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<a href="http://www.colombiajournal.org/colombia234.htm" eudora="autourl">
http://www.colombiajournal.org/colombia234.htm<br><br>
</a>May 3, 2006<br><br>
The FARC Indictment<br><br>
by Paul Wolf<br><br>
The U.S. State Department has developed the secret formula to dismantle
the armed groups of Colombia’s war. Or so it believes. It is believed
that the demobilization of 28,000 members of the paramilitary United
Self-Defense Forces of Colombia (AUC) was the result of threatening its
leadersnotably Salvadore Mancuso and Don Bernawith extradition to the
US. Fear of extradition, accompanied by promises of amnesty, convinced
large numbers of paramilitaries to lay down their arms, confess their
crimes, and put their faith in the government to restore order in
Colombia. Now, the same strategy is being tried on the Revolutionary
Armed Forces of Colombia (FARC), an insurgency born in Colombia’s civil
conflict (“<i>La Violencia</i>”) and greatly influenced by the Cuban
Revolution. <br><br>
<img src="cid:6.2.5.6.2.20060509085903.02a6cb38@freedomarchives.org.0" width=167 height=285 alt="[]">
The FARC has grown over the decades, despite concerted efforts by the
Colombian and U.S. governments to destroy it, including the use of death
squads, forced displacement of its supporters, and the most modern
technologies of surveillance and counter-terrorism. On March 29, U.S.
Attorney General Alberto Gonzales announced the indictment in the U.S. of
the top 50 leaders of the FARC on drug charges. According to the
indictment, the FARC not only taxes Colombian coca growers, but also
operates cocaine-processing laboratories, and enforces a monopoly on the
purchase of the drug in areas it controls. The indictment is said to be
the largest in U.S. history.<br><br>
According to Gonzales, and to Department of Justice press releases, the
FARC is responsible for 50 percent of the world’s cocaine, worth more
than $25 billion. This staggering figure cannot represent the true income
of the FARC, however. The FARC has an estimated 18,000 fightersthis
would be more than one million dollars per guerrilla. That’s a lot of
money for people who live in the jungle, sleep in hammocks, and live on a
diet of yucca, rice and chicharón. (pork fat) <br><br>
A different estimate was made by the Department of Information and
Financial Analysis of the Ministry of Land of the Colombian government,
in which it is said that the FARC receive about 30 percent of their
income from drugs: $8.5 million per year in “tribute” from coca farmers,
and about $3 million from the sale of cocaine. Even multiplying this
figure by the ten years the United States says the FARC have been in the
cocaine business, the U.S. estimate exceeds that of Colombia by a factor
of 200. The U.S. government has offered $75 million in rewards for
information leading to the capture of FARC leaders.<br><br>
The FARC indictment supercedes the 2002 indictment of FARC member Negro
Acacio, a case that has languished in the Washington, DC District Court
for the last four years. The new evidence apparently implicating the
Estado Mayor (Central Command) of the FARC, consists of captured
documents, witness testimony, and intercepted radio transmissions, which
allegedly show the complicity of the FARC leadership in the production
and trafficking of vast quantities of coca paste and cocaine. The
physical evidence, however, is the same as in the original indictment of
2002: “five or more kilograms of a substance containing a detectable
amount of cocaine.”<br><br>
In addition to Negro Acacio, several other FARC members are already on
trial in the United States. for drugs and terrorism, including Carlos
Bolas, Simón Trinidad and Omaira Rojas (“Sonia”). According to the DEA,
three others await extradition at Cómbita prison: Jorge Enrique Rodriguez
Mendieta (“Ivan Vargas”), Erminso Cuevas Cabrera (“Mincho”), and Juan
Jose Martinez Vega (“Gentil Alvis Patino”). These three are accused of
having significant personal involvement in the production and trafficking
of thousands of kilograms of cocaine.<br><br>
While one might assume that Colombia would agree to their extradition,
Colombia does not recognize the 1982 extradition treaty with the United
States, and has the discretion to either extradite or not. Colombia might
try to use the threat of extradition to put pressure on the FARC to
demobilize. At Gonzales’ press conference in March, the first thing said
by Colombian Ambassador Andrés Pastrana was that “[t]he indictment of 50
leaders of the FARC guerrillas is a decision taken by the Department of
Justice of the United States.” This appears to leave the door open for
Colombia to negotiate this point, if the FARC have any interest in it.
