May 3, 2006

The FARC Indictment

by Paul Wolf

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 leaders—notably Salvadore Mancuso and Don Berna—with 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 (“La Violencia”) and greatly influenced by the Cuban Revolution.

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.

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 fighters—this 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)

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

Paul Wolf is an attorney in Washington, and may be contacted at paulwolf@icdc.com

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