US-Mexico Cartel Wars

US President Donald Trump, in one of his first actions after being sworn in on Jan. 20, signed an executive order designating Mexican drug cartels as “foreign terrorist organizations.” Pete Hegseth, the newly appointed secretary of defense, told reporters that “all options are on the table” when it came to whether the US military could be deployed inside Mexico to deal with the threat to US national security posed by the cartels. Many observers believe that one naturally flows to the other. But the reality is that, while the two actions share a common political foundation premised on the need to be more aggressive with the threat posed by Mexican drug cartels, there is no link between the executive order signed by the president and the speculations of the secretary of defense regarding the possible use of US military forces — the former authorizes various sanctions on finances and assets, while the latter would involve authorizations beyond the scope and scale of the executive order. Nonetheless, the US seems to be heading toward an increasingly confrontational posture on this issue, which could manifest itself violently.

Answering reporters’ questions after signing the executive order designating Mexican drug cartels as foreign terrorist organizations, Trump was asked if he would be sending US Special Operations forces into Mexico to fight the cartels. “Could happen,” the president responded cryptically. “Stranger things have happened.”

While the US president has broad authority under the War Powers Act to employ the US military in response to emerging threats to the security of the country, some have taken the confluence of the president’s signing of the executive order and his statement on the potential use of military power as a signal that the US is on the cusp of declaring war against the Mexican drug cartels. While Secretary of Defense Hegseth underscored this potential when he noted in a separate conversation with reporters that “all options are on the table,” when it comes to the executive order signed by the president and the potential employment of US military forces, one does not flow from the other.

Declaring War on Finances and Assets

The executive order applied the designation of “foreign terrorist organization” to the “cartels and other transnational organizations [which] operate both within and outside the US.” The executive order went on to “declare a national emergency, under IEEPA [the International Emergency Economic Powers Act], to deal with those threats.” The order was specific about the authorizations being invoked by the president. For example, IEEPA authorizes the president “to block transactions and freeze assets to deal with the threat” that has been identified, in this case the Mexican drug cartels and other transnational criminal organizations.

The president also cited section 219 of the Immigration Naturalization Act (8 U.S.C. 1189), which requires “US financial institutions possessing or controlling any assets of any foreign organization included in the notification to block all financial transactions involving those assets.” 50 U.S.C. 1702, a federal statute that provides the president with specific authorities during a declared emergency, was likewise invoked, authorizing US authorities to “investigate, regulate or prohibit any transactions in foreign exchange … by any person, or with respect to any property, subject to the jurisdiction of the US.”

Additionally, Trump referenced an executive order signed by former President George W. Bush declaring that “all property and interests in property of designated individuals or entities that are in the US or that come within the US, or that come within the possession or control of US persons are blocked.” Lastly, he cited the Alien Enemies Act (50 U.S.C. 21), which allows the president to designate persons as “alien enemies,” making them “liable to be apprehended, restrained, secured and removed as alien enemies.” The authorities cited provide the president with sweeping powers capable of attacking the financial structures of the Mexican drug cartels. However, none of the authorities allows for the deployment of US military forces against the cartels.

Authorization for Military Force

In the past, Trump has relied on the 2001 Authorization for the Use of Military Force joint congressional resolution, or AUMF, as the requisite authority for employing US military forces around the world. The 24-year-old AUMF authorizes the president to use all “necessary and appropriate” force against members of Al-Qaeda and affiliated individuals, entities and terrorist organizations responsible for the Sep. 11, 2001, attacks on the US. The AUMF does not, however, provide “specific authority” to employ US soldiers anywhere in the world. However, in past practice, the president cited the 2001 AUMF when authorizing US special forces deployed in Niger to engage in military actions against fighters from the Islamic State group, despite many in Congress believing this was unlawful and unconstitutional. The unwillingness of Congress to confront the president on this serves as a precedent for similar abuses going forward, including any potential employment of US military forces in Mexico.

Another legal obstacle facing Trump is the notion of jus ad bellum —the “right to war” — which addresses the underlying issue as to whether the US is entitled under international and domestic law to employ force in Mexico, a sovereign country with which the US is not at war. Here, the precedent of Operation Neptune — the US attack on Osama bin Laden — is relevant. While Pakistan did not consent to the operation, the US invoked an exception to Article 2 (4) of the UN Charter regarding the principle of sovereign inviolability, namely the Article 51 right of preemptive self-defense. Trump would be able to construct a similar argument regarding the threat posed by the Mexican cartels.

While the issue of whether the 2001 AUMF would provide the legal authority for any potential deployment of US military forces into Mexico remains open, the president has other options. Once again, the operation against Osama bin Laden provides the precedent, where former President Barack Obama subordinated the “Title 10” authorities that regulate the use of US military force to the “Title 50” authorities granted to the CIA to conduct covert operations against threats deemed a danger to the US and its foreign policy objectives. Units assigned to the Joint Special Operations Command can, by law, be subordinated to the CIA at the direction of the president, bypassing the reporting requirements of Title 10.

In short, while there is no direct connection between the executive order signed by the president designating Mexican drug cartels as foreign terrorist organizations, and the speculative statements made by the president and the defense secretary on the potential use of US military forces, they are united by an overarching policy objective designed to put the US on a more confrontational posture with the cartels. Moreover, just because the authorities cited by the president in the executive order do not cover the use of military force, he has sufficient authority separate from these, meaning — as the secretary of defense noted — that “all options are on the table.”

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