Non-Credible Strategy No More: Droning Drug Dealers to Stop Cartel Violence

• Pages: 699-743
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Connor W. Reese
• Subject Matter: Derecho Público y Administrativo

Non-Credible Strategy No More: Droning Drug

Dealers to Stop Cartel Violence

CONNOR W. REESE*

ABSTRACT

Mexican Cartels have engaged in a relentless onslaught against American

citizens for more than a decade, wreaking havoc on families across the country.

This cycle of destruction has only increased in recent years with the advent of

deadlier drugs and prof‌it-focused practices by the Cartels. Violence manifests

itself both through the delivery of dangerous drugs and specif‌ic violent conduct

meted out directly against American citizens, with government off‌icials and reg-

ular Americans being targeted alike. Despite their existential threat to the

safety and security of the United States, past Presidential administrations have

been hesitant to escalate this tense conf‌lict, preferring to refer any enforcement

actions to de-fanged law enforcement agencies instead of the military.

The focus of this note is on the legal analysis and implications that would

undergird any potential decision to use lethal drone strikes inside Mexican ter-

ritory against the Cartels. Because the actions and violence perpetrated by the

Cartels is inf‌licting constant devastation against vulnerable populations in the

United States, it is imperative for a new operational paradigm to be embraced

in order to prevent a further cycle of violence. Without appropriate action, the

Cartels will continue to inf‌lict wanton violence against Americans citizens both

home and abroad. The trail of devastation left in the Cartels’ wake is momen-

tous, with total direct and adjacent costs from Cartel activity costing the United

States hundreds of billions of dollars annually. Current anti-Cartel strategies

focus on law enforcement mechanisms in an attempt to stop the harm, but these

solutions do not stem the problems at their root causes; to achieve genuine pro-

gress, lethal drone strikes should be used to target and destroy Cartels leader-

ship, drug production facilities, and other related drug supply chain assets.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 700

II. MEXICAN CARTELS’ TRAIL OF DEATH . . . . . . . . . . . . . . . . . . . . . . 704

A. Mexico: A Modern-Day Narco-State . . . . . . . . . . . . . . . . . . . 704

* Georgetown University Law Center, J.D., 2024; Notes Editor, Georgetown Law Technology

Review, Volume 8; Staff Editor, Georgetown Journal of Law & Public Policy, Volume 22; University of

Michigan, A.B., 2021. Thank you to Professor David Koplow for his advice and expertise that helped to

guide the writing process for this piece.

699

B. Cartels Kill Thousands of Americans. . . . . . . . . . . . . . . . . . . 707

III. LETHAL DRONE STRIKES HAVE ALWAYS BEEN CREDIBLE . . . . . . . 711

A. Pre-Cold War Battlef‌ield Surveillance. . . . . . . . . . . . . . . . . . 711

B. Post-Cold War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 712

C. Post-9/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713

IV. DRONE STRIKES WOULD WORK AGAINST CARTELS . . . . . . . . . . . . 715

A. Drones, the Constitution, and the President . . . . . . . . . . . . . . 716

B. Drone Strikes and International Humanitarian Law. . . . . . . . 719

1. The Republic of Nicaragua v. United States............ 720

2. Self-Defense & Armed Conf‌lict Principles. . . . . . . . . . . . . 721

3. Territorial Sovereignty.............................. 723

4. Applying IHL to Mexican Cartels .................... 725

5. Mexico is Unable & Unwilling to Restrain Cartels. . . . . . 727

C. Saving Lives with the Targeted Killing Program . . . . . . . . . . 731

V. DRONE DRAWBACKS AND POTENTIAL CRITICISM . . . . . . . . . . . . . . 734

A. International Irritability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 735

B. Domestic Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 738

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742

I. INTRODUCTION

The United States’ southern border, inner cities, and wide-spread suburbs are

all under siege by an onslaught of the Mexican Cartels. Just in 2022, hundreds of

thousands of pounds of illegal methamphetamine alone crossing the southern bor-

der was seized by law enforcement agents before the drugs managed to contribute

to further crime and cycles of violence in the United States.

1

Drug Seizure Statistics FY2023, U.S. CUSTOMS AND BORDER PROTECTION (Apr. 14, 2023), https://

www.cbp.gov/newsroom/stats/drug-seizure-statistics [https://perma.cc/G5V4-AF2Z].

If counting all drugs

seized along the southern border, this number would balloon to over a quarter mil-

lion pounds.

2

Nearly ninety seven percent of the heroin seized by law enforcement

1.

2. Id.

700 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 22:699

agencies in the United States originated from Mexican Cartels.

