[Ppnews] The FARC Indictment

[Political Prisoner News]

http://www.colombiajournal.org/colombia234.htm

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 
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 (“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 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)

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 <mailto:paulwolf at icdc.com>paulwolf at icdc.com


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