Lawfare Daily: Analyzing the Administration's New Counterdrug Approach

[Intro]

Dan Byman: This broader effort might fracture some of the cartels. And in a way, that's a good thing. These are nasty organizations. But that may just lead to greater competition.

And we've seen that happen before, where, you know, the defeat, if you wanna call it that, of one major drug ring just leads to other ones that are striving to replace it. Production may not change overall, the number, amount of narcotics going in may not change overall, but often you have a violent competition.

Loren Voss: It is the Lawfare Podcast. I'm Loren Voss, public service fellow at Lawfare, with Dan Byman, a professor in the School of Foreign Service at Georgetown University and the director of the Warfare, Irregular Threats, and Terrorism Program at the Center for Strategic and International Studies, Ryan Berg, director of the Americas Program and head of the Future of Venezuela Initiative, also at CSIS, and Lawfare Senior Editor Scott R. Anderson.

Ryan Berg: It's clear that we're taking resources from other areas of responsibility and putting them on this mission. And so there are real questions, I think, legitimate questions in the medium and long term, as to how much this is going to disrupt some of those known routes in the Southern Caribbean and how sustainable this is.

[Main Episode]

Loren Voss: Today, we're talking about the new United States approach to drug smuggling, analyzing the legal strikes against boats associated with the drug trade, and then turning to the ongoing counterdrug efforts in Mexico.

In February, the administration named eight transnational criminal organizations (TCOs) as foreign terrorist organizations (FTOs) and specially designated global terrorist groups (SDGTs).

This is not a legal authority to use force against the organizations. But this month, the United States launched three lethal attacks against boats in the Caribbean, with the claim that the individuals on the boats were narcoterrorists engaged in illicit drug trafficking activities, and therefore posed a threat to the United States.

So, according to President Trump's social media posts, 17 people were killed in these attacks. At the same time, under a law enforcement framework, the United States government is continuing to intercept and search other boats at sea and work in partnership with the Mexican government to counter drug efforts within Mexico and at the border.

So first, I wanna turn to Ryan to explain a bit at the macro level what is happening. So Ryan, can you kind of detail for us what the administration's approach is to dealing with cartels and criminal organizations?

Ryan Berg: Sure, Loren, I really appreciate the question because I think it's, it's critical to understand the messaging that the administration is trying to send with these strikes.

I think it's not just a one-off, or two-off, or three-off instance in this case. It is the administration sending a message that they would like to see a paradigm shift in how we deal with criminal organizations, especially those in the Western Hemisphere.

So, on a stop to Mexico City and then onto Ecuador, the same day and the day after the announcement, the first boat that had been struck, Secretary of State Marco Rubio, said that interdiction doesn't work, that groups basically plan to lose between 2% and 4% of their cargo on the seas, the rest predictably gets through.

And so, he signaled, essentially, a new or shifting paradigm in how security cooperation is going to work in the region that the United States is going to be interested in the destruction of some of these vessels as opposed to the interdiction of these vessels.

And the other message that I think was very clear was that these are now foreign terrorist organizations. They're not run-of-the-mill transnational criminal organizations anymore.

The FTO designation for the administration has more––has a very serious meaning for the administration. It has consequences. It is not the same old interdiction that we've done under past administrations, both Republican and Democrat.

The other thing that I think is important to note, Loren, is that in these strikes in the Southern Caribbean, there is a sort of messaging here. I would call it omnidirectional messaging to a number of, of other countries in the region.

Obviously, the message most prominently focused on Venezuela, but I think there are messages there for Colombia, given that we've just de-certified Colombia as a cooperative partner on counter-narcotics.

I think there are messages there for the Mexicans, where we wanna see more done by the Mexican state. Trump is proving the credibility of his claims to use a kinetic force potentially in, in Mexico.

And lastly, I think that there are messages for countries like Panama, where at least two of the warships now in the Southern Caribbean crossed or passed through the Panama Canal on their way to their final position––another issue that the administration has made a very prominent piece of its approach to Latin America.

So, there are messages in, in all different directions. But I think the most important message and the most important signal here is that there is a new framework that the administration is putting in place. And it's because these groups are FTOs, and not TCOs.

Loren Voss: Great. Thanks Ryan.

So I wanna, I wanna start off with these three boat strikes. We know one was against Tren de Aragua, TDA, and potentially others were against other drug smuggling groups named as FTOs. So the president said more strikes are coming. And in his War Powers report to Congress, he stated, it is not possible at this time to know the full scope and duration of military operations that will be necessary.

So we're up to three strikes now  doesn't seem like that'll be the end. So, I wanna turn to Scott on this for a legal question here. So, legally, are, are we at war with, with TDA? Can we be at war with, with a drug cartel or a transnational criminal organization?

Scott R. Anderson: It's a complicated question, and in a way, the answer that the Trump administration hopes we conclude is yes, but it is, I think, a little bit of a fraught answer.

The first thing to bear in mind, I think, of all of this, is that terrorist designation doesn't really have anything to do with the use of military force conventionally.

We have around three dozen designated foreign terrorist organizations. We have about several tens of thousands of designated, specially designated, global terrorists.

