The United States has designated criminal organizations as “terrorists” for the first time.Footnote 1 The new foreign terrorist organization (FTO)Footnote 2 and specially designated global terrorist (SDGT)Footnote 3 designations cover eight drug cartels and transnational criminal organizations, based in Mexico, El Salvador, and Venezuela, and two Haitian gangs.Footnote 4 Seven of the groups were previously sanctioned under counternarcotics and anti-crime authorities,Footnote 5 but the FTO and SDGT actions provide enhanced legal and policy tools that can be brought to bear on these organizations, their businesses, their members, and those who work with them in the United States and abroad. In addition to the consequences for the groups themselves and their associates, the designations amplify the risks placed on U.S. and foreign persons and firms, across many sectors, that operate in areas where these criminal organizations are active or that engage in cross-border transactions with individuals and entities in these locations. Enforcement actions will likely increase with the attorney general’s announced redirection of resources toward the “total elimination of cartels and transnational criminal organizations.”Footnote 6 The designations, the Justice Department action, and the executive order that instigated themFootnote 7 contribute to a narrative of invasion that is meant to justify the president’s use of severe measures against migrants and lay the groundwork for possible cross-border military action against Mexican drug cartels.Footnote 8
On the first day of his second term, President Donald J. Trump issued an executive order that declared a national emergency to deal with the “unusual and extraordinary threat to the national security, foreign policy, and economy of the United States” posed by “[c]artels and other transnational organizations.”Footnote 9 According to the order, “international cartels” (a term that it leaves undefined) “constitute a national-security threat beyond that posed by traditional organized crime” because of: (1) their “convergence” with “extra-hemispheric actors, from designated foreign-terror organizations to antagonistic foreign governments”; (2) their “complex adaptive systems, characteristic of entities engaged in insurgency and asymmetric warfare”; and (3) their “infiltration into foreign governments across the Western Hemisphere.”Footnote 10 Cartels, the order states, “functionally control, through a campaign of assassination, terror, rape, and brute force nearly all illegal traffic across the southern border of the United States”; they “function as quasi-governmental entities” in certain parts of Mexico; and their “activities threaten the safety of the American people, the security of the United States, and the stability of the international order in the Western Hemisphere.”Footnote 11 “Other transnational organizations” (the order names Tren de Aragua and Mara Salvatrucha (MS-13) but does not explain the meaning of that term either) wage “campaigns of violence and terror in the United States” that “similarly threaten the stability of the international order in the Western Hemisphere.”Footnote 12 The order directs the secretary of state to make recommendations regarding the designation of cartels and other organizations as FTOs and SDGTs.Footnote 13 It also orders the attorney general and the secretary of homeland security to undertake preparations for the president’s (then) possible invocation of the Alien Enemies Act, including by “prepar[ing] such facilities as necessary to expedite the removal of those who may be designated under this order” as FTOs and SDGTs.Footnote 14
Secretary of State Marco Rubio quickly designated eight transnational criminal organizations as FTOs and SDGTs.Footnote 15 Six are based in Mexico and are engaged in drug trafficking, extortion, and related criminal activities (Cártel de Sinaloa, Cártel de Jalisco Nueva Generación, Cártel del Noreste, La Nueva Familia Michoacana, Cártel del Golfo, and Cárteles Unidos).Footnote 16 The two others (Tren de Aragua and MS-13) are involved in assassinations, extortion, bribery, and other forms of violent crime in countries across Central and South America.Footnote 17 Secretary Rubio said that his action was intended “to protect our nation, the American people, and our hemisphere” by “stopping the campaigns of violence and terror by these vicious groups both in the United States and internationally.”Footnote 18 He would later designate two Haitian gangs (Viv Ansanm and Gran Grif) as FTOs and SDGTs as well.Footnote 19 The gangs, he said, “are a direct threat to U.S. national security interests in our region,” as they “are the primary source of instability and violence in Haiti” and seek to “overthrow[] the government of Haiti … [and] creat[e] a gang-controlled state where illicit trafficking and other criminal activities operate freely and terrorize Haitian citizens.”Footnote 20
The U.S. government had not previously designated criminal organizations as “terrorists.” Though terrorist groups are often involved in criminal activities beyond terrorism itself, the designations elide the distinction in U.S. law (previously recognized by the executive branch through its practice) between crime and terrorism. Secretary Rubio’s announcement did not explain why the designated groups are terrorists as that term is defined under U.S. law.
