Mexican Government Wants to Strip DEA Agents of Immunity, Hand Over Information

Complicated gambit that ultimately will involve the border

By Andrew R. Arthur on December 9, 2020


Mexico's President Andrés Manuel López Obrador (commonly known by his initials, AMLO) has sent an "interesting" proposal to that country's Senate: Strip U.S. Drug Enforcement Administration (DEA) agents in the country of their diplomatic immunity, and require them to give Mexican authorities the information they gather. It is an interesting non-starter from the U.S. perspective — and a complicated gambit — that will ultimately involve the border.

Some background. To say that Mexico has a bit of an interrelated drug and corruption problem would be an understatement. The country has been fighting a war with drug traffickers for the last 14 years, and in 2019, according to the Congressional Research Service, the country recorded more than 34,500 homicides.

There are several factors, but drugs are at the top of the list. America's hunger for illicit narcotics is a main driver of Mexico's cartel problem. In its 2019 National Drug Threat Assessment, DEA put it bluntly: "Mexican TCOs [transnational criminal organizations, better known as "cartels"] remain the greatest criminal drug threat to the United States; no other groups are currently positioned to challenge them."

As another Mexican president, Porfirio Díaz, famously stated: "Poor Mexico. So far from God and so close to the United States." He had no idea.

For the cartels, business is good: They make between $15 billion and $29 billion from drug sales in the United States. For Mexico as a whole? Not so much.

For example, in June 2020 the Jalisco New Generation Cartel (CJNG) unsuccessfully attempted to assassinate Mexico City Police Chief Omar Garcia Harfuch, shooting him three times and killing two of his bodyguards and a bystander.

Less than a week earlier, at least five gunmen came to the Colima home of District Court Judge Uriel Villegas and his wife, Verónica Barajas, killing them in front of their two children and the children's nanny. In March 2018, Judge Villegas had ordered the transfer of Rubén 'El Menchito' Oseguera — the son of CJNG capo Nemesio "El Mencho" Oseguera — before Oseguera the younger was extradited to the United States. He had also overseen the trial of Miguel Angel 'El Z-40' Treviño, the head of another cartel, Los Zetas.

The Daily Mail (UK), citing El Universal, reported that by December 2019, 42 judges in Mexico had been given orders of security protection due to threats "or because their job function required it", and "at least 91 judges had bullet proof vehicles and 89 others had their own assigned security detail in 16 states and the capital, Mexico City."

Corruption is a problem in Mexico, but as the U.S. Department of State Country Reports on Human Rights Practices explained recently, the government has taken steps to address it — including by passing a constitutional reform, effective in March 2019, adding acts of corruption to the list of illegal activities for which the government can seize assets.

That said, as the State Department noted: "Organized criminal groups were implicated in numerous killings, acting with impunity and at times in league with corrupt federal, state, local, and security officials."

All of which makes AMLO's proposal more confusing — at least on its face. AP explains that in most countries, the head DEA agent has full diplomatic immunity, and his or her subordinates enjoy "some form of limited or technical immunity". Now, I do not want any U.S. government official abroad to randomly subvert the law, but if there were one place where the DEA needs protection — as the foregoing demonstrates — it's Mexico.

And, due to the drug-fueled corruption that still plagues that country — and the fact that the cartels make their money pushing those drugs to the United States — it is the last place that I would want the DEA sharing its secrets with the locals (except at the highest, and/or most trusted levels).

I am not alone in this conclusion. Mike Vigil, the DEA's former chief of international operations, told AP: "Sadly, there is endemic corruption within the (Mexican) government. It's going to be leaked, it's going to compromise agents, it's going to compromise informants." As that article notes:

The history of leaks is well documented. In 2017, the commander of a Mexican police intelligence-sharing unit that received DEA information was charged with passing the DEA data to the Beltran Leyva drug cartel in exchange for millions of dollars.

AMLO's proposals would also require "any Mexican public servant" — be they at the federal, state, or local level — who receives any communication from a U.S. agent (including a phone call or text) "to deliver a written report to the Foreign Relations Department and the Public Safety Department within three days."

Vigil contends:

It's just going to make a burdensome system. ... It is going to hinder bilateral operations, it is going to hinder bilateral exchange of information. This is going to be much more detrimental to Mexico than to the United States.

Ninety percent of the information sharing goes from the DEA to Mexico, rather from Mexico to the US. The vast majority of counter-drug successes in Mexico comes from DEA information.

So why this proposal, and why now? AP explains, that it "appears to reflect Mexico's anger about the arrest of former Mexican Defense Secretary Salvador Cienfuegos in Los Angeles in October."

Gen. Cienfuegos, who served as Mexico's defense minister from 2012 to 2018 under then-President Enrique Peña Nieto, was arrested at Los Angeles International Airport in October. In August 2019, he had been indicted by a grand jury in the Eastern District of New York on charges of conspiracy to participate in international distribution of drugs and money laundering.