Most of them I think Congress and other entities were very surprised to see the president take unilateral military force against. Many of them are foreign organizations that have some nexus with the United States––it's a requirement in cases of both regimes that there somehow threaten the national security or economy of the United States in the case of the SDGT regime, but they're not entities that United States has traditionally targeted with kinetic force, or traditionally claimed the ability to target with kinetic force. Those regimes are about sanctions designations, and they don't do anything more than that.

What the administration has said in relation to the designation of TDA––and presumably a lot of this could apply to other designated cartels that have also been designated FTOs and SDGTs––is this assertion that they have threatened and basically amounted to, what amounts to hostilities against the United States.

Traditionally, as the U.S. understands it, that would require the actual use of, of violence, as we think of it, conventional violence. The United States has a pretty more, much more generous standard of that for the purpose than other countries. We tend to think that any sort of use of violence can rise to an armed attack of a sort, that there's a international legal right for self-defense under that's, that's acknowledged by the UN Charter. Which I'll get to in just a second,

But the Trump administration has leaned in this a little further and said, no, actually, it's not just uses of violence, it's narcotics trafficking itself.

And notably, in the proclamation they issued about Tren de Aragua, which is actually done in relation to the invocation of the Alien Enemies Act, a statute they've used domestically to remove members of Tren de Aragua, or attempted to use, they actually said it's not just narcotic trafficking.

It's also acts of criminal violence TDA is engaged in, and it's also migrant smuggling. The movement of people into the United States was deemed to be a, quote unquote, predatory incursion and a hostile act in the United States.

And essentially they have said, we are effectively at war with TDA, and to some extent Venezuela, because they argue TDA is acting at the direction of the Maduro regime in Venezuela. Although they are sometimes a little cagey about that and having it both ways in terms of how they describe TDAs relationship with Maduro.

This is all relevant because under international law, usually the use of force against other states is prohibited except in case of self-defense. And you only get self-defense in cases where there is an armed attack against you or an imminent armed attack.

Assuming the UN Security Council has an, you know, authorizes any sort of military force, it's kind of the other exception. Here, these case strikes, because they're happening in international waters, are slightly complicated, because there's a question as to whether the United States is actually using force against another state in the manner prohibited by the UN Charter.

But the United States, notably––even though other states don't agree, the United States has always argued well, if you'd attack an American overseas, that is an armed attack on the United States, through what's called the passive personality principle. And that appears to be carrying through today.

So that essentially I, I think would at least at a minimum be hypocritical for the United States to argue, ‘no, our attacks on these foreign nationals do not rise to an armed attack against the country from which they originate.’ Which they claim is Venezuela, although the Venezuelan government hasn't formally acknowledged that to my knowledge yet.

So they're arguing that, well, we're allowed to do this because it's self-defense. Because they're smuggling drugs, and drugs is the equivalent of an armed attack.

It gets a little more complicated that, too, there's also a question of, is Tren de Aragua––even if they're doing armed attacks, are they actually like an armed group? Are they actually like a, you know, an armed hostile entity like al-Qaeda has been deemed to be? Where they have a command structure, and they're actively attacking the United States persistently?

Then you have this question, also, are these 17 people who have been killed in these strikes actually all members of Tren de Aragua, so that they're the equivalent of the foot soldiers of the enemy army that is Tren de Aragua?

These are all factual questions that are implicated and have pretty weighty consequences, 'cause they're the same questions that conventional armies have to answer to make sure they don't kill civilians in, you know, enemy battlefields or foreign battlefields. They're things that traditionally United States has taken very seriously.

But all comes around back to this fundamental premise, which is that the United States is saying, and Trump administration is saying, we are at war with these entities, and therefore we get to do to them what we do to other enemies with which we're at war.

But the premise for that, that smuggling drugs is the same as hurling a bomb against the United States, that's a pretty aggressive claim. It's not one that has, frankly, precedent that I'm aware of, in U.S. practice. Relatively few internationally.

And it runs counter to how the United States has traditionally approached the question of narcotics and, frankly, lots of other activities that stop short of actually the use of armed force against the Americans or against the United States.

So it's a very, very bold claim in that regard. And when you hear this talk of the FTO regime of terrorism calling these narcoterrorists, they're, I think the administration is doing this 'cause they want people to look at this and say, man, this looks a lot like this stuff we've been doing for the last 25 years, since 9/11.

It's not. It's a dramatic step beyond that because these people are not, even under the post-9/11 framework, people we would usually consider to be enemy troops.

Loren Voss: Thanks, Scott.

Yeah, I wanna follow up on that bit about the people themselves. So if, if we assume the facts as the administration has portrayed them, that these boats were drug smugglers, you know, moving drugs towards the United States. So then, are drug smugglers themselves, you know, off the coast of Venezuela or wherever they might be, valid targets under the law of armed conflict?

Scott R. Anderson: So that's really the question that gets to those two factual predicates, right?

Like a) is Tren de Aragua a non-state armed group––is kind of the technical term––in a state of hostilities with the United States, a sustained level to qualify as what, under international law, is usually known as a non-international armed conflict?

The closest parallel here is what we've been engaged in since the 9/11 attacks with al-Qaeda, where the United States has maintained, ‘Hey, al-Qaeda is an organized non-state armed group. No, they're not a state, but they're organized. They're, they're engaged in persistent hostilities against the United States, and all their members are engaged in working towards that cause, and therefore they're all essentially foot soldiers in an enemy army.’ And they were targetable, the same way we can target foot soldiers in an enemy army.

