On February 20, 2025, the U.S. State Department formally designated the five main Mexican drug cartels as Foreign Terrorist Organizations. This series examines the consequences of the FTO designation. Specifically, it addresses how the United States will now apply enhanced surveillance tools, new criminal offenses, and—potentially—lethal force in the fight against cartels. It addresses these three categories of authorities in sequence alongside a brief discussion of the risks that these expanded authorities pose.
The FTO designation enables the U.S. government to tap into a bevy of its most powerful spying tools. This collection, authorized pursuant to the Foreign Intelligence Surveillance Act (FISA), is a marked improvement over the status quo.[1]
Domestic investigations into cartel operations previously relied on traditional criminal investigative tools. Criminal investigators typically collect evidence through searches and wiretaps.
The Fourth Amendment to the U.S. Constitution states that “The right of the people to be free from unreasonable searches and seizures shall not be infringed [and] no warrant shall issue but upon probable cause particularly describing the places to be searched and the persons or things to be seized.” The Supreme Court has interpreted this to impose a warrant requirement on most searches. That is, a warrantless search is per se unreasonable. Conversely, a search that is pursuant to a warrant based on probable cause is presumed reasonable. The upshot is that a criminal investigator typically needs a warrant to search a suspect.
In the context of traditional criminal investigations, the statutory authorities supporting this requirement are the 1968 Wiretap Act and Rule 41 of the Federal Rules of Criminal Procedure. The former authority empowers courts to issue warrants to conduct wiretapping (and monitor messaging applications). The latter authority, Rule 41, allows courts to issue warrants to search places. These places may be electronic (e.g., iCloud backups).
Per the constitution, warrants pursuant to both of these authorities require a showing of probable cause. In this case, it is probable cause “that criminal activity is afoot,” i.e., something criminal is or has happened.[6]
This is what this looks like in practice. Federal officers have identified a group of men on the Texas border who are cartel members. The agents suspect this group is smuggling drugs into the country. The officers must collect evidence to support their suspicion that these men are indeed smuggling drugs. They present the evidence to a federal magistrate judge in a warrant application that seeks permission to search the group by tapping their cell phones. The magistrate judge evaluates the evidence and determines if there is “probable cause” that the group is indeed smuggling drugs. If so, she issues the warrant. That authorizes the officers to tap the suspects cell phone. The officers deliver the warrant to the phone company. The officers monitor the communications of the suspects for 30 days. At the conclusion of the warrant, the officers either (1) bring charges against the suspects or (2) must notify the suspects that they were the targets of an investigation and—specifically—that the officers had tapped their phones.
In many ways, the Foreign Intelligence Surveillance Act of 1978 mirrors the traditional electronic surveillance authorities. But there are very important differences that give benefits to the investigators.
The background rules that constrain searches remain the same: Officers must obtain a warrant if they want to conduct a “search,” and that warrant must be supported by a finding of probable cause. The innovation of FISA is in what probable cause finding is required.
Recall that in the context of a traditional warrant, the officers must show probable cause that “criminal activity is afoot.” FISA imposes a different requirement. Instead, an investigator may obtain a warrant under FISA by showing (1) the target is a foreign power or agent of a foreign power and (2) the target is using the facilities that the government is surveilling.[2]
This factual predicate intentionally omits any mention of criminal activity. Valid targeting under FISA is status-based rather than conduct-based. That is, the government can surveil a person because of who he is rather than what he is doing.
Status-based targeting gives the government important flexibility to collect information for purposes beyond criminal prosecution. This is because the statute was intended to facilitate domestic intelligence collection. So under the statute, the Russian ambassador to the United States is a valid surveillance target: He is an agent of Russia and likely to possess information that is strategically valuable to the United States. This is true even though there is no reason to believe that he is committing a crime.
Beyond permitting status-based targeting, FISA has an important procedural advantage: There is no post hoc notification of the surveillance target. This is marked contrast to a traditional criminal investigative authority, which requires that the government eventually notify the target that they were surveilled.[3]
These two advantages are evident when we apply traditional FISA to the same factual scenario in the previous section. Recall that federal agents
(1) know the group of men on the border are members of a cartel and
(2) suspect that the men are involved in drug smuggling.
