Contemporary Readings in Law and Social Justice 10(1), 2018

pp. 104–129, ISSN 1948-9137, eISSN 2162-2752 doi:10.22381/CRLSJ10120185

EXPANSION OF GLOBAL RULE BY LAW ENFORCEMENT:

COLOMBIA’S EXTRADITION EXPERIENCE, 1999–2017

GERMAN SILVA-GARCIA
gsilva@ucatolica.edu.co
Faculty of Law,
Universidad Católica de Colombia
CIRUS RINALDI
cirus.rinaldi@unipa.it
Department Culture e Società,
University of Palermo
BERNARDO PÉREZ-SALAZAR
bperezs@ucatolica.edu.co
Faculty of Law,
Universidad Católica de Colombia
(corresponding author)

ABSTRACT. We argue that transnational criminal law has enacted a global rule by law
enforcement agencies, at odds with the rule of law. Mutual legal assistance agreements
(MLAA) allow exporting law enforcement practices without proper judicial oversight.
Consequently defendants required in extradition are exposed to abuses, as illustrated here
with extradition cases from Colombia to the United States of America (USA) in the past
decades. Based on the critical review of documental and statistic information coming from
official and independent sources in the U.S. and Colombia, this article pinpoints specific
shortcomings that affect due process and fair trials in the case of extradited defendants.
Concluding remarks underscore the need to check the global expansion of the law enforce-
ment sector, purportedly justified in order to fight transnational criminal impunity. Its
steady expansion is a main factor undermining the legitimacy of national law enforcement
and justice systems, and a threat to the genuine protection of civil liberties.

Keywords: transnational criminal law; law enforcement; justice standards; extradition;

Colombia
How to cite: Silva-Garcia, German, Cirus Rinaldi, and Bernardo Pérez-Salazar (2018). “Expansion
of Global Rule by Law Enforcement: Colombia’s Extradition Experience, 1999–2017,” Contem-
porary Readings in Law and Social Justice 10(1): 104–129.
Received 15 October 2017 • Received in revised form 16 May 2018
Accepted 19 May 2018 • Available online 10 June 2018

104
Introduction
Transnational criminal legal development is a complex process. Principles such as
the responsibility of states to protect populations within their boundaries, the penal
responsibility of individuals for crimes against international law, and the obligation
to extradite or prosecute, are all universal interests and values directly protected by
international law (Wendt, 1991; 1999; Wight, 1992; Keohane, 1995; Keohane and
Martin, 1995; Chayes and Handler-Chayes, 1998; Finnemore and Sikkink, 1998).
Transnational law, instead, refers to legal norms that are exported and imported
across borders, which may originate either in international treaties or foreign statutes.
In a broad sense, transnational legal developments deal with activities, situations
and legal norms that transcend national borders, or events that occur outside a
state’s borders but have effects within them. They tend to nest in gaps where
neither international nor national laws adequately address transactions and impacts
which flow across national borders. In short, the transnational legal order tempers
the distinction between national and international (Boister, 2003; Perez, 2003; Roth,
2010; Backer, 2012; Halliday and Schaffer, 2015; van Sliedregt, 2016).
Border crossing events, transactions and impacts that transgress jurisdictional
boundaries commonly involve and affect a mixture of public and private agents,
including persons and institutions, public and private, natural and legal. In the face
of these transnational phenomena, domestic legal orders exercised through formal,
state-centered jurisdictional legal frameworks are continuously appended and chal-
lenged by combinations of formal and informal functional regulatory processes and
regimes that respond to the needs of groups or networks of agents affected by these
phenomena. Subsequently, distinct functional communities emerge and become self-
constituting entities, which are organized and function beyond the rule-imposing
power of the state, for mutual benefit within their specific objectives. In this
context, transnational law points to a legal order that is neither global, nor ordered,
which breaks down barriers between national judiciaries, as well as between rule
making and enforcement in public and private contexts (Backer, 2016; Halliday
and Schaffer, 2015).
The major role of functional communities in the development of the trans-
national legal order raises questions concerning their legitimacy, as well as issues
related to the status of central democratic values such as representation and delib-
eration that support the governance of transnational order (Perez, 2003; Richards,
2008; Cohn, 2015). These are burning issues particularly in the field of trans-
national criminal law, in which law enforcement agencies play a major role in the
development the transnational legal order. Many events, transactions and impacts
that transgress border and jurisdictional boundaries are domestically criminalized by
states and therefore hounded by their homeland law enforcement agencies. Demoni-
zation of foreign criminal organizations in reaction to their transnational scope of
action, has led some assertive and powerful states to classify these organizations as
national security threats and to enable their law enforcement agencies to effectively
fight them by means of intrusive and invasive anti-transnational crime and anti-
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terrorist legislation that challenge the judiciary’s ability to defend the rule of law
(Zedner, 2007; Ashworth and Zedner, 2014; Boister, 2017).
As this article will show, since the early days of the war on drugs pursued by
the president Richard Nixon’s administration (1968–1973) in the United States of
America (USA), law enforcement agencies in that country have undergone a striking
process of centralized and professionalized enlargement in terms of workforce and
budget, as well as of their scope of action both at home and abroad (U.S. Com-
mission on Marijuana and Drug Abuse, 1973; Epstein, 1990; Nadelmann, 1993).
Early criticism of the rapid growth in bureaucracy and of compulsive spending
without proper goal setting and benefit evaluation, promptly led law enforcement
agencies to draw out simplistic criminal policies with the goal of fighting trans-
national crime, targeting it for criminal prosecution in the U.S. judicial system and
fixing the number of defendants sentenced and imprisoned as a measure of policy
efficacy. In order to enhance their regulatory authority and the outcome of their
performance indicators, U.S. Congress has passed domestic legislation with trans-
national purview to extend the scope of authority and institutional autonomy of law
enforcement agencies beyond national borders, with an eye on the improving their
effectiveness in accomplishing their policy objectives (Andreas and Nadelmann,
2006; Sheptycki, 2007; Bowling and Sheptycki, 2012; 2015).
The focus of this article is centered on the past two decades of Colombia’s
experience with extradition of defendants requested by the U.S. in the framework
of the mutual legal assistance provisions in the Organization of American States
(OAS) Convention on Mutual Legal Assistance. Acknowledging the profound
change which the Internet has brought in how research and information for public
policy and practice is produced, used and collected, this contribution is extensively
sourced on U.S. and Colombian government and other non-state institutional norms,
rulings, manuals, statistics, reports and documents, many of which are classified as
grey literature (Hartman, 2009; Lawrence et al., 2015). These sources are introduced
as valuable public assets to illustrate and formally discuss ways in which trans-
national criminal law, originating mainly in U.S. statute legislation, is globally
eroding the safeguards of due process and fair trial in the interest of efficacy of
policy decisions (Rivera-Lugo, 2012; Guerra-Thompson, 2012; Backer, 2016;
Boiser, 2017; Erfat, 2018)
It argues that justice is routinely not served by wrongful convictions in the
framework of prevailing law enforcement practices such as arbitrary assets seizure
(Blumenson and Nilsen, 1998; U.S. Department of Justice, 2017a; Holcomb et al.,
2018), manipulation of evidence, information and testimonies by prosecutors to
obtain indictments from grand juries without impartial judicial supervision (Arnella,
1981; Roots, 2000), and abusive use of criminal plea and sentence bargaining
procedures (Klein, 2006; Guerra-Thompson, 2012; Brown, 2018).
In this context, important political controversies surrounding the use of interna-
tional extradition as well as the passive role of judiciary and administrative officials
to defend the rule of law from the present challenge by transnational law enforce-