And, notably, this category has kind of flexed in, particularly the last 10 years, frankly, in the later stages of the global War on Terrorism. Where the definition of what it means to be a member of an armed group has become much more open-ended and flexible.

It has both a formal or functional sort of test, and whereas in a conventional international armed conflict with another state, we usually draw a line between, say, a postal worker in an enemy state and an enemy soldier.

We would say, you can target the enemy soldier, but you can't target the postal worker, even though they are both working for the same enemy organization, in that case, the foreign government.

That definition has become a lot fuzzier in the context of non-state armed groups, where the United States has asserted the ability to target a broader range of members, even when they're not engaged in combat function or combat supporting functions, even though their relationship to actual hostilities is much more attenuated.

I don't know if it's ever gone so far as to say, 100%, anybody who's any sort of member or any sort of relationship with these groups can be targeted. But the tests that DOD, at least the public parts of it, that they're, they articulate, are very flexible, they're multivariate. They take into account kinda a bundle of factors, those sort of tests that lawyers often look at and say, well, there's a heck of a lot of discretion in this, and that discretion is used in a way that can make these people targetable.

The difference here though, again, is that those are members of terrorist groups where there's little doubt al-Qaeda is actively attacking United States and killing Americans. There's a different definition of what it means to attack and kill Americans if you expand that to narcotics-smuggling groups whose direct violence against the United States is much more limited if, if existent.

The other question is, well, if these individuals aren't members of the groups, what could you target?

There could be arguments that they could target the drugs themselves, either because they're weapons or because they are what's called a revenue-sustaining object––something that generates money or resources that supports the broader war effort. That is another late-stage evolution in the global war on terrorism, that's become––the United States embraces, certain other states embrace, was a little controversial internationally.

You could see that. But then you wouldn't say that actually all 17 people are targetable, you would say the boat they're on is targetable, and if they were civilians, they may have been collateral damage.

Here, we have reason to think that at least the first boat, the Trump administration targeted all 11 people and thought they were all targetable, because––at least according to media reports, which we haven't verified but it's the only information we have available right now––the United States came back and shot everyone to make sure they were dead.

They disabled the ship, and then they did multiple passes to kill everyone on board. You would only do that if all 11 people are actually targetable. And that underscores, again, a, a––aggressive reading both of what TDA is in relation to the United States, and then who is a member of TDA, or what evidence you need to confirm they're a member of TDA to directly target them.

Because that's the only thing you would do––once the boat's deactivated, once they're, the drugs aren't getting in the United States anymore, to circle back and kill the individuals sitting on the ship. You would only do that if you consider them to be, you know, essentially enemy soldiers, members of the enemy group, like TDA.

Loren Voss: Yeah, I appreciate that. If you look at the president's social media in the first two strikes, he does say positively identified narcoterrorists. And in the third one, he refers to them as narcoterrorists.

So it really does seem like the individuals themselves are also being targeted. But, you know, based on everything you've said, it's, it's really a question of what makes them targetable. You know, the activity of the group itself is different than traditional terrorists, so trying to take that apart is a little bit hard.

Ryan, did you have something you wanted to add on this?

Ryan Berg: Yeah, I just wanna add very quickly, Loren, that I think DOD knows that they, they need to very carefully weigh all these questions that Scott has put on the table in Department of State as well.

And it should be noted that although we don't have all the information in the public, there has been at least one briefing for staff members of members of Congress in terms of their oversight function.

There's also some public conversation about a draft resolution that is going back and forth between the White House and a few Republican members of Congress. To put these strikes on clearer, firmer footing in terms of the, the international law component of it.

So that's happening as we record this podcast. I just want listeners to know that. I think it's Congressman Mills from Florida and the Trump administration going back and forth in terms of circulating some draft resolution text.

Loren Voss: Scott?

Scott R. Anderson: Yeah, just further clarification that that is correct. Draft resolutions can’t address international law violations. That's a separate question, because the United States Congress doesn't set international law. It's set on, you know, treaties and customary international law, state practice.

So, there will be questions no matter what Congress does as to whether the United States is acting in a way that other states will view as lawful or unlawful.

And there are sometimes domestic ramifications of that, such as the application of, like, the War Crimes Act, which is a criminal statute that outlaws certain violations of, international grave violations. Although I haven't sat down to do the close analysis to see whether these would rise to that level.

There is a domestic law question as well, of, can the president actually engage in these sorts of strikes? Traditionally, the presidents have super broad authority to engage in military strikes overseas. But this is new because, again, this isn't the sort of target that we've seen. A conventionally civilian––if criminal––enterprise. It's not something we've usually seen presidents target in the past.

And notably, there are a number of U.S. criminal statutes that would otherwise prohibit this conduct. Traditionally, the way the executive branch has argued that those criminal statutes don't apply is under what's called the public authority exception. Where they say, well, this is a lawful act of war, at least under U.S. practice historically, traditionally. Therefore, it falls under that public authority exception. Congress never meant to criminalize it.

