CNN
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The Trump administration has been examining whether it can label some suspected cartel and gang members inside the US as “enemy combatants” as a possible way to detain them more easily and limit their ability to challenge their imprisonment, according to multiple people with knowledge of the deliberations.
The “enemy combatant” designation could also be applied to suspected narco-terrorists outside the US, the people said, as a way to potentially give the US a justification to conduct lethal strikes against them.
After the 9/11 attacks in 2001, the US attached the label “enemy combatant” to anyone accused of being a part of or supporting the Taliban, al Qaeda, or associated forces engaged in hostilities against the US – and it used that sweeping definition to keep many of them in military detention on Guantanamo Bay indefinitely, without charge, trial, or judicial review.
The discussions have revived a debate from President Donald Trump’s first term in 2018, when he wanted to apply the label to all migrants who had entered the US illegally, according to two books written by former Department of Homeland Security official Miles Taylor.
“Lawyers and policy folks like me said that it was nuts and that they’d never meet the legal definition, and if we started treating migrants like terrorists it wouldn’t just be a slippery slope – it would be a f**king mudslide into illegality and police state behavior,” said a former Trump administration official who served at DHS during his first term.
One of the people familiar with the current deliberations said this time around, the administration was only considering ways to use the label against suspected members of the eight groups Trump has designated as foreign terrorist organizations, including Tren de Aragua and MS-13.
“This hinges on the idea that they are designated terrorists,” this person said.
CNN has asked the Pentagon, National Security Council and Department of Homeland Security for comment.
The administration frequently tries to link migrants with terrorism. On Wednesday, Director of National Intelligence Tulsi Gabbard posted on X that “the National Counterterrorism Center identified 600 individuals with ties to terrorists who came through our borders illegally, claimed asylum, and under the Biden administration, were paroled here within our borders.”
But several migrants the Trump administration has accused in recent weeks of being members of MS-13, Tren de Aragua, or other groups now designated as foreign terrorist organizations have denied having any affiliation with them.
Trump has expressed extreme frustration with federal courts halting many of those migrants’ deportations, amid legal challenges questioning whether they were being afforded due process. By labeling the migrants as enemy combatants, they would have fewer rights, the thinking goes.
Legal experts say that applying the enemy combatant label to migrants deemed terrorists would not be the easy solution some Trump officials think it could be. There would be no legal basis for it in the first place, experts said, because the “enemy combatant” designation has only ever applied to the Taliban, al Qaeda, and associated forces.
“It’s taking two distinct topics in national security law and hoping no one knows they are distinct,” said Steve Vladeck, a professor of law at the Georgetown University Law Center and CNN legal analyst. “You can’t just bend them together without recognizing their myriad substantive differences … there is no good faith legal argument here.”
The label also wouldn’t prevent migrants from challenging their detentions in federal court, even if it made it slightly more complicated because they would be in military custody.
“Even if they were to designate all these folks as enemy combatants, it would do nothing to stop their ability to object to their detention if they are in the US,” said Chris Mirasola, a former Department of Defense attorney in the first Trump administration and now a professor of law at the University of Houston Law Center. Mirasola said those individuals would still need to be afforded due process, even if it adds some more “complexity and ambiguity” to an individual’s case.
But a former defense official who left DoD earlier this month said that likely wouldn’t stop the administration from trying.
“Everything they’re doing is hunting for the one weird trick to make deportations unreviewable,” this person said. “It’s a big game of whack a mole right now for the courts but they are whacking away.”
One open question is whether someone labeled an enemy combatant and sent to El Salvador’s megaprison CECOT, where the US has already sent hundreds of alleged gang and cartel members, would be able to appeal their detention and removal.
While the Supreme Court ruled in 2008 that enemy combatants at Guantanamo Bay had the right to do so, it’s not clear whether that right extends to enemy combatants held anywhere else outside of the US.
