Fault Lines
21 June 2017

Colombia, the DOJ, & Andres Arias Walk Into A Federal Courtroom…

February 16, 2017 (Fault Lines) — In Miami’s federal court, there’s an ongoing battle of transnational intrigue going down.  On one corner, there’s the Republic of Colombia, and the U.S. Department of Justice.

On the other sits Andres Felipe Arias, a former Minister of Agriculture for Colombia, and his defense lawyers. Colombia, with America’s help, is seeking to have Arias sent back home so he can serve a prison sentence. His lawyers are fighting tooth and nail to keep him stateside, away from a Colombian cage, or worse. As Arias’ case shows, not all politics are local. The Miami Herald reports on the latest round, which went to the government:

Andres Arias Leiva, 43, a former agriculture minister, might have to return to face those charges after a federal magistrate judge in Miami ruled on Monday that an extradition treaty between the U.S. and Colombia “remains in full force and effect.”

Lawyers for Arias Leiva, who left for South Florida in 2014 and was arrested last year at his home in Weston, had asserted that the treaty was not in effect and therefore the U.S. and Colombian governments had no authority to seek approval for his extradition in Miami federal court. They tried to have his complaint dismissed and arrest vacated, to no avail.

Magistrate Judge John O’Sullivan concluded that the two nations did have that power under the treaty because “the record evidence establishes that it is the official position of the executive branches of the United States and Colombia that the extradition treaty remains in full force and effect.”

The U.S. Attorney’s office filed a complaint for Arias’ extradition under seal, citing that in 2014 a Colombian tribunal found Arias guilty of rooting for the wrong team at the wrong time “Embezzlement of Third Parties” and “Conclusion of Contract Without Fulfilling Legal Requirements,” in violation of Colombian law. After Arias was admitted to the U.S. and sought political asylum from Colombia, an extradition request was sent to the U.S. Department of State.

The basis for Arias’ asylum request is that he, along with political ally and former president Alvaro Uribe, strongly criticized the current administration’s peace deal with the FARC guerrillas in Cuba. His asylum application is still pending with USCIS, but if he does not prevail in U.S. District Court versus the DOJ, that application would be moot, as he will be in a Colombian prison cell by the time that application reaches an asylum officer’s desk.

Thus, in theory Arias would face persecution back home at the hands of the FARC guerrillas on account of his political views, which are well documented. And the timing of Arias’ arrest by the U.S. Marshals in south Florida is cause for skepticism: he was arrested on the same day that Colombian president Juan Manuel Santos announced his peace deal with the guerrillas.

Yes, the government alleges that, before his conviction, Arias’ “fled Colombia by plane to the U.S.,” but there’s more to that. Arias had a visa issued to him by the U.S. Embassy, and he was inspected and admitted to the U.S. at a point of entry. He remained in south Florida with his family, filed his asylum application, and was given a work permit by USCIS. So until the DOJ stepped in with its complaint for extradition in August of 2016, the U.S. Embassy, ICE, CBP, and USCIS were cool with him being here.

His lawyers sought to dismiss the extradition request by claiming that there is no extradition treaty in effect between the United States and Colombia because “[o]n 12 December 1986, the Colombian Supreme Court of Justice held that Colombia’s legislation ratifying the Extradition treaty was not constitutionally enacted.” Arias also claimed that The Colombian Ministry of Foreign Affairs’ list also shows that the treaty “is not in force,” and that the U.S. Department of State website confirms that it was never ratified.

Uribe, Arias’ former mentor, also came to his aid, declaring before U.S. Magistrate Judge John O’Sullivan that there’s no extradition treaty between the two countries, and that although Colombia sends thousands of its narco-traffickers to be tried in the U.S. (it sends more drug-war-hydra-heads traffickers than any other country), it is not done pursuant to any treaty.  The government counter-punched saying that the U.S. never considered that the Colombian Court’s decisions had the effect of nullifying the operation of the Extradition Treaty.

In plain speak, the U.S. is saying that what counts is what goes back and forth between the executives du jour, not what some pesky foreign tribunal said about the treaty. As the government argued, “as long as the [E]xecutive [B]ranch speaks on the matter, as far as the validity of the treaty . . . it is either a political question or this Court should give great deference to [the Executive Branch’s] finding.” Ah, that ol’ tug-o-war between what the executive wants and what the robed jurists will allow. Sign of the times, indeed.

Magistrate Judge O’Sullivan ruled that the Extradition Treaty remains in full force, since both executives “have stated that it is the understanding of both sovereigns that the Extradition Treaty is currently in effect.” But not all is lost for Arias, as he has since filed a petition for writ of prohibition to divest the Extradition Court of jurisdiction over his case, which remains pending in the SDFL.

The stakes are high for Arias because if he does not prevail in court, the only thing keeping him from being repatriated would be the U.S. Secretary of State’s refusal to rubber stamp the court’s order of extradition. And as for his asylum application, which would be deemed abandoned should he leave the country without an advance parole document, his criminal convictions would likely bar him from asylum or from seeking a withholding of his deportation under the Convention Against Torture.

The political soap opera behind this case began with former president Uribe’s policies for taking down the FARC guerrilla problem that had terrorized Colombians since the 1960s. He was largely successful in doing so, but not without allegations of corruption and human rights abuses.

The current president, Juan Manuel Santos, served as Uribe’s defense minister. Santos sought a more conciliatory route with the FARC, was awarded the 2016 Nobel Peace Prize, and eventually finalized a “peace deal” with the guerilla group. Uribe, as well as others who felt that the FARC criminals were getting a free pass on decades of murder and kidnappings, was opposed form the start. The deal was reached after years of negotiations in Cuba, under the auspices of the Castro dictatorship. A new Colombian administration negotiating a peace deal with guerrillas in a tropical island created enough ripple effects to land Arias in a Miami federal courtroom, where he is fighting for his freedom.

