The dramatic recent surrender of Mexican Sinaloa cartel leader Ismael “El Mayo” Zambada Garcia and Joaquin Guzmán López (son of Joaquín “El Chapo” Archivaldo Guzmán Loera) to U.S. law enforcement officials has returned international attention to the dynamic tensions in cross-border criminal law enforcement. The initial details to emerge were stunning—high-level betrayal by Guzmán López, who tricked El Mayo into boarding a plane on false pretenses, only to be flown into Texas and FBI agents’ arms on July 25, 2024. Some media outlets described the event as a “Hollywood-style takedown” with echoes of Netflix’s Narcos.
But this is no fiction: the El Mayo/Guzmán López case constitutes a spectacular culmination of years of U.S. law enforcement efforts and the biggest “win” for the U.S. Department of Justice (DOJ) since El Chapo’s extradition in 2017. This analysis will show the surrender to be procedurally rare but lawful, combating cross-border drug trafficking without serious damage to U.S.-Mexico bilateral relations.
The Surrender and Arrest on July 25, 2024
What exactly happened on the day of the surrender? In recent weeks, U.S. officials have clarified that El Mayo was ambushed in the Mexican city of Culiacán at a supposedly friendly real estate meeting with Guzmán López. Guzmán López then “forcibly flew” El Mayo across the border into the United States, where U.S. federal agents took them both into custody. The United States has stated that Guzmán López planned on surrendering to U.S. authorities and wanted to take El Mayo with him. In a statement, El Mayo’s lawyer went further, claiming: “My client neither surrendered nor negotiated any terms with the U.S. government. Joaquín Guzmán López forcibly kidnapped my client.”
Both men now await further criminal process relating to federal charges that include the manufacture and trafficking of fentanyl. They both have pled not guilty.
The Legal Context: Two Scenarios
How was this arrest possible? Such events are intelligible when framed alongside the two most common bilateral law enforcement scenarios, which I will call the El Chapo Scenario (the norm) and the Alvarez-Machain scenario (the exception).
The El Chapo Scenario is the norm: bilateral cooperation pursuant to the U.S.-Mexico extradition treaty. In this scenario, formal extradition requests from DOJ and the U.S. Department of State (State Department) catalyze legal process in Mexican courts. Mexican law enforcement officials then take the lead in apprehending the suspect puunderheir domestic criminal procedures. Subsequently, the Mexicans “hand off” the fugitive to U.S. law enforcement officials, who then proceed to detain and prosecute the individual.
Such was the case with El Chapo, who the Mexican government extradited to the United States in January 2017—the eve of President Donald Trump’s inauguration—after El Chapo escaped from Mexican custody twice. The same extradition process played out with El Chapo’s son Ovidio Guzmán, who Mexico extradited to the United States shortly after a dramatic firefight and arrest in Northern Mexico that resulted in twenty-nine deaths last year.
By contrast, the Alvarez-Machain Scenario is the exception: a unilateral, extrajudicial kidnapping that circumvents the bilateral extradition process. In this scenario, the United States simply extraterritorially captures a foreign suspect and brings him to American soil for criminal prosecution. This occurred in the 1985 kidnapping of Humberto Álvarez Machaín, a Mexican doctor who allegedly tortured and killed a U.S. Drug Enforcement Agency agent. The case is infamous in U.S. law, after the U.S. Supreme Court ruled in United States v. Alvarez-Machain, 504 U.S. 655 (1992), that such extrajudicial abduction did not provide a defense to U.S. jurisdiction in a federal criminal case. While such a measure is not customary in U.S. law enforcement, the case remains good law and thus is legally available to the United States in its bilateral law enforcement actions.
Foreign Affairs and Criminal Law
Notably, the current case falls outside of both the El Chapo and Alvarez-Machain scenarios, neither a formal extradition nor an extrajudicial kidnapping. This is not an extradition because it reportedly occurred without the Mexican government’s involvement—Mexico has claimed it was unaware of and uninvolved in the operation, informed only after the arrest. But the current case is also not an extrajudicial kidnapping because Guzmán López himself brokered a deal with DOJ, offering El Mayo while surrendering himself to U.S. law enforcement. This likely forecloses the international legal argument that the United States violated the bilateral extradition treaty by engaging in unilateral extrajudicial kidnapping within Mexico’s sovereign territory.
