Days after the Mexican government adopted a set of crippling restrictions on foreign law enforcement operations in the country, the Trump administration is searching for a work-around and revisiting a decades-old bilateral agreement in an attempt to untie the hands of U.S. drug investigators.
The law, which was rushed through the Mexican legislature last month amid the fallout over the arrest of the country’s former defense chief on U.S. drug trafficking charges, has generated intense concern at the Justice Department, where investigations into Mexico’s powerful drug cartels have been imperiled by new requirements for agents to share intelligence with the country’s government.
Its arrival, in the waning weeks of a lame duck American presidency, has also complicated the effort to find a path forward, with the problem likely to roll over into the lap of the Biden administration as one of its first international challenges.
According to a law enforcement official familiar with the situation, one recourse being studied by outgoing Trump administration officials is the lasting influence of the Brownsville letter, a 1998 document signed after a similar sovereignty spat by Clinton-era Attorney General Janet Reno and her Mexican counterpart that outlined how investigations between the two countries should be conducted.
U.S. Ambassador to Mexico Christopher Landau has discussed the issue with the Mexican government, the official said, though, as a Trump-appointee, his term as a key negotiator is likely drawing to a close.
While it’s not yet clear how strictly Mexico City will enforce each element of the law, transition officials working for the incoming Biden administration are already considering strategies, said Shannon O’Neil, an expert on the region at the Council on Foreign Relations.
“The question is how is this actually going to work in practice and that’s what we don’t know yet,” O’Neil said of the law.
Among the transition officials working on the issue is Roberta Jacobson, who served as U.S. ambassador to Mexico from 2016 to 2018 and was announced in November as a member of the transition’s State Department agency review team.
A respected longtime diplomat who helped shape the two countries’ relationship from a number of senior State Department positions, Jacobson’s insight into Mexico’s political leadership and involvement in crafting past security cooperation agreements will be valuable for the incoming administration, O’Neil said.
“I don’t think any of this surprises her. She will definitely be a thoughtful voice in what one can and can’t do in the relationship and potentially how to find various voices and allies and others to rebuild the U.S.-Mexico security relationship,” O'Neil said.
In an email, Jacobson declined to comment on the transition’s thinking on the law, as did a spokesman for the transition.
At the Drug Enforcement Administration, the U.S. agency with the largest law enforcement presence in Mexico, acting administrator Timothy Shea has told transition officials that he is willing to stay in place as long as the new administration needs him, according to a person familiar with the matter.
The Biden team hasn’t yet developed a shortlist of potential candidates for the DEA role that they’re floating with stakeholders, but is planning to put forward a nominee, acknowledging a lack of direction at the agency which has been without a Senate-confirmed leader since 2015, this person said.
Under the new law, Mexican officials must get permission from the government before communicating with foreign law enforcement agents, and foreign agents are required to share information they uncover with the Mexicans.
That could create administrative slowdowns and dangerous situations for drug agents in Mexico, where corruption and ties to the drug cartels are rife throughout the ranks of government, current and former officials say.
Gina Parlovecchio, a former U.S. federal prosecutor who led the 2018 trial against infamous cartel kingpin Joaquin “El Chapo” Guzman, said it would have been “extremely difficult” to build her cases had the law been in place at the time.
High-profile investigations against cartel bosses and corrupt government officials often turn on the help of informants in the country who trust the U.S. with their identity.
“The identity of [informants] had to be closely guarded by U.S. agents working in Mexico. They couldn’t share that information with Mexican officials because the confidential source could wind up dead,” said Parlovecchio, now a partner in the white-collar defense practice of law firm Mayer Brown.
“It’s an absolutely untenable situation,” said former DEA operations chief Michael Braun, pointing to the increasing number of U.S. overdose deaths fueled by opioids that are produced or passed through Mexico by the cartels.
Braun, who was successfully vetted as a top candidate for the administrator role during the Trump administration and is viewed as a strong option this go-around by some current agency officials, said the threat from Mexico should have been met with hard-nosed diplomacy.
“I hope they were in Mexico pressing the flesh and aggressively negotiating with Mexican officials, coordinating with the DOJ and working with the embassy and the Department of State to avert this situation,” he said.
The DEA’s reception in Mexico has long been fraught and marked by escalating episodes of violence, controversial arrests and sanctions.
A massive U.S. manhunt and a near-full closure of the border followed the seminal killing of DEA agent Enrique “Kiki” Camarena by Mexican traffickers in 1985, driving relations between the two countries to a low.
Five years later, the U.S.-funded operation to kidnap and prosecute a doctor accused of being involved in Camarena’s death gave way to the first set of restrictions on the drug agents in the country, including a cap on the number that could operate there and a new information-sharing requirement.
The 2008 Merida Initiative ushered in unprecedented government funding and law enforcement coordination between the two countries, but the security cooperation was scaled back in the early days of the presidency of Enrique Peña Nieto.
The Brownsville letter, the applicability of which is now being studied in light of the new law, came two months after U.S. authorities incensed Mexican leaders with the surprise announcement of Operation Casablanca, a 1998 drug money-laundering investigation that upended the country’s banking system.
Undercover agents in the case, at the time the largest of its type in the history of U.S. law enforcement, laundered over $100 million in drug money in a sting operation that netted 167 arrests, including several Mexican banking officials.
The operation, run by the U.S. Customs Service, had apparently only been notified to the Mexican authorities once, in its early stages.
“This blew up and it became a big political issue in Mexico with the traditional concerns about imperialism and interventionism,” said Jeffrey Davidow, who was involved in the negotiations around the Brownsville letter as the U.S. ambassador to Mexico.
Signed at a ceremony in the Texas border city by Reno and then-Mexican Attorney General Jorge Madrazo, the letter committed both countries to “enhanced communications regarding sensitive cross border law enforcement activities, consistent with legal constraints and security concerns.”
It’s not clear if the Trump administration has determined that the agreement could override the 2020 law, or if it could serve as a baseline to build upon if Mexico delays implementation of the new requirements.
A Justice Department official declined to comment but noted that the letter’s framework, which was later adopted into a memorandum, remains functional.
Mexico could also face increasing pressure from Congress and the White House to backpedal, if the U.S. chooses to adopt a hard-line approach.
“There are real differences in the way the Mexican government at the time of Casablanca handled this, looking for a way to smooth things over, and in the way the government today has handled it, which has exacerbated the problem and will cause further problems,” Davidow said.