No, the Venezuelan Regime Has Not Been Designated as a Foreign Terrorist Organization

Yesterday, I wrote about President’s Trump’s claims, made in a social media post, that Venezuela had stolen oil and land from the United States. As I explain, there is an undeveloped good point: Venezuela’s expropriations without just compensation have grossly violated the American interpretation of international law. Regrettably but not surprisingly, this point is obscured by the president’s crazy talk: Obviously, the land and resources of a foreign country belong to that country, not to us, under legal doctrines to which our government has adhered for decades and the American understanding of national territorial sovereignty (which we expect other nations to respect, especially when it comes to our own territory and resources).

Alas, there is more unhinged rhetoric in the president’s post that needs addressing.

Trump writes, “The Venezuelan Regime has been designated a FOREIGN TERRORIST ORGANIZATION.” Perhaps that’s coming, but it hasn’t happened yet. To the contrary: Trump has told Congress that the Latin American organizations that the administration has designated as FTOs are non-state actors.

The closest thing to the Venezuelan regime that has been designated as an FTO is the Cartel de los Soles, of which it is alleged that the country’s dictator, Nicolás Maduro, is the leader and some regime members are members. Before we discuss Soles, let’s set the legal framework.

Congress created two relevant processes for designating terrorists. Based on the International Emergency Economic Powers Act (Section 1702, the statute at issue in the tariff case before the Supreme Court), President George W. Bush — following the 9/11 attacks — issued Executive Order 13224, which empowers the Treasury Department (through the Office of Foreign Assets Control (OFAC)) to list “specially designated global terrorists” (SDGTs). And Section 1189 of federal immigration law empowers the State Department to designate FTOs.

Pursuant to these authorities, the Trump administration took two actions this year with respect to Soles: On July 25, OFAC listed it as an SDGT, and on November 16, the State Department designated it as an FTO.

The precise nature of Soles is the subject of dispute as well as of confusion caused by the Trump administration’s contradictory claims. Soles, the “Cartel of the Suns,” came prominently to American attention in 2020 when the Justice Department during the first Trump administration indicted Maduro and several other members of his regime on drug-trafficking charges. According to the indictment:

From at least in or about 1999, up to and including in or about 2020, the Cartel de Los Soles, or “Cartel of the Suns,” was a Venezuelan drug-trafficking organization comprised of high-ranking Venezuelan officials who abused the Venezuelan people and corrupted the legitimate institutions of Venezuela – including parts of the military, intelligence apparatus, legislature, and the judiciary – to facilitate the importation of tons of cocaine into the United States. The name of the Cartel de Los Soles is a reference to the sun insignias affixed to the uniforms of high-ranking Venezuelan military officials who are members of the Cartel.

The charging document elaborated that, for years, Maduro had helped manage Soles and ultimately led it after the death of Hugo Chávez, his mentor and despotic predecessor.

The entity’s inclusion of regime officials and their sun insignia has led to some pushback from academics and analysts (see, e.g., here). They claim that Soles does not really exist as an organization — that it’s really just a descriptor for corrupt military officials who profit from narcotics-trafficking and other criminal activities; ergo, the argument goes, it lacks the hierarchy and structure of such organizations as the Colombian FARC (with which it allegedly conspired) or Hezbollah.

Now, I have my differences with the Trump administration regarding the application to drug traffickers of processes for listing and designating terrorist groups. To repeat, drug-dealing is not terrorist activity under federal law, and we have plenty of appropriately harsh laws to deal with it. The president habitually uses “designation” as a rhetorical badge of infamy by which, in the Caribbean, he unilaterally marks enemies to rationalize the use of military force against them. In reality, designation is a statutory process (not an inherent executive power) that Congress intended for real foreign terrorist groups, such as al-Qaeda. Its application confers no authority to use military force (rather, it triggers government action to exclude, prosecute, and seize assets from people who abet terrorist activity).

Plus, an FTO cannot be properly designated under federal law unless its terrorist activity “threatens the security of United States nationals or the national security of the United States” (Section 1189(a)(1)(C)). I agree that the narcotics-trafficking activity of Soles and Tren de Aragua (another Venezuelan drug cartel the administration has designated) negatively affects Americans and the United States, but it’s not a security threat in the way terrorism (which involves indiscriminate mass homicide) is.

All that said, in my view, the administration has the better of the argument on whether Soles is an “organization.” The law does not require an entity to have a rigorous hierarchical structure to qualify for designation; many jihadist groups that have been properly designated are loosely organized. (A good comparison is the concept of the “enterprise” in racketeering law, in Section 1961(4) of the federal penal code. An enterprise is just a “group of individuals associated in fact.” That doesn’t call for regimentation; while RICO is designed for mafia families, which are hierarchical, the statute embraces a wide variety of organizations, many loosely structured.)

Hence I think Soles comfortably qualifies as a foreign organization; I simply disagree that it’s a terrorist organization.

Let’s assume, for argument’s sake, that I am wrong and that Soles checks all the statutory boxes for FTO designation. The fact would still remain that Soles is not the Venezuelan regime. Being an entity with which some regime leaders are associated and being the regime are two different things. Contra Trump, the regime has not been named an FTO.

Will the Trump administration designate the regime? It might. Again, the president likes the politics of pronouncing designation. He’s not fastidious about the underlying legal predicates and policy objectives. In his first term, the State Department designated the Islamic Revolutionary Guards Corps, which is the military backbone of the Iranian regime. It was the first time a formal arm of a foreign government had been designated as an FTO.

For what it’s worth, I agreed with the Trump State Department (under Secretary Mike Pompeo) that the plain text of Section 1189 permitted the designation of a component of a government. Nevertheless, it’s not good policy. The point of the designation process is to help our government defang non-state actors — mainly, jihadist groups for which an FTO designation can make it profoundly difficult to infiltrate the U.S., recruit, and raise funds. FTO designation is a law enforcement tool. We generally do not use law enforcement tools (and, because of foreign sovereign immunity, cannot legitimately use some law enforcement tools) against foreign governments. For their provocations, we have an array of diplomatic, intelligence, and military responses instead.

Regardless of whether you think it’s illegal, it’s unwise to blur these lines. Throughout the Clinton presidency (of which Trump has occasionally professed great admiration), we made the grave mistake of treating national security challenges that were fit for a law-of-war response as if they were mere crime problems fit for courtroom prosecution. Now, we’re treating a crime problem that is fit for courtroom prosecution (drug importation) as if it were an act of war fit for a lethal force response. It’s an equally bad idea.