106
ment agencies, pose important questions (Richards, 2008; Backer, 2016; Boiser,
2017). Are law enforcement agencies shaping themselves as self-constituting com-
munities with the aim of broadening their transnational scope of authority? Are
national legal statutes institutionalizing the rules and other norms produced or
administered by the law enforcement community to this end, as well as the process
rules, through which they are applied, enforced, constructed and interpreted in order
to enhance the effectiveness of their transnational power?
The article begins with brief description of the evolution of international crim-
inal law after World War II, and the tensions which have since emerged concerning
legal sovereignty and criminal impunity. Next it discusses the development of do-
mestic antidrug and crime control policies in the U.S., and its transnationalization
by means of Mutual Legal Assistance Agreements (MLAA). In this context, the
general process of extraditions from Colombia to the U.S. between 1999 and 2017
is examined, and specific examples of shortcomings which affect due process and
fair trial in the case of extradited defendants are highlighted and analyzed. Con-
cluding remarks summarize the findings about transnational criminal law and its
impact on national law enforcement and justice systems, as well as on the genuine
protection of civil liberties.

International Criminal Law, Sovereignty and Transnational Criminal Law

In the aftermath of World War II, governments drafting the United Nations Charter
expressed overwhelming opposition to proposals conferring the UN legislative power
to enact binding rules of international law, or granting the General Assembly
powers to impose general conventions on states by any form of majority vote. The
doctrine that finally prevailed was the progressive development of international law
and its codification by means of international conventions. Subsequently, states
agreed only to those obligations included in international treaties subscribed by
them (United Nations, 1951).
Since then, international crimes are codified and complemented by treaty pro-
visions subscribed by most states, encompassing war crimes, crimes against hu-
manity, genocide, torture and terrorism, and recently, treaties dealing with crimes
of transnational concern, such as drug trafficking and money laundering, which
explicitly incorporate the obligation to extradite or prosecute (Aut dedere Aut
judicare)1 (Bassiouni and Wise, 1995; Cassese, 2008; Amnesty International, 2011;
da Rocha Ferreira et al., 2013).
In the global context, assertive nation-states continually recast international law
in pursuit of their national interests, alternatively upholding commitment to warrant
principles of international law and, yet, in practice deftly challenging them. Thus,
invoking the need to fight against impunity and to deny safe haven to fugitives
indicted of committing grave breach of international criminal law, powerful states
such as the U.S. legitimize interventions on foreign territories, presenting these acts
of foreign policy not only as means to secure national goals but also in the interest
107
of international order and justice. More recently, the use of transnational legal
development has been enhanced in order to circumvent or reduce obstacles related
to conflicting sovereignties, by endorsing model laws and multilateral law enforce-
ment treaties, as is the case of MLAA, to simplify and homogenize both the
substance and procedures in every nation’s criminal law, thus enabling greater
predictability and communication in international law enforcement cooperation
(Sands, 2005; Andreas and Nadelmann, 2006; Richards, 2008; Roth, 2010; Bowling
and Sheptycki, 2012; 2015; Boister, 2017).
In this fashion, domestic criminal policies and judicial procedures of assertive
powers are exported to improve their ability to persecute transnational crime, as the
discussion of U.S. domestic anti-drug and crime control policy will show in the
following sections.

The War on Drugs and its Effects on U.S. Law Enforcement Practices
Escalated anti-drug control efforts in the U.S. were jump-started with the creation of
the Bureau of Narcotics and Dangerous Drugs (BNDD), which initiated operations
with 615 agents on a US$14 million budget in 1968. By 1973, just before the
bureaucratic shake-up in which the Drug Enforcement Administration (DEA) was
created, the BNDD’s budget had grown to US$74 million and supported 1,446
agents, of which 124 were stationed abroad in 47 offices in 33 countries. At the
time, the U.S. Commission on Marijuana and Drug Abuse auspiciously expressed
concern about the rapid growth of bureaucracy and compulsive spending on drug
projects without benefit of evaluation or goal setting. According to the commission’s
report, this response “created, in the short span of four years, a ‘drug abuse in-
dustrial complex’ [that]… has firmly established itself as a fixture of government
and society” (U.S. Commission on Marijuana and Drug Abuse, 1973: 3; Epstein,
1990).
By 1976, DEA had 2,117 agents of which 268 were stationed in 60 offices in 43
countries and a budget just short of US$200 million (Nadelmann, 1993).
Demonizing illicit drugs has since allowed U.S. governments to defend and
follow simplistic criminal policies targeting complex and ongoing domestic social
problems such as poverty and racial discrimination. Government officials and
congressmen persuaded U.S. opinion of the need for massive incarceration to deal
with such problems as illicit drugs, robbery, rape, murder, juvenile delinquency,
and shoplifting2 (Tonry, 1995; Schlosser, 1998).
Prison population rates in the U.S. increased nearly four-fold between 1980 and
2010, from just over 200 inmates per 100,000 population to more than 750 at the
end of the period.3

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Figure 1 Prison population rate for selected countries (1980–2016)
(per 100,000 of national population)
800

USA
600
RUSSIA

400 SOUTH
AFRICA

200

0
1980
1985
1990

1995
2000
2002
2004
2006
2008

2010
2012
2014
Source: International Centre for Prison Studies – World Prison Brief. 2016
Calculations and graph prepared by authors.

