One of the executive orders President Donald Trump issued on his first day in office on Jan. 20 directs the secretary of state to identify “certain international cartels (the Cartels) and other organizations” that should be designated as foreign terrorist organizations (FTOs) or specially designated global terrorists (SDGT’s). An FTO designation requires a showing that an organization (a) is foreign, (b) engages in terrorist activity, terrorism, or material support of terrorism, or has the ability and intent to do so, and (c) threatens the security of U.S. nationals or U.S. national security. The SDGT designation is similar, and there is considerable overlap between the FTO and SDGT lists.
While the term “cartels” evokes drug cartels in the popular imagination, the executive order is vague on who precisely will be covered; it describes “the cartels” as having “flooded the United States with deadly drugs, violent criminals, and vicious gangs,” and controlling “nearly all illegal traffic across the southern border of the United States.” Reporting suggests that while some cartels still have a significant hand in drug trafficking, others have diversified to include or even focus almost exclusively on smuggling migrants. The secretary’s recommendations, which were due on Monday, Feb. 3, have not yet been made public; it thus remains to be seen whether the activities of the identified cartels actually meet the broad legal definitions of terrorist activity and terrorism.
Bringing foreign cartels under the umbrella of terrorism may seem appealing. The easy availability of potent drugs has caused an enormous amount of suffering, and cartels have inflicted brutality on scores of vulnerable migrants. But treating cartels as terrorists is unnecessary to address the threat they pose; indeed, it could be counterproductive. (More on that later.) Worse, such a sweeping net inevitably will ensnare and inflict devastating harms on large numbers of both migrants and U.S. residents and citizens who have little to no connection to drug trafficking or human smuggling, let alone terrorism.
Understanding why requires familiarity with the net cast by the FTO designation. To start with, it is illegal for an individual to provide “material support or resources” to a designated foreign terrorist organization, if the person knows that the recipient is an FTO. Without further context, this may sound appropriate and useful. But the scope of “material support” has been broadly construed, encompassing “training, financial services, expert advice or assistance, and personnel.” It could sweep in a range of activity that has nothing to do with furthering terrorist activity or even the cartel’s activities, and everything to do with targeting the most vulnerable.
Asylum seekers, for instance, frequently have no choice but to pay money to the cartels who maintain brutal control over the flow of migrants. As of now, Trump has suspended the asylum system entirely. But if and when it is restarted, and individuals are found to have paid an outfit they know has been designated a foreign terrorist organization by the U.S. government, they could be deemed terrorist financers, prosecuted under the statute, and rendered permanently inadmissible.
Risks to Churches, Synagogues, Food Banks
Churches, synagogues, food banks, and other organizations providing services to migrant communities could be at risk as well, given the broad sweep of the FTO designation and material support statutes. If a migrant seeks help and the group aiding them learns that he or she was smuggled across the border, the organization may be vulnerable to prosecution or to having their assets frozen while an investigation is underway, effectively starving them of resources. Gang intervention and diversion groups that work directly with gang-involved individuals to steer them away from such activity by providing employment, financial education, counseling, recreation, and other support services may be targeted too. The history of using terrorist financing laws against charitable organizations suggests that this is more than a remote possibility. Whether or not federal authorities ultimately pursue them, simply the fear that they may do so could dissuade these organizations and individuals from pursuing crucial initiatives and assisting at-risk members of their communities.
Cartels also control a portion of the drug trade within the United States. This means that low-level drug users could end up buying from a member of a “foreign terrorist organization,” exposing them to material support prosecution. In light of the racial disparities in drug enforcement, these prosecutions are likely to disproportionately impact Black and Brown Americans. In addition, if organizations designated as FTOs become subject to the government’s terrorism watch-listing regime, any family member or “known associate” of people now labeled as terrorists could become the target of intelligence and investigative activities. This regime, which has fostered well-documented bias, has the potential to capture thousands of people inside the United States – American and otherwise – who have nothing to do with either narcotics trafficking or terrorism, based on mere coincidence under questionable evidentiary standards.
