The president’s job is to faithfully execute the law, not rewrite it.

Prior to Defense Secretary Pete Hegseth’s disclosure on Friday afternoon that American armed forces had killed four more people in a fourth missile strike on a boat cruising in international waters off the Venezuelan coast, upping to 21 the death toll since September 2, I noted in a Thursday night column that the Trump administration had issued a statutorily required notice to Congress that the our military is engaged in armed hostilities.

In essence, President Trump claims constitutional authority to take the nation to war, without congressional authorization, against drug cartels in the Caribbean — even though the cartels have neither militarily attacked the United States nor threatened to do so.

In the Thursday night post, I laid out some of the reasons why, in my view, the president’s claim of unilateral power is deeply flawed. I followed up with a Friday post about the administration’s claim that it is attacking “nonstate actors” in a “noninternational armed conflict” analogous to the war against al-Qaeda that followed the 9/11 attacks. That’s a specious analogy given that (a) it is inconsistent with the administration’s prior insistence that the cartels in question, rather than nonstate actors, are arms of the Maduro regime in Venezuela; and (b) the post-9/11 conflict against the nonstate jihadist actors was pursuant to a congressional authorization for the use of military force overwhelmingly approved after al-Qaeda slaughtered nearly 3,000 Americans in four suicide hijackings of jumbo jets — destroying the World Trade Center and smashing into the Pentagon — the culmination of eight years of sporadic mass-murder attacks.

In that Friday post, I said I would also address yet another infirmity in the administration’s claim of unilateral war power: the president’s equation of narcotics trafficking with terrorist activity, and of terrorist designations with authorization to use military force. On reflection, these two different errors should be addressed separately. So in this post, I’ll start with the fallacy that narcotics trafficking — more specifically, the importation of illegal drugs into the United States — is a form of terrorism. In a subsequent post, I’ll turn to the designation issue.

The president’s theory is that, because deaths result from both, there is no material difference between (a) shipments of illegal narcotics to the United States by boat piloted by foreigners and (b) attempted missile attacks against, or bombings of, the United States.

Now, let’s set aside key proof questions, such as: How do we know that a boat is shipping drugs, how do we know the boat is headed to the U.S., and does it matter who is responsible for the shipment? Let’s also set aside the patent flaw in the president’s analogy — namely, a forcible attack intended to kill innocent people is vastly different from shipping illegal narcotics to a market teeming with people who want to buy, sell, and consume illegal narcotics despite the illegality and mortal risks.

Let’s go, instead, straight to the heart of the matter, because this is an easy one: Under federal law, the importation of illegal drugs is not terrorist activity. Period. Serious felony? Absolutely. Act of terrorism? Not a chance.

The Federal Law Definition of Terrorist Activity

Congress has defined terrorist activity in Section 1182(a)(3)(B)(iii) of the immigration laws (Title 8, U.S. Code). There is nothing in the definition that could conceivably be stretched to include narcotics trafficking. (Note that Congress placed the relevant definition in immigration law because terrorist activities are an important basis for refusing aliens admission to the United States; but in other sections of the federal code to which terrorism is obviously relevant, statutory law incorporates the Section 1182(a)(3)(B)(iii) definition by reference. We’ll come to an example in due course.)

Under the statute, “the term ‘terrorist activity’ means” actions — or threats, attempts, or conspiracies to engage in actions — that involve any of the following:

That last one is interesting for our purposes. Large-scale narcotics trafficking is done for monetary gain — which Congress made a reason to exclude from the definition of terrorist activity. Terrorists need money to finance their operations, but financial profit is not their motive for engaging in terrorism activity.

To be sure, in its indictment of Nicolás Maduro, the dictator in charge of the Venezuelan regime, the Justice Department (in Trump’s first term) alleged that Maduro’s regime was using cocaine shipments as a weapon to destabilize the United States. Maybe so . . . or maybe he was in it for the money. But in either event, as discussed in the last post, the Trump administration now maintains that the cartels are nonstate actors, not arms of the Venezuelan government. Consequently, whatever Maduro’s objectives may be in this regard, they may not be ascribed to Tren de Aragua (TdA) and other cartels with which the president says we are in an armed conflict. And, to repeat, the statute does not include shipping illegal drugs in the definition of terrorist activity, even if the president thinks it should (in which case he should ask Congress to amend the law rather than pretend he gets to make up the law as he goes along).

