Ximena Medellín Urquiaga*
Versión en español aquí.
Few people could have predicted that Salvador Cienfuegos would return to the public eye so forcefully, years after leaving his post as Mexico’s Secretary of National Defense. Nonetheless, the retired general is now at the center of an international scandal that could undermine the legitimacy of the anti-corruption discourse of the current administration of President Andrés Manuel López Obrador.
Salvador Cienfuegos is a career military man who joined the Mexican armed forces in 1964. His position as Secretary of National Defense during the six years of Enrique Peña Nieto’s government was preceded by other high-ranking commissions, including the command of several military regions covering the states of Guerrero, Chiapas, Tabasco, Jalisco, Colima, Nayarit, Zacatecas, and Aguascalientes, as well as the State of Mexico and Mexico City. Coincidentally or not, Cienfuegos has been present for decades in some of the areas with the highest levels of violence and unrest—both political and social—in Mexico. His possible involvement in various crimes and human rights violations is, for now, only speculation that should be clarified through the appropriate processes.
In an unexpected turn of events, Cienfuegos was arrested in October of this year by U.S. authorities upon his arrival at Los Angeles International Airport. According to public information, the arrest followed a grand jury indictment for the crimes of (i) participation in an international conspiracy to distribute heroin, cocaine, methamphetamine, and marijuana, (ii) conspiracy to import heroin, cocaine, methamphetamine, and marijuana, (iii) conspiracy to distribute heroin, cocaine, methamphetamine, and marijuana, and (iv) conspiracy to launder the proceeds of drug trafficking. As has been publicly acknowledged, Mexican authorities were kept out of the loop during the months of the investigation.
Salvador Cienfuegos’s arrest seemed to be one of the most important pieces in the intricate legal puzzle that the U.S. has gradually put together around cases linked to the operation of Mexican criminal organizations. If the case against Genaro García Luna—Secretary of Public Security during the administration of Felipe Calderón Hinojosa—provided a predictable glimpse into the ties between part of Mexico’s political leadership and organized crime, the charges against the general were a new twist that pointed for the first time to the most senior ranks of an institution that until then seemed almost untouchable.
The optimistic mood surrounding the arrest soon gave way to speculation when, a little more than a month later, the public learned through a joint statement that the charges against Cienfuegos had been dropped in the U.S. and that he was about to be repatriated to Mexico. The official rationale: an agreement between the U.S. Department of Justice and Mexico’s Office of the Prosecutor General [Fiscalía General de la República] (FGR) to give priority to Mexican officials in the prosecution of any crimes the general may have committed.
In the following days, Mexican authorities, particularly Foreign Minister Marcelo Ebrard, stated categorically that the decision was merely an acknowledgment of Mexican sovereignty and the “prestige” of its institutions, as well as the solid relationship of cooperation between the two countries in the fight against drug trafficking. Authorities have repeatedly maintained that the pressure exerted to obtain Cienfuegos’s return should neither be understood as special treatment on account of his military status, nor as an easy path to impunity for the possible crimes for which he is now being investigated in Mexico. It has also been denied that the agreement is based on undisclosed commitments that Mexico has made to its North American counterparts.
Beyond the political suspicions that this case may raise on either side of the border, the explanation offered by Mexican authorities hardly seems consistent with a cursory examination of the legal arguments in the case. Admittedly, the first two years of President López Obrador’s administration have been marked by an unorthodox approach to—if not complete disdain for—established legal procedures. However, in this context, the administration’s clear disregard only increases public distrust of the official position of both governments.
Without speculating on hidden agendas, let us review the merit of some of the arguments put forward about the Mexican authorities’ interest in securing the general’s repatriation at (apparently) all costs.
- Sovereignty: President López Obrador has declared that the potential prosecution of Cienfuegos in the U.S. would violate Mexican sovereignty since—if the crimes were committed in our country—it is our authorities who should investigate and, if necessary, punish the perpetrators. In reality, considering the crimes alleged against the general, there may well be a legal argument that some of the conduct or its effects occurred in U.S. territory. Since the beginning of the 20th century, international law has clearly recognized that countries in which a crime is partially committed or in which its effects are felt also have territorial jurisdiction for purposes of criminal investigation and prosecution. This would appear to be the case of Cienfuegos’s alleged criminal conduct.
Normally, when two or more States can claim jurisdiction over the same matter, pragmatic criteria—such as the extent to which the investigations have progressed—should be considered in determining who should have priority in the specific case. By this logic, the argument of Mexican “sovereignty” is blurred, particularly when the U.S. authorities’ investigation of the Cienfuegos case, which lasted more than a year and a half, is contrasted with the few days of action taken by the FGR.
Mexico has been generally unreceptive to an expansive view of extraterritorial jurisdiction. However, it bears repeating that this argument would not apply to the investigation against the general—at least not according to the information that has come to light from the documents made public in the United States.
