The incantations of the word are intended to mislead the public into assuming the cartels’ terror ‘designation’ has solid legal footing.
The incantations of the word are intended to mislead the public into assuming the cartels’ terror ‘designation’ has solid legal footing.
A udrey Fahlberg’s report for National Review on Republican concerns about the Trump administration’s unauthorized military campaign in the Caribbean quotes one of the president’s allies, Senator Cynthia Lummis (R., Wyo.): “We all know that [Nicolás] Maduro continues in office, even though he lost the last election, and they are narco-terrorists.” Another, Senator Josh Hawley (R., Mo.), chimes in about how Trump is “striking boats that are operating in international waters that are operated by narco-terrorists.”
Meanwhile, Republicans tell NR they’re worried about Trump’s shameful pardon of drug kingpin Juan Orlando Hernández. He’s the Honduran president convicted by a federal jury in Manhattan of shipping 400 tons of cocaine to the United States — an investigation Trump has pooh-poohed as Biden-era overkill, but that, to the contrary, spanned the first Trump administration. Indeed, the Justice Department’s Hernández probe was run for a time by Emil Bove, Trump’s former lawyer who held a high-ranking position in the current Trump DOJ before the president appointed him to the prestigious Third Circuit appeals court. (I’ll have more to say on Bove in a separate post.)
The Hernández indictment, and the jury trial at which he was convicted before being sentenced to 45 years’ imprisonment, proved the close drug trafficking ties between Honduras and Maduro’s Bolivar regime (founded by his Marxist patron, the late Hugo Chavez). The Honduran regime figures prominently in the indictment of Maduro brought by the first Trump administration — which, naturally, the current Trump administration is using as part of the rationale for its demand that Maduro abandon Venezuela or face a potential U.S. military invasion. No wonder, as Fahlberg reports, congressional Republicans fret that the Hernández pardon “undermines the legitimacy of the administration’s campaign against narco-terrorism in the region.”
If you want to win the narco-terrorism drinking game, I’d bet on the White House Press Office, for which the term has become a mantra. In the statement she gave NR, Trump spokeswoman Anna Kelly bewailed the “scourge of narco-terrorism” and noted that the “decisive strikes” against boats off the coasts of South and Central America (“decisive” in the sense that they have killed 87 boat operators so far) have been against “designated narco-terrorists.”
Kelly was echoing Trump Press Secretary Karoline Leavitt. In recently attempting to explain the September 2 U.S. attack that killed eleven boat operators, including two in the controversial “double-tap” strike, she opined that “presidentially designated narco-terrorist groups are subject to lethal targeting in accordance with the laws of war.” Hence, she undertook to “remind the American public” that “this administration has designated these narco-terrorists as foreign terrorist organizations.”
This was after Defense Secretary Pete Hegseth defiantly quipped on X, in response to critics of the September 2 attacks, that “we have only just begun to kill narco-terrorists.” Hegseth followed that up by posting a Franklin cartoon image of an American military helicopter firing a missile at a boat, under the heading “Franklin Targets Narco Terrorists.”
For the umpty-umpth time, “narco-terrorism” is just political rhetoric. It has no standing as a legal term — no significance in the extensive bodies of federal law defining narcotics trafficking and terrorism. Transparently, the incantations of narco-terrorism by the president’s amen corner are intended to benumb the public into assuming that his administration’s designation of drug cartels as foreign terrorist organizations provides a tenable legal basis for lethally striking vessels suspected of transporting narcotics. It doesn’t. On the other hand, as with the president’s alien enemies invocation, and his claims of “rebellion” as a predicate for deploying National Guard troops in American cities, there could be litigation over the extent to which the courts may review the executive branch’s determination that drug trafficking activity warrants a terrorism designation.
Our law has processes for designating foreign terrorist organizations (FTOs) and global terrorists. There is no designation of narco-terrorists. That is unsurprising, since narcotics trafficking, while a serious crime, is not terrorist activity as that term is extensively and exactingly defined in federal law. (In a previous post, I’ve outlined the conduct covered by that definition, in Section 1182(a)(3)(B)(iii) of federal immigration law.)
Similarly, illegal narcotics activity, including the importation of cocaine, is extensively and exactingly defined in federal law — as it must be since it is the subject of thousands of prosecutions (which cannot be premised on vague statutes). Nowhere is terrorist activity defined as a drug crime.
There is a federal drug statute (Section 960a of Title 21, U.S. Code) making it a crime to provide foreign terrorists with the proceeds of drug trafficking (“anything of pecuniary value”). That statute merely brings the narcotics laws into line with other statutes that criminalize the provision of material support to foreign terrorist organizations and foreign terrorist activity. (See Sections 2339a et seq. of the federal penal code.) Section 960a of the drug laws does not equate narcotics trafficking with terrorist activity — the statute elucidates that they are discrete patterns of crime.
