Is Sean Penn Guilty or Innocent?

Sean Penn’s meeting with Mexican drug lord Joaquín “El Chapo” Guzmán—conducted for an interview in Rolling Stone magazine—has triggered intense debate. Should Penn be prosecuted for being in secret contact with a fugitive from justice?

The discussion raises familiar questions: Is a journalist guilty of aiding and abetting a known criminal by not revealing his whereabouts to the authorities? Is a journalist who meets with a lawbreaker interfering with the course of justice?

Penn has a penchant for the so-called third world, sometimes of a noble kind and sometimes not, as when he uses his fame to legitimize dictators. His piece on Guzmán in Rolling Stone is less sexy than one would expect—it says more about Penn than about the drug lord himself. But Penn’s sometimes questionable politics, his debatable flair as an interviewer, and the fact that he is not a full-time journalist are no grounds for prosecuting him.

Otherwise hundreds of journalists would have been prosecuted for interviewing terrorists who were on the run. Osama Bin Laden spoke to Robert Fisk, Peter Arnett, John Miller, and Rahimullah Yusufzai while in hiding. None of them were sent to prison.

Unless the interviewer actively helps the fugitive evade the authorities or commit a crime, he or she cannot be held responsible for the circumstances in which the fugitive is able to elude apprehension. If there is no form of complicity, then guilt by association is not even contemplated in the legal codes of most countries or by international treaties.

Some years ago, I did some research on illegal migration from Mexico to the United States for my book Global Crossings: Immigration, Civilization, and America. I visited Altar, a small town in the Sonora desert. At the time, the trail that connects Altar and Sásabe led to the main illicit entry point into the Arizona desert. I discovered that a Catholic church that protected migrants had frequent contact with narcos, especially the Beltrán Leyva cartel.

The church wanted to make sure the narcos would not attack the migrants as they crossed the dessert, mistaking them for rival groups or police informants. The contact that these heroic priests had with the drug traffickers was more significant than Sean Penn’s encounter with Guzmán. Were they violating the law? No—otherwise the Mexican government, which was aware of what was going on and had unleashed an all-out war against the drug cartels, would have intervened.

Are the people who conduct interviews like the kind I conducted in Altar responsible for the problems in that part of Mexico or for the cartels’ ability to survive the war? Were those of us that were stopped by members of the Beltrán Leyva cartel, who descended from a helicopter as we drove along the Altar-Sásabe trail, guilty of lawbreaking because the narcos let us continue with our journey once they realized we were not an enemy gang?

I phoned one of the priests who had contact with cartel, and his response to my concerns was simple: “The police know who controls that route and that people who use it are routinely stopped and let go; they don’t care because the migrants are not the problem.”

Would society be better protected if we banned all journalistic contact with the world of crime? No. Even less so in societies where some of the authorities are often guilty of the crimes they are supposed go after or where official institutions don’t accomplish their most basic mission.

In the absence of a free press, would the police and the justice system be more efficient and less corrupt? Would criminals have more difficulty in committing crimes or evading the police? Evidently not. Press restrictions would add new problems to the existing ones—including producing less evidence of how absurdly inefficient an intelligence system is if it cannot find, using its massive technological resources, a criminal suspect who can be reached by a reporter.