During President Ronald Reagan’s administration (1980–1988), drug consumers

and traffickers faced mandatory prison terms of ten, twenty, thirty years and life
without possibility of parole, often in cases that involved only tiny amounts of
drugs.4 Prison population sentenced for drug offenses more than doubled: in 1980,
25% of U.S. federal prisoners were drug offenders; by 1992, the figure climbed to
58% (Tonry, 1995).
Evidence shows that since the 1990s, and particularly since the Inter-American
Convention on Mutual Assistance in Criminal Matters endorsed by the U.S. in
1992 to homogenize national legislations in terms of criminalization and minimum
prison terms, the prison population in selected countries of the region has grown at
a similar pace as in the U.S., as illustrated in figure 2. Setting at 100 the initial
number of inmates reported by each national justice authority, a comparative prison
population index shows that between 1980 and 2010 the prison population in the
U.S. multiplied more than four-fold, while prison populations in Colombia, Brazil
and Mexico have grown following a similar pattern since 1995.5
In spite of these notorious increases in prison populations, no visible decrease in
drug supply or availability was been reported by any of these countries. This gener-
alized outcome suggests that growth in incarceration expressly aimed at reducing
impunity in transnational crime is probably serving other unstated social and
political aims, as appears to be the case in the U.S. concerning the control and
repression of its non-white population by law enforcement (Katz, 2008).

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Figure 2 Growth of Prison Population Index for selected countries
in the Americas* (1980–2016)
1980 - 2016
500

USA

400
COLOMBIA

300 BRA ZIL

MEXICO

200

100
1980
1985

1990

1995
2000

2002
2004

2006
2008

2010
2012

2014

2016
Source: International Centre for Prison Studies – World Prison Brief. Calculations
and graphics by authors.
*Prison population index is calculated by fixing at an index value of 100 the prison
population in the base year used for each country in this graph. Ensuing growth is
calculated relative to this initial index value for each country.

Asset forfeiture is another law enforcement practice that has become widespread in
the context of the war on drugs; it was enacted by U.S law during the 1970s and
80s. Investigative components of the U.S. Department of Justice (DOJ) such as DEA,
the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Federal
Bureau of Investigations (FBI), have the authority to seize and forfeit cash or
property associated with alleged violations of federal law. However, this is routine
law enforcement practice that is carried out in absence of independent judicial over-
sight, generally without charging the owner or possessor of the cash or property
with a crime. The 1984 Comprehensive Crime Control Act streamlined federal
forfeiture laws and created a new amendment providing equitable transfer of prop-
erty forfeited federally, to state and/or local law enforcement agencies participating
in investigations. Thus, police officers from every level of government have the
power and incentive to seize assets (Blumenson and Nilsen, 1998).
Over the past 10 years, the DOJ’s Asset Forfeiture program participants have
forfeited over USD $28 billon. A 2017 report by the DOJ’s Office of the Inspector
General found that seizures resulting form joint interdiction operations often were
shown not to have advanced a federal criminal investigation or led to a prosecution,
and were susceptible to pose risks to civil liberties concerns (U.S. Department of
Justice, 2017a).
Besides making law enforcement agencies dependent on forfeiture to meet their
budgets, at the expense of alternative goals such as investigation and prosecution of
non-drug crimes and crime prevention strategies, self-financing of law enforcement
agencies incentivizes the establishment of a permanent, independent and self-
aggrandizing law enforcement sector. Moreover, U.S. law enforcement revenue
110
coming from forfeiture is out of bounds for mandatory accountability of public
funds allocated by the legislative branch, breaching one of the checks and balances
provisioned in the basic architecture of separation of powers that protect individuals’
rights against arbitrary exercise of state power (Perez, 2003; Richards, 2008;
Holcomb et al., 2018).

U.S. Law Enforcement Practices Exported by Transnational Criminal Law

Politicians are generally happy to blame foreigners for domestic crime and illicit
drugs. During the 1980’s foreign drug cartels were uncovered in the public eye by
U.S. government officials as the main force in control of illicit drug markets. In
1986, President Reagan sanctioned National Security Decision Directive 221, de-
claring an active war on drug production and trafficking, and enacting centralized
and professionalized policing of illicit markets, both at home and abroad (Andreas
and Price, 2001; Andreas and Nadelmann, 2006).
A few years before, the President’s Commission on Organized Crime, better
known as Kaufman Commission, labeled the cash connection to be the lifeblood of
organized crime. In the Commission’s view, organized criminal enterprises, their
members and affiliates abused of financial institutions in the U.S. and abroad, by
using them to launder the proceeds of their illicit activities with impunity. The
Commission drafted measures and legislation to “arm the financial community and
law enforcement authorities with the weapons needed to strike at the very heart of
the narcotics trade and other activities engaged in by organized criminal groups”
(President’s Commission on Organized Crime, 1984: iii).
Thus, demonization of drug related crime in the U.S. was extended to foreign
criminal organizations, framed as forces outside of mainstream U.S. culture that
purportedly threatened otherwise morally sound U.S. institutions. According to this
view, keeping a lid on foreign threats required increased cooperation across borders,
including wiretaps, informants, and undercover agents in order to get convictions
and criminal assets forfeited to help pay for growing law enforcement outfits. This
transnational strategy against crime was formalized in the UN Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which was opened to
subscription in Vienna in December of 1988. It required parties to legislate as
necessary in order to harmonize their criminal codes concerning aspects of illicit
trafficking, including money laundering; diversion of precursor chemicals used in
illicit drug manufacturing; provisions for international cooperation through extra-
dition of drug traffickers; asset seizure; and controlled deliveries and transfer
proceedings, among others (Andreas and Nadelmann, 2006).
Transnational criminal legal developments of this sort exemplify how by means
of technocratic legal engineering the present transnational order was established. In
the process the rule of law gradually degraded into to the rule with law system that
caters the needs of powerful states and private corporations, ensuring that targeted
activities are punished as serious offenses by every state’s judiciary and prosecutorial
111
authorities, using almost identical definitions for criminal offenses, procedures and
prison terms as well as institutional infrastructure to fight against impunity of
transnational crime (Sheptycki, 2007; Bowling and Sheptycki, 2012; 2015).
Simultaneously, on the home front, the U.S. Congress enacted the 1988 Anti-
Drug Abuse and Control Act that established the Office of National Drug Control
Policy (ONDCP) as part of the U.S. President’s Executive Office, and commissioned
it to set national priorities and implement a National Drug Control Strategy
(NDCS). The first NDCS document (1989) included major international initiatives,
among them, countering transnational financial crime through bilateral and multi-
lateral efforts against money laundering activities; upgrading drug control in bilateral
foreign policy agendas; rallying support for the U.S. foreign aid certification process
in order to achieve more effective supply and transit-country compliance with U.S.
drug control objectives; and assorted measures like isolating major coca growing
areas through the provision of law enforcement, military and economic assistance
to the three major Andean cocaine producing countries (Bolivia, Colombia, and
Peru), as well as blocking the delivery of chemicals used for cocaine processing,
destroying cocaine hydrochloride processing labs, and dismantling trafficking orga-
nizations, among others. The document confidently stated that within the following
ten years there would be a fifty percent reduction in the following indicators: number
of people reporting any illicit use of drugs in the past month in the U.S.; estimated
amounts of cocaine, marijuana, heroin, and dangerous drugs entering U.S. territory;
and, number of people reporting that cocaine, marijuana, heroin, and dangerous
drugs are easily obtained in their communities (The White House, 1989).