There's a bigger question here as to whether this fits in the public authority exception. The executive branch certainly is gonna argue it does, and I think many courts are gonna be inclined to reach that way, 'cause they're gonna be inclined to defer to the executive branch.

But it's far from open and shut. Because again, there's not a lot of precedent for this. And if you define the public authority exception in terms of what has conventionally been done, been done by the United States in past conflicts or comparative, comparable situations, or what is done under international law, there's kind of like, you know, people tend to pull in both schools and international practice.

This doesn't fit comfortably with either of them. So really, the administration, to prevail here, would have to lean really, really heavily on the fact they're likely to get deference from the courts, and from the fact that this is fairly unlikely to come before a court in the first place, because these sorts of things aren't really justiciable.

But they do sometimes, and if this were to find its way in front of a court, I actually think it's a much harder question. A lot of those issues, precisely because, when the president acts contrary to a statute acted by Congress, that's traditionally when his power is at its lowest ebb––is, is the least––it's a different situation. Usually a president's trying to avoid that scenario.

The resolution is aimed to address that. So if the resolution were enacted, it would give the president much more solid domestic legal authority to do what he's doing. It would obviate those bigger questions underneath.

And there is a question as to whether it would allow, as a matter of U.S. domestic law, the president to act in a way contrary to international law, which some people think he can't. Although in practice presidents do, and this president already has. So, you know, it, it has a domestic significance, but it doesn't actually bear on the international law questions, is a point worth clarifying.

Loren Voss: Yeah, thanks Scott.

And in addition to this draft AUMF that's floating around, you know, Senator Schiff also has a text out as well for a proposed joint resolution to direct the removal of armed forces from hostilities under the War Powers Resolution, right? So, it seems like there, there's differing views in Congress right now. So we'll just have to wait and see.

Scott, I wanna go back to something that you said a little bit earlier when you were talking about other FTOs and SDGTs. And some of the arguments that we just talked through, it seems like they could also apply to these groups, to other drug smugglers. Including those in Mexico.

But this administration is really focused on the fact that, up till now, these strikes have occurred in international waters. I'm wondering if you could, you know, kind of quickly talk to us about what would happen with the counterdrug mission in Mexico? It's the sovereign territory of another state, you know––does everything you said before apply, or what are the different legal things we'd have to think about for Mexico?

Scott R. Anderson: If it's a group that's similarly situated as TDA factually––and again designation doesn't really matter, FTO or SDGT––but that probably, may be an indicator of how the administration is thinking about these groups, that they're factually similarly situated.

All of the prior legal analysis would apply, but there would also be an added question, because when you are acting on the territory of another state, that is something that is usually prohibited under international law, again, because it's an armed attack.

The United States has argued––somewhat contentiously, although a number of states do buy into it––that if you, as a state, are being attacked by a non-state armed group on an, from another state's territory, and that other state proves unable or unwilling to adequately address that threat, then the state that is being attacked can exercise its right of self-defense against that non-state armed group, even without the consent of the state that's kind of hosting them.

So, presumably we would have to see a theory like this rolled out if the United States were to do something similar like this against groups in Mexico, or in Mexican waters, Colombia, anywhere else.

They'd have to make this unable or unwilling argument. And that dovetails with the political ramifications, what would happen with the bilateral relationship there.

That is an international law consideration. On the domestic legal authority, the calculus is similar. The one thing I think weighs a little differently is that a risk of escalation into a major––more significant military conflict is an outer limit on the president's authority that at least recent presidents have acknowledged.

So, if something were to––very significant risk, would rise to a level of a Vietnam or Korean War type scenario. I think that's fairly unlikely with Mexico or Colombia regardless, but it certainly is a more live question than it was with TDA alone. Because, of course, they're states with more resources to bear and might well escalate, have an escalatory response of some sort, even though it seems unlikely to rise to that level.

Loren Voss: Okay. Thank you, Daniel. I wanna turn to you next and, and kind of talk about the practical implications here. So, when we're talking about Mexico, what, what is the role of the host government in dealing with drug smuggling here? How, how crucial is their support to the success of the mission?

Dan Byman: So, in general, the host government is, you know, 95%, if not more, of any solution.

So if you think about the host government, if things are working well, it has the capability, right? It has the people on the ground, and these can be police or soldiers. These can be administrators. It's the one that has the capability to act at a local level, especially in a comprehensive way.

You know, yes, of course, the United States can insert forces here or there in some very dramatic fashion, but if you're trying to really shape kind of a broad countrywide effort, the government is going to be the only one that has the capability.

And with that it has legitimacy, right? And obviously this varies by government, but there's almost always no comparison between the host government and some foreign power, right? People often don't like their government, but it's pretty rare that they're excited to have foreigners––especially armed foreigners––come into their country.

And so the, when it comes to acting against a, a drug gang or some other threat, it's the local government that’s gonna have the legitimacy. And it's also the one that's gonna have the law on its side. And part of that is through legitimacy, but that is going to enable it to be much more effective.

When things function, when the local government functions, then going after––whether it's a terrorist group or a cartel––that just becomes a question of liaison, where you're passing information to the local government and they're acting on it, you know, usually and ideally quite decisively.

The trickier question comes when, as Scott was noting, there's a belief that the local government either can't or won't respond to the threat, right? So in those cases, if the answer is can't, then it's often a training function, right?