Putting the terrorism label on cartels also offers further rhetorical justification for supercharging the militarization of the border, while elevating the salience of the cartels by connecting them to terrorism in the public’s imagination. Since 9/11, Americans have become accustomed to the notion that international terrorism should be countered primarily through military force, despite extensive efforts by peacebuilding organizations and others to address the underlying causes for more sustainable impact. If the public believes there are terrorist organizations massing at America’s southern border, they are much more likely to accept Trump’s framing of unlawful migration as an “invasion,” a term the administration is using insistently and repeatedly and that could trigger war powers under the Constitution. This framing also helps to validate Trump’s claim that terrorists are streaming over the southern border – a claim that has no basis in fact – and could even help build public support to wage a military campaign, as contemplated in one of Trump’s other Jan. 20 orders.
The cartel order takes on heightened significance in combination with yet another executive order directing the Secretaries of Defense and Homeland Security to expand the Migrant Operations Center, a migrant detention facility at the Guantánamo Bay Naval Base, to hold “high-priority criminal aliens present in the United States.” The term “criminal aliens” is crafted to sound ominous, but it means a non-citizen who has committed any criminal infraction, which covers a vast range of activity. It is not hard to imagine that a non-citizen who commits a minor drug crime that can be traced back to a cartel – if the individual arguably knows the cartel is a foreign terrorist organization – would be targeted for material support prosecution, designated as “high-priority,” and flagged for transfer to Guantánamo, if and when the capacity is built. (Indeed, news outlets yesterday reported the first flights to Guantánamo Bay with migrants were already underway.) The conditions at the Guantánamo migrant center have been criticized by human rights organizations, and detention at Guantánamo could vastly complicate migrants’ ability to exercise their legal rights. (In a sign of how fluid the situation is, Defense Secretary Pete Hegseth has signaled that some deportees may be held in detention facilities at Guantánamo controlled by the Army, which raises substantial additional legal issues.)
Existing Legal Authorities Aplenty to Tackle Narcotics Trafficking
Finally, federal law enforcement agencies already have ample legal authorities to address drug trafficking and sales. In addition to a host of laws that can be used to target drug production and trafficking, the 1999 Kingpin Act authorizes the president – in coordination with a range of federal agencies – to impose severe sanctions and criminal and civil penalties on international narcotics traffickers.
But Trump’s executive order on cartels also declared a national emergency under IEEPA, the International Emergency Economic Powers Act, and directed the secretary of homeland security and the attorney general to prepare for an invocation of the Alien Enemies Act of 1798. Such IEEPA sanctions on the cartels is wholly unnecessary; the authority to sanction cartels already exists under various existing IEEPA declarations, including one issued in 2021 by President Joe Biden.
And the Alien Enemies Act would not give the president stronger tools to address drug trafficking either; leaving aside the dubious constitutionality of that law, which permits detention and deportation of non-U.S. citizens based solely on their ancestry, and with nothing approaching due process, it is not tied in any way to terrorist activity. The law becomes available only during a declared war or an invasion perpetrated by a foreign government or nation, not by a foreign terrorist organization.
Notably, research from the Cato Institute demonstrates that the most effective approach to the drug scourge would be to reduce demand at home, including through addiction treatment, rather than targeting foreign cartels. Indeed, according to Cato’s study, the travel ban during Trump’s first term led directly to the spike in fentanyl production and trafficking by incentivizing the production of a vastly more potent drug that gave the same high as heroin at a fraction of the dose, slashing the number of smuggling trips required. And the majority of fentanyl is carried through ports of entry by American citizens, not by cartels or migrants crossing illegally, further suggesting that using a terrorism framing will do little to solve the problem.
We may learn more in the coming days or weeks about the specific designations. At the end of the day, however, they are largely beside the point. Instead, it is critical to call out these orders for what they are: not a contribution to public safety, but one more strand in a net that could ensnare millions of people.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions