war on the rocks

Tackling the MS-13 Problem: A New Designation for a Hybrid Threat?

Just days ago, Attorney General Jeff Sessions fixed his sights sharply on the MS-13 gang and, in particular, the brutal violence and crimes the group has perpetrated — including against children — in the United States. He even suggested the group “’could qualify’” as a terrorist organization. That characterization matters, in part because an official designation as such would expand the toolkit the U.S. government would have at its disposal to combat the group and crack down on its unlawful activities. Designating an entity is further intended to contain and quarantine it globally by spurring others to shun and undermine it. Indeed, this issue of designating gangs reflects debates that have been ongoing in the Justice Department and partner agencies for quite some time.
It is unclear at this time just how broad or deep the roots of the attorney general’s thinking might run within the Trump administration as a whole. But the idea that MS-13 and its behavior is more reprehensible than “run-of-the-mill” criminality — and therefore should be a U.S. law enforcement priority — is a compelling point that warrants action. Not every criminal enterprise in this country, after all, possesses the reach and range of MS-13. To the contrary, only a select number of transnational entities even come close.

Put differently, MS-13 is a threat to U.S. national security and public safety because it is a hybrid: a criminal group that uses terrorist tactics and makes its presence felt across borders and regions. In this sense, it could be argued that the group should be designated a “Foreign Terrorist Organization” (FTO). The list of FTOs reads like a who’s who of international pariahs: Think al-Qaeda (in its various incarnations) or the Islamic State of Iraq and the Levant. New listings are determined by the secretary of state in conjunction with counterparts at the Department of Justice and the Department of the Treasury. It must also meet the bar set out in Section 219 of the Immigration and Nationality Act.

Without getting too far into the legal and technical weeds, the FTO designation may attach to a foreign group that engages in “terrorist activity” or “terrorism” threatening U.S. nationals or U.S. national security. MS-13 tactics such as assassination are explicitly listed under the applicable legal definition of “terrorist activity” (see section 212(a)(3)(b)). However, the relevant legal definition of “terrorism” is a more difficult fit in this context, as it requires “politically motivated violence,” among other elements (see section 140(d)(2)).

In the case of the self-proclaimed Islamic State, for example, political motivation is in ample evidence, including in the group’s public statements. But in the case of MS-13, it is not so clear-cut and indicators may, in fact, point in the opposite direction. On the one hand, the practical effect of this finding is limited so long as the group continues to engage in “terrorist activity.” On the other hand, perhaps there is a better way to go after the group than using a construct principally conceived and designed to tackle a different problem.

Granted, the FTO designation opens up new avenues for U.S. authorities to pursue the listed entities with renewed vigor and effectiveness. It would unleash and empower the Department of the Treasury, for example, to follow the money in more aggressive ways and to thereby target (and hopefully shut down) important sources of funding for some of the world’s most heinous and murderous enterprises. But a more tailored instrument that speaks specifically to hybrid criminal entities using terrorist techniques could do just the same, establishing a streamlined process for getting to goal.

The FTO designation is not the only arrow in the government’s quiver. Pursuant to an executive order issued in 2011, promulgated by President Barack Obama, sanctions may be imposed upon “significant transnational criminal organizations.” Initially four groups were so-targeted by U.S. authorities, including Italy’s Camorra, Japan’s Yakuza, and Mexico’s Los Zetas. MS-13 was added to the list shortly thereafter. Without disputing the need to attach serious consequences to MS-13’s criminal activity, however, one could question whether the best course is to invoke an instrument that some would maintain is an awkward fit. For instance, is MS-13 now sufficiently entrenched in the United States that it would be a stretch to describe the group’s activities as transnational? Also, is there ample evidence of narcotics trafficking and other hallmarks that would implicate MS-13 in the same category as the Zetas?

Under this line of thinking, the key question is as follows: Do we need a new, Department of Homeland Security-led designation for hybrid criminal groups? Placing the Department of Homeland Security in a lead role would allow for the exercise of additional measures and tools, particularly related to travel and borders. Creating a new designation would also signal the importance of the tools being brought to bear, which could help bring other countries on board in an effort to counter the particular type of threat posed by MS-13 and its ilk in a way more robust than ever before.

The United States (and its allies) needs a powerful approach to the noxious challenge posed by groups like MS-13. Whether to work within existing confines or create new frameworks is an open question — but the need for action is not. While recent attention accorded to the problem by senior officials and journalists alike is encouraging, the fact that there has been relatively little discussion or analysis of the shortcomings of existing options — or potentially preferable alternatives yet to be established — is surprising and concerning. Clearly there is more than one way to get to goal as evidenced by the patchwork of existing instruments to combat the most violent criminal forces manifest in the United States. Yet any one of these tools may be an imperfect fit.

The proposition is not about posturing, but about achieving results and making our streets and communities measurably safer. The disproportionate impact upon U.S. public safety attributable to the relatively few hybrid groups falling into the same category as MS-13 must not be allowed to stand. Thinking about how best to take on the problem squarely at the federal level will also most effectively reinforce and redouble efforts at the state and local level — where the brunt of the danger is borne — in addition to mobilizing international partners. Through an executive order, the Trump administration has prioritized countering the forces of transnational organized crime and the worst of the violence these and other groups have perpetrated in the United States. Moving forward, we would do well to carefully consider how best to achieve the stated goals — including whether existing instruments do the trick, how they cohere with one another (or not), and whether the tools we have do indeed best serve our most pressing ends and purposes.

 

Frank J. Cilluffo is Director of the George Washington University Center for Cyber and Homeland Security (CCHS). He served as Special Assistant to the President for Homeland Security immediately after 9/11. Sharon L. Cardash is Associate Director of CCHS. She previously served as Security Policy Advisor to Canada’s Minister of Foreign Affairs.