On Nov. 4, 2019, gunmen opened fire on three cars traveling through northern Mexico, killing nine U.S. citizens—an incident apparently related to a surge of violence caused by Mexican drug cartels. In the aftermath of the attack, President Trump announced that his administration would designate certain Mexican drug-trafficking cartels as foreign terrorist organizations (FTOs). Although the administration paused that plan after high-level negotiations with the Mexican government, Trump has made clear that it remains an option.
When Trump announced that his administration would delay moving forward with the FTO designation, he added that “statutorily, we are ready” to declare certain cartels as FTOs. So what new powers does the FTO designation bestow upon the federal government to combat Mexican cartels? There are three areas of the law that would be most affected by this change: criminal prosecutions, immigration and economic sanctions.
As Robert Chesney wrote in 2011, cartels most likely satisfy the three main criteria required to designate a group as a terrorist organization under 8 U.S.C. § 1189. First, the organization must be a foreign organization—a likely nonissue, as the cartels are based in Mexico. Second, the organization must engage “in terrorist activity ... or terrorism ... or retain the capability and intent to engage in terrorist activity or terrorism” with terrorism defined to include the use of explosives or firearms to endanger others, kidnapping to compel actions by another, and assassination. Given that cartels regularly engage in kidnapping, execution-style killings, and assassinations of journalists and politicians, they easily surpass this threshold for terrorist activity. Third, this terrorist activity must threaten “the security of United States nationals or the national security of the United States.” And the Nov. 4 attack arguably exemplifies the danger that cartels pose to American citizens, especially those spending time in or residing in Mexico.
Designating cartels as FTOs would allow federal prosecutors to use two statutes targeting terrorist activity against cartel members, thereby exposing a large swath of potential defendants—including cartel members and allies who work abroad—to steep criminal penalties.
An FTO designation would offer legitimacy to charging drug traffickers connected to cartels under 21 U.S.C. § 960a, which prohibits offering support from narcotics trafficking to an organization that engages in terrorist activity. Section 960a was one of the centerpiece charges in the recent indictment against Nicolas Maduro, the president of Venezuela, and several other high-ranking officials in the Venezuelan government. These officials are accused of being key players in a decades-long “narco-terrorism partnership” between the Cartel del los Soles in Venezuela and the Fuerzas Armadas Revolucionarias de Colombia (FARC).
Anyone who knowingly manufactures or distributes a controlled substance is exposed to federal prosecution under 21 U.S.C. § 841, the foundational federal drug statute. Under § 960a, a defendant who violates § 841 may be convicted of narcoterrorism if the prosecutor proves that the defendant knew that the action would directly or indirectly provide “pecuniary value” to any person or group that engages in terrorism or terrorist activity. A § 960a conviction carries a mandatory minimum sentence of twice the minimum sentence of the underlying § 841 offense, which could range from 10 to 80 years.
Technically, a § 960a prosecution does not require an FTO designation. That said, it’s rare for prosecutors to pursue those charges without some sort of formal government designation. The Department of Justice has brought charges under this statute for support provided to several different FTOs—like with FARC in the Maduro indictment—but the only non-FTO group targeted under this statute has been the Taliban, which multiple presidential administrations have not designated as an FTO for diplomatic reasons. An FTO designation against certain cartels would have the dual effect of assisting the government in proving the knowledge element of § 960a prosecutions against their members, while also legitimizing the charging decision by officially declaring that the recipient organization engages in terrorist activity.
FTO designations would also allow prosecutors to file charges under 18 U.S.C. § 2339B, which prohibits providing “material support or resources to a foreign terrorist organization.” For a § 2339B material support prosecution, a prosecutor must show that (a) the defendant knowingly provided, attempted or conspired to provide support (defined here) to an FTO, and (b) the defendant knew that the recipient of the support was an FTO or that the group engaged in terrorism or terrorist activity. Material support convictions carry the risk of up to 20 years in prison or up to life if the support resulted in a fatality.
First, federal prosecutors armed with these two statutes could reach through extraterritorial jurisdiction defendants not ordinarily subject to U.S. criminal law. Federal statutes are presumed to apply only domestically, meaning that federal prosecutors must wait for criminal activity to form a sufficient nexus with the United States before bringing charges. Sections 960a and 2339B, however, explicitly provide for extraterritorial application, thereby allowing prosecutors to bring cases against foreign nationals acting entirely in foreign countries with little connection to the U.S.
Second, the proximity of Mexico to the United States could expose a much higher number of people to multiple charges and heavier penalties. Beyond the people targeted under the extraterritoriality provisions, these statutes would further expose defendants already being prosecuted under § 841 or related statutes to additional criminal liability. And because Mexican cartels operate throughout Mexico, have established presences in every state within the U.S., and increasingly partner with U.S. street gangs in order to distribute narcotics, the use of these statutes against cartel members and affiliates could sweep up a much broader pool of defendants than previous applications against other FTOs. Defendants already exposed to criminal liability under § 841 could face even longer prison terms if they are charged under either § 2339B or § 960a and are forced to serve their sentences for each separate charge concurrently. Additionally, § 2339B and § 960a would reach defendants not directly involved in drug trafficking—and therefore are not exposed to § 841 charges—who nevertheless assist cartels and their affiliates by providing logistical or financial services.