FTO and SDGT designations, as is typical of sanctions generally, block all property and property interests of the designated groups in the United States or in the possession or control of U.S. persons.Footnote 21 They also prohibit U.S. persons from engaging in transactions with the designated groups. Sanctions violations can lead to civil and criminal penalties.Footnote 22 As a result of prior designations under other authorities, these measures already applied to seven of the ten groups named by Secretary Rubio.Footnote 23
Beyond the symbolism that comes with the terrorist label, the importance of the FTO and SDGT designations lies in what more they entail. The additional measures are substantial:
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prosecution of persons subject to U.S. jurisdiction who knowingly “provide[] [or conspire to provide] material support or resources” to an FTO or persons affiliated with an FTO;Footnote 24
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civil liability for (1) those who commit an act of international terrorism and (2) those who aid and abet, by knowingly providing substantial assistance, or conspire with a person who committed an act of international terrorism of an FTO;Footnote 25
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secondary sanctions for (1) foreign financial institutions for “knowingly conduct[ing] or facilitat[ing] any significant transaction on behalf of an” SDGT and (2) non-U.S. persons for “materially assist[ing], sponsor[ing] or provid[ing] financial, material or technological support for, or goods or services to or in support of” an SDGT;Footnote 26
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immigration restrictions for aliens engaged in terrorist activity, including inadmissibility, removal, limitations on relief from removal, and inability to adjust status.Footnote 27
The designations significantly increase the legal risk of those who operate in areas where the groups are located, particularly in the parts of Mexico that they effectively control. Cartels might demand payments for extortion, protection, and ransom, and they also might run many legitimate businesses. All those involved in the considerable U.S.-Mexico cross-border trade—in sectors as varied as financial services, arms sales, and agriculture—as well as in humanitarian assistance, are potentially vulnerable to being accused of providing material support or resources to an FTO.Footnote 28 They will therefore need to take precautions to avoid possible liability. Some will de-risk by withdrawing.Footnote 29
The potential consequences are not speculative. U.S. companies have been prosecuted for providing material support to terrorists,Footnote 30 and they have been sued by terrorist victims for substantial amounts in damages.Footnote 31 Law enforcement officials have already acted under the new FTO and SDGT designations. The Treasury Department has issued multiple sets of sanctions.Footnote 32 And the Justice Department has brought multiple indictments for providing material support to terrorists.Footnote 33 Prosecutors are also reviewing previously issued indictments to determine whether to add terrorism charges.Footnote 34 Attorney General Pam Bondi has signaled that the Justice Department will shift resources and priorities to aggressively prosecute cartels and transnational criminal organizations.Footnote 35
In addition to creating new sanctions and prosecutorial authorities, the president’s declaration of a national emergency and the designations of these criminal organizations lay the groundwork for possible military action against the Mexican cartels, including drone strikes and special operations. Defense Secretary Pete Hegseth said that “[a]ll options will be on the table if we’re dealing with what are designated to be foreign terrorist organizations who are specifically targeting Americans on our border.”Footnote 36 Responding to Secretary Rubio’s designation of the cartels, Mexican President Claudia Sheinbaum said that the designation “cannot be an opportunity for the United States to invade our sovereignty.”Footnote 37 That same day she proposed an amendment to Mexico’s constitution that clarifies that Mexico will “under [no] circumstances, accept [foreign] interventions.”Footnote 38