3

See International Narcotics Control Strategy Report, U.S. DEP’T OF STATE BUREAU OF

INTERNATIONAL NARCOTICS AND LAW ENFORCEMENT AFFAIRS, pp. 168 (Mar. 2022), https://www.state.

gov/wp-content/uploads/2022/03/22-00767-INCSR-2022-Vol-1.pdf [https://perma.cc/BA6Z-KRDL].

While these

numbers are staggering, it is important to highlight that these numbers only refer-

ence the pounds of seized drugs. Unsurprisingly, the actual amount of drugs suc-

cessfully crossing the southern border is meteorically higher, and has been high

for decades.

4

See U.S. Gov’t Accountability Off‌ice, Drug Smuggling: Large Amounts of Illegal Drugs Not

Seized by Federal Authorities, U.S. DEP’T OF JUSTICE OFFICE OF JUSTICE PROGRAMS (1987), https://

www.ojp.gov/ncjrs/virtual-library/abstracts/drug-smuggling-large-amounts-illegal-drugs-not-seized-

federal [https://perma.cc/29GM-P38Q]; see also Oriana Zill and Lowell Bergman, Do the Math: Why

the Illegal Drug Business is Thriving, FRONTLINE PBS (1998), https://www.pbs.org/wgbh/pages/

frontline/shows/drugs/special/math.html#:�:text=That%20is%20the%20dope%20business,to%2040%

25%20of%20cocaine%20shipments [https://perma.cc/PQN2-U2UN].

Some estimates place the Mexican Cartels as the factory working to

supply nearly 90% of all illicit drugs entering the United States.

5

Samuel Henkin & Marcus A. Boyd et al., Major Cartel Operational Zones in Mexico, U.S. DEP’T OF

HOMELAND SEC. SCI. & TECH. CENTERS OF EXCELLENCE OFFICE OF UNIVERSITY PROGRAMS (Jun. 2020),

https://www.start.umd.edu/pubs/JointCOEProject_TrackingCartels01_OperationalZonesMexico_Research

Brief_June2020.pdf [https://perma.cc/5VP7-YFWN].

Mexican Cartels

also disrupt the United States’ southern border through their burgeoning human

traff‌icking business, exploiting people trying to reach the United States with exor-

bitant fees, and fueling a process that often ends in dangerous encounters with

American law enforcement. Mexican Cartel violence threatens American citizens

living abroad in Mexico or simply visiting as tourists. This violence often has

deadly ends, as thousands of US citizens, including diplomats and government

personnel, have died directly at the hands of the Cartel over the past decade.

6

See, e.g., Ted Galen Carpenter, Corruption, Drug Cartels and the Mexican Police, CATO

INSTITUTE (Sep. 4, 2012), https://www.cato.org/commentary/corruption-drug-cartels-m exican-police

[https://perma.cc/J2B6-J8JA].

On

top of this, more Americans are now killed by Cartel drugs each year than the

number of American personnel killed f‌ighting for freedom from communist

authoritarianism in Vietnam or the number of American servicemen killed during

the deadliest year of the second World War.

7

See Vietnam War U.S. Military Fatal Casualty Statistics, NAT’L ARCHIVES, https://www.archives.

gov/research/military/vietnam-war/casualty-statistics#:�:text=April%2029%2C%202008.-,The%

20Vietnam%20Conf‌lict%20Extract%20Data%20File%20of%20the%20Defense%20Casualty,

casualties%20of%20the%20Vietnam%20War [https://perma.cc/HHW3-F2YJ]; see also Ashley Welch,

Drug overdoses killed more Americans last year than the Vietnam War, CBS NEWS (Oct. 17, 2017 6:14 p.m.),

https://www.cbsnews.com/news/opioids-drug-overdose-killed-more-americans-last-year-than-the-vietnam-

war/(highlighting that more Americans were dying every year (nearly 65,000) than were killed during Vietnam

(about 60,000) starting in 2017); https://www.wsj.com/articles/the-us-must-defeat-mexicos-drug-cartels-narco-

terrorism-amlo-el-chapo-crenshaw-military-law-enforcement-b8fac731.see also William P. Barr, The U.S.

Must Defeat Mexico’s Drug Cartels, THE WALL ST. J. (Mar. 2, 2023 1:04 p.m.), https://www.wsj.com/articles/

the-us-must-defeat-mexicos-drug-cartels-narco-terrorism-amlo-el-chapo-crenshaw-military-law-enforcement-

b8fac731 [https://perma.cc/9P54-6XED].

These criminal activities, while technically originating in Mexico, contribute

to spillover violence in the United States. Spillover violence, as related to the

Cartels, is def‌ined as deliberately planned attacks on US assets that may be

3.

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2024] DRONING TO STOP CARTEL VIOLENCE 701