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- By Levi Rickert
Guest Opinion. Weapons of mass destruction have traditionally been characterized by the acronym “CBRN” (chemical, biological, radiological, and nuclear), but WMDs can also include devices such as bombs and explosives. These categories have been incorporated into federal law over time in response to attacks, disasters, and international obligations. The federal crime involving the possession or use of biological weapons was enacted in 1989 pursuant to the Biological Weapons Convention. In 1994, Congress passed a criminal statute covering all weapons of mass destruction, including radiological and nuclear weapons. The Chemical Weapons Convention, which entered into force in 1997, likewise required the enactment of criminal statutes punishing the possession or use of chemical weapons.
Now, another substance threatening national security has been added to the list.
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On Dec. 15, 2025, President Trump added “illicit fentanyl” and “its core precursor chemicals” to the short list of weapons of mass destruction. Why did fentanyl, a deadly street drug, become a weapon of mass destruction? The policy rationale is stated in the executive order as follows:
“Illicit fentanyl is closer to a chemical weapon than a narcotic. Two milligrams, an almost undetectable trace amount equivalent to 10 to 15 grains of table salt, constitutes a lethal dose. Hundreds of thousands of Americans have died from fentanyl overdoses.”
Why, then, is designating fentanyl as a weapon of mass destruction useful? In summary, it increases potential penalties—including the death penalty—when the use of fentanyl results in death, and it authorizes the use of military resources to assist the Department of Justice when the military’s unique capabilities are necessary to respond to a fentanyl-related emergency.
Authority to Use the Military
One of the primary consequences of designating illicit fentanyl as a weapon of mass destruction is that military resources may be deployed in emergency situations to assist the Department of Justice. Federal law specifically authorizes military support when responding to weapons of mass destruction, a provision cited in the executive order.
The statute defines such an emergency as one that “poses a serious threat to the interests of the United States,” where national security interests are at stake and only the military’s resources can uniquely assist the Department of Justice.
Fentanyl Defined as a WMD?
Federal law authorizing military support for responses to weapons of mass destruction also references statutes defining those weapons: biological weapons, chemical weapons, nuclear weapons, and “other weapons of mass destruction.”
Under 18 U.S.C. § 2332a, a weapon of mass destruction is defined, in part, as:
“any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors.”
Under this definition, illicit fentanyl could fall within the scope of a weapon of mass destruction.
On Death Row: Fentanyl Distribution and the Death Penalty
Under existing drug statutes, the maximum penalty for the distribution of fentanyl—including conspiracy—is generally 20 years. By contrast, the maximum penalty for the use of a weapon of mass destruction that results in death is the death penalty.
Because the executive order describes illicit fentanyl as akin to a chemical weapon, enforcement is likely to rely on this statutory definition of a weapon of mass destruction. That statute authorizes the most severe penalties:
“[A violator] shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.”
What About Medical Fentanyl?
One potential unintended consequence of criminalizing fentanyl as a weapon of mass destruction is the concern that hospitals and medical providers could be prohibited from possessing or purchasing it. A comparable situation exists with botulinum toxin, which is classified as a select agent and criminalized as a weapon of mass destruction when possessed in amounts not permitted under federal law.
When Botox came under scrutiny for potentially violating criminal statutes, regulators drew a distinction between FDA-approved medical products and non-FDA-registered uses of botulinum toxin. Similarly, FDA-approved medical uses of fentanyl should be exempt from the application of federal chemical weapons statutes or from the executive order specifically designating fentanyl as a weapon of mass destruction.
Final Thoughts
Increasing penalties and expanding resources to address the fentanyl crisis represents the latest effort in a decades-long national struggle, from the War on Drugs in the 1970s to the creation of the “Drug Czar” position, the “Just Say No” campaign, and litigation against opioid manufacturers. Fentanyl has created a new and devastating crisis, resulting in hundreds of thousands of deaths while funding drug cartels and, increasingly, terrorist organizations.
This new designation may mark a turning point in addressing a problem that has long resisted solutions. Fortunately, existing law may now provide a path to finally confront the threat more effectively.
To read more articles by Professor Sutton go to: https://profvictoria.substack.
Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.
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