Outcomes, International Reactions to MLAA and U.S. Responses

With the end of the Cold War, instead of anticommunism, drug enforcement and
other criminal justice concerns emerged as new imperatives in the U.S. foreign
policy agenda. No longer overshadowed by geopolitical challenges or interstate
military threats, the world witnessed an escalation of U.S. international crime
control initiatives. Terrorism, drugs, trafficking and money laundering, as well as
smuggling of aliens and nuclear material, led to a paradigm shift in U.S. national
security: in 1995 President Clinton issued the Presidential Decision Directive 42
that officially defined transnational crime as a national security threat (Andreas and
Price, 2001).
Beginning in the late 1980s, the U.S. made modest accommodations to its own
legal system in response to these new threats; foreign authorities, on the other hand,
were committed to substantial adjustments to their own legal systems, sometimes
in the framework of cooperative efforts or, otherwise, by means of coercive
inducement. In this fashion, once the first model MLAA framework was agreed, it
was replicated and imitated in negotiations with countries across the world. Their
number leaped from four in 1989, to forty eight by 2001. U.S. requests for mutual
legal assistance tripled, from 439 in 1989 to 1.555 in 2001. Thirty-three new extra-
112
dition treaties also entered into force between 1990 and 2001 (U.S. Department of
Justice, 2002; Andreas and Nadelmann, 2006).
Predictably, international tensions began to emerge once the 1988 UN Vienna
Drug Convention came into force, particularly in those countries of the global
South that bore the brunt of repression against illicit crop growers, the war against
large drug cartels, as well as extended corruption associated with expanding drug
trafficking activity. A major source of contention was the certification mechanism
unilaterally established by the U.S. to ensure country compliance with commitments
agreed to in the 1988 UN Convention, as well as sanctions that came for countries
that the U.S deemed were not actively complying. Subsequently, in 1993, Mexico
endorsed an initiative to convene a world conference about the global drug problem,
in the same vein as the environmental summit held in Rio de Janeiro in 1992. The
Mexican proposal sought a frank discussion about the efficiency and long term
feasibility of the international drug control strategy under the current drug fiscal-
ization system (Transnational Institute, 2002; Andreas and Nadelmann, 2006).
After lengthy deliberations and numerous conflicts, Mexico’s proposal was
watered-down. A UN General Assembly Special Session (UNGASS) was called and
held in New York in June 1998, commemorating the tenth anniversary of coming
into force of the 1988 UN Vienna Drug Convention. In the outcome, a political
declaration was approved reaffirming member states’ commitment to control drug
abuse and traffic at a global scale by means of national and international strategies,
recognizing this effort as a shared responsibility. Additionally, the declaration
expressed firm commitment to respond to the connection between drug production
and traffic, terrorist groups, criminals and transnational organized crime, by strength-
ening multilateral and bilateral mutual legal, judicial and law enforcement cooper-
ation agreements. Finally, the declaration established a ten year term to achieve
measurable and significant outcomes in drug demand reduction, eradication of
illicit poppy, cannabis and coca crops, control of synthetic drugs and diversion of
chemical precursors for illicit drug manufacture (United Nations, 1998).
The outcome of 2003 mid-term review of the goals set by UNGASS 1998 was
less than encouraging: cultivation of coca and opium poppy as well as the supply of
cocaine and heroin showed fluctuations, but no indications of any sustained decline
trend. As for the supply of cannabis and synthetic drugs, the observed global ten-
dency showed increased demand and flows (UNODC, 2003; Transnational Institute,
2003).
In response, U.S. authorities drew a new approach to drug control in foreign
countries that made extradition its centerpiece. At its core is the U.S. Attorney
General’s Consolidated Priority Organization Target (CPOT) list, a multi-agency
target list focused on the command and control elements operating the most prolific
international drug trafficking and money laundering organizations and networks.
Since 2002, CPOT is issued annually under the coordination of the Organized Crime
Drug Enforcement Task Force (OCDETF), gathering the collective judgment of
investigators and intelligence analysts from the DEA, FBI, Internal Revenue Service

113
(IRS), U.S. Immigration and Customs Enforcement (ICE), and the U.S. Marshals
Service (USMS). Its main purpose is to help focus federal as well as state and local
law enforcement agencies on the same set of targets (U.S. Office of National Drug
Control Policy, 2005).
In 2004 the CPOT list contained forty main targets, including organization heads,
drug manufacturers, transporters, major distributors, and money launderers, together
with hundreds of minor associates and related distribution networks, responsible for
moving and marketing illicit drugs. All CPOT’s main targets were based in foreign
countries, placing a premium on extradition as the legal cooperation mechanism of
choice to enforce this new approach to transnational drug control. In 2005, an
updated version of the NDCS described in detail the CPOT approach. According to
this source, as kingpins are captured and large drug trafficking organizations are
dismantled, criminals regroup. Thus vast numbers of small networked units emerge,
accomplishing their business processes by coordinating loosely aligned associations
of independent producers, shippers, distributors, processors, marketers, financiers,
and wholesalers. By damaging or destroying most of the elements in one horizontal
layer of the network – especially a layer requiring critical contacts or skills – at a
pace faster than the network can mend itself, the CPOT strategy believes it is
feasible to disrupt and dismantle these international drug trafficking networks.
For instance, typically, a Colombian trafficking organization may sell
partially refined cocaine to a second organization, which routes it through
final processing and then sells it to a broker. The broker may then sell to
a second trafficking organization, which hires a transporter in conjunction
with other traffickers to spread risk. The transporter typically moves the
finished cocaine to Mexico in exchange for a portion of the profits. Once
in Mexico, the cocaine is handled by entirely different sets of transporters
and wholesalers. A Colombian transporter who can choose from among a
dozen wholesalers cannot be disrupted simply by targeting a single whole-
saler group. The transporter can, however, be significantly disrupted if,
for example, eight of twelve wholesalers have been disrupted or taken out
of operation (U.S. Office of National Drug Control Policy, 2005: 40).

The DOJ claims that between 2003 and 2015 the OCDETF, which coordinates the
CPOT list, disrupted or dismantled 3,589 CPOT-like organizations. As the discussion
in the next section will highlight, the CPOT list is the engine that rapidly ratcheted
the number of defendants extradited from Colombia to the U.S. from 2004 on (U. S
Department of Justice, 2017b; American Enterprise Institute, 2017).

