On October 15, U.S. authorities arrested Gen. Salvador Cienfuegos, the former head of Mexico’s Ministry of Defense (Secretaría de la Defensa Nacional, SEDENA) under charges that include aiding the so-called H-2 cartel during his tenure as army chief. While the arrest warrant was issued in August 2019, Mexican authorities had no open investigations concerning Cienfuegos and were unaware that the U.S. government was investigating him.
On November 17, citing “sensitive and important foreign policy considerations,” the U.S. government dropped its charges and handed Cienfuegos over to Mexican authorities. According to media reports, Mexican authorities, outraged by the surprise arrest, threatened to kick out Drug Enforcement Administration (DEA) authorities operating in Mexico, although the full scope of Mexican pressure and the negotiations with the U.S. is not clear.
The incident shone a light on Mexico’s ongoing struggles to address graft and drug cartel corruption, sometimes at the very highest levels of its security institutions. It also raises questions about the status of Mexico’s ongoing efforts to confront these deep-rooted issues, via nationwide anti-corruption initiatives, more than a decade of justice reforms, and a total rehaul of its attorney general’s office.
As the U.S. government continues to work with Mexico in law enforcement matters, it should emphasize the fundamental importance of continuing to strengthen the FGR and the National Anti-Corruption System...
Cienfuegos’s arrest would have been among several cases involving corrupt Mexican officials that are being prosecuted in the United States—but not in Mexico.
In December 2019, U.S. authorities arrested Mexico’s former public security head Genaro García Luna, for allegedly accepting multi-million dollar bribes from the Sinaloa Cartel in exchange for allowing the criminal group “to operate with impunity in Mexico.” Prosecutors say García Luna even directly participated in the cartel’s drug trafficking operations during his tenure as minister of public security between 2006 and 2012. Two other high-ranking law enforcement officials who worked under García Luna—Luis Cárdenas Palomino and Ramón Pequeño García—also face drug trafficking charges in the United States. Another former Mexican federal police officer, Ramon Santoyoa Cristobal, who was also allegedly working for the Sinaloa cartel, was extradited to the U.S. from Italy on November 19. In 2017, U.S. authorities arrested the attorney general from the western state of Nayarit, Edgar Veytia, on drug trafficking charges. When in 2017 Italian authorities arrested Tomas Yarrington, a former governor of Tamaulipas, the United Statesand Mexican governments agreed to grant precedence to the U.S. extradition request.
The Andrés Manuel López Obrador government is facing a major test in terms of demonstrating its commitment to anti-corruption efforts and justice reforms...
These U.S. prosecutions are taking place despite the fact that Mexico has taken notable steps in recent years to strengthen its institutional capacity to handle corruption cases domestically, including investigations and prosecutions against former governors and other officials. On November 4, for example, an arrest warrant was issued against the former governor of Nayarit Roberto Franco for bribery, among other charges.
Between 2015 and 2016, the Mexican government enacted legislation that created the National Anti-Corruption System (Sistema Nacional Anticorrupción, SNA), setting the framework for coordinating efforts at both the federal and state level to prevent, investigate, and sanction acts of corruption with citizen oversight.
Previously, the government enacted constitutional reforms in 2014 to transform the former federal Attorney General’s Office (Procuraduría General de la República, PGR) into an independent National Prosecutor’s Office (Fiscalía General de la República, FGR), in part to reduce political influence over criminal investigations into public officials. These reforms also involved creating a specialized office within the new FGR, focused solely on handling corruption cases.
With the FGR now handling the Cienfuegos case as well as future cases against Mexican officials unless there are reasons to justify U.S. trials, and with increased attention on the depth of corruption in Mexico, the Andrés Manuel López Obrador government is facing a major test in terms of demonstrating its commitment to anti-corruption efforts and justice reforms. As the U.S. government continues to work with Mexico in law enforcement matters, it should emphasize the fundamental importance of continuing to strengthen the FGR and the National Anti-Corruption System, both of which are lacking critical support from the López Obrador administration.
While the new FGR office formally began operations in December 2018 and appointed a special anti-corruption prosecutor in March 2019, these efforts have not yet brought the progress that many hoped for.
In order to call attention to the FGR’s shortcomings in implementing much-needed reforms, Mexican and international human rights organizations, including WOLA, as well as collectives of families of the disappeared, have launched a new collective intended to combat widespread impunity in Mexico. The joint work is meant to shine a spotlight on the actions and omissions of the FGR, and what this has meant for cases involving human rights violations, including as torture, disappearances, and crimes against journalists.
