Mejía requests Martinelli’s extradition
by Eric Jackson
On March 11 Supreme Court magistrate Jerónimo Mejía, acting as the judge in the high court trial of Ricardo Martinelli on illegal electronic eavesdropping charges, made a two-pronged formal request for the former president’s extradition from the United States. The ex-president lives in self-imposed exile in Miami’s Brickell district. One referral was directly to INTERPOL. By the time you read these words it is likely that the closest thing to an international arrest warrant, an INTERPOL red note, will have been issued. The other referral was to Panama’s Ministry of Foreign Relations, which would likely start a diplomatic process by which, starting through the US Embassy here and the Panamanian Embassy in Washington, the United States would be formally asked to hand Martinelli over to Panamanian authorities.
The decisions now are for US authorities to make, and there are complicated legal and political factors involved. It may be a prolonged process, but rather quickly a decision will have to be made on whether to honor the INTERPOL red note, which will essentially ask that Martinelli be jailed pending extradition proceedings. It is rare that bail is granted in extradition cases before the US legal system. If Martinelli is locked up over many months the case is likely to change and grow in the interim, as the invasion of privacy charge is but one of about a dozen matters pending and in various stages against him. In the first instance, however, accepting or rejecting the INTERPOL request will be a political decision by the Obama administration via the State Department. It if goes along with the red note request, aspects of that decision could be reviewed by the courts.
There are three main legal routes by which the United States may extradite a foreign citizen. The main one is by treaty law, in this case based on the 1904 US-Panama extradition treaty. Then there are extraditions granted without treaty authorization, based on a history of reciprocity between governments. There have also been extraditions based upon but not specifically authorized by mutual agreements to act against certain crimes. There are also possibilities of expulsions, with the United States summarily sending Martinelli back to Panama without recourse to the courts, a procedure for which there are also precedents with respect to Panama by which such action might be said to be cloaked in reciprocity.
There is a problem with this case and the 1904 treaty. That document applies to only certain specified crimes and illegal electronic spying is not one of them. An interpretation might be twisted and stretched out of that document to say that it does, but the legal histories of both countries show that in 1904 neither were too concerned about invasions of privacy. However, some of the other cases against Martinelli are about overpriced public contracts with kickbacks to Martinelli, or more often by indirect routes to the campaign coffers of Martinelli’s political party with the public officials involved in these schemes taking their percentages. Those would be matters sounding like embezzlement, larceny or fraud, which are specified in the extradition treaty.
For formal extradition based on reciprocity, there are precedents about money laundering crimes for which non-Panamanians have been extradited from Panama to the United States. There were no money laundering laws in 1904, in either country. And then, not exactly analogous, there are a number of cases in which US authorities have grabbed Panamanians without extradition proceedings of any sort to take them to the United States for trial. The most notorious of these was the removal from Panama of one Manuel Antonio Noriega. There have been less publicized US kidnappings of Panamanians for the purpose of bringing them before American courts, most often from third countries or from aircraft in transit.
There are mutual assistance treaties stemming from the “War on Drugs” that encompass money laundering crimes that are not necessarily about drugs, and one might argue a public policy reason for extradition based up on these. There is plenty of precedent for the United States using the “War on Drugs” as a pretext to pursue other policy aims. One aspect of the wiretapping case has been the concealment of financial transactions related to it, to which today’s broad interpretations of money laundering laws might be applied. Some of the other allegations against Martinelli now being processed in Panama’s high court more squarely involve money laundering as contemplated by US law, and Italian authorities allege a Panamanian government contract scheme by which kickbacks were to be diverted to Martinelli via the accounts of a company in Miami.
Money laundering through Miami? Illegal financial transactions using cables or satellites controlled by the United States? If Obama cares to get hard-nosed about it, he could have Martinelli arrested on US charges and tell Panama to wait for US justice to take its course before authorities here lay hands on the former president. Or Martinelli might be persuaded not to fight extradition in the face of such a threat.
On the other hand, given the revelations about US electronic spying on foreign governments, political leaders and companies, might the Obama administration for that reason balk at any consideration of illegal eavesdropping as an extraditable offense? Or might Washington consider that it owes Martinelli favors for this or that known or unknown action or policy, and on that basis protect him? The USA has traditionally been a refuge for some of the criminal element of Latin America’s political castes.
So there will be a US political decision about Martinelli, or one may have already been made. That gets to the legal considerations. There are relevant facts about that which are unknown. What, for example, is Ricardo Martinelli’s visa status in the United States? What sort of documents did he show when last he entered that country? Has he already filed for political asylum? Might he be treated as someone who overstayed a visa, or as someone who presented a diplomatic passport being summarily expelled as persona non grata, or as a garden variety criminal without any political complications to his case?
It has been reported, apparently based on a presumption, that Martinelli has filed for asylum, alleging that he would face political persecution if returned to Panama. Ordinarily one has to make such a request within one year of arrival in the United States and, although there are some claims to the contrary, it seems that Martinelli has been in Miami since late January of 2015. If such a request has been made, the State Department would make a political decision about it but a denial could be appealed to the courts. If a request has not been made and Martinelli is arrested pending extradition proceedings, he would be able to interpose a claim of reasonable fear of political persecution as a defense.
Figure that Ricardo Martinelli could prolong things in the USA if it suits him. However, there is likely to be a rather quick US political decision about whether he plays his delaying games while living in a jail cell or living in a luxury condo.
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