From his first hours in office, President Donald Trump signed several decrees explaining how his administration plans to designate certain cartels and criminal groups as terrorists, invoke the Alien Enemies Act to eliminate them, and call on the U.S. military to help with border security.
The precise details of the plans are still unknown. But former Homeland Security officials and experts said labeling immigrant cartels and gangs, such as the Venezuelan street gang Tren de Aragua, as terrorist enemies could allow immigration agents to target people from this country. And direct intervention by military troops in border control could also conflict with well-established rules and practices, they said.
Jerry Robinette, former head of the San Antonio Homeland Security Investigations office under Presidents George W. Bush and Barack Obama, said it was still early to know exactly how the designation would be used. But having broader powers to pursue not only individuals but also the networks that support them could help federal investigators along the border, he said.
“It puts you in an advantageous position to move forward with some of your investigations,” Robinette said. “You have a tool that allows you to do things that maybe you couldn’t do before.”
What is the Enemies Extraterrestrial Act?
The 1798 Extraterrestrial Enemies Act was intended to be used as wartime authority to detain or deport designated enemies, said Katherine Ebright, an attorney with the Brennan Center for Justice’s Liberty and National Security Program. The law was last invoked during World War II as legal authority for the internment of noncitizens of Japanese, German and Italian descent, according to the Brennan Center.
Trump described targeting members of criminal gangs such as Tren De Aragua or the transnational MS 13 gang from El Salvador and Guatemala. But if written broadly, the order would apply to anyone who is not a U.S. citizen — a permanent resident, visa holder or asylum seeker — coming from a designated country, said Ebright.
Historically, the designated country was named during times of war. This is why Japanese citizens were designated enemy aliens after the Japanese attack on Pearl Harbor, but why members of Al-Qaeda, a stateless terrorist group, were not afterward. the terrorist attacks of September 11. This would be the first time an enemy has been declared against a criminal gang without a war against the country.
“It’s never been done,” she said.
What impact will the terrorist organization designation have on the cartels?
Michael Brown, a former DEA special agent, said the foreign terrorist organization designation was long overdue.
“They don’t operate like the drug traffickers of the ’70s anymore,” said Brown, who spent 32 years at the DEA and is now global director of counternarcotics technology at Rigaku Analytical Devices.
“This designation now gives law enforcement and prosecutors the big hammer they need to take on not only the cartels, but also the domestic groups that help them,” Brown told USA TODAY.
In his executive order Monday evening, Trump did not target any specific cartel, criminal group or drug trafficker.
But his order said the cartels “engaged in a campaign of violence” destabilizing the region and flooding the country with dangerous drugs and criminals.
Technically, the order designates cartels and criminal organizations as foreign terrorist organizations and Specially Designated Global Terrorists.
The new declaration could help the US government bring down everyone involved in the fentanyl supply chain, including precursor chemical manufacturers, entities responsible for logistics and distribution, banks and street dealers , in a way that traditional law enforcement efforts can’t do, Brown said.
The FTO designation allows the US government to go after cartel traffickers more aggressively, including potentially using the military or intelligence agencies to kill them with drone strikes outside the US – including including potentially across the Mexican border.
“Theoretically, the president could authorize this strike if we see no cooperation from Mexico in the next six months to a year. I don’t think it’s something we would see right away,” Brown said.
He noted that Mexican President Claudia Sheinbaum has indicated at least some willingness to work with the Trump administration to attack the cartels much more aggressively.
“If that were to fail, then Trump could theoretically authorize that (cross-border) strike, and you wouldn’t need congressional approval because this is a terrorist organization,” Brown said.
The designation could also allow prosecutors to charge their U.S.-based accomplices with supporting terrorist organizations, which could earn them significantly longer prison sentences, Brown said.
What military operations are underway at the border?
The Defense Department and border state governors currently have troops deployed along the border, although it is not yet clear how Trump’s actions will transform those missions.
The Pentagon’s federally controlled border mission, whose troops are legally prohibited from performing law enforcement tasks, includes about 2,500 members of the Army Reserve and National Guard who have been mobilized or deployed. on full-time duty, under the president’s control, a Pentagon spokesperson said. The United States Today. The mission began under the Trump administration in 2018, peaking at about 7,000 troops as active-duty units joined reservists and Guardsmen.
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 agents Law enforcement officers can perform tasks that service members cannot, such as traveling across the border and intercepting. migrants.
Thousands more National Guard members perform state-led border enforcement work in Texas and Arizona.
Texas’ Operation Lone Star, which began in March 2021, is a state-controlled border mission led by Governor Greg Abbott. Because National Guard members are under the governor’s control, they have made arrests — largely under state trespassing laws — and performed other law enforcement duties .
The effort peaked at about 10,000 Texas National Guard members in late 2021, but officials have remained tight-lipped about the strength of the mission in recent months. Operation Lone Star also included small, largely short-term Guard contingents from 18 other states whose governors wanted to support Abbott’s immigration policies.
How will Trump’s actions differ from past military deployments at the border?
The George W. Bush and Obama administrations sent thousands of National Guard troops to the U.S.-Mexico border to support U.S. border agents. The Obama administration deported more people (more than 400,000 for three consecutive years, according to the Migration Policy Institute) than any other president in history.
Trump also sent in National Guard troops during his first term. The question this time is whether troops will play a more direct role in arresting migrants.
Gil Kerlikowske, Customs and Border Control commissioner from 2014 to 2017, said his agency regularly called on the armed forces, both National Guardsmen and active-duty troops, to assist Border Patrol agents. But military troops have always played a supporting role, such as monitoring cameras or piloting helicopters, he said.
Ordering military troops to apprehend migrants could have undesirable consequences, Kerlikowske said.
“You really don’t want someone using deadly force,” he said. “When you put them in that position, there’s that potential.”
What role can the military legally play in controlling immigration?
What U.S. troops can do at the border varies depending on the legal authority under which they serve.
By giving active-duty troops a more direct role, Trump officials should respond to Posse Comitatus Law, which largely prohibits federal troops from directly participating in civilian law enforcement. Reserve troops assigned to full-time federal service — like those already at the border — face the same restrictions.
But Trump could invoke another law, the Insurrection Actto order troops to directly arrest migrants, said Lindsay Cohn, associate professor of national security affairs at the U.S. Naval War College.
In invoking the Insurrection Act, “there’s virtually nothing the military can’t participate in,” Cohn said.
Doris Meissner, a senior fellow at the Migration Policy Institute and former commissioner of the U.S. Immigration and Naturalization Service, said that “what we’re talking about now with the Alien Enemies Act and the use of the active military is a different form of military assistance. said, “and a real escalation.”
In certain circumstances, however, National Guard members can enforce laws without the Insurrection Act. The Secretary of Defense can fund Guard units for state-controlled “homeland defense” work.
When Guardsmen are called upon to perform border duties as part of a federally funded state mission, as they were during Trump’s first term, they remain under the control of their governor, according to the Congressional Research Service.
Governors can refuse to deploy troops under this authority — a bipartisan group of governors withdrew their troops from the border in 2018 after the Trump administration’s family separation practices were exposed.
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