Transnationalization of U.S. Law Enforcement Practices:

The Case of Colombia 1999–2017
In November 1999, Colombia extradited a requested defendant to the U.S. for the
first time in nine years, finally fulfilling a U.S. anti-drug goal with the Colombian
government that had been elusive since the late 1980s (U.S. International Narcotics
114
Control Strategy Report, 2000). After years of bombings and illicit roadblocks
against extraditions of Colombian nationals to the U.S., the efforts of drug traf-
fickers finally failed. Threats of tough trade sanctions by U.S. government drove
the Colombian Congress to pass a constitutional amendment in 1997 allowing
extradition at the request of a foreign government, based on valid documentation
certifying criminal charges and sufficient evidence regarding the defendant’s identity
(Semana.com, 1996; Romero et al., 2015).
However, the decision to reestablish extradition was in line with central social
and political goals of Colombia’s politico-institutional powerbrokers, mainly the
endorsement by successive governments of para-judicial mechanisms in order to
protect and advance special interests concerning procurement as well as financial,
military and criminal issues. Indeed, since the late 1970s, Colombian elites began
to implement strategies to curtail the independence of the justice branch and sub-
ordinate the judiciary under the executive’s control. Colombia’s judiciary responded
defending its independence; yet the establishment has persisted in its attempts to
reform the justice branch time and again. The 1977 constitutional reform, sponsored
mainly for this purpose, was declared unconstitutional; another attempt in 1979 met
the same fate, and the executive sunk its own constitutional reform of the justice
branch in Congress in 1989. Unlike the circumstances of these previous reform
attempts, the Constituent Assembly convened in 1990 was not entirely dominated
by hegemonic elites. Consequently a large part of the new Constitution’s content
was in effect negotiated during its deliberations, and judiciary independence was
preserved in some respects, especially through rulings by the Constitutional Court
created in the new Constitution. The executive has since sustained its attempts to
reform the justice branch during the administration of Presidents Álvaro Uribe Velez
and Juan Manuel Santos.
In the face of recurrent failure, governments in Colombia opted to withdraw
strategic issues from the sphere of competence of ordinary justice and to develop
para-judicial mechanisms. Thus, topics which naturally belonged to the judicial
jurisdiction, such as extradition, have been progressively snatched and entrusted to
the orbit of administrative authorities as a mechanism to confront and contain inter-
national drug trafficking organizations. In the first decade of 2000, extradition was
extended to cases involving the murder of U.S. citizens in Colombian territory, as
well as crimes allegedly linked to international drug trafficking concerning guerrilla
groups (Silva-García, 2011).
The intent of withdrawing competencies from the judicial branch in Colombia is
not an isolated event. Specifically concerning extradition, political distrust between
states inherited from the 19th century materialized in substantive constrains in the
international arena, linked to procedural guarantees, due process of law, the prohi-
bition of torture, protection against the application of punishment death, and prison
treatment in the post-conviction, among other issues. However, in recent decades
these substantive conditions are constantly eroding, largely due to the passive role
played by judicial authorities in their role of supervising and monitoring these

115
processes. Consequently, in the framework of transnational law, extradition has been
globally simplified in both substantive and procedural terms; thus, conditions for
extradition tend to become more flexible, as is the case with the application of the
rules of dual criminality (the indicted crime must be pre-existing in both legisla-
tions), and of specialty, (the extradited person can only be judged, condemned and
punished for the crime charged in the extradition request), among others (Boister,
2017).
The present use of extradition in this para-judicial framework bears the cost of
sacrificing the judiciary’s competence to deal with serious criminal problems affect-
ing the stability and existence of Colombia’s constitutional order and political
regime, as well as the principle of legality formally endorsed in the nation’s
criminal system. Constitutional and legal norms commit Colombian authorities to
investigate and prosecute all crimes committed in Colombian territory, including
transnational crimes in which initial stages are committed in the country and later
consummated in other countries. Yet, as will be shown below, generally this has
not been the case, as Colombian officials – both in government and in the judiciary
– simply note that the issue does not concern them. Thus, the current extradition
policy in Colombia erodes the legality of Colombia’s judicial process, as the details
of particular extradition cases discussed in the following pages will show (Silva-
Garcia, 2011).
Figure 3 From Colombia to USA: Requested defendants extradited annually, 1999– 2017*
208
186 183
164
148
134 132 138 127
119
102 109
91 85
68
41
26
13
1
1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

Source: Government of Colombia. Ministry of Justice and Law – Extradition Section.

* The U.S. International Narcotics Control Strategy issues annual reports with detailed country
dossiers concerning the outcome of various components of the strategy, including extradition. Until
2014 the Colombia country report kept an annual tally of extradited defendants to the U.S. However,
INCSR Colombia Country reports in 2016 and 2017 no longer record this annual tally. In 2016 the
report mentions “since December 17, 1997, Colombia has extradited approximately 1.870 individuals
to the United States, with the majority of the individuals wanted for drug crimes.” The 2017 report is
even more sparing: “The extradition relationship between Colombia and the United States is robust
and productive.”

116
Coming back to the CPOT mechanism, the effects of its implementation in Colom-
bia are clearly reflected in the rapid growth in the number of annual extraditions
surrendered to U.S. authorities beginning in 2004. As shown in figure 3, extradited
defendants multiplied by more than twofold between 2002 and 2004, soaring from
41 to 91 in this span. As it will be further discussed in the next sections, this rapid
increase in extradition requests by U.S. officials suggests that the CPOT list was
actively fed with information obtained by means of substantial assistance, a legal
provision for more lenient sentences available to offenders, which prosecutors offer
in exchange for creditworthy information and testimony against other alleged
offenders (Lee, 1994; Knizhnik, 2015).
In terms of the number of criminal charges issued against alleged fugitives
required by U.S. officials from Colombian authorities, the CPOT list clearly marks
the difference with other national judicial systems. According to Corporación Exce-
lencia en la Justicia (2011), a think tank supported by the private sector in Colombia,
1,221 Colombian nationals were extradited between 2000 and 2010. The U.S.
requested almost 95% (1,143), followed in a far second place by Spain (40 requests),
Peru (14), and further down the list, Canada, Argentina and Italy, with less than 10
requests each over the ten year period. About 75% of the criminal charges sup-
porting these extradition requests were directly related to international drug traf-
ficking activities; the rest concerned obstruction of justice and conspiracy (11%),
money laundering (10%); homicide (2%); migrant smuggling (1%), and other (1%)
(Corporación Excelencia en la Justicia, 2011).
In recent years, nearly a third of offenders sentenced in drug trafficking cases in
the U.S. federal system had their sentences reduced under the substantial assistance
provisions because they informed on other people. Eric E. Sterling, former counsel
to the U.S. House Committee on the Judiciary from 1979 to 1989 who participated
in the passage of the mandatory minimum sentencing laws, describes how a low
level drug trafficker may avoid a long mandatory minimum sentence under the
substantive assistance provision:
A drug offender while in jail awaiting trial may learn the names of other
persons awaiting trial. He may learn all about substantial assistance. He
may learn that he can easily make up a story that will get him out of prison
fairly soon if his story provides substantial assistance in the prosecution
of someone else as a ‘high level trafficker.’ The quantity of drugs in a
drug case need not be shown by physical evidence. You don’t need 500
kilograms of cocaine powder to establish 500 kilograms for sentencing
purposes. The simple testimony of a witness, usually offering substantial
assistance, is enough to prove that a quantity of drugs was sold. A clever
informant can prove that someone else is a ‘high level trafficker’ without
too much trouble (Sterling, 1999).

