FARC leader “Simón Trinidad” at the federal maximum security prison in Florence, Colorado.
(1,956 words, approximate reading time 9 minutes, 46 seconds)
“I don’t believe that any guerrilla is going to turn in his weapon only to go and die in a U.S. jail,” Colombian President Juan Manuel Santos said in early March. “It will be up to me to propose to the U.S. authorities some solution to this issue, which is complex and difficult, but has to be resolved.”
President Santos has much to discuss. Outstanding requests to extradite FARC guerrilla leaders to the United States could stand in the way of a final peace accord.
We have never seen a full list of U.S. courts’ indictments of FARC leaders (some of them may still be sealed), nor have we ever spoken to a U.S. official who could cite an exact number of outstanding extradition requests. But the following indictments are in the public record, and the number is large: they involve at least 60 living, at-large FARC members.
- Six were indicted in 2001 for the 1999 killing of three U.S. indigenous rights activists in Arauca. (At least one of these six is now dead.)
- Three were indicted in 2002 for narcotics and for kidnapping two U.S. oil workers in Venezuela. (At least two of these three are now dead.)
- One was indicted in 2002 for the 1998 kidnapping of four U.S. citizen birdwatchers. (This individual, Henry Castellanos alias “Romaña,” is now a FARC negotiator in Havana.)
- Two were indicted in 2004 for a 2003 grenade attack on a Bogotá bar, which injured five U.S. citizen customers.
- Fifty were indicted in 2006 to face narcotics charges. (Several—we don’t know how many—are now dead, or captured and extradited. Some are on the guerrilla negotiating team in Havana.) This mass indictment was made possible by the USA PATRIOT Improvement and Reauthorization Act of 2005, which established the federal crime of “narco-terrorism,” or trafficking drugs to fund terrorist activity. This change in the law now applies worldwide: U.S. officials no longer need to prove that an individual intended to traffic drugs to the United States.
- Eighteen were indicted in 2010 for their role in holding three U.S. defense contractors hostage between 2003 and 2008, and murdering their plane’s U.S. citizen pilot. (At least one of them, Dutch-born Tanja Nijmeijer, is part of the FARC delegation in Havana. Some others have been captured and extradited.)
U.S. authorities have also sought to extradite leaders of Colombia’s pro-government paramilitary groups to face narcotrafficking charges. In May 2008, then-President Álvaro Uribe extradited 14 of them at once, although all were participating in a negotiated demobilization and transitional justice process. As of February 2010, 30 ex-paramiltaries had been extradited to the United States.
FARC leaders have made clear that they will not let that happen to them. They will not agree to demobilize without a solid guarantee that the Colombian government will not extradite them to the United States for crimes committed before the signing of a peace accord.
The U.S. government cannot offer this guarantee. Once extradition requests are issued, it is almost impossible to call them back. The indictments listed above come from grand juries, presided by judges, and the U.S. government’s executive branch cannot interfere in the actions of the judicial branch. (While the President has the constitutional power to pardon individuals before a case goes to trial—as President Gerald Ford did for Richard Nixon after Watergate—such pre-trial pardons are exceedingly rare.)
The prosecutors in these cases may technically be part of the executive branch, working for the President, but they have wide-ranging independence to avoid any appearance that their work is politicized. (Witness the political firestorm that raged in 2007 when the Bush administration sought to fire and replace several U.S. attorneys.) Their superiors cannot force them to drop their cases for the good of “peace in Colombia.”
Extradition requests are issued by the Department of Justice Office of International Affairs. This Office’s mandate doesn’t include bringing peace to Colombia or achieving general U.S. foreign policy objectives. Its job is to bring perpetrators of crimes to justice. So these indictments and extradition requests aren’t going anywhere.
Within these constraints, it’s up to another part of the U.S. government—the Department of State, and if necessary the President—to decide whether a country’s non-fulfillment of an extradition request affects its relations with the United States.
Often, when U.S. diplomats consider the larger context, non-fulfillment of extradition requests has no effect at all on the bilateral relationship. This was the case when Colombia’s Supreme Court held up the extradition of paramilitary leader Daniel Rendón alias “Don Mario” in 2010. Nor did the U.S.-Colombia relationship suffer in 2011, when the Santos government extradited wanted Venezuelan drug trafficker Walid Makled to his home country—with which President Santos was seeking to repair troubled relations—instead of to the United States.