As I noted earlier we have lost the war on drugs and most of the reasons are self-inflicted damage done through our legal system not being geared to handle the matter, and our idealists wanting to treat drug deaths as an unfortunate consequence of what they see as a misdemeanor crime. There is, however, an answer to the Drug war and that is to take the war to the enemy vice allowing the enemy to dictate the place and time of engagement which they have been doing since 1970.
What should be done: The President should ask Congress to declare war and martial law along the Southern border of the United States. Those making war on the U.S. would be identified as the Mexican drug cartels and the Chinese who provide the precursors. This action would remove the restriction of the Posse Comitatus Act of 1878 which prohibits the use of military unless martial law is declared.
Then U.S. diplomats make nice with Mexico and inform that government there will be border crossings in force if necessary to counteract the cartels. Additionally, there may be air strikes to take out large force and drug manufacturing facilities. If Mexico is serious about handling the cartels, they will welcome the intervention. If they are not then they will face a total embargo of trade. As for border crossings the 1916-17 punitive expedition against Pancho Villa is precedent. Pershing took U.S. military troops across the border and deep into Mexico in pursuit of the revolutionary who had killed sixteen U.S. citizens in Columbus, New Mexico. The cartels have killed up to a 100,000 U.S. citizens in all fifty states per year. The Mexican government realized that capturing Villa would be to its interests just as shutting down the cartels will be.
Too much you say? No, not at all. As I noted earlier the war is lost doing the things we’ve tried since 1970. Those things aren’t working and neither is the U.S. Immigration or Judicial systems when applied against the war. If Congress specifically mandated martial law then military tribunals for criminal activity could be held by the military within the applicable areas. These tribunals use U.S. statute law but would not have the back up currently afflicting the U.S. Judicial System. Persons apprehended would be considered Prisoners of War but could be tried for war crimes if they were captured carrying lethal drugs to kill persons in the U.S. This would be the same as if they were apprehended carrying sarin gas or other weapons of mass destruction.
In fact the very first thing that could be done right now is for the Federal Government and applicable state governments to declare fentanyl in quantity a weapon of mass destruction and anyone arrested with fentanyl would be held without bond as terrorists.
The lawyers will step in here and argument all sorts of things about there is not an accepted legal definition of martial law, there is no Constitutional authority to declare martial law, there must be access to defense counsels, and a whole host of other things, all of which will slow and eventually hamstring the process. I have argued that we are a nation of laws and I fervently believe that, but I also believe that when the law allows people to die by the tens of thousands, then something is wrong with the law. In 1942 Congress declared martial law in Hawaii because of the imminent threat of invasion by Japan. That declaration lasted until 1944. There was a clear and present danger. I would argue that we are a bit late with martial law along the border because the invasion is ongoing and it has already overwhelmed civilian authority.