- The mutual legal assistance agreement: For his part, Foreign Minister Marcelo Ebrard has stressed that the lack of cooperation between the two countries for the investigation and subsequent arrest of Cienfuegos in the U.S. was a breach of the Treaty on Cooperation between the United States of America and the United Mexican States for Mutual Legal Assistance. As Foreign Minister Ebrard stated publicly, it was emphasized in the diplomatic dialogue that if U.S. authorities were not willing to abide by the legal framework for cooperation between the two countries, it would be time to review all the other agreements or practices that have been developed in this area over the last few decades. This was interpreted as a veiled threat by the Mexican authorities, who would go so far as to jeopardize various joint operations underway just to secure Cienfuegos’s repatriation to Mexico.
The reality is that the legal assistance agreement referred to by the Mexican foreign minister does not require any country to report on ongoing investigations or to request cooperation for the execution of an arrest warrant in its own territory. Nor does it establish that all cases over which both States may claim jurisdiction must be investigated jointly.
If this has been the practice in all previous cases—which is also highly unlikely—the argument might hold some diplomatic weight but would not legally amount to the breach of an agreement of a different scope. Rather, the inconsistency between the argument made and the obligations enshrined in the treaty calls into question, once again, the public explanation given by the Mexican authorities.
- “Injustice”: Another argument was, in the words of President López Obrador, the “injustice” of arresting the general based on unlawfully obtained evidence and before his responsibility was established. This allegation is surprising in that (i) the President did not offer any proof of the “illegality” of the evidence, while (ii) his own political party (Morena) has taken it upon itself to exponentially and unjustifiably expand automatic pretrial detention in Mexico (i.e., the limitation of freedom from the time of the initial arrest, without the chance to have a judge weigh the appropriateness of the measure in each case).
In strictly legal terms, if Cienfuegos were charged in the Mexican courts with offenses similar to those contained in the U.S. grand jury’s indictment, they would have to order his detention without the possibility of release on bond. Nevertheless, upon his return to Mexico, the general was only in the (apparent) custody of Mexican authorities for less than an hour before he went home by his own means. So far, no charges or precautionary measures have been announced that could limit Cienfuegos’s freedom in any way. This, in a country where measures such as pretrial detention or orders barring the defendant from leaving the jurisdiction are commonly used.
In this context, it is striking that President López Obrador has so vehemently expressed his concern about the legal status of General Cienfuegos, while at the same time overlooking the reality of Mexico’s deteriorated justice system. Contrary to President Lopez Obrador’s statements, injustice is what hundreds of thousands of people in Mexico experience every day as they are deprived of their liberty while waiting for a court case that can take years to be resolved. This trend is only exacerbated by the punitive strategy that the current administration has decided to maintain in its (supposed) fight against drugs and corruption.
The atypical action of the Mexican authorities (if not also their U.S. counterparts) is accentuated by the fact that the established legal procedures provided an answer to their dilemma: an eventual request for the extradition of General Cienfuegos to Mexico. Even if we give the benefit of the doubt to the federal executive branch, its course of action should have been limited to the way countries normally claim custody of their nationals, to be tried by their own authorities, based on an investigation that supports an arrest warrant for extradition purposes.
The Mexican authorities instead decided to act before they could even open an investigation to prosecute Cienfuegos in the national courts. Whether out of haste or due to internal or external pressure, the general’s treatment stands in stark contrast to that of other Mexican nationals detained in the United States on similar charges. At the same time, the actions taken thus far by the relevant Mexican institutions do not guarantee that the military authorities will remain on the sidelines of the investigations currently being conducted (presumably) by the FGR. Put simply, the ways in which the Cienfuegos case has been handled do not bode well for an outcome compatible with the discourse against corruption and impunity.
Overall, the conduct of Mexico’s federal government sends—whether it wants to or not—a message of boundless commitment and extraordinary protection to military institutions. The question is whether this message will also be understood as a recognition of the privileges and immunities (in the worst sense of the word) that the current administration is willing to grant to the military, or at least to the highest echelons of power within it. The fear is that a point of no return has been crossed in the civil-military relationship in Mexico. In this regard, the “Cienfuegos Affair” may go far beyond the rejection of impunity for alleged crimes committed by a member of the military to become a watershed in Mexico’s history of violence.
President López Obrador does not seem to be “simply” handing the country over to the armed forces. That, at least, would denote a voluntary action on his part. Much worse than that, President López Obrador seems to have yielded to them, given his inability to implement the government plans that exist in his imagination. Cornered by the reality of a country in crisis, the president has chosen to build alliances with a single actor, without realizing the incredible imbalance of power operating against him. The threads are being woven little by little, making the Cienfuegos case a top priority. The question is whether, at the end of those threads, López Obrador will emerge as a puppet subject to the designs of the Mexican armed forces or whether he will instead be able to maintain control over the institution he has decided to favor. For now, what is clear is that the stakes are high for Mexico’s future.
*Associate professor and researcher at the Center for Research and Teaching in Economics (CIDE), Legal Studies Division
Photo: Wikimedia Commons