The designation of Mexican cartels as FTOs could also have serious implications for migrants seeking to enter the U.S. In fact, the proposed designation has been enmeshed in broader questions of immigration policy from the beginning: President Trump’s initial decision to back away from the designation was in part due to concerns among his senior advisers that such a designation would anger the Mexican government and cause it to renege on Mexico’s support of the Trump administration’s crackdown on immigration along the U.S.-Mexico border.
Some commentators have argued that designating cartels as FTOs would actually bolster some migrants’ asylum claims as fleeing violence from terrorist organizations would be a more compelling reason than fleeing general criminal violence. While this may be true as a general principle, the designation of cartels as FTOs would likely have a far more negative impact on the asylum claims of migrants because of their frequent and often coerced interactions with cartels along their journey.
Several immigration restrictions already apply to cartel members: 8 U.S.C. § 1182(a)(2)(A) bars persons convicted of crimes relating to controlled substances, 8 U.S.C. § 1182(a)(2)(C) bars traffickers of controlled substances, and 8 U.S.C. § 1182(a)(2)(I) bars persons involved in money laundering. The immigration implications of designating cartels as FTOs would not affect the members of those groups themselves but, rather, the thousands of migrants who pass through Mexico each year on their way to the U.S. border.
Following an FTO designation, 8 U.S.C. § 1182(a)(3)(B) would ban any foreign citizen from entering the United States who is a member of that organization, is formally associated with the organization or who has “engaged in terrorist activity” relating to that organization. Those first two prongs targeting narcotics traffickers are largely duplicative of the immigration bans already in place against cartel members, but the “terrorist activity” provision could have serious implications for migrants passing through cartel territory. If one materially supports an FTO, they could face an automatic bar to entry, no matter how compelling their case may be.
The statute defines engaging in terrorist activity very broadly, covering people not ordinarily associated with terrorism. For instance, foreign citizens who commit an act that they knew or reasonably should have known afforded material support to a terrorist organization have “engaged in terrorist activity” and are therefore barred from entering the United States and ineligible to claim asylum pursuant to 8 U.S.C. § 1158(b)(2)(A)(v). For example, someone may “materially support” a terrorist organization by being forced to cook and clean for the group.
The designation of certain Mexican cartels as FTOs could also have an adverse effect on the thousands of asylum claims at the U.S.-Mexico border each year. To reach the border, the vast majority of migrants must pass through territory controlled by cartels in Mexico—and although migrants seeking to cross the border often travel under the supervision of smaller groups, major cartels nevertheless play a substantial role in the trafficking process, typically by taxing the smuggling groups for the right to pass through territory that they control. This involvement provides two avenues by which migrants might unintentionally offer material support under the statute.
First, many migrants pay smuggling groups for their passage, and those payments could be construed as material support if the groups were controlled by cartels or were cartels themselves. To bar a migrant from entering the U.S., the government must prove only that the person should have reasonably known that their smuggling payment would provide support to a terrorist group. Mexican cartels have divided much of the criminal activities occurring within Mexico among themselves—it is difficult, if not impossible, for a criminal group operating a smuggling ring to operate in territory controlled by a cartel without obtaining approval from that organization. This approval is often obtained through a tax, known as a “piso,” levied on the organization. For example, the Gulf Cartel demands “$1,000 to $1,500 per person to let migrants cross its territory[,]” and this fee is included within the overall cost imposed by the smuggling organizations.
U.N. reports on the experience of asylum seekers moving through Mexico confirm the role of cartels in human smuggling and show that migrants are often aware of the cartels’ involvement before embarking on the journey, sometimes because they have been told directly by their smugglers. Migrants may find themselves offering financial support to cartels either by paying the cartels directly or by paying groups dominated and controlled by the cartels. As long as the government can prove that the migrants should have reasonably known that their smuggling fees would wind up in the coffers of a cartel that has been declared an FTO, those payments would be an automatic bar to entry and would jeopardize any asylum claim.
The second way the material support statute might become relevant lies in the frequency of kidnappings of migrants within Mexico. Not only are migrants at risk of kidnapping for ransom during their journey, but they face a heightened risk of kidnapping at the border while waiting to enter the United States. The kidnappers range from smaller criminal groups to large cartels. If a migrant were kidnapped by a group designated as an FTO and then provided any form of ransom, either a cash payment or services in exchange for their freedom, that payment would render them presumptively ineligible to enter the U.S.
When migrants plead their case to immigration authorities, a crucial question in determining the likelihood of being granted entry to the U.S. is whether or not they can claim that they were acting under duress for any otherwise disqualifying conduct. In 2018, however, the Bureau of Immigration Appeals affirmed a de minimis support standard and rejected an implied duress exception to the material support bar.
