US President Donald Trump has designated the synthetic drug fentanyl as a weapon of mass destruction, putting the drug on par with nuclear bombs and weaponized biological agents, and further propelling the war on drugs to the forefront of his national security agenda.
Trump’s order directs the military to work with civilian agencies to ramp up the fight against fentanyl, the major driver of a surge in overdose deaths over the past decade that has killed tens of thousands of Americans.
“Illicit fentanyl is closer to a chemical weapon than a narcotic,” Trump said in the order.
Designating illicit fentanyl as a weapon of mass destruction (WMD) opens the door for the use of new legal tools against people involved in the fentanyl trade – even though drug trafficking laws already provide for harsh penalties.
The presidential WMD designation, which takes effect immediately, was not a prerequisite for bringing criminal charges against fentanyl traffickers, but it signals the president’s desire to use those laws against drug traffickers.
US federal law makes it illegal to use or conspire to use WMDs, and prosecutors have previously employed expansive definitions of the term. But courts may question whether applying WMD laws against drug traffickers stretches the legal definition too far.
“I don’t think they will be successful in this because it’s hard to justify fentanyl as a weapon of mass destruction,” said Jeffrey Breinholt, a legal scholar and former counterterrorism official at the US Justice Department.
One example where the WMD label has been used is in the case of Zacarias Moussaoui, who pleaded guilty to conspiring with the 9/11 attackers, including to a weapons of mass destruction charge in which the WMDs in question were the airplanes used in the attacks.
“The reason the prosecutors sought to define the planes as WMD was that this charge carried the death penalty, although ultimately that wasn’t applied in Moussaoui’s conviction,” said Michelle Bentley, a professor and WMD expert at Royal Holloway, University of London.
Justifying Military Action
Beyond the potential for criminal investigations and charges, the Trump administration may use the WMD designation as a justification for aggressive military actions against the illicit fentanyl trade or anyone associated with it.
The move comes amid Trump’s unprecedented escalation of the war on drugs, which he has framed as an extension of the war against terrorism. His administration has increasingly applied anti-terrorism tools against organized crime groups in Latin America and the Caribbean and carried out lethal military strikes on suspected drug trafficking boats in the region.
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The WMD designation of fentanyl echoes Trump’s use of Foreign Terrorist Organization (FTO) designations against many of the most prominent crime groups in Latin America and the Caribbean – a process that his government began at the beginning of this year.
Neither designation explicitly grants the president new military authority, but Trump has cited the FTO label to justify the lethal strikes on alleged drug boats, whose legality has been questioned by both US lawmakers and independent experts.
“It’s part of a larger effort to portray drugs in all of their manifestations as terrorism, because it kills Americans,” Breinholt said. “The premise of the Trump administration seems to be partly leveraging other authorities that have been in long existence within the Department of Justice to beg and borrow from the jurisprudence that was favorable to us in the 2000s.”
Long-Term Outlook
The inclusion of fentanyl precursor chemicals in Trump’s order raised questions about whether legitimate chemical producers and suppliers could get caught up in the enforcement net. Most chemicals used to produce fentanyl and other synthetic drugs have legitimate uses.
“Chemical weapons are really difficult to define,” Bentley said. “It isn’t so much that [Trump is] identifying a new threat as a WMD but sneaking this in under the classification of chemical weapons.”
SEE ALSO: How Precursor Chemicals Sustain Mexico’s Synthetic Drug Trade
It remains unclear how the administration might wield the WMD designation with respect to US and foreign businesses. But in the short term, the designation will likely have little impact on international rules that govern chemical weapons.
“These regimes have a very robust sense of what a WMD is, and Trump’s actions – which seem to apply only to this specific case right now – are unlikely to upset that,” Bentley said.
Still, Bentley added that “a wider trend of people playing around with the WMD term” could dilute the seriousness of the threat posed by the kind of arms traditionally included in that category.
“If that stigma is weakened in the longer term, this could have negative implications for our ability to control very destructive weapons,” Bentley said.
Featured Image: 30,000 Fentanyl pills trafficked by Mexican drug cartels and seized by the Interior Department Law Enforcement Task Force on Opioids. Credit: US Department of the Interior.