Extradition of Juan Orlando Hernández: US-Honduras treaty put to test after his arrest

The United States and Honduras have an extradition treaty dating back to 1909. But it was only in 2012 that the Honduran constitution was amended so that, for the first time, Honduran citizens could be extradited as well as foreigners.

Ironically, one of the people who made that happen, Juan Orlando Hernandez, who was then president of the National Congress, is now thrust into the middle of the biggest test the extradition treaty has faced.

On Monday, Honduran authorities confirmed that the U.S. was seeking Hernandez’s extradition to face drug trafficking and weapons charges in a New York federal court.

Hernandez, 53, who became president two years after the extradition amendment, and left office last month, was arrested on Tuesday at his home in the capital Tegucigalpa, becoming the latest alleged drug trafficker to face potential trial in the United States.

The one time U.S. ally in the drug war was taken away in chains, bound hand and foot, in a caravan of armored vehicles that transported him to a Special Forces headquarters on the outskirts of the capital. He appeared in court Wednesday morning for arraignment in his extradition case. The hearings are not public.

Once seen as an indomitable, master manipulator of Honduran politics, Hernandez’s good fortune may be running out. His sudden fall from grace comes less than a year after his younger brother, Juan Antonio ‘Tony’ Hernandez, was sentenced to life in prison for his drug crimes. The National Party, which Hernandez had ruled with an iron fist, lost elections last November, leaving him isolated.

Honduras’s new president, Xiomara Castro, has been recovering from covid-19 and kept silent this week, but campaigned on an anti-corruption ticket. Her decision to appoint former top cop Ramon Sabillion as security minister was seen as a signal that her government would go after drug traffickers. While Sabillon was chief of the national police, several of the most powerful narcos in the country were captured.

"He's done for. Not even Superman could save himself from this," said Carlos Chajtur, a Honduran criminal defense lawyer who represented a deceased witness in the Hernandez case.

The sentiment was echoed by former allies of Hernandez as well as observers.

"The indictment is compelling, it reflects [criminal] involvement over almost 17 years, and on top of that the popular outcry demanding justice is very effusive," said Carlos Hernandez, a leading political analyst with the Association for a More Just Society (ASJ) a Honduran non-profit. "The expectation is that the judge will act diligently and order extradition as soon as possible," he added.

How long will the extradition case take?

Despite his public humiliation on Tuesday, Hernandez’s fate is far from certain. Experts say it could be anything from a couple of weeks to several months before the extradition process reaches a conclusion.

And many Hondurans, mired in cynicism after decades of political corruption, still doubt that Hernandez will ever see a U.S. courtroom, or spend much time behind bars in Honduras.

The Supreme Court, which the former president stacked with loyalists before he left office, has the final say in all extradition requests. On Wednesday morning as Hernandez passed through the halls of the court to his hearing, video shared on social media showed employees cheering for him.

Hernandez himself has seemed at peace with his fate, in particular when he issued an audio statement via Twitter before dawn on Tuesday.

"It's not an easy moment, I don't wish it on anyone," he said, in a calm voice. In a message to the police outside his house he added; "I am ready, ready, to collaborate and to turn myself in voluntarily in your company whenever the judge... so decides, to be able to face this situation and defend myself."

His comments fueled speculation that it was a sign he was confident that the judges would ultimately rule in his favor.

Who is the Honduran judge hearing the Hernandez extradition case?

Information swirled Tuesday that the judge picked by the Supreme Court to hear his case, Edwin Ortez, is a political ally with a major conflict of interest and checkered record.

In one notable example of his judicial record, Ortez voted in favor of a controversial ruling that absolved numerous politicians in a prominent corruption case that involved members of Hernandez’s family.

Furthermore, according to media reports, the judge’s partner in a prominent law firm has family ties with one of the former president’s older brothers, Jose Amilcar Hernandez.

A former military officer, Jose Amilcar Hernandez, was rebuked by U.S. prosecutors in court filings last year for having made “unauthorized visits” to a potential witness in the New York drug trafficking case against Tony Hernandez. Prosecutors say the witness, Nery López Sanabria had planned to cooperate with the DEA against the Hernandez brothers, as was revealed at the time by Univision.

The visits “strongly support an inference that the murder was related to the defendant’s prosecution and the ongoing investigation,” prosecutors stated in court documents.

U.S. prosecutors have complained in the past of a refusal by the Honduran government to execute certain extraditions of people who are linked to the National Party and Hernández.

It isn’t clear whether that refusal has come from the Supreme Court, which approves the requests, or the security forces that fail, or refuse, to locate the wanted persons. Several alleged drug traffickers and crooked cops are currently at large in Honduras.

In this case, Hernández has already been detained, so it will be a strictly legal battle from here on.

"I think he could wiggle out if they are not careful,” said Eric Olson, a veteran Central American expert at the Seattle International Foundation following the arrest. “Today is a day of celebration but tomorrow it’s back to work because los corruptos no descansan."

The defense strategy of Juan Orlando Hernandez

Hernandez’s attorneys have been laying out the case for his defense against extradition since well before the arrest. Last week, the lawyer Hermes Ramírez visited the Supreme Court and the public prosecutor’s office to request information regarding any legal actions in process against Hernandez.

Under the extradition agreement, if a person is subject to legal proceedings then he or she cannot be extradited until that has concluded, including any resulting prison sentence. That does not, however, include being under investigation. The majority of the people extradited to date have been under some form of investigation in Honduras.

Nevertheless, Hernandez’s attorneys appear to be planning to use any investigations in process to argue that he cannot be extradited until they conclude.

Lawyers for Juan Orlando Hernandez say he has parliamentary immunity?

Another line of defense that they have signaled is Hernandez’s status as a legislator on the Central American Parliament, a largely figurative political body. “This is an outrage,” said Ramírez. “They cannot arrest him … he enjoys immunity.” However, legal analysts concur that there is no applicable immunity in a criminal case like this.

The attorneys will no doubt also attempt to impugn the credibility of the cooperating witnesses who are identified in the extradition request. Such has been the principal strategy of Hernandez since he first became embroiled in drug trafficking accusations, calling them violent criminals who are lying to reduce their sentences.

The main target of his attacks, the former leader of the Cachiros, was not included in the extradition requests. Moreover, all extradition requests to date have relied upon testimony from the same kind of witnesses. The judge hearing the case will be under immense pressure to apply the same standards used in past cases to that of Hernandez.

In the coming weeks, a hearing will be held in which Hernandez’s attorneys will be able to present his defense. The judge will then decide whether or not to grant the extradition, which Hernandez could appeal and extend the process.