Below is a copy of a letter I received from a concerned Colombian attorney regarding Colombian defendants and the problems that exist within the extradition process.
My response follows.
Dear Mr. Zapp,
Greetings on behalf of the families of victims requested in extradition by the United States. I am an attorney and recently began researching irregularities in the process of extradition, in particular the violation of due process, the presumption of innocence, and the right of all defendants to have a fair trial.
I wanted to tell you that in a recent visit to Patio 7 of the high-security jail in Combita, where Colombians subject to extradition are held temporarily, I had access to a document with portions of rulings issued by U.S. courts, one of which struck me powerfully. It brought to the attention of attorneys the “INEXISTENCE OF THE RULE OF SPECIALTY.” I would appreciate it if you could clarify what such a RULE entails and how it might serve us as a JUDICIAL INSTRUMENT in order to help countless Colombians so unfairly treated by the system.
As far as defendants subject to extradition are concerned, our Court only performs notarial functions, that is, it attests to the identity of the inmate in custody as the defendant who is requested in extradition. To give you a better idea, I will briefly summarize the complex situation of Colombians awaiting extradition.
The DEA, operating in Colombian territory with the assistance of informants, illegally captures individuals, raises allegations of drug trafficking and terrorism offenses against them, and showcases them on printed and broadcast news outlets without any evidence. Yet over 80 percent of inmates in Patio 7 of the Combita jail do not fulfill the requirements of the process of extradition; the vast majority of them are peasants, tradesmen, cab drivers, and manual laborers, according to my findings regarding the socioeconomic profile of these inmates and their families.
Week after week, an average of six or seven new people are brought to this Patio, while a few others get ready to be sent to the United States, in a vicious circle that never ends. It seems as though the objective is to keep the Patio full, due to the political commitments made by the Colombian Government to the United States, in exchange for the military aid that Colombia receives in its war on terror.
Not surprisingly, the figures subject to extradition are largely unexceptional. Extradition has become a rule applicable to any person for any criminal charge, which not only violates our national sovereignty, but also blatantly violates the human rights of the victims of such infamous and perverse manipulation.
We invite you to unite your voice to ours as well as to advise us as to the judicial steps that we must undertake to redress this situation.
Sincerely,
Counsel
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Dear Counsel,
I received your letter in which you ask questions and make certain observations about the Colombian extradition process. I will try to address your concerns. It took some time to formulate an answer, as I wanted my response to be as comprehensive as possible for both you and others.
First, you asked what the Rule of Specialty is. It is a rule of International Law that provides that in cases of extradition, the requesting state cannot prosecute a defendant for a crime other than that for which he or she was extradited.
In Valencia, the 11th circuit Court of Appeals said that this rule applied only to extradition TREATIES, and since Colombians are extradited according to Colombian LAW, the Rule of Specialty does not apply. This is not an opinion shared by all appellate courts in the United States, but if a defendant’s case is in Atlanta, Miami or Tampa, I am afraid he or she is unfortunately within the 11th Circuit. If the Colombian Supreme Court disagrees with this opinion, it should clearly state its reasoning in extradition orders, using unmistakable terms.
Your “call to arms” (figuratively, of course) against extraditions is appropriate. Colombia and the U.S. are a band of brothers, and in the context of narcotics trafficking and money-laundering investigations in Colombia, the U.S. has taken over. Armed U.S. agents walk Colombian streets, regularly receive written progress reports from Colombian police and sit in on their strategy sessions, sometimes even lead them. U.S. agencies also pay for Colombian wiretapping, rent cars for Colombian police, and pay the travel expenses and hotel bills of Colombian officers conducting surveillance in Colombian cities.
And when Colombian police decide to make an arrest, they invite U.S. agents along and willingly turn the arrestees over to be questioned, as many extraditees can attest to. At a hearing in Washington, D.C., a DEA analyst who had been stationed in Bogotá testified to this process where statements were elicited from just such a defendant by DEA agents.
The problem is then compounded, as local charges pending against Colombian defendants are suspended if the United States indicates an interest in extraditing them. Take, for example, the paramilitaries, who, this past year, were rousted from their beds in the dead of night, loaded onto planes and brought to the U.S. to face drug charges.