They're trying to, you're trying to get them up to snuff, you're trying to make them more powerful. You're trying to improve their intelligence collection or their firepower or whatever it is they're lacking.

But the bigger problem, of course, is if you feel that the local government is somehow complicit with the bad actor. And as a result, information you're passing, it might go to the bad actor.

 When you are providing capabilities to the government in terms of weapons, for example, that might, you know, even be smuggled into the bad actor, or at the very least won't be used the way you want it. So there's a lot to think about in terms of the role of the host government, because ideally they're the ones who take the lead. I, I know Ryan has thought a lot about this in the kind of Mexican, Ven-, Venezuelan context, so let me pass the baton to him.

Ryan Berg: Thanks, Dan.

Just wanna make a quick note for listeners that the scenario that Dan has laid out, where we as the United States have a concern about the host government, and especially about the trustworthiness of the, of the host government. Can we pass sensitive intelligence information on to a partner and trust that there will be an interdiction or an arrest, or an attempt at least, or, or can we not?

And for, for Mexico, for example, this has been a perennial challenge. This has been something we've struggled with, with Mexico for, for 20 years. Or longer.

But the Trump administration has, has taken it, I would argue, one step further, which is back in February when they, when they first put into place tariffs on North American partners under the International Emergency Economic Powers Act. They issued a fact sheet from the White House, which declared that there was a, quote, intolerable alliance between the Mexican government and the cartels.

And I say this is a step further because we normally had plenty of challenges, questions, skepticism about the Mexican government's desire, for example, to go after cartel groups.

We had plenty of questions or skepticism about how vetted some of the vetted units were, how trustworthy they were, and so on. After all, this is a country where El Chapo Guzman escaped multiple times from max––so-called maximum security prisons in Mexico.

But I would argue that the “intolerable alliance” rhetoric is even further than we've, than we've gone in the past, because it implies that there is a full-blown complicity. Not just select bad actors, select compromised individuals in the Mexican government, but a full-blown sense of, of complicity that the Mexican cartels and the, the Mexican government are working hand-in-glove at many levels, if not all levels, of the government, such that, potentially, you could, you could have this scenario that Dan outlined, where the United States has basically just lost all faith in the Mexican government, for example, to serve as a partner in, in any kind of, of security cooperation.

And that, I think, is what opens up some of these questions about whether we would or wouldn't take unilateral action on, on Mexican territory.

Loren Voss: I wanna turn a little bit to what we might expect to happen based on what, what the United States has done so far. So, Dan, back to you on, you know, what's the likely impact of killing drug smugglers, you know, cartel members, and then possibly in the future, even killing cartel leaders? What might we expect to happen?

Dan Byman: Sure. So there's a lot of different ways this can go. You know, to point out the obvious, the drug enterprises are, are massive compared with most terrorist groups. So you just have a lot more figures, you have a lot more networks. It's just a much deeper enterprise that, as Ryan just pointed out, is also closely tied to many governments, right?

So it's a much harder thing to try to uproot compared to terrorist groups, even impressive ones like, like al-Qaeda and the Islamic State. So, when groups lose leaders, there tends to be fracturing and competition, right? So there's a question of who comes next. And sometimes that's resolved very neatly, but sometimes there's a power struggle, right?

And this is an opportunity for some ambitious, lower-level boss to challenge the person coming in. Often these networks are highly personalized. And you––the disruption of one individual changes things dramatically. Also, an important question is, are U.S. efforts kind of one-offs or are they campaigns?

If it's a killing day in, day out––the kind of efforts the United States did in Pakistan against groups there, or did against the Islamic State––then all the groups have to keep their heads down.

And that doesn't mean they can't operate, but it's much harder for them to communicate, for example. It's much harder for them to meet in person. There’s far more likelihood of individuals being disrupted. And all that makes the enterprise riskier and much more costly, and that's gonna make it harder for them to run a very complex, truly global operation without disruption.

So you could see cost increase as a result. You could see some individuals being dissuaded from participating or changing their behavior. You could see the effectiveness of defenses increase because you won't have as sophisticated operations going on.

To do all this, though, requires a pretty massive and sustained effort. And when you do this, you're, you're going to kill, presumably, a fair number of people who either aren't major drug cartel leaders or are the equivalent of the postman, right? So not particularly important figures.

This is inevitably going to lead to significant civilian casualties, but I would stress that this is quite different than past U.S. efforts in places like Pakistan or Yemen, because there are such close ties between the American community and the Mexican community, where many American citizens live in Mexico. There are certainly plenty of relatives.

So there's going––this is a much more immediate, sort of, theater of operations than the United States, kind of, War on Terrorism efforts that seemed to many Americans very, very far away.

This broader effort might fracture some of the cartels. And in a way, that's a good thing. These are nasty organizations. But that may just lead to greater competition. And we've seen that happen before where you know, the defeat, if you wanna call it that, of one major drug ring just leads to other ones that are striving to replace it.

Production may not change overall, the number, amount of narcotics going in may not change overall, but often you have a violent competition in the effort to determine who the next boss is, or to figure out where the boundaries are between different groups operating.

Loren Voss: Ryan, do you have something you wanna add to that too?