But the case nevertheless raises a host of legal and foreign policy questions. Why would the Biden administration go around the Mexican government instead of working through established legal channels? According to some reporting, the Biden Administration has been losing patience with the Mexican government’s anti-drug trafficking initiative in recent years, even though bilateral cooperation is improved from the Trump Administration. Other pressures may include the November elections and the scourge of fentanyl in the United States, the latter of which Attorney General Merrick Garland personally mentioned in his public statement after the El Mayo surrender.
What are the broader implications of this case? As I have argued previously, cases like these are foreign affairs prosecutions, wherein lines blur between criminal law enforcement and foreign affairs. Extraterritorial law enforcement may constitute a foreign policy tool—alongside others like diplomacy, trade, and military force—that the U.S. government deploys globally, albeit one that operates somewhat independently from traditional sources of foreign policymaking in the State Department and the White House. On one hand, such cases can sometimes promote cross-border relationships and redress cross-border crime that exploits territorial protections. The El Chapo extradition is such an example, given it solved a law enforcement issue that eluded the Mexican government.
On the other hand, such cases may criminalize foreign relations. One such example was the Trump Administration indictments brought against Venezuelan President Nicolás Maduro Moros during the political unrest of 2019. The case added to the broader U.S. policy pressure on the Maduro regime, which the U.S. government claimed was illegitimate. Foreign affairs prosecutions may also exacerbate tensions when foreign populations identify with individual defendants. For instance, we see broad swathes of the American public expressing solidarity in U.S. domestic discourse with Donald Trump in the wake of his convictions. A similar dynamic can occur in prosecutions across borders, wherein criminal cases crystallize national sentiment when a foreign population sees one of their own prosecuted by the United States. This also overlaps with complex questions at the intersection of race and foreign affairs.
At the extreme, extraterritorial law enforcement policy may give rise to a global arrest game, wherein states arrest each other’s nationals to gain foreign affairs leverage. The global arrest game risks outbreak particularly with authoritarian states, which lack formal bilateral extradition procedures in part due to insufficient criminal procedural protections in such countries. Furthermore, unlike the decades-long relationship with countries like Mexico and Colombia, such states may lack any working relationship with the DEA and other federal law enforcement agencies. Thus, in the global arrest game, the Alvarez-Machain Scenario becomes the norm, not the exception.
For instance, according to some public reporting, the Turkish government explored with Trump ex-national security advisor Michael Flynn the possibility of kidnapping cleric Fetullah Gulen, who Turkey believed to be responsible for a coup attempt in 2016. One more complex example I have written about previously was the 2018 case of Huawei CFO Meng Wanzhou, who was arrested in Canada at the request of the United States after she was federally indicted for violating export controls and U.S. sanctions related to Iran and other countries. The case led to a trilateral standoff between China, Canada, and the United States; among other things, China engaged in retaliatory arrests of Canadian nationals in an attempt to secure Meng’s release. Ultimately, the case resolved with a 2021 Eastern District of New York deferred prosecution agreement, the Canadian government’s release of Meng, and the Chinese government’s release of the Canadian nationals.
An Overall Win for Law Enforcement
The apparent Narcos-style drama of the El Mayo/Guzmán López surrender conceals its deeper reality: the surrender is the DOJ’s biggest “win” since El Chapo’s extradition in 2017. DOJ apprehended two notorious cartel leaders without violence or bloodshed, likely doing so without too much blowback from Mexico itself. While the Mexican government has requested a formal report from the U.S. government about its operation in the case and issued a domestic appeal to prevent Mexican cartel violence, Mexico is almost certainly pleased that both El Mayo and Guzmán López are out of Mexican territory. Thus, on balance, any bilateral strain is likely outweighed by the substantial benefits of achieving this extraterritorial law enforcement action.