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#2708: Concannon responds to Auguste re:FRAPH/FADH Documents (fwd)
Attorney Brian Concannon Jr. asked me to forward this to the list:
Jean-Robert Auguste asked some good questions in his posting about the
FRAPH/FADH documents, and I would like to reply as best I can on behalf of
the Campaign for the Return of the FRAPH/FADH documents. First, to be clear,
I am talking about the documents taken from the facilities of FRAPH
(reportedly 60,000 pages), and of FADH (reportedly 100,000 pages). The FADH
documents are not only the more numerous of the two, but are probably the
more important. All of us at some point call them the "FRAPH Documents" for
short, but if we only say FRAPH, that is all we will ever get.
Although the Documents are important, in order to pursue cases against
coup criminals, for the Haitian people to know the truth about what went on
during the coup, and to establish the principle of the rule of law, they are
not necessary for all justice work in Haiti. First, they are not necessary
for the deportation of Emmanuel Constant: a US Immigration judge had enough
information to order Constant deported in September, 1995. The Executive
Branch simply refused to execute that valid order. Second, the Documents are
not necessary for the deportation or extradition of Michel Francois. The
U.S. has already asked for his extradition, on the basis of a thick
indictment, and Honduras has refused. Honduras has also refused the
extradition request of Haiti (and there is no Honduras-Haiti extradition
treaty) on the basis of the Raboteau case.
The Documents are not necessary for Raboteau case either. Fortunately,
there is a wealth of eyewitness testimony against those Raboteau defendants
who were at the site of the massacre, and enough information in Haiti to
prove a command responsibility case against the military and paramilitary
leaders who were not there. In the Raboteau case, the Juge D'Instruction
issued his "ordonnance", formally charging the accused, in September, 1999.
Several of the defendants appealed, as is their right, and in February the
Gonaives Court of Appeals issued a decision upholding the JDI's ordonnance in
its entirety. Some of the defendants appealed that decision to the Cour de
Cassation (Supreme Court). It is expected that the Cour de Cassation will
take 1-2 months to decide this appeal, and that the trial can be held about 2
months after that.
The Documents are necessary for people involved in the coup but not
directly in a formal chain of command. Some of these have been in jail in
Haiti, and the State Department has advocated their release for lack of
prosecution, while simultaneously holding the evidence necessary to the
Attorney Auguste's main question was why not accept part of the
documents, do what you can with them, then keep fighting for the rest. The
principled response to this is that by accepting only part, Haiti would be
accepting an infringement on its sovereign right to the return of all its
property. A good analogy would be if someone took $100 out of your wallet,
and when you demanded it back he offered $80, and said you could discuss the
other $20 later. A second, more practical, response is that once the first
part of the Documents are returned (or the $80), the leverage for the
remainder is lost, along with any chance of getting it back. Just ask the
governments of Panama and Grenada, who have never seen the documents stolen
during their invasions.
Finally, there is the issue of what exactly the partial offer includes.
This has always been a mobile target: the State Department has at times said
it is a few names, at times said less than twenty pages, at times about a
hundred, at times a few thousand. Sometimes only the FRAPH component has
been offered, with no word on the army documents. In April, 1998, Madeleine
Albright said "all the documents" had been made available to Haiti. There is
also reason for the Haitian side to mistrust current assurances about the
documents. In addition to changing the number of documents to be withheld,
the U.S. has at times denied it knew where the documents were, and has
invoked a series of patently false legal justifications.
Even the practical justification of "protecting American citizens" is
false: a delegation from CUNY law school was told at the U.S. Embassy that
information was redacted with respect to American sounding names, that no one
checked to see if Haitian sounding names in the documents belonged to U.S.
Although a partial return of the documents would, as Mr. Auguste points
out, provide practical benefits to justice in Haiti, this must be measured
against what one gives up to get it. In this case, Haiti would be trading a
part of its sovereignty and any chance of getting the remaining documents in
return. That is a high price to pay for an unknown quantity and quality of
information, especially to a trading partner that has engendered, and
continues to engender, so much mistrust on the matter.
Brian Concannon Jr.