War Against Transnational Organized Crime?

On October 1, 2014 I will be presenting at the New York University School of Law’s Hauser Colloquium.  My paper is entitled “War Against Transnational Organized Crime?”  From the introduction:

Over the past decade, the U.S. military has used surveillance and reconnaissance capabilities in support of lethal actions directed against organized criminals. The public record reveals the U.S. military was involved in the killing of high value “narco-terrorists.” The U.S. Air Force supported the shoot-down or force-down of aircraft involved in illicit trafficking, resulting in seven aircraft seized or destroyed, and eight pilots dead on arrival, arrested, or missing. The Department of Defense has expanded their traditional focus from targeting terrorist groups and narcotics traffickers toward combating the national security threats posed by transnational criminal organizations. The shift in focus has meant that the Department of Defense is now providing support ranging from partnering with other U.S. government agencies, to assisting foreign militaries, building institutions and even engaging in direct military action against terrorists or insurgent groups that also engage in crime.

Inside government, officials are struggling to find ways that DoD can support law enforcement agencies while still complying with limits placed by defense appropriations — which oftentimes only allow for the use of funds to support law enforcement activity against drug traffickers or drug traffickers where there is a clear counterterrorism nexus. This counterterrorism-counternarcotics nexus limitation is a significant one as it has prevented DoD from supporting other government agencies in their fight against traffickers whose operations may end up supporting terrorism, but whose connection to narcotics trafficking is weak or not provable. While this limitation has in some instances prevented DoD from supporting other government agencies, it is also believed that in some instances, agencies are loosely interpreting the counternarcotics-counterterrorism nexus to make an end run around the law.

As the Department of Defense begins to shift focus to countering transnational criminal organizations, a few significant issues become immediately important.  Is the trend towards militarization a positive development? Might such a trend displace more effective “non-kinetic” means of dealing with law enforcement problems?  Is it possible that the trend towards militarization will increase violence as TCOs see themselves pitted in an arms race against well armed enforcers?  Might the trend towards militarization challenge international law and threaten human rights. Specifically may we see sovereignty violated through abductions or lethal action against suspected TOCs?  Might military readiness suffer as armed forces trained and equipped for combat, shift to law enforcement type missions. What resource constraints might be raised by such a development? Is this an appropriate use of resources? What will the impact be on readiness for major combat operations?  Does a shift toward militarized law enforcement (or the military engaged in law enforcement) undermine traditional approaches to policing? Will line drawing become increasingly difficult? Will such a shift even work? If it does work, what costs might be associated with success? How will success be measured?

Gregory S. McNeal

Along with being a successful entrepreneur, I am a tenured Professor of Law and Public Policy at Pepperdine University. I teach courses related to technology, law, and policy, and serve as a faculty member with the Palmer Center for Entrepreneurship.

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