementation of any decision I make to invoke the Alien Enemies Act.” The act, passed in 1798, allows the president to detain, relocate, or deport noncitizens from a country considered an enemy of the United States during wartime. Trump, in remarks as a presidential candidate, repeatedly suggested the act could be deployed as a way of dealing with migrants engaged in criminal activities. Legal experts believe it would be difficult to make use of the Alien Enemies Act in peacetime—without Congress actually declaring war on Mexico or other countries. It hasn’t been invoked since the aftermath of World War II. But the Trump administration—with its expansive view of presidential power—is challenging established congressional and even judicial authority in other realms and appears to be exploring whether designating cartels as FTOs could put the Alien Enemies Act in play.
This would be a terrible mistake. The FTO designation is unnecessary and may even be counterproductive, but an Alien Enemies Act invocation would be much worse. The United States is not at war—the “war on drugs” rhetoric notwithstanding—and the potential for abuse is tremendous.
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