A recent audit report issued by the Office of the Inspector General (OIG) of the
U.S. Department of Justice about the Department’s management of international
fugitive removal activities in extradition processes, also hints that the boom in U.S.
117
extradition request originates in information gathered by means of substantial
assistance. According to the 2014 report, the review of a sample of 145 removal
activities performed by the U.S. Marshals Service (USMS) yielded eleven instances
in which extradited fugitives removed from foreign countries, received a sentence
of time served after being returned to the U.S.; on average each defendant had
served approximately twenty months in prison while awaiting extradition and sen-
tencing. In almost all instances the defendants pleaded guilty to at least one felony
charge, and several cooperated with the government in investigations of others.
Five of these eleven defendants were non-U.S. citizens, meaning that immediately
following sentencing they were turned to custody of the Department of Homeland
Security (DHS) for deportation. At least one prosecution of a non-U.S. citizen
removed to the U.S. by USMS in the reviewed sample was dismissed by a U.S
justice (U.S. Department of Justice, 2014).
Though the report offers no further details about the eleven defendants, some
corollaries can be drawn from the facts above. Extradition requests generally require
the charged offense to be punishable as a felony in both the requesting and the
receiving country. Usually this means a minimum sentence of four or more years in
prison, that is, at least forty eight months. Yet in the cases in review, the average
time served was approximately twenty months, implying that defendants were
granted lenient sentences under the substantive assistance provision. The fact that
trial was dismissed in the case of one of the defendants after serving months in
prison, illustrates the lack of adequate internal controls by administrative and
judicial authorities. Their main job, which is to ensure that requests for extradition
of defendants do not pose undue risks to their civil liberties, is not being properly
served in the process of extradition of foreign nationals to the U.S. As Sterling
(1999) implies above, it is feasible that prosecuted informants are providing
ungrounded testimonies that compromise other people in order to benefit from the
substantial assistance, exposing innocent persons to unfair proceedings unprotected
by due process (Gainer, Mosemak, and Heath, 2012; Walker, 2013).
Meanwhile, U.S officials make extensive use of MLAA mechanisms that override
and erode basic civil rights that are at the root of legal justice in other countries. Of
deep concern is the persistent and pervasive indifference of U.S. legislative and
judicial branches to adequately protect and warrant defendant’s right to a fair trial
(Mayer, 1967; Zedner, 2007; Guerra-Thompson, 2012; Boister, 2017). The U.S.
Constitution’s Fifth Amendment guarantees that “[n]o person shall ... be deprived
of life, liberty, or property, without due process of law”. Yet, in practice U.S. grand
juries – technically defined as secret ex parte proceedings where prosecutors present
evidence and the grand jury votes whether to indict –, mainly function as a stalking
horse for prosecutors to bypass the constitutional rights of individuals. Instead of
showing probable cause in a preliminary hearing, prosecutors rely on indictments
by grand jury in absence of any judicial supervision to restrain abusive prosecutorial
conducts. Prosecutors can force grand jury witnesses to inform on or implicate
targeted individuals, either by denying them their right to remain silent under threat

118
of being thrown in jail for contempt, or by offering substantial assistance benefits
to witnesses who are condemned offenders. Prosecutors also influence the examina-
tion of events and base investigations on accounts of witnesses, which they choose
to subpoena without any judicial oversight. Evidence considered is never publicly
uncovered as proceedings are shrouded in secrecy. Thus grand juries come to con-
stitute sufficient check on the prosecutor’s charging decisions, leaving no room for
any meaningful restraint to protect due process nor the right to a fair trial6 (Mayer,
1967; Arnella, 1981; Leipold, 1995; Hafetz and Pellettieri, 1999; Roots, 2000;
Dillard, Johnson and Lynch, 2003).
Indictments obtained in this fashion are used to document and support U.S.
request for extradition, generally requiring provisional arrest of fugitives. Thereafter,
the U.S. Department of Justice submits a formal request for extradition by means
of a diplomatic note prepared by the U.S. Department of State that is transmitted to
the foreign government through diplomatic channels, accompanied by documents
prepared by the prosecutor. These generally comprise, among others, an affidavit
explaining the facts of the case; copies of the statutes alleged to have been violated;
and evidence in the form of affidavits or grand jury transcripts, establishing that the
crime was committed, including evidence to establish the defendant’s identity, such
as photograph, fingerprints, and affidavit of identifying witness (U.S. Department
of Justice undated: §15.220).
In Colombia, formal extradition requests are received by the Ministry of Foreign
Affairs, and supporting documents are referred to the Ministry of Justice to warrant
their conformity with statute requirements. Once verification is completed, docu-
ments are forwarded for review by the Supreme Court under criteria concerning
formal validity of the documents, unambiguous identity of the requested defendant,
confirmation of the dual criminality doctrine (which states that a suspect can be
extradited only when similar laws exists in both countries), and the equivalence of
the foreign indictment to the corresponding legal instrument in the Colombian trial
system (República de Colombia, 2004: art. 502).
Cases reviewed favorably by the Supreme Court are sent to the government for
official decision as to whether the requested defendant is to be surrendered. Accord-
ing to the U.S. Attorney’s Criminal Resource Manual:
Prosecutors should be aware that there are few workable defenses to
extradition, although appeals and delays are common. Fugitives, however,
may be able to contest extradition on the basis of minor inconsistencies
resulting from clerical or typographical errors. Although these can be
remedied eventually, they take time to untangle. Therefore, pay careful
attention to detail in preparing the documents (U.S. Department of Justice,
undated: §15.220).