<br><br>
The belief that the FARC leaders fear extradition, and can be convinced
to demobilize, is held by the United States, but not the Colombian
government. This is clearly Washington’s policy, and not Bogotá’s.
Nevertheless, Colombia is likely to go along with it, since its own
policy is to defeat the insurgency through pressure and force of arms.
<br><br>
The indictment describes the FARC as being substantially in control of
most of the cocaine production in Colombia. While it has been
acknowledged for many years that the FARC tax the coca trade, and fight
with the AUC to control rural parts of Colombia, the indictment accuses
the FARC of operating cocaine laboratories, as well as killing coca
growers who sell to anyone other than the guerrilla group. It does not,
however, accuse the FARC of trafficking drugs outside of Colombia,
although guns-for-drugs transactions have allegedly occurred on the
Colombia-Brazil border.<br><br>
All of these prosecutions will have to overcome a serious hurdle; that
is, in order for any extradition to be valid, there must be some
connection between the crime and the United States. In the case of drug
trafficking, the defendants must intend that the drugs are shipped to the
United States. Even if it is true that the defendants have produced
hundreds of thousands of kilograms of cocaine, as the indictment alleges,
if they didn’t know, or didn’t care where the drugs went, then they would
not have had the intent to send the drugs to the United States, and could
not be extradited. <br><br>
If there is no intentional connection with the United States, no U.S. law
would have been violated. In this respect, the threat of extradition may
be an empty one. On the other hand, the threats of being held in solitary
confinement for many years, and of inadequate legal representation in the
face of a government with unlimited prosecutorial resources, are very
real. Even the well-known FARC guerrillas Simón Trinidad and Sonia have
been represented by public defenders with limited resources. For example,
in Sonia’s case, the defendants were provided with over 100 compact disks
of intercepted communications to review themselves in prison in order to
prepare their own defense, and more than 10,000 documents that the
prosecution might use in the trial. In the Trinidad case, between 20-25
witnesses will be flown up from Colombia to testify in the drug
trafficking trial alone.<br><br>
Simón Trinidad, the well-known negotiator for the FARC during the peace
process of the Pastrana administration, was captured in Ecuador two years
ago and extradited to the United States on charges of drug trafficking,
kidnapping, and providing material support to a terrorist organization.
The case has attracted the attention of the Latin American press but not
the U.S. media, despite the fact that the case will test numerous
traditional legal principles as applied in the new paradigm of the “war
on terror.” It also appears that Trinidad will be the first of the FARC
members to be prosecuted in the new program announced by Gonzales,
although nowhere in the FARC indictment does Trinidad appear in the
leadership of the FARC organization.<br><br>
The first case against Trinidad stems from the crash or shoot-down of a
surveillance plane operated by California Microwave, a U.S. military
contractor. After a firefight at the crash site, three U.S. contractors
were taken captive by the FARC, which are still holding them. To date,
the prosecution has not tried to show that Simón Trinidad gave the order
to shoot down the plane. Neither is there any evidence that Trinidad was
involved in the decision to take the contractors as prisoners. It appears
that Trinidad’s only involvement in the incident was to travel to Ecuador
to try to arrange their release, supposedly in concert with the UN.
<br><br>
It would be hard to find Trinidad guilty under these facts. Any crime,
even one involving a conspiracy, requires that the defendant have the
necessary mental state to commit the crime. The intent to commit one
crime, such as rebellion against the government, cannot be substituted
for the intent to commit another, nor can the commission of one crime be
the basis of guilt for another crime requiring a different intent merely
because the harm flowed from the first crime. In other words, if Simón
Trinidad was not involved in taking the contractors captive, his efforts
to negotiate their release should not make him criminally liable for
their capture.<br><br>
A second argument, already made by Trinidad’s public defenders, is that
the incident occurred in the context of an armed conflict. Taking
prisoners in a war is not a war crime. Ironically, the prosecution has
emphasized the fact that Trinidad is seen in various photos wearing a
FARC uniform, as evidence of his membership in the group. The U.S.
contractors, accused by columnist Robert Novak of working for the U.S.