6 Comments on this post.

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  • roy black
    16 February 2017 at 3:32 pm - Reply

    The 11th circuit has also held the treaty is not in effect. a defendant appealed a sentence which was in excess of that allowed pursuant to the extradition treaty and the 11th ruled since the Colombian supreme court held the treaty was not in effect then it wasn’t. Kafka would love all this.

    • Mario Alfredo Machado
      16 February 2017 at 5:16 pm - Reply

      Indeed, Roy. Unfortunately, as you know the 11th cir. precedent cited by Arias was referred to as dicta, and the order also stated that those cases dealt with defendants being sent from Colombia to the U.S., and not the other way around.

      I have trouble with that second part, as it is a distinction without a difference for purposes of this case. Also troubling is how Colombia is thumbing its nose at the U.S. while still demanding that America ship Arias off to Colombia. As the defense stated in its reply to Colombia’s response:

      “Because it did not ratify the Treaty, Colombia denies U.S. requests to extradite drug
      traffickers and violent criminals to the United States. This violates Article 1, which says the Treaty must be reciprocal: “The Contracting Parties agree to extradite to each other … .” President Santos told the BBC that Colombia will deny U.S. extradition requests for FARC leader Rodrigo Londono Echeverri and “some 70 other FARC members sought for drug
      trafficking and other offences.”

      Must be damn nice to have it so good.

  • RICHARD KOPF
    17 February 2017 at 8:24 am - Reply

    Mario,

    My daughter spent three years living and teaching in Colombia and so I took some time to look into the politics there and particularly President Uribe. There seems little doubt that he brought the FARC nearly to its knees.

    For many Colombians (likely the majority) and ex-pats like my daughter, Uribe was a true hero. By the time Uribe came to power, FARC had morphed into a drug, kidnapping and killing enterprise almost exclusively. Uribe’s success in dealing with FARC was seen by many as saving Colombia from becoming a totally failed state.

    Two questions:

    (1) With the foregoing in mind, and given the failure of the Colombian people to ratify the first “peace agreement” with the FARC, which, I’m guessing was not viewed favorably by President Obama, I wonder whether DOJ’s position is likely to change under the Trump administration?

    (2) If the dark hand of the FARC is anywhere near the extradition request, then this poor guy is likely to die in a Colombian prison of multiple stab wounds received from “unknown” prisoners. What do you know, if anything, about whether FARC is pushing the extradition request?

    Fascinating post! All the best.

    Rich

    PS I fear that peace and reconciliation in Colombia will also have more than a small component of pay-back.

    • Mario Alfredo Machado
      17 February 2017 at 2:59 pm - Reply

      Thanks Judge.

      1. I don’t think the DOJs position will change, given that Colombia sends so many traffickers to be tried in U.S. District Courts, upon request by the feds. Unless and until the U.S. stops requesting extradition of Colombian drug kingpins (which I do not see happening anytime soon, or during Trump’s administration), the U.S. will do its best to placate Colombia by sending them people like Arias.

      It stinks to high heaven that Santos said he will refuse to send 70 FARC guerrilla leaders should the U.S. request them, but I think that’s part of the very nice amnesty package he has given them, which started with the FARC leaders indulging in wine, women, and song in Cuba for over a year while the negotiations took place. But as far as non-FARC traffickers, that Colombia-to-U.S. pipeline will not cease.

      2. I don’t know, and don’t think that FARC is pushing this request. They welcome it, as well as his demise, but it looks like a political witch hunt on the part of the new Colombian administration. Santos, for better (finalized “peace deal”) or worse (granted amnesty to a group of very dangerous gangsters with decades-long rap sheets) stabbed Uribe in the back, Uribe fought back, and this is Santos’ reply.

      I do know that if Arias loses here and is sent back, it would be an embarrassment and a disgrace for the Santos administration should Arias end up dead in a Colombian jail cell.

      Best,

      Mario

  • stevie g
    17 February 2017 at 4:14 pm - Reply

    Not to put too fine a point on it, but Colombian President Santos has historic ties to the terrorist group FARC and even to Castro himself. In short, it is evident that the extradition of Arias, who sided with ex-president Uribe, is simply political revenge. The USA should not be engaged in being a puppet for this reckless despot.

    Upon becoming president, Santos stabbed Uribe in the back and, when the Colombian people voted against the deal with FARC, Santos simply bypassed them and had his peace plan upheld by a friendly Congress. Colombians are also upset that they had to pay for FARC’s dinners, hotels, entertainment and Cuban cigars during years of negotiating the Peace Plan. The real problem is that after years and years of terrorizing and killing, there is no real justice for the FARC guerrillas.

    To think that Santos’ deal with the FARC will bring peace to Colombia ignores the realities of that country. There are still lots of drugs and delinquent gangs who rob, kidnap and extort on a daily basis. And there is extreme poverty that is not addressed by the Colombian government. (Still better than Venezuela though!) Like most banana republics, the majority of the wealth is controlled by a very small percentage of the elite.

    That Santos received the Nobel peace prize is the biggest joke since one of our own ex-presidents did likewise.

    Sheesh! It doesn’t help that Santos bears an uncanny resemblance to Batman’s joker. Que jueson!

  • Javier
    22 February 2017 at 10:05 am - Reply

    I am a Colombian who knows he is using all issues Colombia has for his own benefit. This man, Andres Felipe Arias, is nothing else than a corrupted, criminal ex politician. Bring him back to pay for all his crimes.