Under traditional criminal authorities, the agents need to gather evidence to support (2) if they want to obtain a warrant. But under FISA, (1)—by itself—satisfies the factual predicate for a warrant. That is, the agents only need to present a judge with evidence that the targets are members of the cartel, and that the cartel is a “foreign power” under the statute. An FTO designation likely satisfies this later requirement. Thus, the evidentiary burden for FISA surveillance is much lower in this context.
Once the government has completed that surveillance, there is no requirement that it notify the surveillance target. This means that the cartel agents never learn that they were surveilled. As a result, they will not adjust their behavior in a manner that thwarts law enforcement.
FISA surveillance is not superior in all ways to traditional tools. There are at least three disadvantages. First, all warrant applications are routed to a specialized court. The Foreign Intelligence Surveillance Court is composed of 11 judges who review all warrants under FISA. Thus, these eleven judges serve as a chokepoint for nationwide FISA applications. Moreover, serving on this specialized FISA court is not their fulltime job—all 11 are federal district court judges selected by the Chief Justice to moonlight on this court. So, they must balance their normal criminal and civil dockets with their obligation to review and approve all FISA applications. Compare this with traditional warrants: These applications go to Federal Magistrate judges, of which there are over 500 distributed across the country.
The second disadvantage of FISA is also procedural: All applications for FISA must go through the main office of the Department of Justice in Washington, D.C; specifically, the Office of Intelligence in the National Security Division. This office works closely with the Foreign Intelligence Surveillance Court in preparing and authorizing FISA applications. It also provides valuable oversight to domestic intelligence operations.[4] But given the centralization, the office serves as a chokepoint much like the FISA court does, even if its expertise is valuable.
The third and final disadvantage is about expertise. The process surrounding FISA surveillance is esoteric. There are myriad requirements that investigators must comply with. These all have their own requirements for supervisor approval. Just within the DOJ, centralization of applications at Main Justice means that an FBI agent on the line must get his squad supervisor and the Special Agent in Charge of his office to approve an application. This discounts the coordination he likely must do with the local U.S. Attorney’s Office.
These numerous approval steps often will deter agents from going through FISA. When they instead could obtain a traditional warrant (through a path well-trodden and familiar), they will often do so. Thus, line agents within the FBI often lack the expertise required to navigate the FISA bureaucracy.
Aside from procedural disadvantages, FISA surveillance becomes controversial when you understand that the investigators themselves (i.e., the Executive Branch) has a powerful say in who qualifies as an agent of a foreign power. Recall that surveillance under FISA is status-based. This means that a target is valid because of who he is rather than what he does.
But what creates valid status for FISA targeting? Under the statute, a person must be an agent of a foreign power. And particularly pertinent to this paper is that the statute FISA defines a foreign power to include groups “engaged in international terrorism.” While there is no formal link to a FTO designation under 8 U.S.C. § 1189, the factual predicate appears to be the same. So, members of an FTO are also very likely targetable under traditional FISA.
Putting this together, FISA allows the Executive Branch to surveil certain people based on their status. A person can qualify for covered status by acting as an agent of an FTO. The Executive Branch can unilaterally designate organizations as FTOs. Thus, a valid criticism of FISA is that the Executive Branch can call its own shots regarding who it can surveil.
Once FISA kicks in, the gag order provision means that the government need not disclose its activities to the surveillance target. So, absent a criminal prosecution, a FISA surveillance target never learns that they were spied on. Without that knowledge, there is no way for them to challenge the government surveillance through the courts.
Therefore, FISA doesn’t merely allow the government to call its own shots—it also is structured in a way that those shots are de facto unreviewable.
Any American who values individual liberties and the rule of law should therefore be skeptical of FISA expansions. This is especially true when we are dealing with gangs like cartels. These groups are often amorphous and ill-defined, with alliances and affiliations that shift quickly and erupt—sometimes violently—in intra-group feuds. Basing surveillance on membership in that group therefore appears tenuous, ill-suited to reality, and correspondingly dangerous for civil liberties.