In effect, defense to extradition is unfeasible under present legal systems; yet wrong-
doings leading to dismiss prosecution of a non-U.S. citizen removed by USMS, as
reported in the previously cited audit, are on the record. And as the findings of this
audit suggest, the extent of the abuse may be covered up by prosecutors that corner
119
helpless extradited defendants into accepting charges other than those originally
formulated against them, in order to benefit with the substantial assistance provision
and obtain a time served sentence.7
The extent to which this constitutes a commonplace law enforcement practice is
revealed in the following indicative text, drawn from the U.S. Attorney’s Criminal
Resource Manual:
Every extradition treaty limits extradition to certain offenses. As a
corollary, all extradition treaties restrict prosecution or punishment of the
fugitive to the offense for which extradition was granted… This limitation
is referred to as the Rule of Specialty… There is a split in the courts on
whether the defendant has standing to raise specialty: some courts hold
that only a party to the Treaty (i.e., the sending State) may complain
about an alleged violation of the specialty provision, other courts allow
the defendant to raise the issue on his own behalf, and other courts take a
middle position and allow the defendant to raise the issue if it is likely
that the sending State would complain as well (U.S. Department of
Justice, undated: §15.220).

In the case of Colombia, administrative and judicial officials are oblivious to U.S.
prosecutors bringing charges against extradited defendants in breach of original in-
dictments. According to Colombian Supreme Court decisions, grand jury indictments
are deemed equivalent to criminal charges valid in Colombia’s trial system, as
these contain the accusations that a defendant must face and are therefore sufficient
to initiate a criminal proceeding (República de Colombia, 2006). Furthermore, the
Colombian Court deems that in the context of international cooperation against
transnational criminal impunity, the requested state lacks jurisdiction to verify the
legality of the criminal process in the requesting state (República de Colombia,
2000). In effect, this standing rests upon the premise that the extradited defendant
will be able “to make use of the procedural safeguards governing law enforcement in
civilized countries, which incorporate those derived from due process”8 (República
de Colombia, 2002: 14).
In sum, an arguably obscure but important number of unprotected defendants
are processed by the U.S. judicial system each year along with tens of kingpins and
lower level criminals. Scarce consideration is given to the fact that charges against
the former are generally obtained by prosecutors in absence of a judicial overseer
or any meaningful restraint to protect due process and the right to a fair trial, as is
expected in the above Colombian Supreme Court ruling. Passive judiciary attitude
both in Colombia and the U.S, imposing grave burden on those subject to the above
abusive law enforcement practices, raises questions about the pragmatic melding
across domestic legal orders that is gaining pace, with its bias towards expediency
and efficacy, which some analysts describe as judicial internationalization or
imperialism9 (Kersch, 2005; Richards, 2008; Roth, 2010; Cabranes, 2015; Přibáň,
2015; Boister, 2017).

120
Concluding Remarks: Stop the Transnationalization
of the Rule by Law Enforcement Agencies
The annual number of extraditions is insignificant by comparison to the overall
criminal case load processed by judicial systems in Colombia and the U.S., par-
ticularly in the context of mass incarceration. As law enforcement systems continue
to lock people up faster, with fewer safeguards and longer prison terms, the risk of
justice routinely not being served rises, due to pressing issues such as continuing
politicization of criminal justice matters, mandatory sentencing, and compromised
or intimidated judges, among others. In this scenario, wrongdoings committed in
extradition processes are easily dismissed.
During the past decades, abusive law enforcement practices originated in U.S.
leading to these wrongdoings have been globally exported via MLAA. The outcomes
of the extradition mechanism do not match the stated aim of reducing impunity in
transnational crime, which by all measures is thriving and feeding corruption around
the world. Instead, transnational law enforcement cooperation is turning basic prin-
ciples guiding criminal law on their head. The sense of justice in terms of what is
generally considered as right and fair and hence ought to be enforced, is continu-
ously substituted by the imperative of global law enforcement, its alleged commit-
ment to international cooperation against criminal impunity and the efficacy of
policy decisions to achieve that goal. As officials around the world turn a blind eye
to extraditions in which justice is routinely not being served, as is the case of
Colombia’s administrative and judicial authorities, ground is gained for the global-
ization of anti-law (Carbonnier 1961), that is, the use of legal instruments to
institutionalize injustice, as was the case of the 1935 Nuremberg race laws, the
South African apartheid legislation, and currently, the endorsement in the U.S. for
arbitrary assets seizure by law enforcement agencies, together with abusive practices
used by prosecutors to obtain warrantless indictments from grand juries.10
Instrumental use of law enforcement is a potent engine for the expansion of its
own powers: it fulfills moralizing impulses, assists in denying safe haven to inter-
national criminals, and preempts social and political dissent. Obstacles impeding
the achievement of these goals call for tougher laws and straightforward law
enforcement practices. As law enforcement becomes addicted to permanent self-
aggrandizing and is increasingly prone to abuse in order to meet its growing fiscal
appetite, law enforcement objectives in effect set limits to civil liberties. This, in
sum, is what the investigation conducted by the Civil Rights Division of the U.S.
Department of Justice revealed about Ferguson’s police department, in the aftermath
of widespread protest and violence that burst with the acquittal of the police officer
who in 2014 shot to death a black unarmed youth, in a mainly black municipality in
St. Louis County, Missouri, in South Central United States. Among its main find-
ings the report highlights perverse law enforcement practices focused entirely on
revenue rather than on public safety needs. Indeed, such practices support the gener-
alization of patterns of unconstitutional policing and municipal court procedures

121
that raise due process concerns and undermine law enforcement legitimacy (U.S.
Department of Justice, 2015).
Unfettered exposure of individuals’ rights to arbitrary exercise of law enforce-
ment power is a commonly accepted definition of police state. Some of the recom-
mendations contained in the U.S. Department of Justice’s report suggest remedies
to preempt generalization of anti-law practices, among them:
• Stop using arrest warrants as means of collecting owed fines and fees and prohibit
the use of ticketing and arrest quotas;
• Develop mechanisms to effectively respond to allegations of law enforcement
officer misconduct; and
• Reform trial procedures to ensure full compliance with due process requirements.
Widespread demonstrations in the U.S. with protestors shutting down intersections,
freeways, shopping malls and disrupting political fundraisers, the opera, and
sporting events are pressuring for straight forward public conversations about law
enforcement and civil liberties in that country. As for the rest of the world, at
present there is visible and growing dissatisfaction at local, national, and interna-
tional levels with international drug control policies, in particular concerning
health, human rights, and law enforcement issues such as criminalization and the
unchecked expansion of law enforcement sector in the name of international coop-
eration against transnational criminal impunity. The 2019 United Nations General
Assembly Special Session (UNGASS), at which UN member states will meet to
assess international drug control policies, will be an unmatched opportunity to table
these issues as well as to advocate for reform of international conventions and
treaties that currently encroach the genuine protection of civil liberties, and under-
mine law enforcement legitimacy around the world. Repealing U.S. grand jury
indictments as equivalent to a judicially supervised indictment process would be a
first step in the right direction.

