AUTOPSY OF A NARCO-GUERRILLERA

Justice Department Scores One Against the FARC

by Paul Wolf, WW4 REPORT

February 20, a federal jury in Washington DC found Anayibe Rojas Valderama (Sonia), Antonio Celis and Juan Diego Giraldo guilty of conspiracy to import cocaine into the US, and of manufacturing or distributing cocaine, knowing or intending that it would be imported into the US. The charges carry a mandatory minimum penalty of 10 years, and a maximum of 30 years under the US-Colombia extradition treaty. The precise sentence will be determined in another proceeding to be held on May 4. Whatever the outcome, it will be a long time, longer than any Colombian would ever serve in his or her own country for these crimes.

It was Sonia who was the political figure and real target in this case. If only Giraldo and Celis were involved, it is unlikely they would have been prosecuted at all. However, Sonia presented the opportunity to prove that a member of the Revolutionary Armed Forces of Colombia (FARC) was an international drug trafficker, and the government spared no expense to ensure the outcome.

Although the allegation that the FARC are "narco-guerrillas" is often made—the DEA claims the FARC is responsible for 90% of the cocaine entering the US—this maked the first time it has been proven in a court of law. There has certainly been no comparable case in the US. This is a landmark case against the FARC.

But the verdict in Sonia's case was based almost entirely on the testimony of paid government informants. There was no physical evidence against Sonia, such as seized cocaine, fingerprints, photos, or even telephone calls that clearly referred to drugs.

Just Another Drug Case

Some may wonder why FARC leader Simon Trinidad achieved a hung jury in federal court in November, while Sonia was convicted. Three factors made Sonia's case different from Simon Trinidad's: the nature of the charges, the defendant's connection to the alleged crime, and the context presented to the jury.

In Trinidad's trial, a great deal of evidence was presented as to who are the FARC, and what are their goals. Much of it came from Simon Trinidad himself, who testified in his own defense. Ironically, Trinidad's case was also bolstered by witnesses for the prosecution. Some jurors may have believed that it's not legitimate to apply the laws of conspiracy and hostage-taking to the negotiator of a guerrilla army in the context of a prisoner exchange. It was very complicated for them.

On the other hand, in Sonia's case, drug trafficking is never legal. It doesn't matter who is doing it, whether there is an insurgency, or whether the insurgency is justified. Even the US CIA has drawn harsh criticism for working with drug traffickers to achieve its goals. Drug trafficking is simply not a legitimate activity, while hostage-taking could arguably be, in the context of a war. (Although the purpose of the hostage-taking must be to spare the lives of prisoners of war, not to ransom them for rewards.)

Sonia's jury heard very little background about the war in Colombia. The defense called no witnesses, and only cross-examined the prosecution's witnesses. Sonia's lawyer said in opening arguments that Sonia was just a nurse, without any leadership role in the FARC, and lacked the education to manage the finances of the FARC's 14th front. However, no evidence was presented to support any of this. The jury had to evaluate the statements of some 20 prosecution witnesses against the statements of Sonia's lawyer. After the trial, it was still unclear to many who Sonia is, and what was her job within the FARC.

Bearing False Witness

The prosecutors in this case arrived bearing the testimony of three crucial witnesses. They have poisoned the well of Colombian politics with their efforts to portray the FARC as the primary source of Colombian cocaine. From now on, those on the right can refer to this case as proof that the FARC not only tax the drug trade in Colombia, but also control it. The problem is that the evidence presented consisted largely of paid government informant testimony.

The first witness, Rocio Alvarez, was a DEA informant paid more than $15,000 US per month for a period of a year, who lived in the house of Sonia's brother, Farol, in Peñas, in Colombia's Caqueta department. Although Rocio had minimal contacts with Sonia herself, she testified that Sonia's brother was a major trafficker of coca paste in the town.

The second witness, Mauricio Moreno, was a retired officer of the Colombian National Police who found employment as the bodyguard of Gordo Andres, an alleged drug trafficker, and then as an informant against the FARC. Moreno testified as to his boss' alleged drug transactions with Sonia, and to a bizarre plan to sell cocaine to paramilitaries, then steal it back from them and then export it to the United States.

The third witness, called "Juan Valdez," supposedly captained the riverboat used by Sonia on a bi-weekly basis, over a two-year period, up and down the Rio Caguan, buying hundreds of tons of cocaine and returning hundreds of millions of dollars to the impoverished economy. Although the Colombian military controlled the river at that time, Valdez and Sonia supposedly made hundreds of enormous drug deals in a regular pattern. Valdez buried the valuable gringo dollars in various places in the jungle, marking trees with an X and drawing treasure maps.