Ryan Berg: Dan has covered the Mexican context very ably. I, I think I just wanna add something very quickly about the, the Southern Caribbean where we've seen some of the, the initial strikes.

I, I do think that in the short term, these videos––the dramatic nature of, of these videos, I mean––two things.

One, there's likely to be an altering of some of the known routes in the Southern Caribbean for drug trafficking. I think that is, that is inevitable. The large presence alone, plus the dramatic nature of some of these videos will, will most likely in my, in my opinion, alter a lot of these, these routes. And I, and I’m––can guarantee you that those videos are circulating on just about every WhatsApp and Signal group for a lot of, of these groups.

The real question in my mind is one that Dan brought up in the Mexico context, but equally applicable to the Southern Caribbean. What is the sustainability of this force posture in the Southern Caribbean?

The United States has notably taken destroyers and other vessels away from other theaters of the world. The USS Dunham, for example, was on a counter-Houthi mission just a couple months ago and is now in the Southern Caribbean.

It's clear that we're taking resources from other areas of responsibility and putting them on this mission. And so there are real questions, I think, legitimate questions, in the medium and long term, as to how much this is going to disrupt some of those known routes in the Southern Caribbean and how sustainable this is.

Loren Voss: Thanks, Ryan.

You mentioned the, the force posture increase in Southcom, and I'm also just wondering, you know, with seeing this activity, do you think that there's a risk that cartels will retaliate against the United States, either against military forces or, or, you know, domestically? Could we see something happen in response?

Ryan Berg: It's a good question, Loren.

I think in the Southern Caribbean, against that kind of, of force, there's probably very little that a cartel member could do. I think evasion or finding an alternative route is most likely, what we’re likely to see.

The question for me is––it is a, it gets a little bit hairier, for example, if we start to go after, for instance, some Mexican cartel groups. And, you know, we know that there are drone incursions, for example, every day along the southern border of the United States.

Some of them, we suspect, are linked to narcotrafficking activity, groups keeping an eye or surveilling, engaging in a sense in their own crude ISR capabilities, per their U.S. Border Patrol. If they're able to, to penetrate, as it were, U.S. airspace with small unmanned vehicles such as drones for surveillance purposes, they may be able to do similar things with ordnance-laden drones, for example, as a forum for, for example, of asymmetric retaliation.

Loren Voss: Okay, so it does seem like there could be a chance for escalation here, but we have a lot of questions. Let's turn back to Dan here on this next question. You know, if we're talking about possible escalation risk, is the CT framing that the administration has––how effective is it in actually reducing the drug threat to the United States?

Dan Byman: So there's, there's a kind of, we'll find out. I, I'm on the more skeptical side for what I think are kind of some obvious reasons.

One is, of course, there's huge demand for drugs in the United States, right? So there's a very large, lucrative market to whoever can provide that, can fill that demand. It is quite possible, as has happened in the past, that enforcement can alter which countries are involved in the drug trade, which networks are involved in the drug trade.

It can, as a result, also offer which drugs are preferred as market conditions change and some become more expensive. So you could see significant change, but the overall demand for drugs is extremely high. And until that demand goes away, I think you're likely to see either domestically or through kind foreign networks efforts, to provide for that demand.

And 'cause it's illegal, a lot of that will be violent. So I don't see this as kind of, solving a lot of the core––but having said that, doing nothing would, would make this worse, right?

I mean, this is kind of a constant effort where you're trying to reduce the problem, in my view. So you can also be doing things on the demand side, right?

So going after the supply side is important in order to prevent things from getting even cheaper, and supplies becoming even more numerous. And it's, there's, I think a legitimate effort to be done. But I think using this broader framework is not going to be particularly effective in changing the overall trends, even though I certainly could see against individual cartels and in individual countries, it having a significant impact, especially in the short term.

Loren Voss: Thanks, Dan.

Ryan, do you have a thought on the overall effectiveness of this CT framing?

Ryan Berg: My thoughts come from a very wonderful exercise that my team at CSIS was able to do with Dan’s and publish an article on this topic. It’s a very careful parsing, I think, of the lessons that we've learned over the last 20 years of counterterrorism––development of counterterrorism doctrine, but also real on, on-the-ground counterterrorism fighting.

And I think we pretty much dismiss the idea of, you know, the ability to use, for example, drone strikes or special operations forces raids to shape, you know, the operational environment of cartels. As Dan mentioned, one of his previous answers, there's real danger of splintering. Going after kingpins can sometimes be very satisfying, but oftentimes contributes to greater bloodshed.

We basically came to the conclusion in that article, which ran in Foreign Affairs last Monday that, you know, there, there might be some things to take away, such as buffer zones along the border, or help with the, the active territorial reclamation for the, the Mexican government. A beefed up maritime security apparatus, for example, as drugs increasingly come in through maritime routes and not just through land borders.

But the, you know, the big flashy things, like the drone strikes or the special ops forces raids? Those are, are unlikely to, to move the needle dramatically and could even have some, some downsides. Not to mention in the diplomatic space, where Mexico obviously has tremendous sensibility to U.S boots on the ground.

Loren Voss: Thanks. Yeah, so you talked a little bit about maritime security buffer zones and then you know, supporting the government retaking territory.

