Small Wars Journal

Mexican Cartel Op-Ed No. 8

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Mexican Cartel Op-Ed No. 8: Will Joaquin “El Chapo” Guzman Loera be tried in Mexico or the United States?

Malcolm Beith

Editor’s Note— The author is a SWJ El Centro Fellow and has intimate knowledge of this subject matter having written The Last Narco: Inside the Hunt for El Chapo, the World’s Most Wanted Drug Lord in 2010. He is also the author of Hasta El Último Día in 2012 and has recently received a Master’s Degree in War Studies from the University of Glasgow. –RJB.

Will Joaquin “El Chapo” Guzman Loera be tried in Mexico or the United States? Since the alleged drug kingpin’s capture on Feb. 22, U.S. officials and politicians have called for his extradition, while Mexican officials have insisted he’ll first be tried in their country.

There’s much at stake here. Guzman Loera faces time served from his previous prison sentence (he escaped from a maximum security penitentiary in 2001); as well as charges of participation in organized crime, owning military-issue weapons, arms and drug trafficking, and obstruction of transportation networks in Mexico; in Illinois, California, Texas and New York, he faces charges of conspiring to import illegal drugs into the United States. No formal petition for extradition has been submitted by U.S. authorities – yet. 

Guzman Loera’s fate will likely depend on how the authorities in both countries choose to use him. Under USC 960 (a), enacted during the Bush administration, it’s possible he could be tried on terrorism charges in the United States; testimonies from an ongoing Sinaloa cartel-related trial in Chicago allege that in 2008, facing pressure from U.S. law enforcement in Mexico, Guzman Loera threatened to attack an embassy, consulate or media outlet. Should U.S. authorities choose to present him as a symbol of the so-called narco-terror nexus – an argument promoted shortly after Sept. 11 that the world’s terrorists and drug traffickers are increasingly crossing paths and making alliances – Guzman Loera could face a far lengthier sentence than if simply convicted of drug trafficking (which the existing indictments allege.) For an easier conviction, it would be more likely he be tried as a drug trafficker, and used for the information he knows, but everything would depend on the prosecutors. If tried in Chicago, where he has been designated Public Enemy No. 1 by the city’s crime commission, it’s quite possible that the authorities would try to charge him with as much as possible.

The authorities may well decide that Guzman Loera is more useful for what he knows. (It has been erroneously reported in Mexico that high-ranking officials want him designated a protected witness; this has yet to be determined.) And if they do use him for what he knows, the big question will be: how will the authorities use that information? The administration of Enrique Pena Nieto could easily use it to shame its predecessors and play a political game. There’s little doubt the current administration would like to present itself as tougher on organized crime that the government of President Felipe Calderon; political parties in Mexico (and in most other countries, for that matter) have rarely shied from playing games of one-upmanship against predecessors using any weapon in their arsenal.

Or Mexican authorities could use the information to inform the public, analyze the country’s corrupt institutions and figure out how to best forge ahead. The same applies to U.S. authorities, which have also allegedly been infiltrated on various occasions by Guzman Loera's people; shortly after his arrest, a U.S. law enforcement official familiar with the details of the capture admitted to the Dallas Morning News that Guzman Loera could help root out corruption on the U.S. side of the border too. Of course, all this could be risky; Guzman Loera may know so much that even before his knowledge could be put to good use, entire institutions could come toppling down. During the Calderon administration, efforts to root out corruption succeeded in many respects but also undermined public confidence in those institutions. For the administration, it was largely a zero-sum game.

Trying Guzman Loera in Mexico also carries certain risks, largely due to public distrust of the judicial system. If Guzman Loera is locked away in a maximum security penitentiary, it’s unlikely the authorities will allow him to maintain influence on cartel operations, as he did when imprisoned between 1993 and 2001; another brazen prison escape is equally unlikely. But public perception matters a great deal, and there’s little doubt a significant number of Mexican voters will believe Guzman Loera cut a deal if he’s hidden away in a Mexican prison. At least one U.S. official has also expressed doubts over whether Guzman Loera would provide the necessary information if kept in Mexico. Out of sight won’t mean out of mind, and given the weight that conspiracy theories about imprisoned or even dead narcos can carry in Mexico, Guzman Loera could continue to wield influence simply by being on Mexican soil.

About the Author(s)

Malcolm Beith is a freelance journalist and author of The Last Narco (Grove Press, 2010)— about the life of Joaquin “El Chapo” Guzman Loera— the undisputed leader of the Sinaloa Cartel. He is fluent in Spanish, lived in Mexico from 2007 to 2009, and has been tracking news stories in El Universal, Reforma, and La Jornada for years concerning allegations of ties between the Mexican political parties and the Sinaloa Cartel. While based in Mexico City, he regularly traveled to the hills of Sinaloa, Michoacan and Ciudad Juarez to conduct field research; he also visited several penitentiaries throughout the country to talk to drug traffickers. He has extensive contacts throughout Mexican officialdom; and regularly visits Mexico to update his reporting on the drug war. He wrote about the drug war regularly for Newsweek, and since the publication of The Last Narco, he has written pieces on the drug war for Foreign Policy Magazine, The Sunday Times, National Catholic Reporter, World Politics Review, The Sun (UK), Nogales International, FHM magazine, High Times and The Australian.