Learn more about the #Impunidemia campaign in Mexico here
As WOLA has highlighted previously, the FGR, led by Alejandro Gertz Manero, has made progress in investigating a few high-profile cases of corruption involving close allies of former President Enrique Peña Nieto. This includes the former head of state oil company PEMEX Emilio Lozoya and more recently, the former Secretary of Foreign Affairs Luis Videgaray, as well as the case of the 43 disappeared students from Ayotzinapa. However, progress is lagging in other areas: recent reporting indicates that in the two years since the FGR was created, the office received over 500 complaints of possible acts of corruption within government agencies by the Ministry of Public Administration (Secretaria de la Función Pública) that have yet to be presented before a judge.
Moreover, on October 23, the FGR closed an investigation into the 2014 massacre committed by the Mexican military in Tlatlaya, Mexico, where Mexican soldiers killed 22 civilians, including at least 12 alleged extrajudicial executions, which occurred during Cienfuegos’ tenure as Secretary of Defense. Even though new information is still coming to light about the case, the FGR closed the investigation without having secured a single conviction. Of the seven soldiers charged in the case, no one was charged with extrajudicial execution; only one soldier was charged with disobedience in a military court. Nor have authorities opened an investigation into the chain of command regarding who ordered the killings, despite multiple court orders to do so. The manner in which the FGR closed the investigation also raises questions about the dynamic between the new federal prosecutor’s office and military authorities.
Notably, the new FGR also continues to struggle with its own internal corruption problems. Because the reforms that created the FGR allowed for the automatic transfer of officials from the former PGR without evaluating their qualifications or track record, personnel who were later found to have been involved in corruption and obstructing justice in criminal investigations (including torturing detainees to coerce false confessions) were allowed to keep their jobs. Current FGR officials have been accused of selling sensitive information about whistleblowers to criminal groups—something that severely threatens the integrity of criminal investigations, as well as the safety of those who denounce crimes. Moreover, there have been reports of FGR personnel taking bribes in exchange for releasing detainees. In June, 119 officials were dismissed or left because they were facing corruption probes.
The Cienfuegos investigation represents a momentous opportunity for the FGR to prove itself as operating above corruption and the political dynamics of Mexican justice.
Cienfuegos’s transfer to the FGR represents a new and very high-profile challenge for the agency. While Gertz Manero has indeed put resources towards investigating big cases, the FGR’s aforementioned internal issues, closeness to the executive branch, and its dynamic with the armed forces, means there are major concerns over how his prosecution will be handled.
The Cienfuegos investigation represents a momentous opportunity for the new agency to prove itself as operating above corruption and the political dynamics of Mexican justice. It is also a chance to demonstrate the effectiveness of new investigative models at the FGR’s disposal. While there are four existing special prosecutors—for corruption, electoral crimes, human rights, and internal affairs—under the law establishing the FGR, the national prosecutor can create interdisciplinary teams that meet the needs of particular investigations. This enables the FGR to bring together its experts from different areas—ranging from organized crime, financial crimes, corruption, human rights violations, and others—to work together on an investigation; this model was designed precisely to avoid the fragmentation of complex investigations among different prosecutors. The FGR has already made use of this tool in the June 2019 creation of a special unit for the investigation and prosecution of the Ayotzinapa case, which has resulted in important progress in this emblematic case.
In order to implement an effective transformation from the PGR to the FGR, the institution needs an effective operating budget—however, the López Obrador administration has waffled in issuing strong financial support.
In 2020, the FGR suffered budget cuts that affected the majority of the agency’s special offices, including the special office that investigates human rights violations, the forensic science department, and the special prosecutor for investigating organized crime. These cuts are concerning given that human rights violations and attacks against human rights defenders and journalists remain constant; meanwhile, organized crime is still an endemic problem, in addition to the ongoing “forensic crisis,” in which hundreds of thousands of bone fragments and over 37,000 human remains in government custody have yet to be identified.
There’s been resistance to reforms that would streamline the work of anti-corruption prosecutors across all levels of government.
The FY2021 budget for next year does not indicate that the López Obrador administration plans to emphasize or expand the FGR’s work in any meaningful way: the office will only see a 0.4 percent increase to its total budget compared to the previous fiscal year.
The special anti-corruption prosecutor’s office is set to receive a slight boost to its FY2021 budget. While positive, this office continues to face obstacles. In the report her office presented to the Mexican Senate in March 2020, Special Anti-Corruption Prosecutor Luz Maria Mijangos Borja outlined several issues that her office had faced in its first year of work. The office has 36 public prosecutors, 11 staff for managerial and administrative support, and two experts on criminology, but they are dealing with more than 950—and growing—cases. That level of staff is likely not sufficient to deal with the workload. In this regard, in the same report, her office suggested proposals to make their work more efficient, including shifting from isolated, low-level cases to high-level investigations. Her office received an important case in June when it was charged with investigating the general secretary of Lopez Obrador’s own MORENA political party.
