FLOGGING A DEAD HORSE: ABDUCTION AND THE ROGER KHAN DEFENSE

Copyright, October 1, 2006

By: Vivian M. Williams, Esq. LL.M

The West Indian media have been showing keen interest in the Roger Khan case in the United States District Court for the Eastern District of New York. Lawyers for Khan, particularly his West Indian lawyers seem preoccupied with the manner in which the Guyanese native was placed in U.S. custody and taken to New York.

Khan and two of his associates were caught in Suriname in what Suriname authorities described as a major drug bust, while the U.S. had a pending international arrest warrant out for him, and law enforcement in Guyana was hunting him down as a suspect in the disappearance of more than 30 AK-47 assault riffles from the Guyana Defence Force. In Suriname he was labeled a serious threat to national security in the Caribbean with an extensive criminal network, responsible for drugs, trafficking in weapons, and violent crimes.

This case has evoked a great deal of emotion and sustained interest because soon after he became a person of interest in the missing AK-27 rifles Khan invoked politics and race in a country with sharp political and racial division. Seeking to avoid extradition to the U.S. and to drum up mass support against any attempt by the U.S. to have him extradited from Guyana, Khan proclaimed himself the lone savior of the Indian-based PPP government in Guyana from overthrow by the African-dominated opposition People’s National Congress, the security forces, and the United States.

Branded as a danger to national security, Khan was deported from Suriname, put on a plane to Trinidad and Tobago where he fell in the hands of the U.S. law enforcement agents who put him on a plane to New York to answer narcotics charges. Khan’s lawyers have since been calling his arrest by the U.S. kidnapping and it seems this contention may be an essential pillar of his defense.

There is a drumbeat of enthusiasm that Khan could be freed and sent back to the Caribbean on grounds that his removal from Trinidad by the U.S. violates the extradition treaty between the U.S. and Trinidad. Legal proceedings have been commenced in the Courts of Trinidad with the apparent aim of boosting Khan’s abduction claim.

PRECEDENT AND HISTORY NOT IN KHAN’S FAVOR

Khan’s case is not novel because he is not the first to raise the argument of extraterritorial abduction as the means to secure his release and return to his country and avoid trial in the United States. The court has long memory on this issue stretching way back to 1886 when Frederick Ker found himself before the courts in the U.S. after being forcefully abducted from Peru and brought here. Ker asked the court to dismiss his indictment and return him to Peru because of the manner in which the U.S. procured his presence before the court.

Ker’s case reached the United States Supreme Court and it denied his application, ruling that Ker’s abduction was not sufficient reason why he should not be tried in the U.S. The rule laid down by the court in Ker is "the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction".

The Ker rule was a shot in the arm for the age-old U.S. policy of extraterritorial abduction that gained frequency over the subsequent years. It received a further boost in 1992 when the Supreme Court upheld the Ker rule after Mexican Humberto Alvarez-Machain was abducted from Mexico and brought to the United States to face charges. The court observed that there is sound basis that "due process of law is satisfied when one present in court is convicted of crimes after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards". The words of the Supreme Court are crystal clear "there is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will."

The Khan case comes to the court with optimism by some over an issue that has long been settled. If his legal team hopes to use the manner of his arrest and detention by the U.S. as the means to set him free, a hurdle they would have to climb is the rule that a prosecution need not be dismissed merely because the defendant’s custody has been improperly obtained. His spokesmen in the media have not yet convincingly argued that his custody has been improperly obtained and even if they prove this, there are still several other difficult levels to climb before Khan walks.

Khan’s West Indian lawyers seem bent on raising expectation that allegations of abduction is a trump card in this case, while seeming oblivious to the teachings of the court that unlike unlawfully obtained evidence, the physical custody of the defendant is not ordinarily excluded merely because it was unlawfully obtained, a principle that has become known as the Ker-Frisbie doctrine.

DIM HOPE IN EXCEPTION TO GENERAL RULE

While an abduction by itself would not be sufficient to prevent trial, the court recognizes an exception to this rule if the abduction in question is in violation of a self-executing treaty of the United States. The mere fact that there is an extradition treaty between the United States and Trinidad is not sufficient. It must be proven that the U.S. is in violation of the treaty.

