Pubdate: Tue, 19 Dec 2000
Source: Alameda Times-Star (CA)
Copyright: 2000 MediaNews Group, Inc. and ANG Newspapers
Contact:  66 Jack London Sq. Oakland, CA 94607


ORANJESTAD, Aruba (Boston Globe) -- The U.S. government, in its zeal to 
fight money-laundering by drug traffickers, has been pressuring Caribbean 
countries to enact laws that would be unconstitutional in the United 
States, U.S. and foreign officials said.

The proposed laws would shift the burden of proof in money-laundering cases 
from the prosecution to the defense. That is, accused money-launderers 
would have to prove that their assets were amassed legally, as opposed to 
current rules of due process that require prosecutors to prove guilt.

If passed in the United States, legal authorities said, such laws almost 
certainly would conflict with a bedrock principle of the American legal 
system: the presumption that a defendant is innocent until proven guilty 
beyond a reasonable doubt.

U.S. officials defended the policy in recent interviews, but Caribbean 
officials and some U.S. legal authorities decried it as hypocrisy.

"These small nation-states don't like it, but they won't dare to tell the 
United States, 'Hey, you're not doing it, why should we?'" said Henry 
Baarh, director of the Aruba Department of Foreign Affairs, who said he has 
personally been subject to the pressure from U.S. officials.

"We're all aware that the United States is so extremely powerful that if we 
don't cooperate we might get screwed somewhere else," Baarh added.

International politics unfair

Asked how U.S. officials could expect his nation to pass a law that 
probably would violate U.S. principles of due process, Baarh said: 
"International politics isn't always fair."

Placing the burden of proof on prosecutors "is fundamental to the American 
ideal and tradition of fairness, that nobody should be convicted of a crime 
without the government proving all the elements of a crime and proving them 
beyond a reasonable doubt," said Richard Fallon, a Harvard University law 
professor who is an authority on due process. He called the U.S. policy 

A State Department official defended the policy as necessary to combat 
Caribbean money laundering. The United Nations has estimated that $60 
billion in criminal funds are hidden each year in the Caribbean, out of 
about $600 billion worldwide.

"One has to recognize that if countries' laws are not up to dealing with 
the kind of crime that they are dealing with today, they have to change 
them," said the State Department official, who spoke on condition of 
anonymity. "I suppose anybody can criticize the means we're going to use to 
get there, but we have to figure our how to get there."

Asked whether the United States should be urging countries to enact laws 
that would appear to violate the U.S. Constitution and their own 
constitutions, the official said: "In situations such as these, we don't 
have a problem saying, 'Well, change your constitution.'"

The U.S. effort to change burden of proof laws is mentioned in a State 
Department document issued in March called the International Narcotics 
Control Strategy Report. The 152-page document details country-by-country 
efforts to stymie the drug trade and the laundering of drug money, a 
process that usually involves circuitous financial transactions to disguise 
the true source and make tainted cash seem "clean."

While most of the report involves routine antidrug and anti-money 
laundering efforts, the following passage appears in the report's section 
on Aruba: "The U.S. continues to urge that the" government of Aruba "amend 
its anti-money laundering legislation to shift the burden of proof from the 
prosecutor to the defense. With this amendment, and once Aruba's anti-money 
laundering program is fully implemented, successful prosecutions of money 
launderers should follow."

Although the policy is not detailed as specifically for other countries in 
the report, U.S. officials confirmed that similar attempts to change 
burden-of-proof laws are under way elsewhere in the Caribbean. Those 
efforts, the officials said, are focused on St. Vincent, Dominica, and St. 
Kitts-Nevis, among other island nations thought to be centers for money 

U.S. officials said none of the countries have acted in response to the 
initiative, but the pressure is continuing quietly through diplomatic 
channels and openly at meetings of groups such as the Caribbean Financial 
Action Task Force, of which the United States is a participant.

Although Aruba is not considered to be among the world's most notorious 
havens for money laundering, the resort island has been a flash point on 
the issue for several reasons.

Aruba near drug producers

For one, it is considered vulnerable because of its proximity to 
drug-producing countries in South America, its thriving casinos, and its 
growing offshore industry.

Also, U.S. officials have been frustrated by the fact that Aruba has never 
successfully prosecuted a money-laundering case despite apparent 
involvement by businessmen on the island.

For instance, until their extradition to the United States in 1998, three 
Aruban nationals allegedly engaged in large-scale money-laundering with 
virtual impunity. Two, cousins Eric and Alex Mansur, are members of a 
powerful business family.

The third, Randolph Habibe, was alleged to have been the chief of a 
Columbian drug ring called La Costa Cartel, which purportedly sent 80 tons 
of cocaine to the United States and laundered some $800 million.

Baarh, the Aruban director of foreign affairs, said his country has been 
aggressive in trying to crack down on drug traffickers and 
money-launderers, and does not appreciate the U.S. efforts.

Aruban laws are based on Dutch legal principles, which put a premium on the 
rights of defendants.

I don't think it will happen, and I don't think it should happen. It's not 
part of our legal system-

Criticism also came from Martin Weinberg, a Boston lawyer who is chairman 
of the money-laundering task force of the National Association of Criminal 
Defense Lawyers.

At least publicly, we are engaged in attempts to democratize the political 
and legal systems in other countries, yet here's an example where we are 
doing just the opposite, Weinberg said-

Barbara Stephenson, the U.S. consul general for Aruba, said the United 
States "is not urging Aruba to trample on due process at all." Rather, she 
said, the discussions are more subtle.

"We have an ongoing dialogue with Aruban law enforcement officials about 
the merits of incremental shifts in the burden of proof," she said. "One of 
the reasons we have consulates and embassies overseas is for us to advocate 
for a strong legal framework which benefits both the United States and the 
host country."

Despite Baarh's criticism, Stephenson said, "Arubans who are fighting to 
keep law and order welcome our weighing in and being part of the process. 
They see us as partners."

Although placing the burden of proof on prosecutors is a cornerstone of US 
constitutional law, legal authorities said there are certain exceptions 
even in the United States.

In cases where a person admits the elements of a crime but pleads a special 
defense, such as insanity, the burden is on the defendant to prove his case 
to win acquittal. Also, in some jurisdictions a person who carries a gun in 
public is guilty of a crime unless he can prove he had a permit or a 
reasonable excuse to do so.

But in cases of alleged money-laundering, US legal authorities say the 
burden lies squarely on prosecutors.

"If in fact these countries are not truly seeking to prosecute money 
launderers and indeed are tolerating them, one can understand the 
government's frustration," said Daniel Meltzer, a Harvard law professor and 
an authority on criminal procedure.

"At the same time," Meltzer said, "there is something unsettling about the 
government's urging other nations to dispense with a procedural protection 
that we view as fundamental."
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