DRUG CARTELSTrump Administration Shouldn’t Designate Drug Cartels as Foreign Terrorist Organizations
Congress has given the president too much authority to prosecute a war on terrorism without sufficient oversight by the legislature and the courts. By designating drug cartels as FTOs, the Trump administration unlocks new powers for itself, creates a new media narrative that could fool many, and reinforces the rest of its anti-immigration and border enforcement agenda.
The Trump administration issued an executive order (EO) on January 20, 2025, to create a process to designate some international criminal organizations and drug cartels as foreign terrorist organizations (FTOs). There have been no updates to the State Department’s list of FTOs yet.
To be designated an FTO, the State Department’s Bureau of Counterterrorism (SDBCT) must demonstrate that the organization engages in terrorist activity according to the definition in 8 USC §1182(a)(3)(B), 22 U.S. Code § 2656f(d)(2), or that the organization retains the capability and intent to conduct terrorism. The definition in 22 U.S. Code § 2656f(d)(2) is clearer and closest to that commonly understood definition of “terrorism” by the public in scholars. The most relevant portion reads:
(2) the term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.
That definition contrasts with that in 8 USC §1182(a)(3)(B), which is poorly written (like the rest of the Immigration and Nationality Act) and broad enough to include much criminal activity unrelated to terrorism. The SDBCT analyzes whether the group has committed attacks, planned attacks, prepared for attacks, funded possible future attacks, or retains the capability and intent of doing so.
Under the definition in 22 U.S. Code § 2656f(d)(2), drug cartels are not FTOs because they are criminal firms seeking monetary profits. They are not organizations motivated to conduct politically motivated violence unless it increases their profits. However, the definition under 8 USC §1182(a)(3)(B) is so broad that it could include criminal organizations motivated by profits rather than politics. That’s why the recent Trump administration order doesn’t mention 22 U.S. Code § 2656f(d)(2) and instead relies on a process laid out here that allows designating organizations as FTOs under the simpler, broader definition in 8 USC §1182(a)(3)(B).
The courts can review the designation of entities as FTOs, and those entities themselves can challenge the designation. Still, drug cartels aren’t likely to do so because they are criminal organizations. However, individuals prosecuted because of the new designation may be able to challenge it. The more likely outcome is that the courts will defer to the president’s judgment on national security.
