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It’s a waste of time to write something that concludes, “President Trump hasn’t thought this through.” Of course he hasn’t. But still, let’s think through Trump’s declaration this week that he plans to add Mexican criminal groups (“cartels”) to the U.S. government’s list of Foreign Terrorist Organizations.
Here’s that list, covering the whole world. There are some pretty vicious groups listed on it: ISIS, Al Shabaab, Boko Haram, Al Qaeda, the ELN.
But there are a lot of vicious groups missing. You don’t see the Russian Mafia, the Hong Kong Triads, the Japanese Yakuza, Italy’s Cosa Nostra, Brazil’s PCC, Central America’s MS-13—or Mexican cartels. There aren’t any criminals or mobsters on the list. Which makes President Trump’s call to add Mexican organized crime groups look bizarre.
But it’s not that bizarre, because U.S. law about terrorism is pretty weird anyway. Just start with the term “terrorism”: the very good Wikipedia entry on “Definitions of Terrorism” finds several different ones in the U.S. Code, the Code of Federal Regulations, Defense Department guidances, and elsewhere. Those definitions aren’t in sync.
They differ on an important question: whether an act of violence has to be politically motivated to be considered “terrorism,” or whether it’s enough that the violence just seeks to influence a government’s actions. A drug cartel using violence to keep government out if its business fits the second definition, but “keep out of our business” doesn’t really count as a political motivation.
The law governing the State Department’s listing of Foreign Terrorist Organizations (Title 22 U.S. Code Section 2656f(d)(2)) uses the first definition, requiring some political motivation in order for a violent group to be considered “terrorist”:
The term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.
So for the purposes of the “terrorist list,” there has to be a political motivation. Adding Mexican organized crime to that list would stretch the definition of “political motivation” so much that it would open the door to adding potentially dozens of worldwide criminal groups to the list.
It’s not hard to imagine why the State Department, the Defense Department, and the intelligence community would want to avoid doing that. Mixing criminal groups with terrorist groups means losing focus. In the years after the September 11, 2001 attacks, there was a broad consensus that the U.S. government needed to concentrate its resources and assets on groups, like Al Qaeda, that had used terrorism to kill civilians for a “cause,” no matter how twisted. There was an assumption (usually borne out) that criminals would not be so radicalized or extremist that, for instance, they’d employ suicide bombers.
So there were no serious proposals to dilute the focus by adding organized crime to the terrorist list. The U.S. government already had—and still has—ample tools for dealing with drug-trafficking organized crime groups, going back to the drug war legislation of the 1980s and 1990s. Kingpin Act designations. Lists of specially designated narcotics traffickers. Decertifications of states that collude with them. And billions of dollars in aid each year under the International Narcotics Control and Law Enforcement program and Defense budget authorities.
Meanwhile, perhaps because they lack political motivations, organized crime groups tend to be much more transient and shorter-lived than terrorist groups. They’re slippery. They fragment and change names, they lose and gain relevance, more quickly than the groups on the FTO list. Start adding organized crime groups to the list and get ready to update it constantly.
Look at the organized crime landscape in Mexico. In 2006, it was dominated by the Sinaloa cartel and some smaller ones: Gulf, Zetas, Juárez (Carrillo Fuentes), Tijuana (Arellano Félix), Familia Michoacana, Beltrán Leyva, and not many others. If your terrorist list included those today, it’d be irrelevant. Some of those are functionally defunct, you’d have to add splinter groups of some of them, and you’d have to consider adding groups that weren’t on the radar in 2006, like the Cuinis, the Viagras, Guerreros Unidos, Los Rojos, Nueva Plaza, Nueva Resistencia, Gente Nueva, Santa Rosa de Lima, Northeast Cartel, and many others—first among them, the New Generation Jalisco Cartel, headed by Nemesio Oseguera alias “El Mencho.”
A decade ago, Colombian Police Chief Gen. Óscar Naranjo said that his country’s authorities had reduced the “useful lifespan” of the average top drug trafficker to 24 months, after which they are captured or killed. When undergoing the thorough, deliberative process of listing a group, it hardly makes sense to keep up with all of these comings, goings, and schisms.
