Extradition, transfer, or expulsion: The legal controversy behind a historic operation against the cartels

If on Thursday — as soon as the unusual operation in which Mexico sent 29 drug traffickers to the United States came to light — there was talk of extradition, hours later doubts began to arise and questions multiplied about the exact nature of the legal basis that expedited their delivery and unblocked extradition processes that had been stuck for years in the courts. The U.S. authorities employed different terms: “transfer,” said the Attorney General’s Office; “extradition,” said the White House; “expulsion,” said the State Department. Last Friday, Mexican Prosecutor General Alejandro Gertz clarified in a press conference that it was not an extradition, in accordance with the bilateral treaty on the matter between the two countries, but a “sending,” a vague term; security czar Omar García Harfuch spoke of a “transfer.” Gertz explained that the operation was carried out at the express request of the United States and that Mexico responded based on the National Security Law and the constitutional article that empowers the head of the government, President Claudia Sheinbaum, to preserve it.

The unexpected appeal was intended to overcome the deadlock that had been reached by several extradition requests made by Washington, which the drug lords and their lawyers managed to postpone in court through injunctions, some for over a decade. García Harfuch has underlined the responsibility of the judiciary in the blockage of the extradition processes and pointed to “agreements” between drug traffickers and “some judges who sought to favor them, as had already happened on other occasions and for many years.” Sheinbaum voiced her concern about corruption in the judiciary hours after it was announced that a judge ordered the release of Rosalinda González Valencia — the wife of the leader of the Jalisco New Generation Cartel (CJNG), Nemesio Oseguera Cervantes “El Mencho” — who had been sentenced for money laundering. “Corruption in the judiciary in our country is aberrant and offensive,” said the president.

The Extradition Treaty between the United States and Mexico, in force since 1974, establishes that the requesting country cannot impose the death penalty on a subject if the country of origin does not contemplate that punishment in its laws. However, given that the “sending” of the cartel capos did not occur in accordance with that norm, Washington is considering asking the courts for capital punishment for some of them, as in the case of Rafael Caro Quintero, accused of the murder of DEA agent Enrique “Kiki” Camarena in 1985. However, Gertz has stated that none of the bosses handed over can be executed. “We have a very clear agreement in the sense that legislation like Mexico’s, which does not have that punishment, must be respected in the countries where we have an agreement,” he indicated. “When an operation is subject to an international convention, as in this case, the conditions of that convention must be respected.”

Gertz has pointed out that Washington presented Mexico with a “formal,” “written,” and “concrete” request to carry out the operation specifically against the 29 drug lords within the framework of the Palermo Convention, the UN agreement to combat transnational organized crime that establishes guidelines on extradition (a recourse that, the official insisted, was not used). “There was a well-founded request from the United States government, that was the reason why the whole procedure was triggered,” he said. Gertz added that the institutional mobilization was immediate. “Within hours [of receiving the request], the National Security Council was convened, the analysis was made at that meeting, the legal bases were established, to ensure they were fulfilled, and the procedure was carried out. It was a timely matter,” he indicated.

Gertz was repeatedly questioned by the press about the specific legal mechanism that underpinned the operation. “They didn’t give it a name. They just complied with the law,” the official responded. The U.S. Attorney General’s Office said that Mexico handed over the cartel leaders in accordance with Executive Order 14157 signed by Donald Trump, by which several Mexican cartels were declared terrorist organizations.

Gertz said that the legal basis for Mexico to fulfill its part is found in the National Security Law, where, he said, “the parameters of necessity are established for reasons of political stability both in Mexico and in the United States.” He also cited Article 89 of the Constitution, which details the obligations of the government, one of which is “to preserve national security.” “Remember that an extradition law is not being applied. This is a national security request that the United States justified based on the criminal conduct of these people in that country, which coincides with the procedures and the knowledge we have of the evidence of their conduct,” he said.

The lengthy extradition process had already sparked complaints from Washington. Last year, the then-ambassador to Mexico, Ken Salazar, criticized the judges who had delayed the trial of the brothers Miguel and Omar Treviño Morales, alias Z-40 and Z-42, leaders of the bloodthirsty Los Zetas cartel, for more than a decade. Gertz has acknowledged that the legal resource used to prevent the extradition of criminals has created a precedent. “An option was opened that was within the Mexican legal framework and that they [Washington] took advantage of,” he said. The official has defended the process, stating that “the solutions that are taken” against organized crime benefit, first and foremost, Mexicans.

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