LENS Essay Series: “From the Halls of Montezuma: The Promise and Pitfalls of Designating Mexican Drug Cartels as Foreign Terrorist Organizations”

Mexican drug cartels present a deadly threat to thousands Americans by trafficking fentanyl and other lethal poisons into the U.S.  A number of steps have been taken against the cartels, but should the U.S.. also formally designate them as Foreign Terrorist Organizations (FTOs) like Hamas?

The designation allows U.S. authorities to take a number of actions, including prosecuting those who provide “material support” to FTOs, and requiring financial institutions to block all transactions involving FTO assets.

Consequently, it might seem that designating drug cartels as FTOs is the obvious answer but like so many things in the law, the issue is more complicated than it may first appear. 

In today’s addition to the LENS Essay Series Duke Law 3L Casey Witte unpacks the question for us in his essay, “From the Halls of Montezuma: The Promise and Pitfalls of Designating Mexican Drug Cartels as Foreign Terrorist Organizations” 

Casey walks us through the FTO designation process and analyzes its application to select cartels.  After considering the “promise and pitfalls” of the designation, he concludes “for legal, practical, and political considerations…we should not seek to designate cartels as FTOs.”

Importantly, however, Casey goes further with his analysis.  Noting that “cartels are dynamic, sophisticated, and often ruthless organizations” he argues that “any enforcement strategy will need to be multi-faceted in its approach.”  He then offers “three alternative policy or enforcement actions that could form part of that multi-faceted approach,” and contends they could be a “better use of resources than FTO designation.”

This is an extremely thoughtful essay that deserves to be part of the national discussion regading what to do about the vile organizations that are fueling the drug scourge that is killing tens of the thousands of Americans.  You can (should!) read Casey’s study here.

Abstract

Here’s the abstract of Casey’s essay:

A common rhetorical refrain in American politics is to treat malignant groups “like terrorists.” Today, this language is often applied to Mexican drug cartels. Seeking to curb cross-border violence and fentanyl trafficking, scores of policymakers have urged the federal government to designate these cartels as Foreign Terrorist Organizations (“FTOs”). Using this trend as a jumping-off point, this essay examines the FTO designation framework as-applied to Mexican drug cartels. Specifically, this essay addresses whether these cartels can be designated as FTOs and, if so, whether designation would be in the best interests of the United States. Ultimately, this essay argues that Mexican drug cartels can be designated as FTOs, but for a variety of legal, practical, and political considerations, this would be an imprudent move. Further, this essay notes that there are a variety of arguably more effective alternatives if policymakers remain interested in aggressively pursuing cartel activity.

About the Author

Casey J. Witte (J.D. 2024) is a third-year at Duke University School of Law. Originally from Winston-Salem, North Carolina, Casey graduated from the University of Florida in 2020 with a B.A. in Political Science and B.S. in Business Administration. During his 1L summer, Casey interned with Judge Robin Rosenberg on the U.S. District Court for the Southern District of Florida. During his 2L summer, Casey worked as a law clerk focusing on litigation in Fried Frank’s Washington D.C. office. At Duke, Casey serves on the Lateral Faculty Appointments Committee and is a Lead Articles Editor for Law & Contemporary Problems

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!