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Martinelli extradition, why process matters when fighting impunity

Panama and the United States have proven that no matter how wealthy or once powerful an alleged felon may be – to include an ex-President – no one is above the law.
Former U.S. ambassador to Panama from 2016 to 2018.

Former Panamanian President Ricardo Martinelli was extradited today from the United States and placed in the custody of the Panamanian justice system. He is charged with illegally acquiring sophisticated IT hacking gear and spying on private citizens and political rivals while President.

Independent of his guilt or innocence, today’s extradition is very good news for judicial cooperation between sovereign states, and the hemispheric struggle against corruption and impunity.

Why? Because the process worked. And by making this legal process work, Panamanians and Americans have strengthened democratic rule of law in both our countries.

Panama and the United States have proven that no matter how wealthy or once powerful an alleged felon may be – to include an ex-President – no one is above the law. Martinelli will be tried in Panama, where his alleged crimes were perpetrated. Moreover, Panamanians now appreciate that the United States did not permit a cynical abuse of its immigration laws by their ex-President in his effort to avoid accountability.

Martinelli claims he is the victim of political persecution by his former Vice President and Panama’s current leader, Juan Carlos Varela, who has sought to expose much of the corruption and graft of the Martinelli era (2009-2014). Literally dozens of investigations have been opened against former Martinelli ministers and associates in Panama. Since early 2015, Martinelli has perched comfortably in Miami, attacking his successor with a hyper-active, fake news-style Twitter account, and employing a legion of lawyers and spinmeisters to defend himself in the Panamanian court of public opinion.

What he was afraid to do all this time was return to Panama and face the legal music.

For two years the U.S government was enjoined from commenting on his immigration status in Miami, while indignant Panamanians rightfully asked why he was able to sit offshore, apparently out of reach of Panama’s Supreme Court, which was investigating him not only for espionage but for a host of grand scale kleptocracy corruption charges as well.

For a time, Martinelli’s social media machine spun the rumor that he was “protected” by Uncle Sam for having been such a good political ally as President.

Nothing could be farther from the truth.

Finally, it was revealed by his own advisors that he had filed for political asylum, effectively buying himself a few years of legal presence in the United States while his asylum case worked its way through the system.

When the Panamanian Supreme Court and Foreign Ministry presented the United States with a request for Martinelli’s extradition in September of 2016, a transparent and legal process was initiated to validate the request under the 1904 bilateral extradition treaty.

Nine months later, in June of last year, Mr. Martinelli was arrested pursuant to the Panamanian provisional arrest request. In August 2017, a U.S. District judge found him indeed extraditable, a decision he immediately appealed, as was his right. His defense team attempted to get the case before the U.S. Supreme Court, a risible tactic that predictably failed.

Through it all, the meticulous work of judicial and diplomatic officials in both Panama and the United States continued, all in strict accordance with established procedure and in compliance with the treaty. Despite Mr. Martinelli’s almost daily verbal assaults on the Varela government and the U.S. Embassy in Panama, and even a sad last-ditch effort to demonstrate his loyalty to the CIA through an open letter that explained how he had done the spy agency’s bidding while President of a sovereign nation, the two governments kept on working together.

U.S. authorities weighed whether there would be a threat to Mr. Martinelli’s physical integrity or whether he might be tortured if returned to Panama. They determined there was no such threat. In the end, Martinelli’s defense team simply failed to persuade U.S. courts that the Panamanian charges against him were without merit. Finally, after almost a year in jail, Martinelli decided to drop his appeals, and the Deputy Secretary of State approved the extradition last week.

So now he heads home; handcuffed and in protective custody.

The myriad American lawyers, judges, diplomats and court personnel involved in the case never pronounced nor suggested a verdict. That is for the Panamanian people alone to decide, in this case represented by the Panamanian Supreme Court.

Importantly, United States stipulated that the rule of speciality shall apply. This means that the Panamanian Supreme Court may only try Martinelli for the charges of espionage contained in the government’s request for extradition. At some point in the future, Panama may choose to request an exemption from that guideline and seek permission from the extraditing state (the U.S) to allow it to bring new or different charges against Martinelli. That is permitted under the treaty and would be duly considered by the United States should such a request materialize.

For now, that legal speculation is not a priority.

What is of great and immediate relevance is that a once powerful and still wealthy man will stand accused in Panama’s highest court. He will no longer hide from justice in the United States. He will be afforded proper legal counsel and procedural protections in accordance with Panamanian law.

He may even be housed in the same jail cell where the now deceased Panamanian dictator Manuel Antonio Noriega was jailed. Regardless of that historical irony, I am convinced the Panamanian people and their democracy will emerge stronger as a result.