Drugs, violence and national security law: an attendee’s report

For all you national security law junkies, here’s a firsthand report from my CNAS colleague Jennifer Bernal on the American Bar Association’s two-day long annual hoedown on National Security Law. (I know, what was second prize?):

There was one panel that I made not sure not to miss: ‘Narco-violence Along the Border,’ correctly — in my opinion — flagged as ‘an emerging issue in national security law.’

I work on issues related to this narco-violence at CNAS, so I found the fact that this issue was prominently featured at the ABA conference both striking and encouraging. Now, as with most unsettling geopolitical phenomena, one can argue at different levels whether and how the situation in Mexico poses a national security threat to the United States. (The ‘failed state’ argument that an unstable southern neighbor is inherently detrimental to U.S. security versus the view that only considers direct attacks on the U.S. homeland, and so on.) What is certain is that the drug war in Mexico now routinely spills across the border. (It’s why cities in places like Arizona are now tremendously unsafe, with drug-related kidnapping rates that have tripled in the past eight years.)

As the panel moderator put it: To what extent should we deal with drug-trafficking groups with the same methods we use with terrorist ones? How should the U.S. government handle the line between law-enforcement and intelligence- and military-oriented responses? Given a national legal framework that depends on formal categories (citizen vs. non-citizen, state vs. non-state) and the ways in which drug violence and associated problems repeatedly defy them, the answers are complicated indeed.

Unfortunately, the panel fell flat of my expectations by omitting to address these questions completely. The preceding discussion, ‘Legislative Update on Developments in National Security Law,’ was as jargon-y as you would expect from its title, setting my expectations for the upcoming one. Yet — and as ironic as this sounds — what was missing from the panel on narco-violence was a discussion of, well, law. What we got instead was a very thorough run-down of the situation in Mexico. The panelists discussed mounting death tolls (more than 5,600 casualties in 2008 alone), the alarming amount of manpower and firepower wielded by cartels, the chaotic nature of the confrontations between them, as well as the ways in which the U.S. exacerbates the conflict (drug demand and gun supply). Most of this information was on point, but it never evolved into a policy discussion.

Fact: most people don’t know as much as they should about Mexico. (This became painfully obvious during a low moment in the panel when the speaker asked the audience a number of very basic questions about the country, to astounding general silence.) There’s value to informing people. Yet I would have hoped for more from a discussion hosted by the ABA. Even what is arguably the biggest and most obvious legal question when it comes to policies to curb U.S. drug demand, the de-criminalization of marijuana, emerged as an afterthought in the very last question of the Q&A. Really?

Certainly, even just getting the facts right is important. It’s also why I’ll take this chance briefly to discuss two particular items of misinformation that I hear cited at just about every turn. I don’t mean to claim that they’re the most important, only that they keep coming up and require clarification.

(Read on)

The first is related to the ‘failed state’ argument I briefly mentioned above. No one has seriously argued that Mexico is on the brink of becoming one. Panelist Eric Olson of the Woodrow Wilson Center for scholars correctly noted that the now-infamous U.S. Joint Forces Command report that supposedly lumped together Mexico and Pakistan as being at risk of a ‘rapid and sudden collapse’ is one of the most misinterpreted briefing documents out there. The report was actually extremely speculative in nature, seeking to outline contingency plans for U.S. force preparedness in the case of such an extreme event. Mexico is not a failed state. This may seem a minor quibble, but making unnecessarily alarmist claims has very significant diplomatic implications and detracts from what can actually be done to improve the situation.

The second point is related to U.S. gun supply. People keep stating that up to 90% of weapons used by drug traffickers come from the U.S., citing a study carried out by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Everyone repeats this claim — from Mexican officials to U.S. scholars to Hillary Clinton. It is inaccurate: the real proportion is actually much lower, though I won’t venture a precise figure. The ATF stated that up to 90% of weapons traced have been linked back to the U.S. This takes into account neither the weapons not traced by the ATF (most of them) nor those that clearly originated in places like Russia, China, and so on.  It is also in the interest of Mexican authorities to selectively report those weapons that did originate in the U.S. in order to gain leverage in bilateral negotiations. 

Conservatives in the U.S. tend to use the confusion over the numbers as a red herring. There is value, however, to acknowledging that the battle against weapons trafficking must take place along multiple fronts in a country like Mexico, with its many miles of coastlines and lax southern border. Whatever the precise number of guns entering Mexico from the north, it is certainly excessively high and the U.S. must hence take measures to stem the flow (assault weapons bans, etc). But that’s for another discussion.

So, at what point to you stop sharing basic information and attempt to elevate the debate? As summarized by a friend: about once a month, some significant event gets featured on CNN and leads to an ‘Oh (expletive), Mexico!’ moment. Those then tend to fade. Do people still need to be told over and over that there is a dire situation at hand? The answers are not clear to me. After all, the C-SPAN crew at the Renaissance Hotel, which had been present to cover all of the morning panels, left just in time to miss out on the Mexico debate.”

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