War By Other Means: Colombia's Faceless Courts
Weiner, Robert
It is late in the afternoon, and the municipal building of Sabana de Torres, a small, dusty town in Colombia's Magdalena Medio region is now deserted. Although he normally prefers to get...
...If success is defined by the large number of people swept off the streets and into jail-15,000 since the faceless-justice system was established-then the combination of faceless courts and military-run states of exception has been a triumph...
...Barrancabermeja's prison officials estimate that 30% of their faceless-court detainees are innocent, and that the accused will have to wait a year to find out if a court agrees with them...
...Half of Colombia's 30,000 prison inmates come from the faceless-court cases...
...more than 90% of these are still awaiting trial...
...Colombians call it "making the extraordinary ordinary...
...In Bogota, Deputy Prosecutor General Adolfo Salamanca sounds tired of repeating that his office doesn't agree with the army's legal interpretations-for instance, that anyone suspected of subversion-related offenses can be arrested without a warrant at any time of day or night...
...Lawyers Committee for Human Rghts, Public Order Private Injustice, (New York, 1994...
...It took me two minutes, without courts if they money, mirrors or advance notice, to discover the true start shooting identity of a faceless prosecujudges again...
...El crimen organizado y la justicia, p. 196...
...Yet this is precisely the problem with any legal framework that lacks procedural protections...
...At one point the Cali Cartel announced that it would kill ten judges for each trafficker extradited or asset seized...
...What is known is that many detained trade unionists and left-wing politicians, after years of enduring a grueling legal process and jail time, turn out to belong nowhere near a faceless court...
...Welcome to Colombia's faceless-justice system in action...
...Officials of both countries claimed concrete results: of the cases that went to verdict, early reports had conviction rates way up...
...Local prosecutors are often consigned to "legalizing" the army's modus operandi by authorizing arrests after the fact...
...States of internal commotion legitimize the soldier as policeman...
...The 1,500-member movement was leading an aggressive campaign of street protests and local strikes to convince the Colombian authorities to expedite the reversion of control over a local oil concession from an Exxon sub- While the f sidiary to Ecopetrol, Colombia's were set u national oil company, which had a better history of reinvesting locally terrorists and some of its $30 million in annual profits...
...But with Gaviria's reforms, the United States began to make its influence felt-"in spades," according to Lars Klassen, the director of U.S...
...The U.S...
...Although Guerrero wouldn't find this out for six months, he had been accused of being the national leader and physician of one of Colombia's main guerrilla groups, the Army of National Liberation (ELN...
...Initially, the faceless-court system denied the defense the right to question the secret witnesses-whose testimony is often the primary, if not the sole, evidence against the accused...
...12.Justicia sin rostro, p. 53...
...No one, it seemed, had taken a serious look at problems of due process until human rights groups began making noise in Washington and Geneva...
...8. El crimen organizado y la justicia, p. 176...
...The United States used to tout Colombia as the model for U.S.-sponsored judicial reform...
...In Colombia, word and deed are rarely identical, particularly when human rights issues are at stake...
...In response to the government's redoubled efforts in the early 1980s to prosecute narcotics cases, the drug mafia launched a campaign of terror against judges and the legal system itself...
...Judges have almost no role until the "trial" phase of the case-a paper-shuffling process that hasn't changed much since the old Constitution...
...It is clear that the faceless courts operate as if two prosecutor in one distinct jurisdictions existed...
...government had previously funded a few justice-reform programs in Colombia, most notably police training to protect judges...
...A local prosecutor handles the case on one end, while a team in Bogota takes over the appeal on the other...
...Even if they were able to travel such distances with more frequency, defense lawyers in subversion cases are rarely notified of the proceedings...
...Since 1992, Presidents Gaviria and Samper have issued more than 50 such emergency decrees...
...The term "regional," as applied to the faceless courts, derives from an idiosyncratic division of Colombian territory into six regional jurisdictions...
...9. Author interview, Colombian Comission of Jurists, Bogota, May, 1996...
...Payoffs become easier, and public accountability harder...
...Although he normally prefers to get home before dark-Magdalena Medio is a known hot spot in Colombia's perennial struggle among the army, paramilitary forces and the guerrillas -Anibal Guerrero has agreed to keep talking...
