High Profile Tests for Mexican Justice, Bilateral Cooperation

Former Mexican Defense Secretary Salvador Cienfuegos. Photo: NSS Oaxaca

By EARL ANTHONY WAYNE, former U.S. ambassador to Mexico

Mexico’s law enforcement and justice system is now in the spotlight over U.S.-Mexico cross-border crime.

Mexico’ public security and justice systems currently face a series of “stress tests”: handling charges against two former Mexican secretaries for aiding criminal groups trafficking drugs to the United States; the still-ongoing investigation of the November 2018 murders of U.S. citizen women and children in Sonora by members of criminal trafficking gang; substantial flows of lethal synthetic opioids through Mexico to the United States evident in rising Mexican and U.S. seizures; and continuing high homicide numbers in Mexico.

On Sunday, Nov. 29, Mexican authorities said they had issued an arrest warrant for former Security Secretary Genaro García Luna for illicit enrichment. García Luna is on trial in the United States for aiding the Sinaloa Drug Cartel.

Mexican authorities recently announced the capture of a gang member accused of being the mastermind for the killing of the U.S. citizen women and six children last year. Surviving family members welcome the progress of this and other arrests, but have expressed doubts as tp whether the guilty will be brought to justice.

And most notably, the United States released to Mexico for investigation former Defense Secretary Salvador Cienfuegos, who had been arrested in Los Angeles in October and charged with aiding Mexican drug traffickers.

It is the U.S. arrest and release to Mexico of retired General Cienfuegos that has attracted the most attention because of his past role in leading Mexico’s armed forces and because of the Mexican government’s surprise, Mexican anger over the U.S. investigation, and the potential impact on future U.S.-Mexican security cooperation.

Cienfuegos’ return to Mexico has set up a high-profile test for Mexico’s justice system. The case underscores serious challenges to deeper and more effective U.S.-Mexico cooperation against drug smuggling and other cross-border crime.

The Cienfuegos case has sapped trust on both sides of the border. As Defense Secretary, Cienfuegos oversaw increasingly close U.S.-Mexico military-to-military cooperation from 2012 to 2014. However, he was charged by U.S. authorities with aiding a lesser-known Mexican drug smuggling group, identified as H-2. The U.S. Attorney General’s Officedropped the charges and turned the evidence over to his Mexican counterpart in the interest of “partnership” and a “united front” against criminality, in response to Mexican government complaints.

Following the U.S. agreement to drop charges, Mexico’s Foreign Relations Secretary Marcelo Ebrard promised an investigation that meets the “highest standards of effectiveness and honesty,” and President Andrés Manuel López Obrador (AMLO) said that his government is up to the task. Ebrard also made a more controversial statement: “Whoever is culpable according to our laws will be tried, judged and if applicable, sentenced in Mexico, and not in other countries,” and he said that the United States has now agreed to this. This would be a break with past U.S. practice and very surprising, given Mexico’s poor record on investigations and convictions, its poor global ranking for control of corruption and the amount of crime tied to Mexico in the United States.

Many questions still swirl around the general’s mid-October arrest and the factors that led the Donald Trump administration to release him to Mexico in mid-November.

Mexican authorities were angered that the United States did not give them a heads-up about the investigation and threatened to curtail bilateral cooperation.  U.S. prosecutors and investigators are no doubt asking why a “strong” case against Cienfuegos for aiding a drug trafficking organization was dropped and ceded to Mexico, in the name of preserving bilateral anti-crime cooperation.  Experts speculate about the tradeoffs, threats and promises that led U.S. Attorney General Willian Barr to drop U.S. charges.

Media coverage examines what domestic pressures might have been brought on López Obrador by Cienfuegos’ former military colleagues to free him. Mexico’s president relies heavily on the army for assuring public security, controlling migration and building key infrastructure projects. AMLO needs the army’s continued support, analysts argue. Some wonder whether Cienfuegos had damaging information that could have become known to the United States had he stayed in U.S. custody and sought a plea bargain. It is also unclear what the impact will be on U.S.-Mexico military-to-military cooperation, where Cienfuegos had played a key role.

The chances for a successful Mexican prosecution of Cienfuegos are unclear, especially as U.S. evidence against him includes cell phone data collected without approval of a Mexican judge, which is thus possibly not admissible in Mexico’s courts.

Commentary in Mexico has focused on questions of sovereignty. More pressing is that drug trafficking groups are directly and indirectly responsible for tens of thousands of deaths on both sides of the border, via violence in Mexico and overdoses, deaths and suffering in the United States caused by the fentanyl, heroin and meth smuggled in from Mexico.

FY2020 was marked by substantial increases in hard drug seizures at the U.S.-Mexican border. U.S. drug sales provide many billions of dollars in profits to Mexican criminal groups, which are used to buy powerful U.S. arms smuggled back to Mexico and to fund corruption. Mexico set a record of more than 34,000 homicides in 2019. The economic cost of Mexico’s criminal violence is estimated as the equivalent of 21 percent of Mexico’s GDP.

If the case against Cienfuegos is mishandled or falters, the spotlight will be on flaws in Mexico’s justice system and the government’s claims that it can effectively take on high-level corruption cases.

Importantly, a poorly handled case will further erode the confidence of U.S. law enforcement and justice officials in their Mexican partners. It would likely also undermine the morale of law-abiding Mexican officials committed to stopping violent criminal groups and putting their lives at risk.

Building mutual U.S.-Mexican trust had been a persistent challenge in fighting cross-border crime. Over the years, there have frequently been unverified reports of criminals buying off senior security officials. The United States worked to manage this challenge by developing systems for vetting and monitoring those involved in sensitive cooperation and by providing assistance via the Merida program to set up internal affairs units and other systems to regularly monitor for evidence of corruption. Despite many good and trustworthy Mexican partners, the systems in place are still flawed and need reinforcement, given the coercion and money available to criminal groups.

General Cienfuegos should be considered innocent until proven guilty, and whatever transpired, he deserves fair treatment under the law.

However, the seriousness of Mexico’s investigation and handling of his case will send important signals about Mexico’s willingness to investigate drug-trafficking ties among senior officials and the capacity of its justice system to deal effectively with corruption.

From a U.S.-Mexico perspective, Mexico’s management of the case will have a big impact on whether Mexico and the United States will be able to improve their collaboration to combat drug trafficking groups.

Despite the Cienfuegos case and U.S. charges against former Mexican Security Secretary Garcia Luna and two of his deputies, neither government can escape the responsibility of protecting its citizen by cooperating with its neighbor against deadly cross-border crime.

The U.S. and Mexican governments should undertake a fresh, no-fault review of anti-crime cooperation and put in place better mechanisms that can help check, monitor and prevent corruption and influence by criminals on officials from either country.

The worst outcome would be declining trust and less effective work against the cross-border drug and arms trade. Both governments owe it to their citizens to focus on ways to build mutual trust and achieve better results against criminal trafficking organizations.

EARL ANTHONY WAYNE is a career diplomat who served as U.S. ambassador to Mexico from 2011 to 2015 and who currently serves as co-chair of the advisory board at the Wilson Center’s Mexico Institute and is distinguished diplomat in residence at American University’s School of International Service.

…Dec. 1, 2020


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