The Mexican Congress approval of the creation of the National Anti-Corruption System in 2015 represented an opportunity for the government to coordinate and make progress on anti-corruption efforts—in part through the creation of special prosecutors’ offices to investigate corruption cases at the federal and state level. However, the government neglected to develop much-needed mechanisms in the system that would allow it to work more efficiently; additionally, many positions are still waiting to be filled, and there have been concerning state-level budget cuts. The majority of Mexico’s state-level anti-corruption systems lack the financial and administrative autonomy needed to make them more effective.
Despite all these issues—and despite a proposal by anti-corruption prosecutors on how to better facilitate their work—there’s been resistance to reforms that would streamline the work of anti-corruption prosecutors across all levels of government. The proposal by the National Convention of Anticorruption Prosecutors (Convención Nacional de Fiscales Anticorrupción) would involve creating constitutional guarantees to ensure their autonomy and a minimum operating budget, as well as legal reforms similar to those proposed by Mijangos’ office. To date, the proposal has not found traction with López Obrador’s congressional majority.
The Cienfuegos case, the Mexican government’s push to have more officials investigated and prosecuted at home and not the United States, and an incoming new administration in the United States under president-elect Joe Biden, present important opportunities to reassess priorities in U.S. assistance to Mexico moving forward...
From 2019 to 2020, the majority of state-level anti-corruption systems saw their budgets cut; three state systems did not receive any funding at all. Each of these anti-corruption systems is supposed to include a citizen participation committee—a civil society body meant to help guide policy. These committees have had mixed success: at the state level, some have been unable to get officials to investigate crimes, while others have successfully challenged the nomination of candidates unqualified for certain government positions.
Another agency complementing the country’s anti-corruption work, the Financial Intelligence Unit (Unidad de Inteligencia Financiera) within the Treasury Department (Secretaria de Hacienda y Crédito Público) received a 19 percent cut to its budget from 2019 to 2020. This unit has investigated several major officials, including ex-presidents, for financial crimes like money laundering, referring 160 cases to the FGR in 2019 for criminal investigation (of these cases, the FGR only took one case to court during the year). It has also frozen thousands of bank accounts and recovered hundreds of millions of pesos through their work. Given the Unit’s importance in anti-corruption efforts in Mexico, it’s encouraging that the government is proposing a 7.7 percent increase to the unit’s budget for FY2021. While this would not raise the unit’s budget to previous levels, should the proposal be approved it would still represent progress.
Mexican officials reacted to Cienfuegos’s arrest with surprise and discontent. The morning after the ex-minister’s detention, President López Obrador stated that anyone with ties to the former general would be investigated, while reaffirming his support for the military as an institution fundamental to Mexico’s security. Subsequently it became clear that his administration was coming under significant pressure from leaders in the Mexican army to bring Cienfuegos back to Mexico, pressure he could not ignore given that Lopez Obrador has tasked the military not only with public security under the National Guard but also major infrastructure projects.
The Cienfuegos case, the Mexican government’s push to have more officials investigated and prosecuted at home and not the United States, and an incoming new administration in the United States under president-elect Joe Biden, present important opportunities to reassess priorities in U.S. assistance to Mexico moving forward, to determine the best ways to collaborate to reduce violence while combating corruption and organized crime. Between 2008 and 2020, the U.S. government allocated a little more than $3 billion in assistance for Mexico under the multi-year aid package known as the Mérida Initiative. Under the Trump administration, U.S. security cooperation has focused on immigration enforcement, combating drug production and money laundering, and improving border interdiction. For its part, the López Obrador administration originally proposed redirecting cooperation towards development issues. More recently, there have been U.S.-Mexico talks regarding U.S. support and cooperation for the National Guard.
Recent years have seen important shifts in focus regarding U.S. foreign aid to Mexico from a primary focus on counternarcotics and transnational crime to reinforcing humans rights and the rule of law. According to a U.S. Government Accountability Office (GAO) report, between FY 2014-2018, of the $723 million in assistance allocated by the U.S. Agency for International Development (USAID) and the State Department’s Bureau of International Narcotics and Law Enforcement Affairs, $474 million went towards activities to support the rule of law and human rights in Mexico. This support has contributed to improvements in Mexico’s criminal justice system, the protection of journalists and human rights defenders, and more recently, Mexico’s efforts to search for and identify disappeared persons.
