MIAMI — The United States cannot legally return a former Panamanian president to face political espionage charges in Panama, his lawyers argued Thursday, pointing in federal court to what they call flimsy evidence and flaws in an extradition treaty.
The attorneys for Ricardo Martinelli said key parts of a bilateral extradition treaty went into effect in July 2014, after the alleged criminal conduct happened, and cannot be applied retroactively. They also said evidence of related embezzlement charges is too weak to justify sending him home.
“That is pure fiction,” said Marcos Jimenez, a former U.S. attorney in Miami who represents Martinelli. “They don’t have the proof of embezzlement. It is just not there.”
U.S. Magistrate Judge Edwin Torres did not immediately rule, instead setting another hearing for Aug. 22.
Martinelli is accused in Panama of illegally monitoring phone conversations and other communications of at least 150 people with an extensive surveillance system he obtained from an Israeli company using public funds. His alleged targets included business and political rivals, union activists, journalists, even his mistress. The embezzlement charges involve more than $13 million in public funds used to set up the illegal system.
Martinelli, Panama’s president from 2009-2014, has denied wrongdoing, calling the case a political vendetta by his opponents. He is seeking asylum in the U.S., where he has lived for two years in a waterfront Miami-area mansion.
Arrested in June after Panama requested his extradition, he remains jailed without bail, and sat quietly through Thursday’s hearing in chains and a beige prison jumpsuit. His lawyers have asked the U.S. Supreme Court to order his release on bail.
Much of Thursday’s argument focused on whether Panama’s extradition treaty with the U.S. could be applied to charges involving the secret surveillance system, which was operating from 2012 to early 2014. A treaty update involving various cybercrimes took effect July 1, after Martinelli left office, and the original 1904 treaty between the two nations specifically ruled out retroactive application to extradite someone for a crime.
Jimenez said that Martinelli therefore can’t be sent home. “This is a supplemental treaty. It can’t be retroactively applied,” Jimenez said.
Assistant U.S. Attorney Adam Fels, however, said the State Department’s position is that the treaty update must be considered retroactive unless its current language rules that out, which it does not.
“The court has to defer to the State Department reading of this treaty,” Fels said.
The judge said he sees merit in both arguments.
“They both make sense to me,” Torres said. “It’s not an insignificant issue I can gloss over.”
Jimenez said the embezzlement allegation was added in Panama in case the treaty issue became an obstacle, since embezzlement is a listed extraditable offense in the original 1904 pact.
“It’s a tacked-on, trumped-up, manufactured charge,” Jimenez said.
Fels countered that the proof is ample and could result in a conviction if the same case were brought in a U.S. court.
“He was behind this whole thing,” Fels said.
The Martinelli hearing was held across the street from the courthouse where another Panamanian president, Manuel Noriega, was tried and convicted of drug trafficking after the U.S. military invaded his country in 1989. Noriega served his sentence in a prison south of Miami, and died in May in Panama.
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