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Evolving Threats and Converging Legal Authorities in the Fight Against Mexican Drug Cartels

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Evolving Threats and Converging Legal Authorities in the Fight Against Mexican Drug Cartels 344 Harvard National Security Journal / Vol. 6 ARTICLE Spillover: Evolving Threats and Converging Legal Authorities in the Fight Against Mexican Drug Cartels ___________________ Christopher J. Curran* * Major, Judge Advocate, United States Army. Associate Professor, The Judge Advocate General’s Legal Center and School, Charlottesville, Virginia. Previous assignments include 160th Special Operations Aviation Regiment (Airborne), United States Army Forces Command, Joint Task Force – Iraq, and United States Army Trial Defense Service. The author would like to express his sincere thanks to Lieutenant Colonel John Cherry, United States Marine Corps, for the significant insight and assistance he provided on this Article. Semper Fidelis. The views expressed in this Article are those of the author and do not reflect the official policy or position of the United States Army, the Department of Defense, or the U.S. Government. Copyright © 2015 by the Presidents and Fellows of Harvard College and Christopher J. Curran. 2015 / Spillover 345 Table of Contents Introduction ......................................................................................................................... 346 I. Understanding the Threat .............................................................................................. 349 A. Background .................................................................................................................. 349 B. Characterizing the Cartel Threat ................................................................................ 354 1. An Organized Crime Model .................................................................................... 355 2. An Insurgency Model ............................................................................................. 356 3. A Terrorism Model ................................................................................................. 362 C. Addressing the Hybrid Threat .................................................................................... 364 II. Legal Mechanisms to Address the Hybrid Threat ...................................................... 366 A. Title 18 Terrorism ....................................................................................................... 368 B. Designation as Foreign Terrorist Organizations ........................................................ 370 C. Counterterrorism Operations ...................................................................................... 374 Conclusion ........................................................................................................................... 380 346 Harvard National Security Journal / Vol. 6 [W]e have to recognize that the threat has shifted and evolved from the one that came to our shores on 9/11. With a decade of experience now to draw from, this is the moment to ask ourselves hard questions—about the nature of today’s threats and how we should confront them.1 Introduction The border separating the United States from Mexico stretches for nearly two thousand miles across the American Southwest, through the states of California, Arizona, New Mexico, and Texas. It is the busiest border in the world, a gateway for the roughly one million people who travel between the United States and Mexico each day, and the transit point for billions of dollars worth of goods and services that are vital to the U.S. economy.2 In addition to being a neighbor and a leading trading partner,3 Mexico is also one of the United States’ most important strategic security partners.4 As a result of their shared border, the relationship between the United States and Mexican governments plays a crucial role in protecting U.S. national security interests, particularly with regard to homeland security and hemispheric defense issues.5 Unfortunately, the security situation throughout Mexico has steadily deteriorated over the last decade, with attendant consequences in the southwestern United States. Throughout that time, both countries have struggled to gain the upper hand in a bloody and rapidly expanding conflict against sophisticated and well-organized Mexican drug cartels.6 The fight against the cartels has claimed thousands of lives in Mexico over the past several years, bringing growing instability to that country and the United States’ southwestern border.7 For years now, the U.S. government has 1 President Barack Obama, Remarks by the President at the National Defense University (May 23, 2013), http://perma.cc/Z7BL-BLPH. 2 Quick Facts About the U.S.