Transnational Criminal Organizations

Should Mexican Cartels Be Designated as Terrorist Organizations?

By Robert Chesney
Thursday, March 31, 2011, 6:38 PM

Rep. Michael McCaul proposes doing just that, in this legislation, with the goal of enabling material support prosecutions under 18 USC 2339B against those who supply guns (or just about anything else) to the six cartels named in the bill (Sinaloa, Gulf, La Familia, Beltran-Leyva, Los Zetas, and Arellano Felix Organization).  Here is the key passage from his prepared testimony, delivered at a hearing today:

I have introduced legislation requiring the State Department to classify drug cartels as Foreign Terror Organizations as a means to limit the groups’ financial, property, and travel interests.

This designation could:

·      Bring separate charges against anyone providing “material support or resources” to FTOs.  This includes but is not limited to money, identification, lodging, training, weapons and transportation.

·      Provide an additional penalty of up to 15 years in prison and possible fine for providing material support or resources.  A life sentence may be imposed if their actions resulted in death.  This penalty is levied in addition to penalties for any associated crime.

·      Authorize the deportation of any foreign member of an FTO from the United States even if they are in this country legally.

·      Require banks to freeze any funds tied to FTOs

Cartels kidnap, kill, and mutilate innocent civilians, elected officials and law enforcement, using gruesome tactics to intimidate government officials and citizens to abide by their rules.  Torture, beheadings, dismembering and mutilation are common.

While not driven by religious ideology, Mexican drug cartels operate in the same manner as al Qaeda, the Taliban or Hezbollah each sharing a desire, and using similar tactics to gain political and economic influence.  These are acts of terrorism.

Black’s Law defines TERRORISM as:  activity that… appears to be intended--(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion, or (iii) to affect the conduct of a government by assassination or kidnapping.

·      According to the Congressional Research Service,

“The massacres of young people and migrants, the killing and disappearance of Mexican journalists, the use of torture, and the phenomena of car bombs have received wide media coverage and have led some analysts to question if the violence has been transformed into something new, beyond the typical violence that has characterized the trade.  For instance, some observers have raised the concern that the Mexican DTOs may be acting more like domestic terrorists.”

Is it correct that these organizations satisfy the statutory conditions for FTO designation?  I think so.  8 USC 1189 provides as follows:

(a) Designation

(1) In general The Secretary is authorized to designate an organization as a foreign terrorist organization in accordance with this subsection if the Secretary finds that—

(A) the organization is a foreign organization;

(B) the organization engages in terrorist activity (as defined in section 1182 (a)(3)(B) of this title or terrorism (as defined in section 2656f (d)(2) of title 22), or retains the capability and intent to engage in terrorist activity or terrorism) [1]; and

(C) the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.

Condition (A) is clearly met. 

As for condition (B), buckle up.  We start with the statutory definition of "engage in terrorist activity" under 8 USC 1182(a)(3)(B).  Consider in particular that sections' definition of "terrorist activity":

(iii) As used in this chapter, the term “terrorist activity” means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

  (I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

  (II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

  (III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18) or upon the liberty of such a person.

  (IV) An assassination.

  (V) The use of any—

     (a) biological agent, chemical agent, or nuclear weapon or device, or

     (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain),

    with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

  (VI) A threat, attempt, or conspiracy to do any of the foregoing.

Easily satisfied as to all the DTOs listed above, especially in light of 1182(a)(3)(B)(iii)(V)(b). No need to go on to the separate definition of "terrorism" provided in 22 USC 2656f(d)(2). Indeed, the 1182 definition can cover just about any foreign organization that employs violence.  But of course, we're not done.  The FTO designation process next requires that the terrorist activity threaten the security of US nationals or the national security of the United States.  Are either satisfied here?

Threatening the security of US nationals: Quite obviously the DTOs threaten the security of at least some US nationals, particularly the ones who from time to time may be in Mexico. The interesting question is whether there should be any sort of quantitative element read into this test, or if instead even a threat to a single US national would do the trick.  The text doesn't seem to require something more than a de minimis showing, however much this might seem like a matter of common sense.  I suppose the line-drawing problems would prove insurmountable, so we may have no choice but to say that this factor is satisfied as well. 

Threatening US national security: This happens to be a topic of particular interest to me.  I've given talks at NORTHCOM and to other groupings on precisely this question.  The point I seek to make is that it all turns on your definition of "national security."  Particularly in light of the recent turn toward expansive conceptions of what impacts US national security (energy, water, refugee flows, the health of the economy, biohazards, and so on), one can make the case that just about any significant phenomenon (declining educational quality, for example) can threaten national security.  And while this makes perfect sense at some levels, I think it also is a bit dangerous in that it creates space for analytically-lazy thinking about what phenomena ought to be categorized as national security threats, particularly where the question arises because we are considering invoking a particular tool of government power (such as the FTO designation process) that categorization might lead to the use of government coercive powers typically associated with first-tier/traditional security threats (e.g., the use of military force).  As to that far-narrower and more traditional conception of national security: the DTOs have potential to become such a threat, but they are not there yet and indeed have powerful motivation not to cross that line under most foreseeable circumstances.  That's not to say they are not an extraordinary crime control problem, nor that they are not a core strategic threat (largely materialized, actually, not just threatening) to the Mexican state.  It's just a reminder that they have not yet crossed over to the category of, say, al Qaeda and its ilk in terms of being a first tier threat to US national security.  But....having said all that...none of this is the test under the statute.  The statute makes vague reference to threatening US national security, without clarifying whether that threat must rise to the level of, say, the Soviet Union.  And so, notwithstanding my cautions, the case can certainly still be made under the statute. 

None of this is to say that it is a good idea to use legislation to compel FTO designations as to these groups.  Perhaps it is, if the case can be made that existing gun-related laws and narcotics laws (including 21 USC chapter 24 (which authorizes a designation-and-support-like system for individual drug kingpins)) prove inadequate.  It does seem to me that the more sensible legislative solution in that case would be to expand chapter 24 beyond individuals to groups, which could accomplish similar ends without bringing the label "terrorism" into the conversation with all the noise and debate this inevitably would generate. In any event, I'd like to here from federal prosecutors, FBI, DEA, and ATF folks if they think they are missing prosecutorial tools of this kind.