Decision Brief: A new designation to address the growing threat from cartels

Decision: The U.S. government should create a new designation of “Radical Transnational Criminal Organizations” (RATCO) to facilitate a whole of government approach to destroy drug and human trafficking cartels. Such a designation should carry with it the prohibition from immigration to the United States, the sanctioning and blocking of assets, and the use of military and/or intelligence assets to target and eliminate designated individuals and entities abroad.

Reason: While existing executive orders and statutes permit the designation of individuals associated with narco-trafficking organizations, existing terminology fails to adequately address the nature of the cartels operating along the U.S. Southern border. These entities increasingly possess capabilities which more closely resemble state-sponsored terrorist organizations, widespread insurgencies, and para-states, including the ability to exercise shadow governance in key Mexican territories either directly or through the use of co-opted and corrupt local, regional, or federal authorities.  Additionally, the nature of cartel interests has dramatically evolved from drug smuggling alone to a full panoply of criminal and insurgent fundraising methods, including human trafficking, cybercrime, and illegal trade in wildlife, weapons, and natural resources (including oil and timber).

Background: The growth in cartel capabilities has been accompanied by an increased willingness to engage in violence for political purposes and to intimidate uncooperative government officials and the general public. As a result, some have argued for officially designating specific narcotrafficking organizations as “terrorist” groups.

In February of 2023, 21 state Attorneys General wrote a letter urging the Biden Administration to declare cartels as terrorist organizations, emphasizing the high death toll caused by the smuggling of fentanyl, a powerful opioid which can also be synthesized into a weapon of mass destruction.

In September of 2022, Texas Governor Greg Abbott issued Executive Order GA-42, declaring the Sinaloa and Jalisco New Generation Cartels as terrorist groups, specifically citing their role in smuggling fentanyl and the death toll inflicted upon Americans.

In January, 2021, the Department of Justice indicted 14 leaders of MS-13 on charges of terrorism and material support for terrorism, for their alleged intimidation of El Salvadoran government officials, and efforts to influence political outcomes in the Central American country.

In 2019, Republican Senator Tom Cotton introduced S.3031 – Significant Transnational Criminal Organization Designation Act, which sought to prohibit immigration and naturalization from individuals affiliated with known drug cartels, in a similar manner that individuals with terrorism ties are prohibited from immigration.

Some elected officials have gone so far as to call for an authorization for use of military force (AUMF) against cartels.

All of this reflects the accurate sense that the national security threat posed by these organizations rises above the level of a mere criminal justice problem.

Pushback: One of the major concerns which interfered with efforts to declare cartels terrorist groups and address them accordingly has been the suggestion that a cartel terrorism designation would obligate the U.S. to accept asylum claims from Mexican illegal aliens who argue they face a credible threat of political violence. Regardless of the merits of this concern, the concern did play a role in discouraging the Trump Administration from moving forward on a terror designation.

The Mexican government has also impeded the effort. The increasing nexus between the Mexican state and the cartels suggests that Mexican governmental opposition ought not have the final word in U.S. national security. Indeed, increased collusion between Mexican officials and narco-insurgents is part of the justification for elevating the threat posed by these groups with an enhanced designation.

There have also been concerns that including cartels among terrorist groups would overwhelm U.S. counterterrorism authorities and take their attention away from existing designated organizations.

The creation of a new RATCO designation however would not carry with it the same connotations as a terrorism designation. It would successfully highlight the insurgent nature of cartel behavior, while not assigning it an ideological motive which would permit asylum claims.

Governing Laws and Regulations: Ultimate authority to designate foreign threats to national security for financial sanction is vested in the President’s constitutional authority, the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) and the National Emergencies Act (50 U.S.C. 1601 et seq.) Multiple forms of sanctions have been created both through executive authority and legislation.

Individuals and business entities associated with drug-trafficking organizations can currently be designated under the 1999 Foreign Narcotics Kingpin Designation Act, the Executive Order 12978 of October 21, 1995, Blocking Assets and Prohibiting Transactions With Significant Narcotics Traffickers, Executive Order 13581 of July 24, 2011 Blocking Property of Transnational Criminal Organizations and Executive Order 13863 of March 15, 2019 Taking Additional Steps to Address the National Emergency with Respect to Significant Transnational Criminal Organizations.

Terrorist groups are designated either by the U.S. Secretary of State pursuant to section 219 of the Immigration and Nationality Act (INA), or by either the Secretary of State or Secretary of Treasury under Executive Order 13224 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism.

Bottom Line: The danger posed by the international drug cartels and their contribution to growing insurgencies along the U.S. Southern border greatly exceeds the commonly understood label of a “criminal organization.” Because of its destructive effects on countless American citizens, including mass deaths from fentanyl, it represents an extreme threat to U.S. national security. A new designation – “Radical Transnational Criminal Organizations (RATCO)” – that contains financial sanctions, immigration prohibitions, military and covert action, and other government actions commonly associated with counterterrorism, while still accounting for the predominately non-ideological nature of cartel violence, will be an important addition to the U.S. Federal Government capability to counter this real and present danger and protect the public from such foreign threats.