The impression being given by some West Indian attorneys who have either written about the case or have been quoted in the media, is that the extradition treaty between the U.S. and Trinidad was violated in the Khan case merely because the handing over of Khan to the U.S. by authorities in Trinidad did not confirm to due process guarantees that the Trinidad government should afford a subject of extradition proceedings. This argument however, suffers a deformity in the eyes of U.S. law where Khan is being held, and perhaps is similarly defective in many other jurisdictions, including the Caribbean region.

In Alvarez-Machain, the Supreme Court made it clear that an extradition treaty is a means by which one State may procure the custody of a defendant from another State but not an exclusive mean for the handing over of the defendant from one consenting state to another. In this case, Khan’s attorneys are not contending that Khan was handed over to the U.S. by the government of Trinidad. They are claiming that extradition procedures were not followed. In the courts of the United States this line of reasoning will not stand the test because an extradition contract between two states is not deemed the only means to procure the handing over of a defendant to one of the contracting parties except so stated in the Treaty.

Even if Khan’s legal team is right in claiming that Khan was abducted by the United States, they would have to prove that the Treaty between the United States and Trinidad prohibits abduction. The Supreme Court has already provided guidance on this issue in Alvarez-Machain, ruling that such prohibition is not implied but must be expressly stated and in the case of the treaty with Trinidad, there is no express prohibition against abduction.

The Eastern District where Khan is being tried is duty bound to follow the precedent set by the Supreme Court so that even if Khan proves that he was abducted it would not, by itself be sufficient to set him free. One wonders how he will prove that the U.S. abducted him when the government of Trinidad on whose soil he was, voluntarily handed him over to the U.S. The fact that Khan didn’t want to be held doesn’t make his detention an abduction where there were two consenting state parties.

OBSTACLES IN EXTRAORDINARY RENDENTION THEORY

Khan will face problems with any extraordinary rendition defense because the Government of Trinidad is not objecting to the actions of the United States, but rather, is a party to the alleged misconduct. The way his lawyers have been outlining the course of events raises issue of misconduct by the government of Trinidad, reinforced by the lawsuit filed in the courts of Trinidad challenging the constitutionality of acts of the State.

Khan’s team has therefore framed the problem in a way that creates a further obstacle for him in U.S. courts. The courts of the United States will not sit in judgment of acts of the government of another state done within its own territory, and it seems, to rule in Khan’s favor the court will have to pass judgment on the conduct of the Trinidad government within its sovereign territory which would be contrary to the act of state doctrine.

While Khan’s West Indian lawyers and the West Indian media are talking about the manner in which he was brought to the United States as if it were a key defense strategy, his American lawyers have not yet made that a center piece of his defense. One wonders if they will ever make the mistake of flogging that dead horse.

THE MYTH OF MORAL JUSTICE   copyright, June 2006

A BOOK REVIEW By: Vivian M. Williams, Esq. LL.M

Their structures are majestic, with pillars that appear sturdy and sufficient to withstand time, instill fear, and diminish every human giant that enters their majestic halls into feeble, pathetic, and subdued men praying for their mercy. Looking down from high on their walls are the inscribed words "In God We Trust", in rooms carefully polished and decorated with symbols of authority. The courts are so mighty in their outlook and so striking in physical resemblance to a divine cathedral that men perceive the two to be existing in the same universe. However, the book I review this week contends that the justice dispensed by courts is often immoral justice.

The court has rigid rules of procedures that combine with its majestic physical appearance to give it an aura of grace and moral conscience. However, these very attributes come under attack from Fordham University Law Professor, Thane Rosenbaum who identifies them as weapons of spiritual injury in his book The Myth of Moral Justice. "What passes for justice in America is often immoral justice—a resolution that makes sense legally and can be explained and justified by judges, lawyers, and law professors…but ultimately feels emotionally and morally wrong", he states. So the very things that give the court its moral outlook are what Rosenbaum contends, cause it to drift from the moral universe. The essence of Rosenbaum’s contention is that there is a split between the legal and moral universe, so that what’s legally correct and defined as justice is not necessarily moral.

This is an interesting contention that requires some review. Rosenbaum’s indictment of the legal system is made more devastating and convincing by statistics indicating that there is a large number of innocent people languishing in prison while an even larger number of guilty people walk free. The facts and circumstances outlined in the book inform us of a reality that is particularly troubling to minorities.

