By Sylvia Longmire
Columnist, In Homeland Security
During an interview with former Fox News host Bill O’Reilly on Nov. 26, President Donald Trump made the stunning revelation that the U.S. government is working on designating Mexican drug cartels as foreign terrorist organizations. Trump said the move, which he claims he has been working on for the past 90 days, “will give the U.S. more power to effectively deal with the drugs flowing into [our] country and killing scores of people.” However, Trump doesn’t seem to realize that such a designation would undermine virtually every hardline immigration policy his administration has implemented.
The State Department and Foreign Terrorist Organizations
The State Department is the government body responsible for making this designation. Foreign Terrorist Organizations (FTOs) are organizations that are designated by the Secretary of State in accordance with section 219 of the Immigration and Nationality Act (INA), as amended. The consequences of the these FTO and E.O. 13224 designations include a prohibition against knowingly providing, or attempting or conspiring to provide, material support or resources to, or engaging in transactions with, Mexican drug cartels, and the freezing of all property and interests in property of the organizations that are in the United States, or come within the United States or the control of U.S. persons.
To date, the State Department has designated 68 groups as FTOs, including al-Qaida, Hezbollah, HAMAS, the Irish Republican Army (IRA), the Revolutionary Armed Forces of Colombia, and most recently, the Islamic Revolutionary Guard Corps. The process for identifying these groups and placing them on the FTO list is long and complex.
Bureau of Counterterrorism
Per the State Department, the Bureau of Counterterrorism (CT) continually monitors the activities of terrorist groups active around the world to identify potential targets for designation. When reviewing potential targets, CT looks not only at the actual terrorist attacks that a group has carried out, but also at whether the group has engaged in planning and preparations for possible future acts of terrorism or retains the capability and intent to carry out such acts.
Once a target is identified, CT prepares a detailed “administrative record,” which is a compilation of information, typically including both classified and open sources information, demonstrating that the statutory criteria for designation have been satisfied. If the Secretary of State, in consultation with the Attorney General and the Secretary of the Treasury, decides to make the designation, Congress is notified of the Secretary’s intent to designate the organization and is given seven days to review the designation, as the INA requires. Upon the expiration of the seven-day waiting period and in the absence of Congressional action to block the designation, notice of the designation is published in the Federal Register, at which point the designation takes effect.
Do Mexican Drug Cartels Qualify as Terrorist Organizations?
To be clear, the designation of Mexican drug cartels is not a unilateral action by the president, and it Congress has the option to block it. Here are a few reasons why Congress may choose to do so.
First, there is the huge question as to whether or not Mexican drug cartels even qualify as terrorist organizations. To be fair, there is no single and accepted definition of terrorism. For the purposes of U.S. government investigations and prosecution, however, U.S. Code Title 22 Chapter 38, Section 2656f(d) defines terrorism as: “Premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents, usually intended to influence an audience.” Trump appears to want this FTO designation because Mexican drug cartels routinely murder innocent people. However, a strong argument can be made that cartel violence is motivated purely by profits, not politics, and that they are not subnational groups. Likewise, they are arguably influencing an audience (the government and the people) through extreme violence.
Under the premise that such a designation is approved, the first negative consequence would be security-related, and it would be huge. Mexico is the United States’ third largest trading partner after China and Canada. Over $1 billion in goods cross the southwest border every single day. Members of Mexican drug cartels and people who work for them also cross the border every day. The prospect of converting the security paradigm from having tens of thousands of cartel associates to tens of thousands of terrorists driving trucks filled with drugs, then selling those drugs to our citizens, is almost unfathomable from a law enforcement perspective.
Responsibility Changes for FBI, DEA and ATF
As such, remember that the FBI is the U.S. agency responsible for terrorism investigations. However, the DEA and ATF investigate drug cartels, with some overlap into terrorism. A new FTO designation would completely shift these responsibilities, and would likely overwhelm the FBI at a time when they are struggling to combat ISIS-inspired lone wolf attacks and domestic extremism.
Trump may be counting on immigration policies that designate as inadmissible any individuals on terrorism-related grounds to crack down further on illegal immigration. This is a broad definition that covers various actions commonly associated with terrorism such as kidnapping, assassination, hijacking, nuclear, biological, or chemical agents, the use of firearms or other dangerous devices, etc., according to U.S. Citizens and Immigration Services (USCIS). The INA defines terrorist activity quite expansively such that the term can apply to persons and actions not commonly thought of as terrorists and to actions not commonly thought of as terrorism. In other words, this can apply to members of criminal gangs who work on behalf of drug cartels.
However, exemptions to an inadmissibility designation can be granted for applicants who provided material support under duress to designated or undesignated terrorist organizations, which at minimum requires that the material support was provided in response to a reasonably-perceived threat of serious harm. An example of material support under duress could include providing money or a service (such as transporting fighters and supplies) to a rebel group when threatened at gunpoint to comply with such a demand. This is the top claim made by asylum applicants from Mexico.
Migration Protection Protocols
Also, current hardline immigration policies greatly depend on Mexico being regarded as a “safe third country.” For the Migration Protection Protocols (MPP) program, Central American migrants are sent to northern Mexico to wait, often for months, to appear at immigration hearings in the U.S. New migration accords with Central American countries also require their citizens to request asylum in Mexico first because it’s considered a safe enough place for them to live. This argument will be almost impossible for the White House to make if Mexico all of a sudden is infested with terrorists who kill innocent people.
Finally, Mexico has historically been considered a close ally, albeit with some fluctuations in the last few years. The U.S. is also in the middle of trying to finalize the United States-Mexico-Canada Agreement (USMCA). This replacement for NAFTA is designed to open new markets to expand United States food and agricultural exports, and support food manufacturing and rural jobs. The legislation has stalled in Congress because Democrats say there aren’t enough mechanisms to enforce the USMCA’s provisions. In light of Trump’s push for an FTO designation, Democrats may add security-related concerns to an agreement with a country that would soon be home to at least a dozen new terrorist organizations.
Trump to Mexican President on Cartels: ‘Let Us Go In and Clean It Out’
To be sure, Mexico appeared blindsided by Trump’s plans for their country. Trump told O’Reilly he told Mexican President Andrés Manuel López Obrador the U.S. was willing to launch operations against the cartels inside Mexico. “I’ve already offered him to let us go in and clean it out and he so far has rejected the offer but at some point something has to be done,” Trump said.
Soon afterwards, Mexico’s foreign ministry issued a statement saying it would quickly seek a high-level meeting with U.S. State Department officials to address the legal designation as well as the flow of arms and money to organized crime. It also said it had “entered into communication with the various corresponding authorities” of the United States “to know the content and the reach” of Mr. Trump’s statements.
Implications for US Gun Sales and The National Rifle Association
Another group that won’t be happy about the designation—and also in direct conflict with Trump’s political interests—is the National Rifle Association and firearms retailers, especially those along the southwest border. Earlier this year, a study by the ATF traced more than 150,000 firearms, including assault rifles, back from Mexican criminals to gun shops and factories in the U.S. between 2013-2018. In 2018, almost 6,000 firearms seized in Mexico were traced back to U.S. points of sale. Under anti-terror laws, those who purchase the guns in the U.S. for the cartels—and possibly the gun sellers themselves—could face much heavier penalties.
President Trump may have stunned audiences and more than a few government agencies with his announcement of plans to designate Mexican drug cartels as foreign terrorist organizations. However, due to many practical reasons, as well as the ability of Congress to block the designation, it’s hard to see how this designation will ultimately be implemented.