The incoming Biden administration should build on these past efforts and ensure that strengthening the rule of law is a top priority for future U.S. assistance to Mexico.
U.S. assistance has also backed Mexico’s anti-corruption efforts. USAID reported in October 2020 that it was providing over $25 million in support for efforts to reduce corruption and impunity at the federal and state levels (this is apart from the $49 million provided to support efforts in previous years). Between FY2014 and FY2018, the State Department also provided $17 million in equipment and training to assist Mexico in its efforts to address money laundering and other illicit financial activities.
The incoming Biden administration should build on these past efforts and ensure that strengthening the rule of law is a top priority for future U.S. assistance to Mexico. Weak justice institutions and an alarmingly high impunity rate of around 99 percent have allowed violence, corruption, and human rights abuses to flourish in Mexico. Lack of capacity and resources, along with political influence over criminal investigations, has stymied investigations and are likely factors as to why several cases involving Mexican officials working in collusion with organized crime are being prosecuted in the United States and not Mexico. Rather than the U.S. measuring progress around drug interdiction numbers and the arrest of high-value cartel targets, prioritizing cooperation around increasing Mexico’s capacity to investigate and prosecute crimes at the federal and state levels has a better chance of reducing violence and corruption in the country in the long term.
There are other areas where increased U.S. collaboration could make a significant difference in impacting human rights issues in Mexico. Mexican authorities have asked the Department of Justice (DOJ) to provide information that could potentially help advance the Ayotzinapa case, concerning 43 students who disappeared while in police custody in the state of Guerrero in 2014. The information includes wiretaps of the Chicago cell of criminal group, the Guerreros Unidos, accused of playing a major role in the students’ disappearance, who are being prosecuted by the DOJ. While U.S. justice authorities have provided Mexican investigators with some of the information that’s been formally requested, further responses are pending. This information could assist Mexican authorities in discovering the whereabouts of the students and determining who is responsible.
U.S. justice authorities could also provide information that could facilitate the search for Mexico’s disappeared. According to an analysis of U.S. federal trials involving first-hand testimonies of Zetas cartel members by the University of Texas School of Law’s human rights clinic, U.S. authorities may have undisclosed information that could assist in the clarification of murders and disappearances perpetrated in Coahuila, Mexico. In her testimony before the U.S. Congress in October 2020, Grace Fernandez, whose brother was disappeared in Coahuila in 2008, requested the development of some type of agreement that would enable the families of the disappeared to obtain this information from U.S. authorities. Edgar Veytia, the former attorney general of Nayarit who is serving out his 20-year sentence in the United States, has also been implicated in cases of forced disappearance and may have information that is valuable for the families in their search for their loved ones.
In order to pave the way towards a more peaceful, secure, and just Mexico, the U.S. government should prioritize lifting up a justice system in Mexico in urgent need of support.
President López Obrador has been comfortable talking the talk when it comes to fighting corruption and organized crime, but he has yet to vigorously invest in the justice institutions meant to deal with those issues.
Mexico’s anti-corruption system is not supported by the funding it needs to do its job well. Anti-corruption prosecutors at the federal and state levels need autonomy, staff, and legal reforms to ensure that they can deliver results. The FGR must purge itself of officials accused of corruption, expand its work on cases that go beyond those that have received international attention, and make use of its own framework law to create specialized investigative units with experts from various disciplines capable of investigating broader criminal structures and complex crimes.
U.S. work to support the capacity of Mexico’s justice and anti-corruption systems needs to be expanded and critically evaluated. Statements made by Members of Congress as well as a letter sent to Gertz Manero regarding Cienfuegos case suggest that Congress will be closely watching the FGR’s investigation and whether it reflects the Mexican government’s stated commitment to combating corruption.
The Cienfuegos case is the latest high-profile detention pointing to the depth of pervasive corruption and abuse in Mexico’s security institutions. As the U.S. government continues to work with Mexico in security matters, it should strengthen and fully implement human rights protection requirements in its foreign aid, and Leahy law requirements, to ensure that funds aren’t going towards empowering the potentially corrupt and abusive.
Biden’s new administration will allow both governments to take a hard look at what has and has not been effective in U.S.-Mexico security cooperation and assistance. If the future U.S.-Mexico relationship isn’t based on a strong foundation focused on the rule of law, this will diminish the impact of past work on human rights, anti-corruption efforts, and justice reforms. In order to pave the way towards a more peaceful, secure, and just Mexico, the U.S. government should prioritize lifting up a justice system in Mexico in urgent need of support.