The Lawfare Podcast – September 24, 2025

Episode: Lawfare Daily: Analyzing the Administration's New Counterdrug Approach

Host: Lauren Voss
Guests:

• Dan Byman (Georgetown University & CSIS)
• Ryan Berg (CSIS, Future of Venezuela Initiative)
• Scott R. Anderson (Lawfare Senior Editor)

Overview

This episode covers the Biden administration’s dramatic shift in counterdrug policy, including the unprecedented use of lethal military force against suspected narco-traffickers at sea, the designation of major drug cartels as “Foreign Terrorist Organizations” (FTOs), and the corresponding legal, operational, and policy implications at home and abroad—especially in relation to Mexico and the broader Western Hemisphere. The panel unpacks the justifications, risks, and likely consequences of treating transnational criminal organizations like terrorist entities, highlighting both U.S. and international law dimensions as well as potential escalation dynamics.

Key Discussion Points & Insights

1. Background and the Paradigm Shift

• New Designations and Strikes:
  The administration has designated eight major transnational criminal organizations as FTOs and Specially Designated Global Terrorist (SDGT) groups. In February, three lethal military strikes were carried out against boats in the Caribbean, targeting alleged narco-terrorists. ([03:06])
• Messaging:
  Ryan Berg notes this is not just about tactical interdictions—“the administration [is] sending a message that they would like to see a paradigm shift in how we deal with criminal organizations... in the Western Hemisphere.” ([04:20])
• Omnidirectional Messaging:
  Strikes signal resolve not only to Venezuela (particularly the TDA cartel-strike's home turf) but also pressure Mexico, Colombia (recently decertified as a cooperative partner), and others to align with U.S. counterdrug expectations. Warships’ movement through the Panama Canal is also meant as a regional signal. ([04:20])

2. Legal Foundations and Controversies

• Are We at War with Cartels?
  Scott Anderson: The administration is advancing an “aggressive claim” that positions narcotics trafficking as equivalent to an armed attack. Traditional FTO/SDGT designations are for sanctions, not military force. ([07:53])

  “The United States is saying ... we are at war with these entities, and therefore we get to do to them what we do to other enemies ... 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.” —Scott Anderson [11:53]

• Lethal Targeting and Law of Armed Conflict:
  Clear legal uncertainty over whether all individuals involved in smuggling are legitimate military targets. Recent reports suggest every person onboard targeted vessels was killed—going beyond disabling boats/drugs to direct targeting of individuals as enemy soldiers. ([13:47])
• International and Domestic Law:
  Congressional measures (draft AUMF, War Powers Resolution proposals) may clarify domestic authority but do not resolve international law questions. The legal justifications rely heavily on executive branch deference and have little precedent. ([19:04])

  “Draft resolutions can't address international law violations... there will be questions, no matter what Congress does, as to whether the United States is acting in a way other states will view as lawful or unlawful.” —Scott Anderson [19:06]

3. Operational and Strategic Effects

• Host Country Role is Essential:
  Dan Byman: Success depends on host nation (e.g., Mexico) willingness and capacity—“the host government is 95%, if not more, of any solution.” U.S. operations in another country's territory require either partnership or the “unable/unwilling” doctrine. ([24:53])
• U.S.–Mexico Frictions:
  Ryan Berg highlights the administration's escalation from skepticism to openly asserting an “intolerable alliance between the Mexican government and the cartels,” signaling loss of trust and possible justification for unilateral U.S. actions. ([27:33])
• Risk of Retaliation and Escalation:
  Cartels may shift routes or tactics in response. Overt military action risks blowback—either in Mexico, U.S. border areas (e.g., drones for surveillance or potential attacks), or even inside the U.S. itself. ([38:41])
• Potential for More Chaos:
  Killing leaders or fragmenting cartels can actually fuel violent turf wars rather than reduce trafficking or violence. This mirrors past experiences in the fight against terrorist groups. ([33:22], [36:54])