The Federal Law Definition of Terrorism

The focus on forcible attacks in Section 1182’s definition of terrorist activity dovetails with our law’s definition of international terrorism, found in Section 2331(1) of the federal penal code (Title 18, U.S. Code). That term means activities that:

Section 2331 also defines domestic terrorism (in subsection (5)). As one would expect, it is the same as international terrorism, except that the conduct must occur “primarily within the territorial jurisdiction of the United States.”

After prescribing these definitions of terrorism, the penal code’s terrorism chapter goes on to codify terrorism crimes, including the use of weapons of mass destruction; bombings of public places, government facilities, public transportation systems, and infrastructure facilities; acts related to missile systems designed to destroy aircraft; radiological dispersal devices; and acts of nuclear terrorism.

The upshot of this is obvious: Terrorist activity involves forcible acts, mainly including mass-murder attacks, for the purpose of making war on the society and extorting the government to adopt the terrorist’s policy preferences.

Drug trafficking is a different kind of evil. A very significant evil, but a lesser evil. It doesn’t diminish the seriousness of the importation and distribution of illegal narcotics to acknowledge that it is not terrorism. The latter is an attack on our governing system and society itself, without which we could not have the laws that protect us, including the narcotics laws.

When Drug Trafficking and Terrorism Meet, Our Law Distinguishes Them

To underscore this point, the federal narcotics laws (Title 21, U.S. Code) codify a crime often referred to as “narcoterrorism.” The Trump administration has made a mantra of that term because it blurs the distinction between narcotics trafficking and terrorism. But the offense, codified in Section 960a, is actually titled, “Foreign terrorist organizations, terrorist persons and groups.” The statute makes it a crime, punishable by life imprisonment, to engage in illegal narcotics trafficking with the intention to

provide, directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engaged in terrorist activity (as defined in section 1182(a)(3)(B) of title 8) or terrorism (as defined in section 2656f(d)(2) of title 22).

This is an example of what I referred to above: Congress’s reference to Section 1182 when defining terrorist activity in other statutes. As for defining terrorism, lawmakers borrowed from the statutes that cover the State Department (Title 22), apparently because they wanted a single, shorthand definition of terrorism (rather than the separate definitions of international and domestic terrorism, which I’ve excerpted above Section 2331 of the penal code). That definition, in Section 2656f(d)(2), says terrorism is “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.” Again, no reference to drugs.

For our purposes, the salient thing about this so-called narcoterrorism crime is that it draws a sharp distinction between narcotics crimes and terrorism activity. It doesn’t equate the two; rather, it increases the punishment for drug crimes if they are done for the purpose of providing material support to terrorism.

This made sense: the drug statute was enacted in 2006 as part of the post-9/11 Patriot Act reauthorization. Other terrorism laws made other kinds of material support to terrorism a crime, so Congress decided to apply the same approach to proceeds of illegal drug dealing. But notice: we have laws against material support (which carry punishments less severe than those meted out for terrorism) because providing money is not the same thing as actually committing mass murder. Similarly, as a matter of law, trafficking in illegal drugs is not terrorism, even if the trafficker intends to contribute proceeds to a terrorist organization. That’s a serious crime, but it’s not terrorism.

As this demonstrates, Congress could equate narcotics trafficking with terrorism. But even when the two activities interrelate, Congress has seen fit to distinguish them. I believe that is prudent. The vast majority of terrorism has nothing to do with drug dealing, and the vast majority of narcotics trafficking has nothing to do with terrorist activity. The motivations behind the two crimes are often antithetical; drug dealers make their lucrative living off the system that terrorism seeks to destroy.

In any event, President Trump is wrong: drug shipments are not the equivalent of terrorist attacks. Federal law rejects this analogy. The president has no power to rewrite federal law; his job is to execute it faithfully. As I’ll explain in the next post, even if international drug trafficking equated to foreign terrorism, the mere designation of a drug cartel as a foreign terrorist organization would not be a legitimate basis to use military force against the cartel. Under the law, however, that should be a moot point because narcotics trafficking simply is not terrorist activity.