A dangerous backtrack on the US-Mexico security relationship

Mexico's President Andres Manuel Lopez Obrador speaks as a screen displays the letter he sent to U.S. President-elect Joe Biden during a news conference at the National Palace, in Mexico City, Mexico December 15, 2020. Mexico's Presidency/Handout via REUTERS ATTENTION EDITORS - THIS IMAGE HAS BEEN SUPPLIED BY A THIRD PARTY. NO RESALES. NO ARCHIVES
Editor's note:

A new law passed by the Mexican Congress restricting the operations of foreign law enforcement agents in Mexico would put the U.S.-Mexico security relationship back into the deep freezer of the early 1990s if implemented, writes Vanda Felbab-Brown. This piece was originally published by Mexico Today under the title, “López Obrador’s Missiles.”

On Tuesday, the Mexican Congress passed a new law severely restricting the operations of foreign law enforcement agents in Mexico. It is clearly directed at the United States in retaliation for the U.S. arrest of Mexico’s former Secretary of Defense Salvador Cienfuegos on drug trafficking and corruption charges at the Los Angeles airport in October. Under pressure, the Mexican military, President Andrés Manuel López Obrador and his Morena party have whipped up nationalist sovereignty emotions and drafted and passed the law rapidly. If the legislation is signed by López Obrador and thus implemented, it would put the U.S.-Mexico security relationship back into the deep freezer of the early 1990s. Such a rupture would be bad for both countries, and terrible for Mexico. But even if López Obrador is merely using the law as bargaining leverage with the upcoming Biden administration –like Kim Jong-Un shooting off policy missiles– he has already caused considerable damage to U.S.-Mexican relations.

The legislation mandates all Mexican officials and law enforcement officers at the local, state, and federal levels to report to the federal government every phone call, meeting, or any other communication with foreign law enforcement or intelligence agents within three days of it taking place. It also mandates that a member of the Mexican Foreign Ministry (SRE) be present at any such meetings. Meetings of Mexican officials with foreign agents must have prior authorization from a group of senior federal officials. Foreign agents are required to report to the federal government any and all information and deliver monthly reports on their activities. A failure to comply with the law carries not just administrative charges, but also criminal indictments and the expulsion of foreign agents.

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. Hundreds of meetings between U.S. and Mexican law enforcement officials that take place daily will be thrown into jeopardy and suspension by this law. Given that Mexico’s Ministry of Foreign Relations is hardly robustly present throughout Mexico – how will a Foreign Relations official be found for an urgent and sensitive meeting deep in Jalisco or Guerrero? Whether it intends to do so or not, the law also maximizes the potential for leakage of sensitive intelligence on corruption, organized crime, and criminal infiltration to corrupt officials and criminals. As the arrests of Cienfuegos and Mexico’s former Minister of Public Security Genaro García Luna (whom the United States arrested in December 2019) and his associates in various branches of the Mexican government show, the Mexican government, military, and law enforcement services remain highly infiltrated by criminal groups. Thus, the law destroys operational security for sensitive information and undermines efforts to root out corruption in Mexican law enforcement, and it undermines painstaking vetting efforts. It neuters the ability of Mexican governors and local police forces to cooperate meaningfully with the U.S. and other countries to root out corruption and establish more effective police forces.  

The legislation also gravely augments physical risks to U.S. law enforcement agents in Mexico – raising the specter of the fate of Enrique “Kiki” Camarena, the U.S. Drug Enforcement Administration agent betrayed by Mexican officials at the highest levels and tortured to death in Mexico in 1986. The widespread complicity of Mexican government and law enforcement officials set the U.S.-Mexican bilateral security relationship into a deep freeze for a decade and a half.

U.S. law enforcement officials will likely simply refuse to operate in Mexico under these terms and risks.  The U.S. agencies can adapt and continue to work to preserve the lives of the tens of thousands of U.S. citizens who die overdosing on fentanyl coming to the United States from Mexico by arresting Mexican criminals and corrupt officials in the United States and working with other countries to achieve such arrests. 

But meanwhile, Mexican criminal groups will intensify the spread of lethal fentanyl distribution within Mexico, putting also the lives of tens of thousands of Mexican citizens at risk. 

Instead of a chest-thumping nationalist victory, the law is a loss for Mexico. The vast majority of intelligence operations against Mexican criminal groups and corrupt officials is already provided to Mexico by the United States. Mexico itself generates little tactical and even less strategic intelligence.

The law undermines the already hemorrhaging rule of law in Mexico. It is a tremendous boon to Mexican criminal groups in undermining meaningful international collaboration and maximizing leakage of information to them and their patrons in the Mexican government.  In doing so, it will help augment both violence and corruption in Mexico. It is also a blow to the brave, honest Mexican law enforcement officials who, committed to the credo of upholding rule of law, have been cooperating with U.S. law enforcement officials. They are now at the mercy of their corrupt colleagues if they dare share information under such circumstances. 

Morena representatives have portrayed the law as preventing foreign agents from doing in Mexico whatever they want — arresting people, or meeting with sub-federal officials behind the back of the federal government. In reality, stacks of bilateral agreements comprised of reams of paper have been carefully negotiated since the 1990s and have governed how U.S. law enforcement officers can operate in Mexico and what restrictions apply to them. 

