A New Era for U.S.-Colombia Extradition Policy? Only Time Will Tell
The new President of Colombia came to power promising to change his country’s extradition treaty with the US. This post will examine the realities of that decision and what the future of Colombia-US relations will look like.
Recently, members of a U.S. delegation traveled to Colombia to meet with newly-inaugurated President Gustavo Petro and Vice President Francia Márquez
By: Shelby Butt, Staff Member
Throughout his campaign, Gustavo Petro, Colombia’s first leftist president, promised to re-evaluate his country’s relationship with the United States. Specifically, Petro vowed to reassess the United States’ involvement in Colombian drug policy, including the U.S.-Colombia extradition treaty, which U.S. officials consider a critical part of the United States’ criminal justice system and counternarcotics agenda. After a month in office, it’s time to assess Petros’ first few decisions concerning this strategic treaty and what, if anything, his recent actions can tell U.S. policymakers and prosecutors about the future of U.S.-Colombia extraditions.
On June 19, 2022, Gustavo Petro, a longtime Colombian legislator and ex-rebel, became the country’s first leftist president. Petro was a member of the now-defunct 19th of April (M-19) guerilla group before transitioning to politics in the 1990s. Throughout his campaign, Petro billed himself as an anti-establishment candidate, vowing to bring economic and social change to Colombia. His campaign platform rested, in part, on a promise to reassess Colombia’s relationship with the United States, including the two countries’ collaboration on combating the international drug trade.
This promise caught the attention of U.S. policymakers and political scientists because Colombia is, and traditionally has been, the United States’ strongest ally in Latin America. In the months between Petro’s election and when he took office in August, many speculated about what changes Petro would try to make to this strategic relationship. Despite some disagreement, there is broad consensus that tension between the two countries would center, in part, around changes Petro vowed to make to Colombia’s drug policy during his campaign. Unlike previous Colombian leaders, Petro favors substitution, replacing coca crops with economically-sustainable alternatives like cacao, over eradication and came into office open to the idea of legalizing certain drugs. Additionally, he has questioned the effectiveness of extradition, which the United States considers a key mechanism in deterring transnational crime.
Though Petro’s exact reasons for disfavoring extradition are hard to pin down, one widespread argument for discontinuing extradition is that cartel members extradited to the United States are usually only convicted and imprisoned on drug-related offenses, depriving Colombian victims of justice for the extradited individual’s other crimes, which often include homicide and various human rights violations. Additionally, some think extradition causes more net violence, as seen in the aftermath of a recent high-profile extradition, which leaves Colombians worse off. A May 2022 interview with then-candidate Petro seems to confirm that he questions the use of extraditions, at least in part, for this second reason.
A Brief History of The U.S.-Colombia Extradition Treaty
Extradition treaties play an important role in foreign relations and law enforcement by allowing countries to preemptively agree to conditions under which they will permit an individual found within their borders to be detained and sent back to the requesting country. Although there is no guarantee extradition will be granted, the likelihood of an extradition request being approved is much higher if such an agreement exists. Additionally, some countries, including the United States, use a treaty-based extradition system, which makes an extradition treaty with the requesting nation a compulsory prerequisite for an extradition request to even be considered. Although Colombia has previously extradited individuals to countries with which it lacks an extradition treaty, having a formal treaty in place streamlines the extradition process by setting clear standards for when extradition will be granted and reduces the chances of inflaming foreign relations between the requesting and requested nations by eliminating the tedious nature of ad-hoc extradition negotiations.
For policymakers and prosecutors alike, Petro’s stance on extradition poses serious concerns because extradition has played a critical role in the U.S. criminal justice system since the signing of the U.S.-Colombia extradition treaty in 1979. The treaty’s ratification in 1981 caused an uproar amongst high-level drug traffickers, prompting Pablo Escobar and leading members of other Colombian cartels to wage a domestic terror campaign to intimidate the Colombian government into banning the extradition of Colombian citizens to the United States. Operating under the slogan “[b]etter a grave in Colombia than a cell in the United States,” Escobar’s group, which came to be known as “Los Extraditables,” successfully pressured the Colombian legislature into outlawing extradition in 1991, which lasted for six years before a constitutional amendment reversed course. From a law enforcement perspective, extradition is a powerful tool because it is one of the few things powerful drug traffickers fear since it cuts them off from their business, families, cartel associates and Colombian authorities who may be receptive to bribery in exchange for lenient prison sentences or conditions. For example, in exchange for turning himself in, Colombian authorities permitted Pablo Escobar to design and serve time in his own personal prison, a far cry from the conditions he would have faced in the United States.
