In his first hours in office, President Donald Trump signed several executive orders stating how his administration plans to designate certain cartels and criminal groups as terrorists, invoke the Alien Enemies Act to remove them and call on the U.S. military to assist in border security.
Precise details of the plans are still unknown. But former Homeland Security officials and experts said pronouncing cartels and immigrant gangs, such as the Tren de Aragua Venezuelan street gang, as terrorist enemies could allow immigration officials to target people from that country. And having military troops directly intervene in border enforcement could also clash with entrenched rules and practices, they said.
Jerry Robinette, former head of the San Antonio office of Homeland Security Investigations under presidents George W. Bush and Barack Obama, said it was still early to know exactly how the designation will be used. But having broader powers to go after not only individuals but the networks that support them could help federal investigators along the border, he said.
“It puts you in a position of advantage to move forward some of your investigations,” Robinette said. “You have a tool that allows you to do things you maybe you couldn’t do before.”
The 1798 Alien Enemies Act was intended to be used as a wartime authority to detain or remove designated enemies, said Katherine Ebright, counsel in the Brennan Center for Justice’s Liberty and National Security Program. The law was last invoked in World War II as the legal authority for interning noncitizens of Japanese, German, and Italian descent, according to the Brennan Center.
Trump described targeting members of crime gangs such as Tren De Aragua or the transnational gang MS 13 from El Salvador and Guatemala. But if written broadly, the order would apply to anyone who isn’t a U.S. citizen – a permanent resident, a visa holder or asylum seeker – from a designated country, Ebright said.
Historically, the designated country has been named in wartime. This is why Japanese citizens were designated enemy aliens after the Japanese attack on Pearl Harbor but why members of Al Qaeda, a stateless terror group, weren’t after the 9/11 terrorist attacks. This would mark the first time an enemy to be declared against a crime gang without a war against the country.
“It’s never been done,” she said.
Michael Brown, a former senior DEA special agent said the foreign terrorist organization designation is long overdue.
“They’re not operating like drug traffickers of the 70s anymore,” said Brown, who spent 32 years at DEA and is now global director of counter-narcotics technology at Rigaku Analytical Devices.
“This designation now gives law enforcement and prosecutor’s offices the big hammer they need to really go after not just the cartels, but the domestic groups helping them as well,” Brown told USA TODAY.
In his executive order Monday night, Trump didn’t single out any particular cartel, crime group or drug trafficker.
But his order said cartels “had engaged in a campaign of violence” destabilizing the region and flooded the country with dangerous drugs and criminals.
Technically, the order designates cartels and crime organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists.
The new declaration could help the U.S. government bring down everyone involved in the fentanyl supply chain including precursor chemical manufacturers, entities responsible for logistics and distribution, banks and street-level dealers in ways that traditional law enforcement efforts cannot, Brown said.
The FTO designation allows the U.S. government to more aggressively go after cartel traffickers, including potentially using the military or intelligence agencies to kill them with drone strikes outside the U.S. − including potentially across the border in Mexico.
“Theoretically, the president could authorize that strike if we were to see no cooperation from Mexico in the next six months to a year. I don’t think it’s something you would see right away,” Brown said.
He noted that Mexican President Claudia Sheinbaum has indicated at least some willingness in working with the Trump administration in attacking the cartels much more aggressively.
“If that was to fail, Trump, then could theoretically authorize that (cross-border) strike, and you wouldn’t need congressional approval, because it’s a terrorist organization,” Brown said.
The designation also could allow prosecutors to charge their U.S.-based accomplices with supporting terrorist organizations, which could bring them dramatically longer prison sentences, Brown said.
Both the Defense Department and border state governors currently have troops deployed along the border, though it’s not yet clear how Trump’s actions will transform these missions.
The Pentagon’s federally controlled border mission, whose troops are legally barred from executing law enforcement tasks, consists of approximately 2,500 Army Reserve and National Guard members that have been mobilized, or brought to full-time duty, under the president’s control, a Pentagon spokesperson told USA Today. The mission began during the Trump administration in 2018, peaking around 7,000 troops when active duty units joined the reservists and Guardsmen there.
Troops assigned to the federal mission assist U.S. Customs and Border Protection personnel with logistics, helicopter support, data entry and crossing detection, in addition to other tasks that free law enforcement agents to do tasks service members cannot complete, such as roaming the border and intercepting migrants.
Thousands more members of the National Guard are doing state-led border enforcement work in Texas and Arizona.
Texas’ Operation Lone Star, which began in March 2021, is a state-controlled border mission directed by Gov. Greg Abbott. Because the National Guard members are under gubernatorial control, they have made arrests – largely under state trespassing laws – and done other law enforcement tasks.
The effort peaked around 10,000 Texas National Guard members in late 2021, but officials remain tight-lipped about the mission’s strength in recent months. Operation Lone Star has also included small, largely short-term Guard contingents from 18 other states whose governors wished to support Abbott’s immigration policy.
The administrations of George W. Bush and Obama sent thousands of National Guard troops to the U.S.-Mexico border in support of U.S. border agents. The Obama administration deported more people (more than 400,000 for three years straight, according to the Migration Policy Institute) than any other president in history.
Trump also dispatched National Guard troops during his first term. The question this time around is whether the troops will take a more direct role in apprehending migrants.
Gil Kerlikowske, Customs and Border Enforcement commissioner from 2014 to 2017, said his agency routinely used Armed Forces, both National Guards and active duty troops, to help out Border Patrol agents. But the military troops always took supporting roles, such as monitoring cameras or piloting helicopters, he said.
Ordering military troops to apprehend migrants could lead to unwanted consequences, Kerlikowske said.
“You really don’t want an issue of someone using deadly force,” he said. “When you put them in that position, there is that potential.”
What U.S. troops can do at the border varies based on the legal authority under which they are serving.
By giving active duty troops a more direct role, Trump officials would have to answer to the Posse Comitatus Act, which largely bars federal troops from directly participating in civilian law enforcement. Reserve troops brought onto full-time federal duty − like those already on the border − face the same restrictions.
But Trump could invoke another law, the Insurrection Act, to order troops to directly arrest migrants, said Lindsay Cohn, an associate professor of national security affairs at the U.S. Naval War College.
By invoking the Insurrection Act, “there is essentially nothing the military couldn’t participate in,” Cohn said.
Doris Meissner, senior fellow at the Migration Policy Institute and former Commissioner of the U.S. Immigration and Naturalization Service, said that “what’s being talked about now with the Alien Enemies Act and tapping active military, that is a different form of military assistance,” she said, “and a real escalation.”
Under some circumstances, National Guard members can enforce laws without the Insurrection Act, though. The defense secretary can fund Guard units for state-controlled “homeland defense” work.
When Guardsmen are called to border duty under federally funded state duty, as they were in Trump’s first term, they remain under their governor’s control, according to the Congressional Research Service.
Governors can refuse to deploy troops under this authority – a bipartisan group of governors withdrew troops from the border in 2018 after the Trump administration’s family separation practices came to light.
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