The new legislation is bad both in its content, as detailed above, and procedurally. If it does become law, the protocols for operations and rules of engagement will become rigid, inflexible, and difficult to alter and adapt through further legislative amendments.

Moreover, the issue of sovereignty is two-sided. In the first place, the lives of U.S. citizens and rule of law and quality of life in the United States is affected by the criminality in, and drug flows from, Mexico. Second, Mexican officials in United States have for years been actively involved in all kinds of U.S. political and legislative developments, such as opposing restrictive anti-immigration laws in the United States and seeking to build up economic and other cooperation with U.S. states and governments at the sub-federal level. The two countries share people, communities, and a wide variety of joint interests.

The law is also a double-cross from Mexico. Under pressure from Mexico, the United States dropped the charges against Cienfuegos and allowed him to escape U.S. prosecution by returning to Mexico. This unprecedented U.S. move, breaking with decades of U.S. international law enforcement practices, was based on the premise of a bargain with Mexico that the Mexican government would not expel U.S. law enforcement agents from the country – an extreme move Mexico had threatened. Yet by jeopardizing and tying up the actions of U.S. law enforcement agents in Mexico this way, the law’s practical impact is similar to expelling them.

President Donald Trump went for the nuclear option in U.S.-Mexican relations when he threatened tariffs on Mexican goods if Mexico did not cater to his highly repressive anti-immigration preferences. There is widespread expectation that the Biden administration will avoid such extreme threats. However, López Obrador and his party just escalated to Mexico’s nuclear option with the bill.

What have been López Obrador’s motivations to go for this nuclear option? 

Most immediately, it was pressure from the Army branch of the Mexican military SEDENA to prevent any more investigation of the Mexican military. SEDENA, whom the United States has long considered far more corrupt and permeated by criminal groups than the Navy branch SEMAR, and does not want further revelations of immense high corruption. After the Cienfuegos arrest, further U.S. indictments against other high-level Mexican army officers were presumably in the offing. The Mexican military also wants to preserve its aura of untouchability. López Obrador has embraced the Mexican military as the lead actor in a variety of his programs, including very odd ones, such as building the country’s key airport and luxury apartments. In doing so, López Obrador has embraced SEDENA and pushed away SEMAR — keeping it away from sensitive operations for which it used to be the U.S. preferred partner, such as against one of the current leaders of the Sinaloa Cartel, El Chapo’s son.

One possibility is that by whipping up nationalist sovereignty sentiments, the Mexican government got caught up in emotions and has not fully appreciated the impact of the law. For example, by limiting the operations of U.S. law enforcement officials in Mexico, the law also limits the operations of U.S. Customs and Border Protection officials in Mexico, thus jeopardizing preclearance of cargo coming to Mexico. Many more trucks will be struck at the border waiting for inspection, with sensitive cargo such as avocados and other exports from which Mexico gains significant revenues rotting away. The whole concept of a smart border and preclearance away from border that the Obama administration worked on with the Mexican government has just been gutted by this law.

The second option is that by shooting off this legislative missile, López Obrador has, in fact, acted in a very calculated way. His purpose in promoting this law could be to create leverage and bargaining chips: holding off signing the law or amending it as leverage to keep the nose of the Biden administration away from issues that the Biden administration will likely care about and that could controversial in the U.S.-Mexican relations – energy reforms and the fate of existing contracts of U.S. energy companies, mitigating climate change, the quality of freedom of speech and democracy in Mexico, and various dimensions of anti-drug fentanyl and anti-crime cooperation.

If López Obrador does not sign the law before January 20, 2021 when the Biden administration comes to power, it is likely that the law was, in fact, meant to generate pressure on the United States. 

Either way, however, he should not expect the Biden administration to simply roll over. Nor should the Biden administration give up on those important issues. 

Even without returning to economic tariff threats, the Biden administration can get tough in response to the new law– and has very good reasons to do so.

In the first place, it can stop grant further Mexican requests for extradition, such as immediately of García Luna (whom Mexican prosecutors have now indicted and want back in Mexico.) When corrupt Mexican officials face trials and imprisonment in the United States, they are far more likely to reveal the extent of the networks of corruption and criminality than when they are in Mexico.

The United States can also intensify the arrests of various former Mexican government officials and law enforcement agents who reside in the United States or try to nab them in other countries. 

The United States could cut financial assistance to Mexican law enforcement agencies and the Mexican military and limit cooperation to only something like the distribution of Covid-19 vaccines. 

In this context, the United States could well choose to suspend development aid to Mexico, including anti-crime socio-economic assistance provided under the Merida Initiative, and certainly not take up López Obrador on his call for the United States to fund development efforts for communities in Southeast Mexico. 

And the United States could return to its threat to designate Mexican organized crime groups as terrorist entities or specially-designated criminal groups. While limiting U.S. policy in various undesirable ways, such as hampering the delivering of anti-crime socio-economic assistance, such a designation, proposed by the Trump administration with support in the U.S. Congress, was fiercely resisted by the López Obrador administration last year after the murders of the LeBarón family(dual U.S. and Mexican citizens), by criminal groups in in November 2019. It may well be time for the incoming Biden administration to reexamine the designation.