The Myth of Moral Justice is a work that values the human spirit and contends that the legal system fails to adequately acknowledge the human spirit. This rejection and humiliation of the human spirit occurs in two ways. First, by the manner in which legal rules are triggered, and secondly, by the manner in which the legal system provides remedies. "Legal rules are triggered when the human body sustains an injury, when property is stolen or damaged, when rights are infringed", Rosenbaum explains. I find his work which focuses on the harm done to the human spirit to have wider significance and particularly relevant to the plight of minorities. Who cares about the injustice that flows from the crushing of the human spirit? The stereotyping of minority groups is a means by which the spirit is crushed, dreams are stifled, and emotional pain inflicted.

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Human  Rights on the Rock: Media Eviction, A People  Without Privacy and a Prisoner in Solitary      Confinement  

       copyright April, 06 

By: Vivian M. Williams, Esq. LL.M

Imagine a country where you have no privacy, where anyone — the government, a stranger or friend — could invade your privacy and you could do nothing about it. Imagine for a moment, a country where the media could be ordered out of a major public event when the President is about to speak, where the President addresses public issues and concerns when he feels likes, not when the people request or demand answers. One would think that common sense would suggest that such country cannot exist or at least call itself a democracy or civilized society in today’s world. Now, over the past few weeks a prominent attorney in Guyana, Anil Nandlal, who may very well become that country’s next Attorney General, has been saying that the Constitution of Guyana recognizes no right of privacy. The Stabroek News, one of the main daily newspapers endorsed that declaration with the statement that "there is no legal protection for privacy in Guyana."

Newspapers in Guyana published reports backed with pictures of members of the media, actually kicked out of the Police Force Officers’ Conference when it became time for the President to speak. In what seems like a day of a "shock and awe" assault on the Guyanese media, the Head of State declared he will not be responsive to concerns raised in the media, but rather, will speak on issues in his own sweet time.

Caribbean citizens and human rights defenders were further jolted by a letter published by the wife of Guyanese treason accused, Mark Benschop, informing us that Mr. Benschop who has been awaiting the conclusion of his case for too long for the process to be considered just, has been thrown in solitary confinement because an interview with him was aired on a New York radio station a few weekends ago. Up to press time, there has been no denial or official statement from the authorities in Guyana, and the media haven’t even followed up this alleged cruel and usual punishment by pressing the authorities for answers and reporting on the issue.

While the issue of the right to privacy rages in Guyana, following the airing of a wire-tapped conversation allegedly between the Police Commissioner and an opposition politician, and many have risen up in defense of the Commissioner of Police’s right to privacy, the Guyana police force has published the identity information of persons who have applied to serve and protect the rights and freedoms of others. Applicants to the police force had their names, addresses, date-of-birth, picture and other personal identity information published without their consent. What would a Caribbean national in the U.S do if he or she applies for a job and finds his name, picture, address, social security No., date-of-birth, and the likes published in the newspaper? Think for a while and contemplate the gravity of the human rights violations mentioned above.

Media Eviction is Assault on Democracy

In a country where bodies are being found almost daily in the capital city, crime is rampant, brazen murders and robberies are unsolved, and the Police Commissioner is embattled, an annual Police Officers’ Conference is a major news event, and the people would be extremely interested in the outcome of such a conference. The Police Officers’ Conference in Guyana, therefore, attracted significant interest and coverage by the media, but its opening was marred by the failure of the President to attend and deliver the usual Presidential address, giving rise to questions as to whether the President was deliberately boycotting the Conference as a show of lost confidence in the Commissioner. With public outrage and speculation in free flow, the President made a belated appearance under circumstances that added insult to injury. Members of the media who were covering the event, except the Government Information Agency, considered a propaganda machinery of the State, were evicted from the Conference when it became time for the President to speak.

What happened at the Police Officers’ Conference must be viewed as an attack on the media, with the potential to undermine the ability of the media to carry out its function as a guardian of democracy. As a key instrument of democracy, the media play a very important role in ensuring accountability, keeping public officials in check, and turning corrupt rulers out of office in a democratic society, so public officials should not treat the trustees of the people like door mats. An essential pathway of information flow in a democratic society is from the government to the governed. This is one of the reasons why a public information act is essential to a free and open society, and the lack of it is one of the causes of rampant corruption, abuse of power, and an uninformed populace in too many developing countries.

