Additional Thoughts on Designating Mexican Cartels as Foreign Terrorist Organizations

By Dan Cadman on February 27, 2019

My colleague Todd Bensman has written a thought-provoking piece, "Can Mexican Cartels Be Designated Terrorist Organizations? Should They Be?", in which he discusses the pros and cons of such an approach.

Bensman notes that:

Reps. Chip Roy (Texas) and Mark Green (Tenn.), both freshmen Republicans, are the latest to call for the terrorist designation, reopening an old debate that is perhaps worth having again in this new political era where border security and walls occupy the forefront of national consciousness.

He goes on to indicate that these representatives will shortly introduce a bill that presumably will push for legislative designation of certain cartels as terrorist organizations.

Such a legislative approach is not without precedent. For instance, the Palestine Liberation Organization (PLO), with whose leaders the U.S. deals regularly in the topsy-turvy world of the Middle East, is statutorily designated as a foreign terrorist organization (FTO) outside of the ordinary manner in which such designations are made (which I describe below).

My own preference would be for legislation creating a separate path, parallel to that used for designating FTOs, by which transnational criminal organizations also could be designated. In fact, several bills providing for criminal gang designation have been introduced into both chambers of Congress in the past, such as the SAFE Act of 2013 and the SECURE Act of 2017, only to go nowhere. Sadly, I suspect that the attempt by Reps. Roy and Green will face the same fate. So it seems to go with any attempt to modify the Immigration and Nationality Act (INA), no matter how meritorious.

That brings us to whether the existing laws governing designation of FTOs are adequate to encompass the cartels. Like Bensman, I think they are, but perhaps for slightly different reasons.

FTO designation is authorized by Section 219 of the INA, codified at 8 U.S.C. § 1189. That section in turn establishes two legal bases for determining whether an organization is engaged in terrorist activity. One of them is discussed at length by Bensman, Section 140(d)(2) of the Foreign Relations Authorization Act, codified at 22 U.S.C. § 2656f(d)(2), defining terrorism as "premeditated, politically motivated violence".

But the other legal basis for designation is found in Section 219 of the INA: "terrorist activity as defined in section 1182(a)(3)(B) of this title" (meaning Title 8).

A look at 8 U.S.C. § 1182(a)(3)(B) opens up a whole spectrum of specific conduct that clearly encompasses the kind of unlawful activity being engaged in on a regular basis by Mexican cartels, including:

  • Hijacking or sabotage of conveyances;
  • 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;
  • Assassination; and
  • Use of any 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.

With regard to this latter, while the profit motive clearly looms large in criminal/narcotic enterprises, no reasonable person would believe that this is the only motivation driving cartels toward their propensity to violence, which clearly is intended to influence and intimidate the various state and federal governments in Mexico.

Finally, it's worth noting that there is already precedent for designating organizations engaged in wholesale criminal/narcotic enterprises, for example the Revolutionary Armed Forces of Colombia (generally referred to by its Spanish acronym, FARC).

Bensman makes the cogent point that additional enforcement and intelligence resources would be needed for such an effort, including at the FBI, but one can surmise with little doubt that there is already a great deal of effort being devoted to fighting these organizations, and not just by the FBI or ICE, but also by the DEA. In fact, DEA can claim a tremendous amount of credit for its work with Colombian government forces for de-fanging many of Colombia's drug gangs, including FARC. FTO designation would be one more tool to put into the federal government's collective bag.