Then there was Pedro Lopez, a "reinserted" (demobilized) ex-guerrilla from the 14th front who also claimed that Sonia was financial officer there. And finally, "Lechuga"—their man in Panama City, who says he spotted Sonia in the Seven Seas restaurant. Lechuga was allegedly an old time narcotrafficker, going back 20 years to the Noriega days.

The prosecution also showed videos and presented witnesses implicating Giraldo and Celis in various drug transactions—but not Sonia. Nevertheless, the picture presented as a whole portrayed Sonia as the ringleader of a vast narcotics trafficking conspiracy, and went largely unchallenged.

Barely Adequate Representation

Sonia and the others had court-appointed lawyers with limited resources, who were not experts on Colombia. Sonia's own lawyer was totally unfamiliar with the politics of the region during the time of the charged conspiracy, and the improbability of what her client was accused of. Sonia's bi-weekly trips up and down the Rio Caguan allegedly occurred during a time when the Colombian military closely controlled the river, in 2002 and '03. This was after the government's February 2002 re-taking the "demilitarized zone" ceded to the FARC for peace talks along the river, and the area was heavily patrolled against the guerillas. The scenario was, for any knowledgeable observer, virtually impossible. Yet Sonia's attorney was not able to effectively challenge it. Moreover, Sonia's lawyer stipulated (agreed with the prosecution) that 30 kilos of cocaine at issue in the case belonged to another member of the 14th Front of the FARC. Sonia visibly winced as this was announced.

In contrast, the prosecution had the full weight of the US and Colombian governments behind it—including numerous police and military officers, half a dozen paid informants, and thousands of documents and recorded telephone calls.

Right to Counsel

One of the problems with the cases of Simon Trinidad, Sonia, and other FARC members extradited to the US is that they are effectively prevented from hiring private lawyers. In Trinidad's case, the violation of his right to counsel was grotesque. Born into a wealthy family, and allegedly the representative of a group earning hundreds of millions of dollars per year through various activities, Trinidad has been held incommunicado under Special Administrative Measures (SAMs), without access to his private attorney, represented by public defenders who cannot possibly counter the immense resources marshaled by the prosecution. Lawyers who may have sought to represent him pro bono were barred from contacting him by the SAMs.

Similarly, in Sonia's case, her attorney called no witnesses, had a minimal understanding of the context of the case, and could not effectively cross-examine the prosecution's witnesses. While this kind of defense may be constitutional for the indigent, it is clearly insufficient in highly politicized trials such as Sonia's.

The Sixth Amendment to the US Constitution protects a person's right to retain counsel of her choosing. Yet in cases involving the FARC, or indeed, any alleged terrorist or drug trafficking organization, private attorneys are dissuaded from representing these clients, due to fear of forfeiture of the attorneys fees. Defendants are left with appointed counsel with varying degrees of commitment and resources.

Over 75 years ago, the US Supreme Court observed in the famous Scottsboro Boys case (Powell v. Alabama, 1932): "It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." The right to retain private counsel serves to foster the trust between attorney and client that is necessary for the attorney to be a truly effective advocate. Not only are decisions crucial to the defendant's liberty placed in counsel's hands, but the defendant's perception of the fairness of the process, and her willingness to acquiesce in its results, depend upon her confidence in her counsel's dedication, loyalty, and ability. Counsel is too readily perceived as the government's agent rather than her own.

The government spends vast sums of money to try defendants accused of crime, and of course will devote greater resources to complex cases in which the political stakes are high. Precisely for this reason, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defenses. But when the government provides for appointed counsel, there is no guarantee that levels of compensation and staffing will be even average. Where cases are complex, trials long, and stakes high, that problem is exacerbated. Without the defendant's right to retain private counsel, the government too readily can defeat its adversaries simply by outspending them.

Our system of criminal justice is predicated on an equal and adversarial presentation of the case, equality of arms, and upon the trust that can exist only when counsel is independent of the government. Without the right to counsel of choice, the effectiveness of our system is questionable. The cases of Simon Trinidad and Sonia typify this problem. One can only hope that in future FARC prosecutions—and more are on the way—the defendants will be given a fair chance. Otherwise, every aspect of these trials can be deemed political.

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