More specifically, it was alleged that he had helped "Mexico's H-2 cartel smuggle thousands of pounds of cocaine, heroin, methamphetamine and marijuana" during his days heading up the Mexican military. A federal judge in Los Angeles denied him bond.

But on November 17, Mary Anastasia O'Grady in the Wall Street Journal reported, DOJ dropped the prosecution. He returned to Mexico — "where the government has said it will investigate the charges" — the next day. O'Grady doubts that will happen, and so do I. Obviously, however, Cienfuegos' arrest has shaken the Mexican government to its core — as AP posits is reflected in AMLO's DEA proposals.

Keep in mind that Peña Nieto himself is under investigation in Mexico for corruption, and is a member of a different political party (the Institutional Revolutionary Party or PRI) than AMLO (who is with the National Regeneration Movement, or MORENA). But O'Grady postulates that: "The Cienfuegos release was meant to salvage bilateral cooperation."

All of this brings me to the border, where "bilateral cooperation" between the two governments in the last two years has had a positive effect in reducing illegal entries.

As my colleague Todd Bensman explained in November, AMLO has deployed his national guard to 50 roadblocks throughout states on Mexico's southern border to prevent the entry of nationals of countries other than Mexico (OTMs) from proceeding through the country to the United States. He did so in response to threats of sanctions from the Trump administration. As Bensman noted, the presence of those troops has "essentially br[ought] northbound migrant traffic to a halt."

That deployment started in June 2019. The month before, Border Patrol apprehended 132,856 migrants who had attempted to enter at the Southwest border. By September, that number had dropped to 40,507.

The majority of aliens apprehended in FY 2019 were adults travelling with children (family units or FMUs) or unaccompanied alien children (UACs) — mostly OTMs. Specifically, of the 851,508 migrants taken into custody by Border Patrol, 76,020 were UACs and 473,682 were FMUs. Of those UACs, 62,748 were from the "Northern Triangle" countries of El Salvador, Guatemala, and Honduras, and of the FMUs, 430,546 were from those three countries. "Only" 10,487 of the UACs were Mexican nationals, as were 6,004 of the FMUs.

Mexicans did make up the bulk of single adults apprehended along that border — 149,967, but the Northern Triangle countries still accounted for 95,670 single adult apprehensions.

By FY 2020, total apprehensions had dropped to 400,651, the majority of whom were single adults (317,864, with 52,230 FMUs and 30,557 UACs), and the majority of those Mexican nationals (253,118). The Northern Triangle accounted for the majority of FMUs (25,725), and UACs (15,033), but the total numbers were significantly lower than the year before.

The Mexican national guard deployment was not the only factor in that decrease. The administration also rolled out the Migrant Protection Protocols (MPP or "Remain in Mexico"). Under MPP, OTMs entering illegally or without proper documents who make credible fear claims are sent back across the border to await their asylum hearings. MPP is only possible because of the Mexican government's willingness to accept the return of those OTMs.

And, in response to the pandemic, the administration has implemented its Title 42 authority. On March 20, the CDC director issued an order pursuant to that authority suspending the introduction of aliens into the United States who have entered this country illegally along the borders of the United States, or have sought entry at the land ports of entry without documentation, to prevent the introduction of the Wuhan coronavirus into this country, as I explained in May.

In FY 2020, 197,043 migrants apprehended by Border Patrol along the Southwest border were expelled under Title 42 — 49 percent of all Border Patrol encounters along that border last fiscal year. With respect to OTMs, that authority is only effective because of an agreement with the Mexican government to take those illegal entrants back.

When it comes to immigration, the United States is reliant on the Mexican government to secure our Southwest border. AMLO has publicly stated his support for the efforts that his country has taken to staunch the flow of OTMs through his country, but notably he was publicly critical of Trump as it related to Mexican migrants when he was running for president of Mexico in 2017.

With the prospect of the administration of president-elect presumptive Joe Biden, AMLO is likely looking for a reset in relations between the two countries. Biden has stated that he will end MPP, but it is questionable whether the former vice president wants a flood of migrants at the Southwest border to begin his term. He will be as reliant on AMLO in that regard as Trump has been.

Given these facts, AMLO's DEA proposal is likely a "flex" on the Mexican president's part to create a bargaining chip that he can use in future negotiations with Biden, if for nothing else than to counter complaints that he has been a "puppet" for the Trump administration.

I have no idea whether Cienfuegos is guilty of the charges against him or not, or whether DOJ simply dropped the case for lack of evidence, but the timing of his arrest at LAX was not good — at least from the perspective of the Mexican military, on which — as O'Grady notes — AMLO relies.

That said, AMLO — and Mexico as a whole — is likely looking for a fresh start on relations with the United States. The DEA proposal is likely a first step, but don't expect it to be the last. And, before all is said and done, anticipate that the United States' reliance on Mexico enforcing its southern border to protect ours will be on the table.

Topics: Mexico