Central Intelligence Agency (CIA), did not wear uniforms, and their
surveillance of the FARC could be considered as espionage. As a lawful
combatant in uniform, Trinidad would be entitled to the protection of the
Geneva Conventions, while the U.S. contractors, as spies, would
not.<br><br>
Judge Hogan, however, has ruled that because the United States is not at
war with the FARC, Trinidad is not entitled to combatant immunity. Under
this view, it would follow that a prisoner of war transferred to a third
country would lose this status. This parallels the transfer of Middle
Eastern terrorist suspects to secret prisons in Egypt and Poland for
interrogation to avoid U.S. laws against torture, in a process called
“rendition.”<br><br>
One interesting development in the case will be whether the defense is
able to learn, from the court-ordered production of U.S. government
documents, what exactly the contractors were doing flying over the
Colombian jungle. Was the surveillance plane looking for coca plants, or
intercepting FARC radio transmissions and reporting on FARC positions? If
the latter is true, then the defense will have the opportunity to prove
at trial that the U.S. was participating in the war between the Colombian
government and the FARC. Of course, these arguments do not apply to the
drug trafficking charge against Trinidad. Drug trafficking is still a
crime during a war. Trinidad’s drug trafficking trial will begin shortly
after his kidnapping trial ends, sometime around January 2007. <br><br>
Simón Trinidad is being held incommunicado and without access to his
lawyer here in Washington, DC. As these hearings progress, numerous other
legal cases against Trinidad are proceeding in Colombia, where he is
being tried in absentia. This is in clear contravention of his basic
rights, guaranteed by the International Covenant on Civil and Political
Rights (ICCPR), a fundamental basis of international human rights.
Article 14(3)(e) of the Covenant guarantees the right to “be present in
the proceeding and to defend personally or to be assisted by counsel of
his choice.” Nevertheless, Judge Thomas Hogan, who is responsible for the
case, has said that under the U.S. Constitution, the rights to be present
in a criminal proceeding, and to have effective legal representation, do
not apply to proceedings outside of the United States. However, Judge
Hogan has failed to consider that international treaties like the ICCPR
have the force of law in U.S. courts, regardless of whether provisions of
the U.S. Constitution apply.<br><br>
The public defenders assigned to Trinidad’s case had to sign agreements
with the U.S. government called Special Administrative Measures,
promising not to communicate any information between their client and the
outside world. These agreements clearly violate the defendant’s right to
counsel, who are under no obligation to sign such agreements. One might
ask whether attorneys agreeing to these conditions are a part of the
problem, particularly when Trinidad’s chosen lawyer, Oscar Silva, is not
permitted to meet with him unless an FBI agent is present.<br><br>
The case is full of problems with evidence, the jurisdiction of the
court, and the political nature of the charges. But most important are
the fundamental rights of the defendant. Trinidad has the right to be
present for the cases against him in Colombia, and to have an attorney of
his choice where he is judged. <br><br>
Although the FARC may gain benefits from boycotting Colombian elections,
or from enforcing an armed blockade in concert with union strikes, it
will be making an error if it ignores the trials of its own members. The
FARC should defend them in court. Regardless of the fairness or political
nature of the trials, they do provide a forum for the FARC to explain its
policies and make the case that it is an insurgent group rather than
merely a drug trafficking organization. If the FARC doesn’t make these
arguments, no one will. The trials will proceed with or without the
participation of the FARC, and even the most liberal observers will have
little to say as overworked attorneys paid by the U.S. government
minimally defend FARC members. <br><br>
It seems unlikely that the FARC will be intimidated by the new
extradition program, or that any demobilization will be forthcoming, but
this doesn’t mean that the FARC should simply ignore what is happening to
its extradited members. <br><br>
</font><font size=2><i>Paul Wolf is an attorney in Washington, and may be
contacted at</i>
<a href="mailto:paulwolf@icdc.com">paulwolf@icdc.com</a><br><br>
</font><x-sigsep><p></x-sigsep>
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