The administration’s use of the term narco-terrorism goes back to the first Trump term. As noted above, that’s when the Justice Department (in 2020) indicted Maduro and several other figures in the Venezuelan regime.
Interestingly, the terrorism part of that episode in narco-terrorism branding was not traceable to Maduro. Rather, as I’ve previously detailed, the theory of the indictment was that the Maduro regime was collaborating with the FARC (Fuerzas Armadas Revolucionarias de Colombia — the Revolutionary Armed Forces of Colombia), the notorious communist insurgency (whose fighters numbered in the tens of thousands) that for decades waged war against the Colombian government.
The FARC, unlike Maduro’s regime or any component of it, had been designated as a foreign terrorist organization by the Clinton administration in 1997. The Clinton State Department described the FARC’s activities as follows:
Armed attacks against Colombian political, economic, military, and police targets. Many members pursue criminal activities, carrying out hundreds of kidnappings for profit annually. Foreign citizens often are targets of FARC kidnappings. Group has well-documented ties to narcotics traffickers, principally through the provision of armed protection for coca and poppy cultivation and narcotics production facilities, as well as through attacks on government narcotics eradication efforts. Also began in 1998 a bombing campaign against oil pipelines.
While there was terrorist activity aplenty, the designation was questionable because, under Section 1189 of the immigration laws, such designations require a showing that the terrorist activity “threatens the security of United States nationals or the national security of the United States.” The FARC was a direct threat to Colombia. Yet, the United States government had begun counter-narcotics aid to Colombia in the Reagan years, and that aid evolved into police and military assistance during the Clinton era. The theory — highly relevant to Trump’s theory for designating Latin American cartels, even though they don’t approach the FARC’s record of brutal warfare — was that the FARC’s violent insurgency destabilized the Western hemisphere in addition to helping import tons of cocaine to the U.S. and elsewhere.
President George W. Bush’s administration upped the ante by indicting 50 alleged FARC operatives in 2006. The Bush DOJ’s press release could be a script for the Trump administration’s contemporary public statements, inveighing against the “Narco-Terrorist FARC in Colombia” for “Supplying More than Half of the World’s Cocaine.” Prosecutors vowed: “We will continue our relentless pursuit of narco-terrorists wherever they may be found.” In fact, the Trump theory for designating drug cartels tied to Venezuela mirrors the Bush DOJ’s assertions about the FARC:
The FARC is a designated foreign terrorist organization that funds its activities through a massive distribution network. By terrorizing local farmers in Colombia and attacking all those who threaten their operations, the FARC has built a cocaine empire that is the largest supplier in the United States.
But note the salient differences. As we’ve seen, the FARC was already a designated foreign terrorist organization because of its brutality in Colombia before President Bush entered office. And the assertions by the DOJ (and the Bush Treasury Department) were a theory of prosecution, not lethal attacks.
Years earlier, the Bush administration had pioneered the branding of jihadist terrorists as alien enemy combatants who could be killed or detained without trial under the laws of war. Yet, Bush officials made no such claim about the FARC operatives: They were indicted as defendants and their extradition was sought for prosecution in federal court under drug laws. Moreover, even though al-Qaeda was designated as an FTO before the 9/11 attacks, Bush sought and received authorization from Congress after those attacks prior to invoking the laws of war to use lethal force against terrorist operatives — the designation provided no such authority.
The FARC entered a peace agreement with the Colombian government in 2016, and it rebranded itself as a political party the following year. Hence, in 2021, the State Department revoked the terrorism designation against the FARC that had been the basis for the Trump DOJ’s allegation that Maduro was complicit in “narco-terrorism.” (To be clear, Maduro’s years of conspiratorial activities with the FARC while it was a terrorist organization would still be fair game for prosecution if Maduro were ever extradited to the U.S. But the charges in the case are that Maduro violated the narcotics laws, not that he engaged in terrorist activity.)
In conclusion, it is probably a viable legal theory that an FTO may be designated as such under federal law even if its terrorist activity is not directed at the United States. Section 1189’s aforementioned mandate that the government show the terrorist activity “threatens” the U.S. and its citizens can probably be satisfied by proving that the terrorist activity protects drug trafficking that results in massive cocaine importations to the United States.
But it bears emphasizing: Such a designation, assuming its legitimacy under the controlling statute, is not an authorization of military force. The government’s labeling of drug traffickers as “narco-terrorists” is of no legal consequence; it does not even show that the traffickers are engaged in terrorism (as narcotics importation is not terrorist activity under federal law), and it certainly provides no basis for the use of lethal force under the laws of war.