Dan, I wanna turn this back to you and see if you have any other lessons learned from the War on Terror that you think are applicable here.

Dan Byman: From a very tactical point of view, there's the, I think, somewhat obvious point that a lot of this is intelligence function, right?

And as Ryan mentioned, that's often difficult from the Mexican side or from some other countries, because of the penetration of the government by the cartels. But the more you can get intelligence, the better you'll be able to disrupt.

Another broad lesson, if we wanna keep it at the, the higher level, is that you're often degrading, not destroying. That, it's very, very difficult, for deeply networked groups that have large numbers of people, to destroy them completely. But you're often trying to reduce their capabilities and make it harder for them to operate. I would stress, kind of, what we were talking about earlier, that a lot of success actually comes from government reform.

That you want the partner nation to be strong, you want it to have legitimate power, you want it to have capabilities. And if you're going to have any long-term solutions, it's going to involve the partner nation taking the lead, not the United States.

Loren Voss: Yeah, I really appreciate that answer, especially the government reform piece.

Ryan, if I can turn back to you on that, can you talk us through what the Mexican government has already tried to do with dealing with cartels? What's been successful, what hasn't?

Ryan Berg: Well, the U.S. has a long history of security cooperation with Mexico, and in that relationship, the U.S. has pushed Mexico on a number of items, strengthening not just the capabilities and the firepower, but also the, the intelligence generation capability.

And Mexico, for a long time, has had issues generating actionable intelligence on, on key figures. Mapping out networks, for example. Oftentimes, these pieces of information come from the DEA or Homeland Security Investigation, or even from the CIA. Those have been some of the areas that the U.S. has focused most intently on.

Broader reforms, the U.S. has been very keen to see judicial reform. Not of the kind notably that Mexico just undertook in the last year, but of the kind that it undertook earlier in bilateral relationship under the so-called Mérida Initiative, where Mexico moved to a more adversarial system of of a judiciary, where court trials look more or less like they do in the United States. And we spent a lot of money training Mexico's lawyers how to prosecute and how to defend in, in that kind of, of system, in order to lower levels of impunity in the country.

Those levels remain stubbornly high, Loren. Those levels of impunity remain, in some states in Mexico, well over 90%. Which means if you commit a crime, up to and including murder, you are unlikely to even be arrested, much less prosecuted successfully and, and put to jail.

So we've been aiming at those kinds of reforms at the same time as we've been aiming at reforms that could help Mexico generate more intelligence collection capability or more capability on the battlefield, so to speak, against cartels.

And we've had some wins, of course. We've had some important gains. We've had reform of, of important institutions in Mexico. We've worked for a long time, for example, with vetted units in SIMAR, which is their, their version of, of the Navy, and in particular the Navy Seals.

But nevertheless, it continues to be this incredibly frustrating process. And now the White House is asserting that there is an “intolerable alliance” between the Mexican government and cartels. And if that is your––if your, if that's your position, if that's your assessment, it makes it very difficult, I think to, to decide where to begin, right? Where to begin when it comes to domestic level reforms.

If your partner in this is so embedded, is so, in bed with cartels, I, I could understand how it might seem like an impossible task, if you're sitting in the White House and you're asking the question where to begin with security cooperation with Mexico, how to build up this partner––in our overall bilateral relationship, if there are just so many lanes here that we could go down that will end in some kind of finding of complicity or significant corruption.

Loren Voss: Yeah. Thanks for that.

I mean, it sounds like you're saying there's some small success so far in collaboration with the Mexican government, but that's about it. So, as we wrap up today, I do wanna ask one final question about the future, which is really, you know, what can we expect the administration to do next in this new war on drugs?

You know, worded differently, what does this mean for all the, all the other cartels and criminal groups that have been designated at FTOs? What do we expect to happen next?

I first, I wanna start with Scott on this and then, and then have Dan and Ryan jump in too.

Scott R. Anderson: Sure.

You know, focusing on the legal aspect of this, the concern of all these things is when you have a novel legal argument you're advancing, what does it open the door to otherwise that you may not be expecting?

The clearest answer here is that the legal arguments the administration has brought forth in regards to narcotics smuggling all apply to migrant smuggling as well. In its formulation. It has described migrant smuggling in the exact same way as narcotic smuggling.

There are a variety of political factors that, you know, one might hope would restrain the extension of lethal tactics to migrant ships, because they are even less ably engaged in anything that posed a threat to the United States, but it is––already, the administration's already described migrant smuggling as something TDA and other groups do that is a threat in the same way that narcotics smuggling is.

So I'm not sure that that is impossible. The, the limits on that appear to be primarily political at this point, not legal. Whatever legal risk that presents is comparable, at least to the, the legal risk it's assuming in, in relying on these arguments to pursue narcotics traffickers.

That seems like an extreme conclusion, but that is the conclusion one can draw from the arguments they're putting forward. It's not an indirect line. They've, they've drawn those parallels themselves.

Does that mean it will go there necessarily? I'm not sure it does. I think there's a lot of political factors that counsel against that, but it opens up that possibility there. More broadly, you know, is, is this question of, is this leading to the broader militarization of counter-narcotics generally?