Another issue is that the Colombian extradition process allows for blind acceptance of the legal sufficiency of a U.S. indictment. U.S. indictments are often supported by nothing more than hearsay evidence. The affidavits submitted by American agents and prosecutors to Colombian courts are conclusory at best, with little support to sustain their conclusions. Hearsay testimony supporting indictments is unreliable because the risk of misinterpreting evidence is always present. It is why hearsay is generally not permitted in most courts. Wiretapping evidence is likewise subject to misinterpretation.
For example, a U.S. indictment alleges that a certain Colombian is a member of a narcotics importation conspiracy. The Colombian Supreme Court accepts this allegation without challenge. But the actual investigation simply uncovers a narcotics trafficking organization conducting business in Colombia, which is no more a crime in the United States than robbing a bank in Australia. Details of the investigation reveal that a truck driver was observed transporting “merchandise” to a launch located at a port in Colombia. U.S. agents conclude that the truck driver is a knowing member of the drug conspiracy, implying that the truck driver knew drugs were in his truck and knew that they were destined for the United States. This is the essence of the U.S. crime. However, both inferences are completely speculative.
This inconclusive presentation of guilt is not limited to minor figures. Paramilitaries, for example, are accused of taxing drug dealers operating in their territories. That fact alone does not mean paramilitaries are aware of drugs being shipped to the United States or are conspiring with the drug dealers. I believe the role of the paramilitaries is more adversarial, and can be compared to that of U.S. citizens and the Internal Revenue Service. But if there is evidence to the contrary, Colombian courts should be required to review the evidence before making a prima facie conclusion.
In the United States we have always known that our indictments are based on flimsy evidence. In our courts, judges instruct juries all the time, “An indictment is not evidence.” A former chief justice of New York’s highest court once said, “You can indict a ham sandwich.” A Senator, having once sat as a judge, told a prospective juror who could only hear out of one ear, that he would be ideal for a grand jury (the body that issues the indictment) since it only hears one side of the story anyway.
Colombia would benefit by looking to the Mexican system. Mexico does not recognize indictments standing alone. Instead, it insists that U.S. indictments be supported by affidavits written and executed by witnesses having first hand knowledge of the criminal activity alleged.
Another failing is Colombia over-extradites. Take again the example of the Colombian truck driver. Even if he was guilty, why should he be extradited? Colombia is perfectly capable of prosecuting the small fry, one who launders a few thousand dollars, falsifies a passport, forges a flight plan, or receives a small bribe. There is no reason to extradite Colombians who play minor or peripheral roles.
Case in point: A man who was a member of a drug trafficking conspiracy was the “target” of an investigation. He was arrested and called his wife from the police precinct. She was a humble working woman with two kids and had no connection to the conspiracy. He asked her to get rid of the drugs he kept at their house. The police were listening to the conversation and quickly dispatched officers to his address, where they found the wife taking a box of drugs from the apartment. Because the agents were still conducting an investigation, they did not arrest her immediately. She then left the United States with her children and was arrested a few months later in Colombia. U.S. agents had applied for and been granted an extradition warrant. For trying to help her husband, she was arrested, held in a Colombian jail, extradited to the United States, and given a three year state sentence. She played no role in the drug conspiracy. Colombia should not have allowed this to happen.
Extradition is a drastic remedy and should be granted sparingly. It should be reserved for considerable crimes, committed by significant people, as it once used to be. I know of a U.S. judge who has also noted the change, and has said he attaches no importance to defendants being extradited, because extradition does not carry the same meaning as it once did (i.e., that the defendant is a serious violator).
The problem lies with Colombian laws, Colombian courts and Colombian politics, not with American agents, paid informants or “innocent defendants.” If U.S. indictments are too flimsy, then Colombia must enact laws that permit its courts to look beyond and behind the indictment, as Mexico has done. If we ask for too many minor figures, don’t send them to us. The U.S. cannot take your citizens unless you let them. While the United States could also do its part by being more discriminate in who it extradites, the chances of that happening are slim. Too much money has been invested in the process.
I wish you luck, and support your efforts. Keep your eye on the ball. This is about structural defects in Colombian law. I believe you hold the moral ground, but you are confronting a formidable band of brothers.
Faithfully yours,
David Zapp