“HEARST” for Borderland Beat
The governor of Texas, Greg Abbott, issued an executive order designating Mexican drug cartels as terrorist organizations.
The Executive Order
At approximately 1:30 pm on September 21, 2022, Governor Abbott announced he was issuing an executive order designating the Mexican groups like the Sinaloa Cartel and the Cartel Jalisco Nueva Generation (CJNG) as foreign terrorist organizations.
The executive order can be read in full at this link. It says, in part:
“NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby designate as foreign terrorist organizations the Sinaloa Cartel, the Jalisco New Generation Cartel, and any similarly situated Mexican drug cartels who may be identified in subsequent proclamations [...]
WHEREAS, even though President Biden has declared a national emergency due to “trafficking into the United States of illicit drugs, including fentanyl and other synthetic opioids,” his Administration still has not designated the Mexican drug cartels as foreign terrorist organizations under Section 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189.”
It then goes on to say:
I further order that the Texas Department of Public Safety shall do the following:
Order No. 1
Establish a Mexican Cartel Division within the Texas Fusion Center to collect and analyze intelligence that will enable further apprehension, prosecution, and disruption of these foreign terrorist organizations.
Order No. 2
Identify, arrest, and impede the gangs in Texas that support the drug and human smuggling operations of these foreign terrorist organizations.
Order No. 3
Conduct multi-jurisdictional investigations of foreign terrorist organizations operating in Texas to support criminal prosecutions here and in other States.
Order No. 4
Conduct multi-jurisdictional investigations of transnational and Texas based gangs that support the smuggling operations of foreign terrorist organizations.
Order No. 5
Target, seize, and dismantle the infrastructure, assets, vehicles, and buildings used by foreign terrorist organizations to smuggle drugs and people into and throughout Texas.
Order No. 6
Enhance southbound criminal interdiction operations resulting in the seizure of bulk cash and other assets being smuggled into Mexico.
Order No. 7
Intensify efforts under Operation Lone Star focused on detecting and interdicting transnational criminal activity between the ports of entry.
All of the political discourse in the US over the last few years about cartels being designated as terrorist organizations has related specifically to Section 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189, which can be read in full here.
The act clearly states that the person who can make this designation is the US Secretary of State, a position currently held by Antony Blinken.
|Us Secretary of State Antony Blinken.|
A state governor “designating” a cartel group as a terrorist organization, even through executive order, has no impact and does not trigger any change in regards to the federal government, federal agencies, or the Immigration and Nationality Act (often shortened to just INA), 8 U.S.C. § 1189. The executive order has no bearing on federal economic sanctions or the asylum claims of immigrants.
Additionally, it should be noted that Texas state government holds no funding or legal powers in reserve for combatting foreign terrorist groups because that is not within the purview of a state government, only a federal one.
The order’s seven specific mandates for the Texas Department of Public Safety could have been enacted without the “designation”, according to the scope of the gubernatorial power defined in the Texas constitution.
So, for the sake of clarity, it’s important to establish that the use of this term – “foreign terrorist organization” – within the executive order is purely symbolic.
The symbolic wording is likely meant to draw attention to the second announcement the governor made: that he “sent a letter to President Joe Biden and Vice President Kamala Harris requesting federal terrorist classifications for the Sinaloa Cartel and Jalisco New Generation Cartel, as well as other cartels producing and distributing deadly fentanyl.”
It should be noted that Governor Abbott has sent a letter requesting this before, back in April 2021. To read his previous letter, click here.
The letter can be read in full here. It outlines how the governor believes the two aforementioned cartel groups fit the criteria outlined in Section 219. He writes:
“Moreover, these statistics underscore that fentanyl is a ‘chemical agent’ used by Mexican drug cartels who know that it ‘endangers, directly or indirectly, the safety of one or more individuals.’ 8 U.S.C. § 1182(a)(3)(B)(iii)(V).
This is ‘terrorist activity’ within the meaning of the INA and fulfills the requirements for designation under Section 219. [...]
As the Drug Enforcement Agency (DEA) explained just over a week ago, ‘fentanyl available in the United States is primarily supplied by two criminal drug networks, the Sinaloa Cartel and the Jalisco New Generation Cartel’.”
He continues, outlining next the benefits he believes designation under Section 219 would give the government in its ability to fight drug cartels:
“Mr. President and Madam Vice-President, if we agree on the problem—and your emergency declaration and your own DEA Administrator indicate that we do—then more must be done for our citizens.
One way you can take an effective, direct step to address the scourge of fentanyl is by designating the Sinaloa Cartel, the Jalisco New Generation Cartel, and any similarly situated Mexican drug cartels as foreign terrorist organizations under Section 219 of the INA, 8 U.S.C. § 1189.
Cartel assets could then be frozen, weakening the financial support of trafficking activities.
In addition, federal investigators and prosecutors could aggressively pursue the enhanced criminal sentences that apply to drug traffickers who fund foreign terrorist organizations.
