Federal prosecutors file charges against gang leaders in El Salvador for crimes against national security
° The US continues to classify gangs as a criminal organization, not as group terrorists, but in the last year has come to consider some of their leaders as terrorists.
° The department of Justice considers proven the connection between the decisions taken by the MS-13 leadership from Salvadoran prisons and crimes committed in the US.
In the past five years, U.S. courts have convicted 504 gang members, 73 of whom received life sentences.
► Mara inmates in Salvadoran prisons, April 2020 [Gov. of El Salvador].
report SRA 2021 / Xabier Ramos Garzón [ PDF version] [PDF version].
MAY 2021-U.S. authorities have in the past year taken a significant leap in their reaction to the violence of the main Latino street gang, the Mara Salvatrucha, or MS-13. For the first time, federal prosecutors filed terrorism charges against the gang's leaders, opening the door to a review of the classification of MS-13, which has been considered an international criminal organization in the United States since 2012 and could be designated group terrorist, as is already the case in El Salvador.
The focus of the Justice department on violence with a Central American connection, however, may have been due to a prioritization of the fight against illegal immigration during the Trump Administration. It is unknown for the moment whether the Biden Administration, which has less interest in criminalizing immigration, will insist on the category of terrorism. However, police and judicial pressure on gang members responsible for crimes on U.S. soil does not appear to be abating for the time being.
Tax offensive
In July 2020, the U.S. Justice department made public terrorism charges against Armando Eliú Melgar Díaz, alias Gangster Blue, sealed since the previous May in the U.S. District Court for the Eastern District of Virginia. The charges included conspiracy to provide material support to terrorists, committing cross-border acts of terrorism, financing terrorist actions and conducting narcoterrorism operations. Melgar had lived in Virginia, with some absences, between 2003 and 2016, when he was deported. In November 2018, he was arrested and imprisoned in El Salvador. Prosecutors believe that from that country he directed MS-13 criminal action on the East Coast: he apparently ordered and approved murders, oversaw drug trafficking businesses, and collected money for local cliques or organizations.
Having opened the way for terrorism charges, which carry heavier penalties, against leaders who allegedly ordered the commission of crimes from El Salvador, the U.S. Attorney's Office for the Eastern District of New York proceeded a few months later with the broadest and most far-reaching indictment against the MS-13 and its command and control structure in the history of the United States, alleging crimes "against national security. Thus, in January 2021, the U.S. Attorney's Office made public an indictment, secretly formalized the previous month, with accusations against fourteen MS-13 leaders, all of them members of the gang's Ranfla Nacional or leadership, which was headed, according to the Public Ministry, by Borromeo Enrique Henríquez, a.k.a. Diablito de Hollywood. Eleven of them are in Salvadoran prisons and three are fugitives. The charges were similar to those brought against Melgar, although the indictment does not provide details on specific actions. The crimes of different cliques of the MS-19 are attributed to them because, as part of its leadership, they were ultimately responsible for ordering the commission of many of the crimes. According to the prosecutor when announcing the case, "MS-13 is manager of a wave of death and violence that has terrorized communities, leaving neighborhoods awash in bloodshed". The U.S. proceeded to prepare the respective extradition requests.
In addition to these two cases, which would be inserted in a conceptual framework that seems to want to pursue the figure of leadership of group terrorist (although the consideration of terrorist has not been applied by the United States to any gang, nor is there consensus on a close centralization in criminal decision-making), in 2020 several prosecutions were launched against members of MS-13 for crimes strictly for murder, kidnapping, drug trafficking, possession of weapons and other organized crime activities. On the same day in July 2020 that the Melgar indictment was announced, the Eastern District Court of New York filed a case against eight members of the organization, and the District Court of Nevada filed a case against thirteen others; in August, the Eastern District of Virginia proceeded to arrest eleven more individuals associated with the gang.
These actions showed a commitment to make effective the investigations that had recently intensified, at the end of a presidential mandate that had made the fight against gangs one of the priorities of the department of Justice. Precisely at the end of 2020, this department published a report taking stock of the "efforts" carried out in this field between 2016 and 2020, graduate "Large-scale response". The report, which estimates that there are about 10,000 members of different gangs in the United States, counts that in that period charges were filed in U.S. courts against 749 gang members; of these, 74% were in the country illegally, 8% were U.S. citizens, and 3% resided legally. These prosecutions led to the conviction of at least 504 individuals, of whom 37 received life sentences.
The attorney general also opened procedure to apply for the death penalty for two defendants involved in crimes that had a special social resonance. They are Alexi Saenz, who is attributed with seven murders, almost all using a machete or a baseball bat, and Elmer Zelaya, accused of coordinating the stabbing of two young people; most of the victims were teenagers. This extreme violence was highlighted by Donald Trump at various times during his term in office and he referred to it last July when the aforementioned terrorism cases were announced. He called the gang members "monsters who murder children," and indicated that US authorities would not rest until "every member of MS-13" was brought to justice.
For its part, the FBI has formed Transnational Anti-Gang Units (TAG) with security forces from several Central American countries, which since 2016 have been responsible for hundreds of arrests and have assisted in the extradition to the US of 68 defendants, 35 from Guatemala, 20 from Honduras and 13 from El Salvador.
Trajectory
Barack Obama's 2011 provisions empowering the consideration of gangs as international criminal organizations, in the framework of a new National Strategy to Combat Transnational Organized Crime, were used by Treasury'sdepartment in 2012 to apply that consideration to MS-13. The department of Justice resorted in 2017 to the same cataloging as the basis for the "war on gangs" launched by Trump. In the congress itself, the dangerousness and incidence of gangs was already highlighted in 2018, in actions decided from El Salvador.
In 2019, Attorney General William Barr traveled to El Salvador, where he gathered information from authorities in the country, whose Supreme Court had already designated the maras as group terrorists in 2015. Alleged evidence of the chain of command, which connects orders for assassinations and other crimes given from Salvadoran prisons and their execution in the United States, would have supported the 2020 decision to open terrorism cases against gang members in U.S. federal courts.
This change in the subject crime can be core topic in the future of the fight against gangs by offering a series of advantages, since there is no statute of limitations on terrorism charges and these have harsher penalties associated with them. International law also provides greater arc and leeway to countries fighting terrorism, so cooperation between countries could be greatly enhanced; in fact, making charges comparable in the United States and El Salvador could expedite extradition requests.
However, the move is not Exempt controversial. In the same way that international drug trafficking charges against the gang members have been of little use, since they do not properly constitute a transnational drug cartel, it remains to be seen how effective it would be to invoke terrorism charges in this case, given that the maras, at least in the United States, do not have the variety of traits of a terrorist organization: there is certainly not the element of wanting to be a political actor. In any case, as Steven Dudley, co-director of Insight Crime and author of MS-13: The Making of America's Most Notorious Gang, has said, the US government's decision to charge the visible leaders of MS-13 in El Salvador with terrorism "may be a sign of how poorly they understand this gang or how well they understand their judicial system."