Since reinstating the extradition treaty in 1997, Colombia has consistently transferred alleged narcotraffickers to the United States to face drug-related charges. For example, in May 2022, shortly before the presidential election, Colombia extradited Dairo Antonio Úsuga David (also known as “Otoniel”), the head of the Clan del Golfo cartel, to face narcotics-related charges in Brooklyn federal court. According to former Colombian President Iván Duque, Otoniel is “the most dangerous drug trafficker in the world” and his capture was “comparable to the fall of Pablo Escobar.” Other famous extraditions from Colombia to the United States include that of the Rodriguez Orejuela brothers, who formed the powerful Cali Cartel in 1975, and Fabio Ochoa Vásquez, a founding member of the Medellín Cartel and co-leader of Los Extraditables.
For the United States, the importance of its extradition treaty with Colombia is twofold in that it serves both international and domestic. purposes. On an international level, the treaty is seen by U.S. officials as a critical tool for combating transnational crime because it allows the United States to try and incarcerate bad actors whose activities, like drug trafficking, negatively impact the United States, Colombia, and broader global community. Additionally, the United States gains international recognition when it extradites and imprisons high profile individuals like Otoniel, which contribute to the United States’ image as a regional and global hegemon. On a domestic level, the United States sees its extradition treaty with Colombia as a critical component of the U.S. criminal justice system because it allows prosecutors to secure justice within the United States’ own borders for the American victims of these bad actors. Without an extradition treaty, it would be infinitely more difficult for U.S. prosecutors to bring and close high-profile cases involving individuals located in Colombia, creating a backlog of cases and, in some cases, placing justice for American victims out of the prosecutor’s reach. It is also likely that, at least in part, the importance of the U.S.-Colombia extradition treaty is based on the belief that high profile drug traffickers are more secure in U.S. prisons because they are further removed from their cartel deputies and broader network, making a prison escape less likely. Recent events like the escape of a notorious gang leader from a maximum security prison in Colombia seem to serve as confirmation of the validity of this long-held belief. Critics, however, argue that extradition impinges on the rights of the requested nation’s citizens in situations where the accused is wanted for crimes in both the requested and requesting nation because extradition means the delay or denial of justice for crimes committed within the requested nation’s borders. Additionally, some recent arguments against extradition to the United States have focused on the potential human rights violations posed by conditions within the U.S. prison system, including systemic overcrowding and lack of medical care, though it remains to be seen if this argument will be raised in the U.S.-Colombia context.
Recent Developments
In late August 2022, the Petro administration proposed renegotiating the U.S.-Colombia extradition treaty to Rahul Gupta, the director of the White House’s Office of National Drug Control Policy. Specifically, Petro suggested that drug traffickers be allowed to avoid extradition to the United States, so long as they negotiate a deal with Colombian judicial authorities and agree to cease drug trafficking activities upon their release. Although Gupta did not rule out modifying the terms of the current U.S.-Colombia extradition agreement, he stressed that the two countries need to talk before making any changes, noting that the Department of Justice needed to be included in any extradition agreement renegotiations.
Despite his desire to make changes to the existing U.S.-Colombia extradition treaty, Petro has approved seventeen extraditions, mostly to the United States, since his inauguration in August. Just a few days after Petro’s meeting with Rahul Gupta, he approved the extradition of Álvaro Fredy Cordoba Ruiz, the brother of a senator within Petro’s own political party, to the United States to face drug-related charges in Manhattan federal court. While some question Petro’s approval of this extradition in light of his recent comments, others see it as a strategic move that allows Petro to maintain his image and avoid a direct confrontation with the United States so early in his presidency. Although Petro’s decision seems at odds with his stance on extradition, denying the extradition of an alleged drug trafficker would be a blow to his image at home, which is already susceptible to the view that the Colombian political left is soft on crime. Additionally, denying the extradition would set Petro up for direct confrontation with the United States, and refusing to extradite the brother of a political ally could taint his reputation with accusations of corruption or political favoritism. By approving the extradition, Petro is able to keep these critiques at bay while signaling to the United States that extradition will still be used as an important tool in combating drug trade and transnational crime, even though he seeks to modify the policies which guide how and when extradition takes place.
Petro’s administration is still in its infancy, and it is too early to tell what long-term effect his views will have on extraditions from Colombia to the United States. For now, it seems that extraditions are moving along regularly, though U.S. policymakers should be cognizant of Petro’s expressed desire to renegotiate certain aspects of the U.S.-Colombia extradition treaty. To prepare for a potential shift in the status quo, U.S. officials should listen to Petro’s concerns and be ready to meet him at the negotiating table to prevent any future stalling of extraditions between the two countries.
Shelby Butt is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Georgetown University’s Walsh School of Foreign Service in 2020. During the summer of 2022, she interned in the International Narcotics and Money Laundering Division of the U.S. Attorney’s Office for the Eastern District of New York, where her work focused on transnational drug trafficking cases involving the United States and Latin America.