4. Effectiveness and Lessons from Counterterrorism

• Skepticism on Effectiveness:
  Dan Byman: “There’s huge demand for drugs in the United States ... until that demand goes away ... efforts to provide for that demand [will continue].”
  U.S. kinetic counterterrorism tactics (e.g., drone strikes, targeted killings) have limited impact on complex, deeply networked criminal enterprises like cartels, often leading to splintering and bloodshed rather than sustained disruption. ([40:06], [42:00])

  “We pretty much dismiss the idea of the ability to use ... drone strikes or special operations forces raids to shape the operational environment of cartels... those are unlikely to move the needle dramatically and could even have some downsides.” —Ryan Berg [42:00]

• Intelligence and Government Reform More Promising:
  Intelligence is key but hampered by corruption and penetration of host governments by cartels. Long-term success depends on government reform, strengthening rule of law, and bilateral cooperation—not military force alone. ([43:47], [45:02])

  “A lot of success actually comes from government reform ... longer-term success is going to require stronger governments.” —Dan Byman [43:47]

5. International Precedent and Potential Creep

• Expanding the Use of Force Justification:
  The current legal rationales could set precedent for using military force not just against narco-trafficking but also migrant smuggling, as the administration has rhetorically lumped both together. Internationally, such a move could normalize militarized responses to a wide range of criminal activity. ([48:39], [52:25])

  “The limits ... appear to be primarily political at this point, not legal... the administration has already described migrant smuggling as ... a threat in the same way that narcotic smuggling is.” —Scott Anderson [48:39]

• Resource Tradeoffs and Unexpected Consequences:
  U.S. redeployment of naval and other assets for counterdrug missions means fewer resources elsewhere (e.g., Asia, Middle East). Second- and third-order effects and retaliation risks are real, with potential for chaos rather than sustainable order. ([52:40])

Notable Quotes & Memorable Moments

• On the paradigm shift:

  “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.” —Ryan Berg [04:20]

• On legality:

  “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, precedents that I’m aware of in US practice.” —Scott Anderson [11:53]
  “Draft resolutions can't address international law violations ... there will be questions, no matter what Congress does...” —Scott Anderson [19:06]

• On host country importance:

  “The host government is 95%, if not more, of any solution.” —Dan Byman [24:53]

• On the risk of cartel fragmentation:

  “This broader effort might fracture some of the cartels, and in a way that's a good thing… but that may just lead to greater competition, and we've seen that happen before...” —Dan Byman [33:22]

• On the effectiveness of counterterrorism tools:

  “We pretty much dismiss the idea of the ability to use, for example, drone strikes or special operations forces raids to shape the operational environment of cartels...” —Ryan Berg [42:00]

• On long-term solutions:

  “Longer term success is going to require stronger governments, and I’d like to see programs investing in that independently of other efforts to go after the cartels.” —Dan Byman [52:40]

Timestamps for Critical Segments

• Main Policy Shift & Messaging: [03:06]–[07:09]
• Legal Analysis (FTOs, Use of Force): [07:53]–[13:47]
• Targeting Individuals vs. Vessels: [13:47]–[18:08]
• Congressional Authority & International Law: [19:04]–[22:56]
• Territorial Sovereignty: Mexico Case: [22:56]–[27:33]
• U.S.–Mexico Security Cooperation & Distrust: [27:33]–[33:00]
• Cartel Fragmentation & Escalation Risks: [33:00]–[38:41]
• Effectiveness of CT Framing: [40:06]–[43:32]
• Lessons from War on Terror: [43:32]–[45:02]
• Reform & Intelligence Challenges: [45:02]–[48:03]
• Legal Precedent & Expansion Risks: [48:39]–[52:25]
• Resource Tradeoffs & Unintended Outcomes: [52:40]–[54:50]
• Future Directions & State Responses: [54:50]–[56:42]

Conclusion

The episode illustrates the legal, strategic, and diplomatic risks in redefining the U.S. war on drugs as akin to a counterterrorism campaign. While the administration seeks to deter cartels via lethal force and a new FTO regime, the panel warns of the limitations of military power, the dangers of escalation and fragmentation, the need for legitimate government partners, and the broader legal precedents this sets both domestically and internationally. They advocate a return to intelligence-driven, cooperative approaches, and substantive reforms over kinetic short-term fixes—a cautionary note as the U.S. embarks on this unprecedented policy trajectory.