Trump has been particularly frustrated by the case of Kilmar Abrego Garcia, a Maryland man the administration has accused of being a member of MS-13 but who was wrongly deported to El Salvador in March. His case has created a protracted legal fight between the administration and federal courts that have ordered his return to the US.
Designating some migrants as enemy combatants could theoretically be a way to expand the US military’s role in arresting and detaining them, a law enforcement role that troops are currently prohibited from performing by law.
But the discussions about it have deeply concerned some Pentagon and career executive branch lawyers, a person briefed on the deliberations told CNN. It’s not clear where Secretary of Defense Pete Hegseth might land on the issue, but two people familiar with the matter said some Pentagon lawyers would likely advise against it if it reached his desk for signature.
For one thing, it is not at all clear to DoD lawyers that the administration could reasonably argue that the enemy combatant label could even apply to members of groups like MS-13 or Tren de Aragua. It would also be legally dubious at best to argue that the US is in a protracted war with cartels and gangs on US soil, another legal hurdle the administration would have to clear if it wanted to label them enemy combatants.
When the US was holding people at Guantanamo during what the US termed the Global War on Terror, it was relying on the 2001 Authorization for Use of Military Force as a basis for its detention authority and arguing that the laws of war applied.
But when it comes to migrants on US soil accused of being members of gangs and cartels now deemed terrorist organizations, “this is not an armed conflict or a war,” said retired Air Force Lt. Col. Rachel VanLandingham, a national security law expert and law professor at Southwestern Law School. “So legally, very straightforwardly, there is zero legal basis for the president to declare them enemy combatants.”
One of the former DoD lawyers said it does remain an open question, however, whether the administration could argue that the Mexican government is in a war against the cartels that has “spilled over” into the US, making it a party to an armed conflict.
“They have total control over a whole nation, posing a grave threat to our national security,” Trump said in March, referring to the cartels in Mexico.
Trump has been actively socializing the idea that the US is at war with transnational gangs and cartels.
“The cartels are waging war on America, and it’s time for America to wage war on the cartels, which we are doing,” Trump said during his address to Congress in March.
He declared earlier this year that at least one transnational criminal group and recently designated foreign terrorist organization, Tren de Aragua, “is conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela,” and invoked the Alien Enemies Act as a way to swiftly deport Venezuelan migrants without a court hearing.
The use of the Alien Enemies Act has been struck down repeatedly in the courts, however, including as recently as Thursday when a federal judge permanently barred the administration from invoking it to deport Venezuelans from the Southern District of Texas. But the administration successfully deported over 130 Venezuelans to El Salvador under the AEA before courts intervened.
More broadly, Pentagon lawyers have been concerned with the Trump administration’s growing inclination to use the US military for public safety efforts traditionally handled by civilian law enforcement agencies and courts, one of the people familiar with the deliberations said.
Similar concerns were raised internally during the drafting of an executive order eventually issued by Trump Monday, which calls for DoD and the Justice Department to explore how military assets and personnel can be used to fight crime, this person added.
Hegseth ordered thousands of troops to the southern border in recent months to help law enforcement agencies repel migrant crossings there, and earlier this month Trump ordered the military to “take a more direct role” in efforts to secure the border by establishing a militarized buffer zone there on federal land. As a result, troops can now apprehend migrants who trespass in that area.
Administration lawyers are more open to applying the enemy combatant label to suspected cartel and gang members outside the US, the people familiar with the deliberations said. That could give the US a justification to use lethal force against them, some officials believe, similar to how the US conducts drone strikes on suspected terrorists in Iraq, Syria, and Somalia.
The CIA has similarly been reviewing its authorities to use lethal force against drug cartels in Mexico, CNN has reported, and is already flying surveillance drones that are capable of being armed over Mexico.
Agency officials have been “cautious” about using “assets traditionally going after what were seen as military targets now being employed against cartel targets,” a US official previously told CNN. But the enemy combatant label could ease those concerns, one of the people familiar with the deliberations explained.
