01/11/21 (written by tmcginnis) — The National Regeneration Movement (Movimiento Regeneración Nacional, MORENA), President Andrés Manuel López Obrador’s (AMLO) ruling party, passed a new law that curbs the role of foreign law enforcement agents operating within the country. This legislation calls into question the durability of the U.S.-Mexico bilateral efforts to combat the presence of powerful organized crime groups (OCG) exercising significant control over the Mexican state.
Understanding the Legislation
As reported by InSight Crime, the law and subsequent reforms, approved on December 9 and 15 by the Senate and Congress respectively, strip diplomatic immunity from foreign officials, necessitate that foreign officials secure permits from the Defense Ministry (Secretaría de Defensa Nacional, SEDENA) to carry firearms, and require the aforementioned officials to share any and all security-related intelligence gathered while in Mexico with their proper Mexican counterparts. Concerning information exchanges, Vanda Felbab-Brown, a senior fellow at Brookings’ Center for Security, Strategy, and Technology, further details that both Mexican officials and law enforcement officers, whether it be at the local, state, or federal level, must report all communication with foreign law enforcement, intelligence agents, etc. within three days of the initial occurrence. Furthermore, meetings with foreign agents must obtain prior approval from high-ranking federal officials and require the presence of a member of the Mexican Foreign Ministry (Secretaría de Relaciones Exteriores, SRE).
Possible Initial Impetus
Although the legislation does not overtly single out agents or officials from any particular country, the United States Drug Enforcement Administration (DEA), which has maintained a strong operating presence in Mexico since the 1970s, will likely constitute one of the most impacted actors. According to Proceso, President AMLO put forth an initial proposal to regulate foreign officials in early December. As El Universal notes, this opening push came seemingly as a result of the arrest of Mexico’s former defense minister, Salvador Cienfuegos Zepeda, which occurred in October of 2020. Cienfuegos was arrested by DEA agents on U.S. soil on October 15 for alleged connections with drug trafficking and organized crime. At the time, El Universal reported that Mexican officials were unaware of the United States’ plans to arrest Cienfuegos. In fact, InSight Crime reports that Mexican officials had no knowledge of the multi-year investigation or the indictment filed in August of 2019. Furthermore, seeing that Cienfuegos represents the first senior Mexican military official to face arrest in the United States in connection to organized crime groups and drug trafficking, these gaps in intelligence simply compounded the existing shockwaves.
In attempting to rectify what Rita Kukertz of Justice in Mexico deems the “breach of trust” caused by the discrepancy in intelligence, the United States, in a move clearly breaking with decades of international law enforcement procedures and practices, dropped the charges and allowed Cienfuegos to return to Mexico. However, according to Brookings, this unprecedented action was predicated on the “premise of a bargain” to not expel U.S. law enforcement officials and agents from Mexico — a move the Mexican government had threatened in the past. Thus, the new law may be seen as a “double-cross” from Mexico, in that its significance or “practical impact” remains similar to expulsion. “Essentially, the law paralyzes Mexico’s cooperation with international law enforcement counterparts and eviscerates any remaining trust and meaningful law enforcement cooperation between the United States and Mexico,” writes Vanda Felbab-Brown of Brookings.
Predicted Impact
U.S. agencies have long engaged in joint operations with their Mexican counterparts to combat organized crime groups. Unfortunately, these efforts, working in tandem with billions of dollars in U.S. assistance, have not always achieved the desired outcomes and have, at times, resulted in serious missteps by the United States, as in the case of Cienfuegos or the 2011 attack on Allende by the Zetas cartel. However, it remains of critical importance to highlight that U.S. intelligence-gathering operations have been instrumental in arresting, prosecuting, and convicting high-profile individuals, such as Joaquín Guzmán Loera (“El Chapo”), the former Sinaloa Cartel kingpin. Thus, the security reforms have raised concerns for several actors. For example, in a formal statement, former U.S. Attorney General William P. Barr expressed that the United States is “troubled by legislation currently before the Mexican Congress.” He continued, arguing that the “passage of this legislation can only benefit the violent transnational criminal organizations and other criminals that we are jointly fighting.”
In assessing the principal impacts, a substantial amount of information sharing and intelligence gathering occurs at lower levels through potential informants and cooperative witnesses. However, actors like the DEA, who are now restricted and vulnerable to prosecution in Mexico, will be less willing to put themselves in danger to acquire and relay mutually beneficial intelligence. As detailed by Cecilia Farfán-Méndez, the Head of Security Research Programs at the University of California, San Diego’s Center for U.S.-Mexican Studies, with little incentive to engage in those conversations or coordinate exchanges, crucial information channels will begin to dwindle and wane, eventually drying up the evidentiary ammunition previously used to disrupt organized crime operations. Furthermore, as noted by Brookings, with the previously discussed condition necessitating the presence of a member of the Mexican Foreign Ministry during meetings with foreign agents, the ability to secure the attendance of a Foreign Relations official in an urgent time frame or complicated location (e.g. deep in Guerrero, Jalisco, etc.) could be rather unfeasible.
President López Obrador’s Motivations
Though a previous section discusses the arrest of Cienfuegos as a possible impetus for the law, one can also think of it more as a tipping point. President AMLO has several possible and more complicated motivations in pursuing such legislation. Firstly, and arguably most directly, AMLO faced pressure from the Mexican military to prevent further investigations and shockwaves, akin to what was witnessed regarding General Cienfuegos. AMLO has additionally privileged the presence of the Mexican military, SEDENA, in many traditionally civilian-run operations, such as the construction of airports, repairs of hospitals, etc. Analysts continue to raise concerns about the Mexican military’s ever-expanding power and influence.
Second, the president could be utilizing the legislation as a “bargaining chip.” AMLO still has to sign off on the law in order for it to reach formal implementation. However, if he delays signing, he could possibly generate leverage to hinder the U.S.’ incoming Biden Administration’s initiatives that will likely be controversial in the context of bilateral relations, such as energy reform and the mitigation of climate change.
Though the impact of this legislation on the U.S.-Mexico bilateral effort to combat organized crime is rather apparent, AMLO should remain wary of the possible unintended consequences as well. Brookings notes that by restricting the operations of U.S. law enforcement, this includes those U.S. Customs and Border Protection officials in Mexico who authorize the preclearance of cargo. Their limited presence will lead to a bottleneck of trucks waiting for inspection, creating issues in the supply chain and putting significant revenue, such as produce, at risk.
Sources
Keefe, Patrick. “The Hunt for El Chapo.” The New Yorker. April 28, 2014.
Sheridan, Mary Beth. “Perdiendo el control: Mientras la seguridad en México se deteriora, el poder de las fuerzas militares crece.” The Washington Post. December 17, 2020.
Thompson, Ginger. “Anatomía de una masacre.” ProPublica. June 12, 2017.
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