Some Mexican analysts have pointed out since Trump’s announcement that listing Mexican criminal groups as “terrorists” increases the likelihood of military action in Mexican territory. That may technically be true, though it’s still a very slim likelihood. It’s hard to imagine U.S. military personnel carrying out an operation on Mexican soil without Mexican consent just because a Mexican criminal group has been given a new status. Still, there’s always a scenario that goes something like: “President López Obrador, we have the coordinates where ‘El Mencho’ is right now. We have one hour. We don’t care what you say, a drone is on its way.”
Short of military operations, listing Mexican criminal groups would mean a heavier U.S. hand in Mexico because it would cast a wide net across Mexican society. Organized crime survives everywhere through its deep roots in the state and civil society. (Terrorist groups also do, to some extent, but tend to be more “off the grid” because their relations with states are more adversarial.) People who live in legality are quiet “nodes” on the organized-crime network. If Mexican groups end up on the FTO list, the U.S. government’s list of Mexican citizens offering “material support to terrorism” (in the eyes of the law, the same as raising money for Al Qaeda) could explode, and could include officials at all levels of Mexican government. It could also include people who make extortion payments under duress. Mary Beth Sheridan explained it well in the Washington Post:
Mexican organized-crime groups aren’t isolated bands operating at the margins of society. Their members own legitimate-seeming businesses, exert control over communities and routinely pay off politicians and police. If any contact with organized-crime groups was construed as support for terrorism, many Mexicans — including innocent people — could find themselves punished.
This might not be a totally bad consequence, because it would mean more accountability for corruption. But it could gum up travel, trade, and overall relations pretty badly.
But the crackdown wouldn’t just happen in Mexico. Listing Mexican groups as terrorists could also cast a wide net across U.S. society. It’s “possible Trump’s move could see U.S. drug dealers labeled and treated as terrorist supporters,” Alex Ward wrote in Vox. The same, one assumes, would go for U.S. bankers or realtors who facilitate cartels’ money-laundering: no more fines, they’d be looking at jail time for terrorist financing. And it would come down hard on all the U.S. citizen “ant traffickers” who take advantage of America’s lax gun laws by buying a few AR-15s at gun shows and stores, driving them south across the border in their cars’ trunks, and selling them to criminals for robust profits. The banking and gun lobbies will be unhappy with this new counter-terrorist scrutiny.
Another interesting outcome would be that Mexican victims’ asylum claims might get a boost in U.S. immigration courts. Their cases wouldn’t become “slam dunks,” necessarily, but it’d certainly help them. If you’ve been threatened by a group on the FTO list, your claim is going to be stronger than it would be if you were just threatened by a criminal organization.
If a group is seen as so active and threatening that it makes the terrorist list, it’s easier to argue that the group has national reach, so the asylum seeker isn’t safe anywhere in her country’s territory. Also, it’s easier to argue that the asylum-seeker’s government isn’t capable of protecting her. That latter argument is even stronger because of corruption. Several years ago it was nearly impossible to argue that Colombia’s government couldn’t protect people from the FARC because the FARC had corrupted Colombia’s government: the FARC didn’t work that way, they fought the government. But Mexican organized crime does work that way: the victims of the 2014 Ayotzinapa massacre—to take one example among very many—were the victims not just of Guerreros Unidos, but of local security forces that had become the criminals’ virtual allies.
Would victims of these groups automatically get asylum? No, not at a time when the Trump administration has raised the bar for asylum to nearly impossible, and certainly illegal, levels. But if asylum-seekers’ lawyers (if they have them) can say their clients are threatened by groups on the State Department’s terrorist list, they will be sure to feature that very prominently in their clients’ applications.
From U.S. bankers being labeled “terrorist supporters” to asylum-seekers having a big new argument, a lot of unintentional outcomes could come from the Trump administration “crossing the streams” and adding Mexican criminal groups to the terrorist list. Clearly, President Trump hasn’t thought them through.