-Mexico Border, THE GEORGE W. BUSH WHITEHOUSE ARCHIVES, http://perma.cc/3CPQ-RX68; U.S. Relations With Mexico, U.S. DEP’T OF STATE, BUREAU OF W. HEMISPHERE AFFAIRS (Sept. 10, 2014), http://perma.cc/EPS9-JUHB. 3 Top Trading Partners – November 2013, U.S. DEP’T OF COMMERCE, U.S. CENSUS BUREAU (Nov. 2013), http://perma.cc/LS9A-4URV (Mexico is the United States’ third largest trading partner). 4 EXEC. OFFICE OF THE PRESIDENT, NATIONAL SECURITY STRATEGY 42 (2010) [hereinafter NATIONAL SECURITY STRATEGY OF 2010], http://perma.cc/HG7C-PECN. 5 See id.; U.S. DEP’T OF DEFENSE, WESTERN HEMISPHERE DEFENSE POLICY STATEMENT (Oct. 2012), http://perma.cc/WZ7K-KRCQ. 6 See JUNE S. BIETTEL, CONG. RESEARCH SERV., MEXICO’S DRUG TRAFFICKING ORGANIZATIONS: SOURCE AND SCOPE OF THE VIOLENCE (2013). 7 The precise number of drug-related casualties is unknown, but some sources estimate that as many as 150,000 people have been killed since 2006. Molly Molloy, Pena Nieto’s First Year: Iraq on Our Southern Border, SMALL WARS J. (Jan. 6, 2014), http://perma.cc/EBR2-7TJ3. 2015 / Spillover 347 recognized that the deteriorating security situation in Mexico poses a direct threat to U.S. national security.8 In addition to worries about the violence taking place within Mexico and the corresponding political instability that it causes, there is also significant concern among U.S. lawmakers that the conflict could begin to “spillover” into the United States.9 Indeed, instances of cartel violence within the United States are increasingly prevalent and elements of every major Mexican cartel are now known to operate within U.S. borders.10 However, the violent disposition and organizational complexity of modern Mexican cartels pose, perhaps, the area of greatest concern for the United States.11 These organizations have evolved over the past decade into entities far more sophisticated and dangerous than traditional criminal smugglers.12 Employing cadres of military-trained personnel equipped with sophisticated weaponry, today’s cartels can carry out exceptionally complex operations and apply a degree of force capable of overwhelming the response Part of the challenge in reaching a conclusive number is the inherent difficulty in categorizing the available data to determine which homicides in Mexico are attributable to organized crime or cartel-related activities. Another challenge is that a genuine dispute remains regarding the accuracy of the data reported by the Mexican government. In recent years, several media outlets, including Milenio and the Mexico City-based newspaper Reforma, have independently tracked and reported drug-related casualties. See CORY MOLZAHN, OCTAVIO RODRIGUEZ FERREIRA, & DAVID A. SHIRK, DRUG VIOLENCE IN MEXICO: DATA AND ANALYSIS THROUGH 2012, UNIV. OF SAN DIEGO, TRANS-BORDER INST., at 6–10 (2013) [hereinafter DRUG VIOLENCE IN MEXICO 2012], http://perma.cc/K6VA-Y83U (providing a thorough analysis of the data as well as the inherent methodological challenges in collecting, reporting, and interpreting such data). 8 See BIETTEL, supra note 6; NATIONAL SECURITY STRATEGY OF 2010, supra note 4. 9 KRISTIN M. FINKLEA, CONG. RESEARCH SERV., SOUTHWEST BORDER VIOLENCE: ISSUES IN IDENTIFYING AND MEASURING SPILLOVER VIOLENCE (2013), Summary, https://www.fas.org/sgp/crs/homesec/R41075.pdf (“When assessing the potential implication of the increased violence in Mexico, one of the central concerns for Congress is the potential for what has been termed ‘spillover’ violence—an increase in drug trafficking-related violence in the United States.”); BIETTEL, supra note 6, at 6 (“The growing security crisis in Mexico including the March 13, 2010, killing of three individuals connected to the U.S. consulate in Ciudad Juárez, Mexico, (two of the victims were U.S. citizens) has drawn the attention of the U.S. Congress and has raised concerns about the stability of a strategic partner and neighbor. Congress is also concerned about the possibility of ‘spillover’ violence along the U.S. border and further inland. The 111th Congress held more than 20 hearings dealing with the violence in Mexico, U.S. foreign assistance, and border security issues.”). 10 See, e.g., U.S. DEP’T OF JUSTICE, NAT’L DRUG INTELLIGENCE CTR., NATIONAL DRUG THREAT ASSESSMENT (2011) [hereinafter NATIONAL DRUG THREAT ASSESSMENT 2011], at 8, http://perma.cc/76EN-YBWE (Mexican cartels are now known to operate in over one thousand U.S. cities); FINKLEA, supra note 9, at 11 (discussing the spree of drug cartel-related kidnappings in Phoenix, Arizona between 2007 and 2009). 11 See Christopher Sherman, Mexican Cartels Use Corporate Business Model to Exert Control, Protect Revenue and Ensure Succession, HUFFINGTON POST (Sept. 30, 2012), http://perma.cc/X7FZ-FDMF. 12 Id.; see also Rodrigo Canales, Ted Talk: The Deadly Genius of Drug Cartels, TED.COM (2013), http://perma.cc/GQ2F-D54F (analyzing cartels as business organizations and discussing the use of corporate-style branding by major Mexican drug trafficking
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