The laws of armed conflict that are being stretched here. Setting aside the domestic law questions for the moment, the international law questions, those are laws and rules that apply to a variety of armed conflicts that other people engage in and, and interstate behavior.

When the United States does do things like target narcotics traffickers with lethal force, it opens the door for other states to do the same or to make similar arguments that extend things past what previously was a reasonably well-defined category about who constitutes a combatant.

You know, there's risk for creep there as well. But that may be more about what other states do in the further future, maybe in another context than in the Western Hemisphere.

In this specific context, I do think the geographic creep is probably the most proximate one, after the question of migrant smuggling. Because, obviously, you do have these organizations operating not just international waters, but also in national territory and national waters. They may soon feel a lot more pressure to expand those routes, if the administration continues to target––use lethal force in international waters, it will, I suspect––one possible outcome is that it will encourage groups to find alternative routes that don't go through international waters, that the administration hasn't proved willing to hit yet. And then they will have to decide, well, are we willing to hit those as well? And that will raise a whole bunch of geographic questions.

And notably, there's an outside chance this rises to the United States as well. The United States, the, the Trump administration has already suggested and hinted at from January 20th onward through a series of executive orders, the possibility the military plays a role, primarily patrolling actually migrant smuggling in the United States, but potentially narcotics smuggling as well.

You've already seen the invocation of TDA engaged in the equivalent of a war, predatory incursion against the United States, as a basis for invoking the Alien Enemies Act. So you could see administration try and use militarized tactics against groups on the domestic front as well. Again, we're seeing the militarization of policing on a lot of different fronts, and this could dovetail with that.

Like all these things, there are political factors. There are, in that case, there are legal constraints as well. But it’s––definitely seems to open the door to a lot when the administration is willing to lean on a fairly novel legal argument and embrace the types of risks that entails. It potentially opens the door to a lot of other different dimensions. But the constraints on that would be more policy and political, I suspect, than legal in many cases.

Loren Voss: Yeah, thanks Scott. That was somewhat sobering and makes us all wanna keep our eyes on what's gonna happen next.

Dan, if you have thoughts, you know, on what we might see in, in Mexico or elsewhere on the counterdrug side, I'd be curious to hear them.

Dan Byman: Sure. So what I would stress is we are breaking, kind of, into new policy territory, and we're going after a lot of different actors. And we should, if you will, expect the unexpected.

I realize that's kind of a trite way to, to think of things, but we should recognize there's going to be a lot of second- and third-order effects and unexpected consequences when, when you do this.

You know, one thing I would note, from a broader U.S. security point of view, is you are diverting resources from, you know, priorities in Europe, the Middle East, and especially Asia for going after cartels, right?

And so some of this is, you know, National Guard forces, which is, you know, not going to be a major role, at least in peace time. But there's always been a tremendous shortage of Coast Guard vessels, for example. They're in tremendous demand in different parts of the world. And having them actively going after cartels means they're not active elsewhere. And then that's, to me, a legitimate role of any administration, is prioritizing. But we should recognize that there are tradeoffs.

A second, which we've discussed briefly, is the risk of retaliation, right? Ryan mentioned drones crossing borders. There are lots of possibilities here. The cartels certainly have a significant presence in the United States. And when you start to go after leaders, when you start to kill people, you get revenge attacks.

And that would probably be a stupid move for many cartels, but if you're going after multiple groups, you would expect varied responses, and some might respond quite violently.

The last, which is my, my biggest concern, is that we'll be creating chaos instead of doing the very difficult and very slow work of trying to build up governments and create more order. And that there's something very satisfying about bad actors being killed or otherwise kind of taken off the game board, but longer-term success is gonna require stronger governments, and I'd like to see programs investing in that, independently of other efforts to go after the cartels.

Loren Voss: Yeah. I really appreciate that.

Ryan, do you have additional thoughts on what we should be paying attention to in the future?

Ryan Berg: Yeah. Just a really quick couple, set of thoughts, Loren.

I think first, we're likely to see more strikes in the future. As, as we've all discussed part of the strategy here, and, and one of the big questions of, of the strategy is how sustainable is this?

I think in the short term, we're likely to see more strikes in order to have that dissuasive impact that the Trump administration wants it to have, but also to send the message, Loren, that these are sustainable. That we are gonna try to continue to keep up with a, a certain pace of, of strikes.

Second, I would note that I think it's really hard to shape cartel behavior and cartel incentives, ’cause as Dan said, the, the size of the, of the, of the drug market globally is, is, is what it is. It's easier to shape state behavior. And I think you've already started to see a lot of state behavior in the region shaped by these strikes.

Threats from the United States on boats in the Southern Caribbean have brought closer a lot of countries to the United States when it comes to synchronizing some of their laws or, or harmonizing some of their approaches. And the United States has said that they're going to reward or work with countries that are bringing their, their approaches closer in line with its own.

So, I think these strikes are going to, over time, be able to shape state behavior in terms of getting greater and greater cooperation with the United States, lest the United States take a different approach.

So I know that the Mexicans, the Ecuadorians, other countries are very keen to have greater cooperation with the United States, in part, I would say, to prevent this kind of approach from, from being the one that becomes the, the preferred approach.

Loren Voss: Okay, we're gonna leave it there. Thank you, Dan, Ryan, and Scott for joining me today.

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