Federal prosecutors charge El Salvador's mara leadership with national security offences

° The US still classifies gangs as a criminal organisation, not as group terrorists, but in the last year it has come to consider some of their leaders as terrorists.

° The department of Justice considers the connection between the decisions taken by the MS-13 leadership from Salvadoran prisons and crimes committed in the USA to be proven.

° In the past five years, US courts have convicted 504 gang members, 73 of whom received life sentences.

Inmates of the maras in Salvadoran prisons, in April 2020 [Gov. of El Salvador].

report SRA 2021 / Xabier Ramos Garzón [ PDF version] [PDF version].

US 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 organisation in the US 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 the Trump administration's prioritisation of the fight against illegal immigration. It is not yet known whether the Biden administration, which is less interested in criminalising immigration, will insist on the category of terrorism. However, police and judicial pressure on gang members responsible for crimes on US soil does not seem likely to diminish for the time being.

Tax offensive

In July 2020, the US Justice department released terrorism charges against Armando Eliú Melgar Díaz, alias Gangster Blue, sealed since the previous May in the Eastern District Court of Virginia. The charges included conspiracy to provide material support to terrorists, committing cross-border acts of terrorism, financing terrorist actions and conducting narco-terrorist operations. Melgar had lived in Virginia, with some absences, between 2003 and 2016, when he was deported. In November 2018, he was arrested and detained in El Salvador. Prosecutors believe he directed MS-13 criminal activity on the East Coast from El Salvador, apparently ordering and approving assassinations, overseeing drug trafficking businesses, and collecting money for local cliques or organisations.

Having opened this avenue of terrorism charges, which carry heavier penalties, against leaders who allegedly ordered the commission of crimes from El Salvador, the US Attorney's Office for the Eastern District of New York proceeded a few months later with the broadest and most far-reaching indictment against 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 formalised the previous month, with indictments against fourteen MS-13 leaders, all of them members of the Ranfla Nacional or gang leadership, which was headed, according to the Public Prosecutor's Office, by Borromeo Enrique Henríquez, aka Diablito de Hollywood. Eleven of them are in Salvadoran prisons and three are fugitives. The charges were similar to those brought against Melgar, but the indictment does not provide details of specific actions. The crimes of different cliques of the MS-19 are attributed to them, since, as part of its leadership, they were ultimately responsible for ordering the commission of many of the crimes. According to the prosecutor announcing the case, "MS-13 is manager of a wave of death and violence that has terrorised communities, leaving neighbourhoods awash in bloodshed". The US proceeded to prepare the respective extradition requests.

In addition to these two cases, which would fit into a conceptual framework that appears to seek to prosecute group terrorist leadership (even though terrorist status has not been applied by the United States to any gang, nor is there consensus on a narrow centralisation of criminal decision-making), several prosecutions of MS-13 members were launched in 2020 for crimes strictly related to murder, kidnapping, drug trafficking, weapons possession, and other organised 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 organisation and the District Court of Nevada 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 enforce 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 department 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 some 10,000 gang members in the United States, counts that 749 gang members were charged in US courts during this period; of these, 74% were in the country illegally, 8% were US citizens and 3% were legal residents. 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 Sáenz, who is accused of seven murders, almost all of them using a machete or a baseball bat, and Elmer Zelaya, accused of coordinating the stabbing of two young men; most of the victims were teenagers. This extreme violence was highlighted by Donald Trump at several points 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 the 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 (TAGs) 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 consideration of gangs as international criminal organisations, in the framework of a new National Strategy to Combat Transnational Organised Crime, were used by the Treasury'sdepartment in 2012 to apply that consideration to MS-13. The same categorisation was used in 2017 by the department Justice Department as the basis for the "war on gangs" launched by Trump. In 2018, the congress itself highlighted the dangerousness and incidence of gangs, in actions decided from El Salvador.

In 2019, Attorney General William Barr travelled to El Salvador, where he gathered information from the Salvadoran authorities, 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, reportedly underpinned the 2020 decision to open terrorism cases against gang members in US federal courts.

This change in the subject offence can be core topic in the future of the fight against gangs by offering a number of advantages, as there is no statute of limitations on terrorism charges and they have harsher penalties associated with them. International law also provides a greater arc and leeway for countries fighting terrorism, so cooperation between countries could be greatly enhanced; indeed, making charges comparable in the US and El Salvador could speed up 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 US, do not have the range of features of a terrorist organisation: 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".