Wikileaks Releases Embarrassing African Cocaine Cables
A year ago I wrote about the DEA's expensive "African vacation" during which it sent informants and agents to Ghana as part of an elaborate sting operation to intercept cocaine on its way to Europe. It ended up with no cocaine or money, but flew three African men back to the U.S. to face criminal charges. (A year later, the court's docket in U.S. v. Oumar Issa, et. al., SDNY, shows the three are still in custody and the case hasn't even gotten past the discovery phase to the filing of pre-trial motions.)
I'm sure the men's lawyers (some of whom are court-appointed since some of those charged are indigent) will be very interested in Wikileaks' release of embarrassing cables today pertaining to cocaine enforcement operations in Ghana, Mali and elsewhere in West Africa. One set of cables pertains to a longstanding and expensive UK operation called Westbridge, in which the UK teamed up with the Ghana Government. Cables by American diplomats claim corruption in Ghana has ruined the operation. [More...]
Then there's the cables about the U.S. and Africa's cocaine trade. One cable talks about Ghana President John Atta Mills' request for U.S. assistance with his corrupt narcotics control board (Nacob.) It was Nacob officers who worked with the British officials. According to the cables, Narob officers:
- Actively helped traffickers, even calling the criminals on their mobile phones to tell them when to travel to avoid detection.
- Sabotaged sensitive drug scanners provided to the Ghanaian government.
- Channelled passengers including pastors and bank managers and their wives, into the security-exempt VVIP lounge despite suspicions they were trafficking drugs.
The cable says:
Smuggling has become so blatant that on one flight last year, two traffickers vomited drugs they had swallowed and subsequently died, while parcels of cocaine were found taped under the seats of a KLM plane even before boarding.
According to one cable, the Sierre Leone Aviation Minister was sacked for corruption in a cocaine trafficking conspiracy. The DEA stepped in to help.
You can access all the African drug cables here.
The three African men brought to New York in 2009 aren't the only ones the DEA has set up in Africa and flown to New York for prosecution. There is this case involving Liberia, the Ukraine and Ghana. One of the defendants is a Russian pilot named Konstantin Yaroshenko. In checking the court docket today, I see that two weeks ago, the court denied his motion to dismiss alleging the DEA manufactured jurisdiction, and had him kidnapped in Liberia, where he says he was tortured before being handed over to the DEA and flown to New York. The Government's brief argues he wasn't kidnapped and tortured, but even if he was, the law allows it and it's not a ground for dismissal. The Government relies on the Ker-Frisbee doctrine:
This doctrine, which has come to be known as the Ker-Frisbie rule, provides that “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.’” In the decades since Ker and Frisbie were decided, the Supreme Court has repeatedly reaffirmed the doctrine...
...Courts have applied the Ker-Frisbie doctrine to situations where – as here – a defendant claims he was forcibly abducted from a foreign country.....In acknowledging that the defendant’s abduction might be “‘shocking’ and . . . in violation of general international law principles,” 504 U.S. at 669 (citation omitted), the Court concluded that so long as the extradition treaty did not expressly prohibit forcible abduction, the Ker-Frisbie rule applied – “and the court need not [even] inquire as to how [the defendant] came before it.”
The same goes for torture, according to the Government's brief:
...Courts have also applied this doctrine to physical abuse of defendants before and during pre-trial detention...In short, recent Supreme Court and Second Circuit case law establish that neither the manner by which a defendant is brought to court for prosecution, nor the conditions of his confinement prior to that prosecution, are valid grounds for dismissal of an indictment.
.... The Government takes such allegations very seriously and does not condone physical abuse or torture. Even if, however, these allegations have merit – which they demonstrably do not – they would not entitle Yaroshenko to relief.
The drugs in Yaroshenko's case were to go from South America to Liberia to Ghana. There was no connection to the U.S. --except that the DEA informant demanded some of the drugs go to the U.S. after reaching Ghana. As Yaroshenko's lawyer unsuccessfully argued, this is manufactured jurisdiction:
The case has no connection to the United States except for the law enforcement tactics used to create the appearance of some nexus to the United States in order to bring the charges in this jurisdiction.
And, as in the case of Oumar Issa, no drugs went anywhere. Yaroshenko's lawyer writes:
The essence of the charges is that defendants discussed air shipments of several tons of cocaine from Latin America to West Africa. (Indictment¶¶1-9). The only factual allegation connecting the alleged conspiracy to the United States is that the undercover DEA agent “CS” intended on his own behalf to send his share of cocaine to the United States. (Indictment ¶12®,12(s)). Upon information and belief, no cocaine was actually shipped anywhere.
...The Indictment in this case fails to set forth any facts connecting the alleged conspiracy to the United States, except for an allegation that the DEA agent CS intended, on his behalf, to transport drugs to the U.S. The sole purpose of that statement was to create the appearance of some nexus to the United States. The alleged object of the conspiracy was the transportation of drugs from Latin America to Africa and within Africa. The Indictment does not set forth any specific factual allegation that supports the conclusion that Konstantin Yaroshenko agreed to bring any drugs into the United States....Had Yaroshenko agreed to bring drugs to the U.S., the government would not have missed to include such fact in the Indictment...There is no factual allegation that Konstantin Yaroshenko neither agreed to take any part in shipping the drugs to the United States nor concurred in such action.