This isn’t the end of the story, however. Despite the bureau’s decision, 8 U.S.C. § 1182(d)(3)(B)(i) authorizes the secretaries of state and homeland security, in consultation with the attorney general, to exempt individuals or groups from the material support bar in limited circumstances. The secretaries have applied various group-based and situational exemptions, including a duress exemption for material support to terrorist organizations, thereby providing migrants accused of providing material support another avenue to claim duress. Nevertheless, the current duress exemption is an exercise of executive discretion and the Trump administration may revoke it at any time.
Moreover, proving duress is a high bar to clear; exemptions are considered on a case by case basis, and immigration authorities consider a number of factors when making that determination. Those factors include whether the asylum applicant could have avoided providing material support and the severity of the harm threatened or inflicted against the applicant. Thus, an asylum applicant claiming duress under this discretionary exemption would have to prove the severity of the coercion; it would be far from guaranteed.
Finally, designating cartels as FTOs would not substantively increase the U.S. government’s ability to target the cartels through financial sanctions, which are carried out by the Treasury Department’s Office of Foreign Assets Control (OFAC).
When levying sanctions against cartels, OFAC largely relies on the Foreign Narcotics Kingpin Designation Act. Passed by Congress in 1999, the act gives the president the power to designate—in coordination with other executive branch agencies—significant foreign narcotics traffickers. The Treasury Department may then impose sanctions on these traffickers and those involved in their operations, including those providing material support to, or who are owned or controlled by, a significant foreign narcotics trafficker or are otherwise significantly involved in international narcotics trafficking. The Treasury Department defines these two categories—the traffickers themselves and their associates—together as “specially designated traffickers” under the Kingpin Act. Once individuals are designated as “specially designated traffickers” under the Kingpin Act, they are placed on OFAC’s Specially Designated Nationals (SDN) list with the code “SDNTK.”
After individuals or entities are designated, OFAC sanctions prevent them from possessing property in the United States or temporarily allowing their property to be possessed by any U.S. individual or entity. Even more important, the sanctions bar traffickers from transacting with the American financial system; designated individuals cannot deposit cash in an American bank, wire money through an American company or engage in any other financial transaction that touches the U.S. That ban extends to corporate entities that the Treasury Department determines to be at least 50 percent owned by a designated person, even if the entities themselves are not listed. The centrality of the U.S. dollar in the global financial infrastructure makes OFAC sanctions doubly devastating, because funds that neither are destined for the U.S. nor originate within its borders nevertheless often pass through American banks or companies, where they are then frozen by the sanctions.
Since the passage of the Kingpin Act, the Treasury Department has designated well over a thousand individuals and entities as specially designated narcotics traffickers, thereby blocking them from engaging with the American financial system in virtually any capacity. That list includes hundreds of individuals and corporate entities affiliated with the major Mexican cartels, including Cártel de Jalisco Nueva Generación, the Sinaloa Cartel, Los Zetas and the Gulf Cartel.
Crucially, groups designated by the State Department as terrorist organizations also appear on OFAC’s SDN list with the code “FTO.” As with the sanctions levied under the Kingpin Act, § 1189 (a)(2)(C) states that the secretary of the treasury may freeze the assets of any entity designated as an FTO and block any transactions relating to those assets. The regulations implementing that statutory authority are contained in 31 CFR § 597.201 and are essentially identical to the sanctions regime levied under the Kingpin Act. The people and entities designated by OFAC as being connected to FTOs are blocked from the U.S. financial system, meaning they cannot deposit any assets in U.S. banks and transfer funds through U.S. companies. Additionally, the same ban on corporate entities that are at least 50 percent owned by a designated person also applies to FTOs. OFAC sanctions on individuals and entities affiliated with FTOs like Hamas and Al-Shabaab are essentially the same restrictions as those targeting cartels under the Kingpin Act.
In fact, the sanctions regime under the Kingpin Act is even broader in one respect. Section 1189 and the accompanying regulations do not allow for the designation of supporters and collaborators of an FTO—unlike the Kingpin Act, which extends sanctions to the affiliates of specially designated traffickers. For this reason, designating cartels as FTOs would apply a narrower set of sanctions than those already in place under the Kingpin Act—leaving these potential new measures largely, if not entirely, redundant.
Designating cartels as FTOs would provide the federal government with new weapons in the fight against drug traffickers, namely material support charges. Yet a closer look at the implications of an FTO designation shows a certain degree of overlap between the current tools used against cartels and the hypothetical new regime. Most notably, there would be no dramatic change in the sanctions levied against cartels. The extraterritorial provisions of § 2339B and § 960a would expose defendants with little connection to the U.S. to federal prosecution, but the broadest consequence would be the expansion of those two statutes to a wide swath of defendants who previously were liable only under narcotics trafficking statutes.
Setting aside the policy implications of an FTO designation, its most serious impact would likely be felt by migrants crossing the U.S.-Mexico border. Their already limited ability to enter the country and claim asylum could be further restricted by the near complete block on anyone who has provided funds to a terrorist organization from entering the country.