Equally disgusting is the statement by President Jagdeo that he will not be responsive to concerns raised by the people through the media, acting as their trustees. Democracy requires accountability, and public officials who answer to the people when the people need answers not when public officials want to feed them with propaganda and spins. As President, Mr. Jagdeo is under an obligation to speak when the people and the national interest requires him to speak. As chief citizen he ought to know that his absence from the Conference and failure to deliver the Presidential address, without excuse, would lead to concerns, speculations, and calls for him to clear the air. If he had a hearing problem that caused him to miss the opening of the Conference as he claims then his aides should have offered an excuse for his absence, failing to do that is a PR blunder that reflect badly on the President’s office not the media.

A Civilized Society Cannot Exist Without Right to Privacy

Privacy is essential to the preservation of the dignity of a person. Stripping a man of his privacy, strips him of his dignity. I would like to see the attorney who would reason that a individual’s dignity remains intact after his privacy has been taken away from him. Then I would like to see the lawyer who will argue that the Constitution of Guyana does not safeguard the dignity of persons within that country. Privacy, and fundamental rights generally are complex, and do not exist in isolation.

Do not tell me that the word privacy is not mentioned in the Constitution, because the law looks to substance not form, so I will say that there is sharp distinction between the actual wording of a Constitution and the actual substance of the Constitution. Lawyers who focus their attention on the mere wording of the Constitution fail to grasp the substance of what that document actually provides.

Article 146 of the Guyana Constitution received particular attention in the raging heat of the privacy dispute, with a prominent suggestion that no privacy right could be traced to that provision which is largely viewed as the Guyanese version of the U.S. First Amendment. They ask: How could it be that the same provision that grants freedom of speech grants privacy and restricts expression that trespass into another person’s personal space?

To clear up that confusion the first point to note is that freedom of expression contains two essential components. One is the right to speak without interference, and the other is the right not to speak. An individual’s right not to speak and to be free from compelled speech is a species of privacy. What it means is that an individual has the right to keep his thoughts and ideas to himself, and cannot be compelled to publish them for others to hear. This must be seen as one of the meanings of Art. 146 where it speaks of "freedom to hold opinions without interference".

The points raised here are made clear in the area of Intellectual Property law where an author possesses the right of First Publication. This right prevents anyone acting in the name of freedom of expression, from publishing the thoughts, ideas, and expressions of anyone before that person makes those thoughts, ideas, and expressions public in any way. The right to First Publication is a privacy right of the author that overrides the right of others to circulate the private thoughts of the author, so that you can’t trespass into my private space, steal my private thoughts and facts, and publish them.

Anyone who can’t see a right to privacy in Art. 146 should say if Guyanese do not have a right to keep their thoughts, ideas, expressions, and personal information to themselves. When you agree that this right does exist in Guyana, then tell me what is the nature of that right. Attorneys not properly trained in freedom of speech issues are often guilty of speaking of freedom of speech as if that freedom is restricted to the ability to express one’s self without interference. As I have pointed out, discussion on privacy should not be restricted to the wording but rather the substance of the Constitution.

Any attorney who argues that the Constitution allows the police to take the Identity information of applicants and publish it without their consent, upon the bases that there is no right of privacy in Guyana, is not a civil rights attorney, rather that person is a danger to civil liberties.

Benschop’s Solitary Confinement is Cruel and Unusual Treatment

While solitary confinement may not be cruel and usual punishment in all circumstances, when a prisoner is thrown into solitary confinement because an interview with him is published, then solitary confinement is cruel and unusual. It is cruel and unusual to throw a prisoner in solitary confinement because someone recorded his conversation and broadcast the recorded conversation. It has to be cruel and unusual because the prisoner has done nothing to be punished in that manner, unless it could be shown that the prisoner breached some rule to facilitate the recording.

As a matter of human rights, prisoners are allowed telephone calls, visits, and the likes. Once the call is permitted, the State can’t dictate that such call cannot be recorded by the persons to whom the call is made, or how the recorded conversation is to be used, particularly where the recording is not done within the prison facility. If you permit a prisoner to make a call, then you can’t prevent the person to whom that call is made, from recording that call, and worse yet, you can’t tell that person how to use the recorded conversation. Therefore, the prisoner should not be punished in any way for the manner in which someone uses his conversation.

Countries that have respect for human rights and understand the principle of accountability that is central to any democracy, allow the media access to inmates to conduct interview in prison facilities. Therefore, if Mrs. Benschop’s published letter is correct then Mark Benschop’s human rights are being violated.