Once again, how much of our money is the DEA spending on its African adventures? And how much are we spending to fly these sting targets from Africa to the U.S., hold them for a year or more in pre-trial detention, fund their defense, try them, incarcerate them for decades, and then fly them back when they are deported after their sentences? Considering unless the DEA demands otherwise, the (illusory) drugs are going from South America to Africa to Europe, why is it even their business to intervene? Or to steer non-U.S. criminal activity into the U.S.? As Yaroshenko's lawyer writes:
Instead of artificially manufacturing nexus to the United States, the DEA agents could have cooperated with the Liberian authorities to ensure that the defendants were brought to justice in Liberia. In addition, Russia or Ukraine also had an interest in the alleged criminal activity, since Konstantin Yaroshenko was a Russian citizen and some of the alleged meetings took place in Ukraine.
In contrast, the sovereign interest of the United States was not implicated: none of the defendants are U.S. citizens and the alleged conspiracy had nothing to do with the United States except for DEA’s manufactured nexus.
The result, according to Yaroshenko's lawyer:
While the Supreme Court of the United States is cautioning against expanding the extraterritorial application of the United States laws1, U.S. law enforcement agencies are increasingly expanding their activities operating under cover outside of the United States. As in this case, the DEA agents travel across the globe to perform the function of the world’s police but in reality they act as a lawless gang breaking the laws of the countries in which they operate, violating international treaties, abusing their detainees, creating U.S. jurisdiction by their own actions. Foreign nationals subsequently brought to the United States to face harsh criminal charges are powerless, stripped of the protections of their own national laws and Constitutions. The government, on the other hand, is empowered by avoiding the consequences of American Constitutional protections in conducting its overseas operations.
Nor are these cases the only ones. There's also U.S. v. ALI SESAY, et.al., Case No. 10-457 (SDNY.) Same pattern as Yaroshenko (the cases are related, according to the Government.) The defendant in that case argues:
The Indictment sets forth the nature of the Conspiracy clearly in the section delineated as “Background”. We learn that over the last decade, South American-based drug organizations have been using countries along or near the West African coast as trans-shipment hubs for importing massive quantities of cocaine to be later distributed in Europe or elsewhere in Africa.
These organizations, based predominately in Colombia and Venezuela, have transported hundreds of tons of cocaine, worth billions of dollars to Guinea Bissau. Guinea Conakry, Sierra Leone, Togo, Mali, Ghana, Nigeria, and Liberia. It is charged that since 2007, co-defendant Gilbrilla Kamara has recruited South American drug trafficking organizations to establish operations in those African countries while making efforts to corrupt West African government officials in order to establish secure locations for the drug trafficking organizations to receive, store and trans-ship cocaine. The Indictment goes on to state that Mr. Kamara has actually distributed cocaine that he has received from South America to locations in Africa and Europe.
...What becomes crystal clear from a careful reading of the Indictment, is that the charged conspiracy has absolutely nothing to do with the importation of drugs into the United States, nor any attempt to corrupt governmental officials of the United States.
In short, the only connection to the United States was manufactured by one “Nabil”, a cooperating source with the Drug Enforcement Administration, who insisted that he get paid in cocaine to be trans-shipped from Liberia to Ghana and then to New York. Nabil’s insistence on being paid in cocaine to be sent to the United States had nothing to do with the charged conspiracy and was a blatant attempt on the part of the Drug Enforcement Administration agents to justify their involvement in this investigation, and to manufacture subject-matter jurisdiction, where none existed. Nabil, clearly acting as a government agent, entered into his own separate agreement with Kamara to route his payment to the United States. No cocaine was actually shipped to Ghana for later shipment to the United States.
In its response filed today, the Government does not dispute that the only connection to the U.S. is that the DEA informant asked that after the group finishes its business of shipping drugs from South America to Liberia to Ghana, that his portion of drugs be shipped from Ghana to the U.S. It argues there's nothing wrong with the DEA's practice and it's what Congress intended.
The Wikileaks cables, which confirm our government's knowledge of widespread corruption among the African Government agencies with whom it is partnering, merely reinforces the futility of the DEA's efforts. The real problem is that Congress continues to fund them.
The DEA's most excellent African adventures aren't winning the war on drugs or even impacting drugs coming into the U.S. They are just wasting our money.
With Congress on the precipe of passing a 1,900 page, $1.1 trillion budget, you would think one member of Congress, just one, would point out this wasteful excess. I'd bet that if you told every American how much money Congress has authorized the DEA to spend on stings designed to stop drugs being shipped from South America to Africa to Europe, and then to fly those arrested to the U.S. for trial and years of incarceration, you could fit all those who approved on the head of a pin.
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