Acknowledgments
This joint article is a research product prepared for the Conflict and Criminality research
group’s project titled “New Criminality and Control,” under the Fundamentals and
Transformation of Punitive Power research line. Supporting funds were provided by the
Universidad Católica de Colombia, Faculty of Law.

Author Contributions
All authors listed have made a substantial, direct and intellectual contribution to the work,
and approved it for publication.

Conflict of Interest Statement

The authors declare that the research was conducted in the absence of any commercial or
financial relationships that could be construed as a potential conflict of interest.

122
 NOTES

1. The obligation to extradite or prosecute in order to deny safe haven to offenders who
breach international criminal law is prescribed in the 1970 The Hague Convention for the
Suppression of Unlawful Seizure of Aircrafts. Henceforth, the formula is restated in the
1973 New York Convention on Crimes against Internationally Protected Persons; the 1980
Convention on the Protection of Nuclear Material; the 1984 Convention against Torture;
and, the 1988 Vienna Convention on Traffic in Narcotic Drugs. With minor variations, the
same obligation appears in subsequent treaties, among them, the 1999 Convention for the
Suppression of Finance to Terrorism, the 2000 Convention against Transnational Organized
Crime, and the 2006 Conventions against Enforced Disappearances.
2. Former head of the U.S. Federal Bureau of Investigations (FBI), James Comey (2018)
affirms that the term mass incarceration is inaccurate, since according to his view, every
defendant is individually charged, reviewed on appeal and incarcerated. Consequently, the
process cannot be qualified as massive, even though its outcome is a massive prison
population. Yet he overlooks facts such as the asymmetrical judicial position of most poor
defendants who cannot afford an adequate representation to challenge the significant resource
of prosecutor’s offices; that a large number of defendants are not convicted individually but
are intimidated into plea bargains with threats of unduly heavy sentences if they go to trial;
and that to pursue appeals with a decent chance to overturn a bad verdict, defendants need
significant resources to be able to obtain lawyers with the means and time for aggressive
litigation. Based on surveys of respondents’ beliefs about the harshness of the courts, and
bias in the courts or among police, Muller and Schrage (2014) discuss the possible conse-
quences of massive imprisonment on declining trust in the law, particularly among groups
affected by disproportionally disparate incarceration rates in the U.S.
3. Liedka, Piehl, and Useem (2006) found strong evidence that the negative relationship
between prison and crime becomes less strongly negative as the scale of imprisonment
rises. “As the prison population continues to increase, albeit at a slower rate, after three
decades of phenomenal growth, these findings provide an important caution that for many
jurisdictions, the point of accelerating declining marginal returns may have set in. Any
policy discussion of the appropriate scale of punishment should be concerned with the
empirical impact of this expensive and intrusive government intervention” (pp. 245–246).
4. Mandatory minimum sentencing has been criticized by the U.S. Sentencing Com-
mission. A 1991 report found that all defense lawyers and nearly half of prosecutors
queried had serious problems with mandatory minimum sentences. Most judges labeled
them manifestly unjust. The report was especially critical of the transfer of power in courts
from judges – who are supposed to be impartial – to prosecutors, who are not. The U.S.
Sentencing Commission (1995) found that only 11% of federal drug trafficking defendants
were major traffickers; more than half were low level offenders, a result completely at odds
with the idea behind mandatory minimum sentences whose goal was to support prosecution
of high level drug traffickers. In response to this uncomely outcome, the U.S. Congress
(1993) enacted a “safety-valve” allowing relief from mandatory minimums for certain non-
violent, first-time offenses.
5. The Convention provides for a broad range of cooperation in criminal matters. Mutual
assistance available under the Convention includes: (1) taking testimony or statements of
persons; (2) providing documents, records, and articles of evidence; (3) serving documents;
(4) locating or identifying persons or items; (5) transferring persons in custody for
testimony or other purposes; (6) executing requests for searches and seizures;(7) assisting
123
in forfeiture proceedings; and (8) rendering any other form of assistance not prohibited by
the laws of the Requested State.
6. “Most agree that an inexperienced and untrained body of citizens cannot possibly
screen out unwarranted prosecutions in an ex parte proceeding at which they hear only the
government’s side of the case and depend on the prosecutor for all legal advice and
direction” (Arenella, 1981: 7).
7. A brief description of extradition cases illustrates abusive use of these normal law
enforcement practices. A plantain hawker in Barranquilla and his son, a nursing assistant,
were indicted with conspiracy in international drug trafficking and money laundering. They
were forced to sign an affidavit admitting guilt as part of a plea deal to obtain a time served
sentence. Then they were sent to an immigration detention center in Houston, where they
were advised to pay airfare ticket back to Colombia at their own expense. A former official
of Colombia’s Flight Security Administration was indicted for supplying airplanes to
traffickers to ship tons of cocaine to other Central American countries and the U.S. After
employing aggressive and expensive legal services, the defendant provided irrefutable
evidence that U.S. law enforcement officials misidentified his voice on the wiretaps, and
the U.S. prosecutor was forced to drop charges. A stock broker in Bogotá was indicted for
conspiracy to launder money. She was forced to sign an affidavit admitting guilt as part of a
plea deal, in order to obtain a time served sentence. A carpenter in San Vicente del Caguán,
Caquetá, was indicted for heading a money laundering network funneling illicit funds from
U.S. bank accounts. A newspaper article referring his case caught the public eye and his
surrender to U.S. authorities was suspended until Washington verified his identity.
Washington ultimately withdrew its extradition request (Gainer, Mosemak, and Heath, 2012;
Walker, 2013; Guarnizo, 2014).
8. Authors’ translation.
9. Hannah Buxbaum (2015) summarizes well the pragmatic position that judicial
legitimacy is based on the efficiency and efficacy of enforcement of policy decisions in the
transnational legal order. Among her arguments, she justifies the need for broader
interaction between U.S. courts and foreign governments in order to deal with important
regional differences regarding the effectiveness of enforcement in the transnational arena,
and thus advocates in favor of courts’ involvement in cooperative transnational governance
processes. She dismisses the judicial imperialism narrative, because it purportedly “inter-
feres with a fair assessment of the judicial role in global governance” (p. 717).
10. Brad Roth (2010) uses the German term Unrechtsstaat to refer an order that not
only perpetrates systematic injustice through its laws, but also breaks its own laws,
eschewing predictability and accountability as principles in the exercise of power. In this
context, social regulations are enacted to provide information about what behavior is expected
but entails no promise that acts not specifically prohibited are permitted. In summary, an
order in which legalistic mechanisms are means for implementing policy decisions, but
extralegal means are also tolerated to achieve efficacy and are susceptible of a retroactive
“legal” imprimatur.

124
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