Designation, apprehension, and prosecution would also heighten public awareness of the cartels’ trafficking of deadly fentanyl, while signaling to the international community that the United States will not tolerate terrorists who poison our citizens.”
Additionally, hours before the governor’s announcement, US Senator Roger Marshall (R-Kan.) and Senator Rick Scott (R-Fla.) proposed legislation to Congress which would, if approved, formally designate drug cartels as foreign terrorist organizations. Their bill can be read at the link here.
Some Prior Context
During a White House meeting on the opioid crisis (which you can watch on C-SPAN here) in June 2019, President Trump asked the acting administrator of the DEA, Uttam Dhillon, if he would choose to designate Mexican cartels as terrorist organizations.
Dhillon responded “No, sir. I think we have all the authority we need. We just need the cooperation of our various foreign governments to attack them more effectively, and we’re working to gain that.”
But larger scale discussion of potential designation restarted in the wake of the LeBaron massacre, which left 9 US citizens dead after their vehicles were attacked by cartel hitmen in Chihuahua, Mexico, on November 4, 2019.
|Remnants of a vehicle destroyed in the LeBaron massacre.|
In response, President Trump said that he intended to “designate those cartels in Mexico as terror groups and start hitting them with drones and things like that,” during a radio interview on November 26, 2019.
During the next week, US Attorney General William Barr discussed the possible designation with President Lopez Obrador and Mexico’s Foreign Minister Marcelo Ebrard during a meeting in Mexico City.
Minister Ebrard later told Televisa news that they discussed how one of the requirements for US asylum was “a credible fear of persecution”.
|Minister Ebrard on left, Attorney General Barr in center, during the 2019 meeting.|
By designating cartels as terrorist groups, Ebrard said “they could come to the United States and say, ‘I come from a place where there’s terrorism,’ and [the U.S.] would have to grant them credible fear [of persecution].”
The day after the meeting, Trump tweeted out that “All necessary work has been completed to declare Mexican Cartels terrorist organizations [...] However, at the request of a man who I like and respect, and has worked so well with us, President Andres Manuel @lopezobrador we will temporarily hold off this designation and step up our joint efforts to deal decisively with these vicious and ever-growing organizations!”
President Lopez Obrador told reporters that this “was a very good decision today to defer the designation.”
Complications in the Asylum Claims
In contrast to what Ebrard said, some legal experts like those at Lawfare write that “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.”
This is because, they write “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”, which means any migrant who paid a smuggler to guide them across the border would be considered in ineligible for asylum.
Additionally, any migrants who were temporarily kidnapped and forced to pay a ransom during their process of attempting to cross, as is unfortunately common, would be considered ineligible for asylum. For a more in-depth explanation, please see this Lawfare post.
The practicality and feasibility of actually producing evidence that this “material support” occurred for the thousands of asylum cases being reviewed each year, though, is worth further consideration, and may point back to the designation overall resulting in more asylum claims being granted.
Weighing the Gain vs the Loss from the Designation
Some legal experts, like those at Lawfare, write that Mexican drug cartels most likely fit the three main criteria required under 8 U.S.C. § 1189. These are:
Must be a foreign organization
Engage in terrorist activity, with terrorist activity “defined to include the use of explosives or firearms to endanger others, kidnapping to compel actions by another, and assassination.”
This terrorist activity must threaten “the security of United States nationals or the national security of the United States.”
So, it appears that lawmakers know that Mexican drug cartels have met the necessary criteria for a while now so it stands to reason that they have not been designated as Foreign Terrorist Organizations (henceforth referred to as FTO) for other reasons, such as the concerns about asylum claims mentioned previously.
Additionally, lawmakers are likely weighing if US agencies, like the DEA, would lose more of their ability to fight drug cartels than they would gain from the designation.
After an extensive review of the legal gains the designation would have, which can be read in full here, the writers conclude that ultimately:
“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.”
Now, US agencies have no jurisdiction to make arrests in Mexico, so cooperation with Mexican law enforcement is key to capturing many cartel kingpins who will never step foot in the US.
The current Mexican presidential administration has publicly stated that they strongly object to the US designating cartels as FTOs, so such a designation would likely tank international relations between the two countries and greatly hinder Mexican law enforcement’s willingness to collaborate with their US counterparts.
Collaboration goes beyond just big arrests of cartel kingpins. All of the US’s Kingpin Act designations, which levy economic sanctions against cartel associated figures, require significant intelligence gathering, not all of which can be done on the US side of the border.
Ultimately, it is very hard, as outsiders, for us to try to judge the relative loss versus gain that a FTO designation would have on the ability to fight against drug cartels – for both US and Mexican law enforcement.
Even if you try to defer to legal experts and consider the importance of international relationships, there are still a multitude of other relevant factors that we just aren’t aware of as outsiders.
So, maybe instead of speculating, we should instead ask the current leadership of the agencies that deal with drug cartels if they are in favor of an FTO designation or not.
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