...Even if the defendant can determine a judge's identity, the public can't...
...A defendant waits in jail without formal charges on average for 14 months-six months longer than the law allows...
...In subversionrelated cases, however, the defense rarely has an effective opportunity to participate in evidentiary proceedings-let alone to cross-examine the prosecution's witness...
...This would be a more difficult question if the courts dispensed even a semblance of justice, and if it were certain that they actually protected judges from the most serious threats...
...someone, I can't buy clothes or other things," said one such inforbecome a mant...
...Bush approved U.S...
...47-48...
...Gaviria was on the wagon barely a year before issuing the first of three "states of internal commotion"-their new name under the 1991 Constitution -during his term...
...and Organization of American States, Second Report on the Situation of Human Rights in Colombia (Washington, D.C.: Inter-American Commission on Human Rights, 1993...
...AID's Colombia mission...
...The secret "witness" who testified against him was later caught assaulting a policeman and possessing forged documents, forcing the prosecutor's office to take a second look at the evidence in his case...
...No one can prove this, of course, and government officials reject the charge...
...Would you want to be the one who abolished these courts if they start shooting judges again...
...4. Constitutional Court Decision C-090 (Februrary 27, 1993...
...Law, it seems, has become war by other means-and wars are run by soldiers, not lawyers or judges...
...support for Colombia's faceless courts got its impetus from the top...
...I learned this in 1992 after twenty minutes of arguing with several Colombian lawyers about whether an arrest had to be authorized by a judge...
...Paramilitaries, particularly groups with names like Cirugia-as in "surgery," for its notorious creativity with chain saws-are an obvious source of terrorist offenses, but they are protected by the military and not hassled by the courts...
...Yet available VOL XXX, No 2 5EPrfOa 199635 VOL XXX, No 2 SEPT/OCT 1996 35REPORT ON CRIME AND IMPUNITY statistics suggest that this faceless-justice system can scarcely be called a success...
...Serious violent crimes have increased since 1992...
...Those fingered celess courts might be guerrillas...
...Under one name or another, states of exception characterized Colombia for about 35 of the 40 years prior to the 1991 Constitution...
...AID's assistance no longer places special emphasis on the faceless courts...
...The accused may not be informed of the nature of the evidence against him, and defense attorneys are not usually allowed to cross-examine witnesses...
...6. Since April 1948, every Colombian President has issued an emergency decree...
...In April, 1994, nearly two years after his arrest, Guerrero was free to go, although another year would pass before the state prosecutor's office dropped the case altogether...
...He was also charged with masterminding the murder of a i a d tr t) t e nt 0O local politician...
...Major" cases of the sort which prompted the courts' creation constitute a small percentage of the docket...
...10.Author interview, Barrancabermeja, May, 1996...
...Unfortunately for Guerrero, hundreds of the group's activism ruffled some established feathers...
...government was seeking 32NACLA REPORT ON THE AMERICAS 4 NACIA REPORT ON THE AMERICAS 32REPORT ON CRIME AND IMPUNITY alternative ways to strike against the Medellin and Cali cartels...
...The prosecutor has his own solution to the problem of travel-he doesn't move...
...The experience of community leaders like Guerrero-and hundreds of other trade-union leaders, activists and left-wing politicians-suggests that the faceless courts are a convenient means of "chilling" social protest...
...Now, the U.S...
...The renamed regional tribunals, for instance, needed no new laws detailing procedure...
...government is now training both ordinary and faceless prosecutors and judges, as well as some public defenders, to help them overcome some of the procedural problems in the system...
...In its effort l to root out "subversives" in conflict zones, the army relies on intelligence gathered from a network of informants, which it often pays and sometimes houses and feeds...
...government limits itself to a soldierly defense of the courts as a necessary evil to combat serious crimes...
...Subversion, according to the military, is a 24-hour-a-day offense...
...In the Orwellian lexicon of Colombia's reformed criminal procedure, the word "judicial" refers to the prosecutor...
...Justified as a necessary weapon in the fight against Colombia's most dangerous criminals, the faceless courts now account for 40% of the nation's criminal-justice docket...
...Each regional seat has one regional court, through which all of that region's cases must pass...
...Perhaps their efforts will succeed...
...Or maybe to deal with they quarreled with their accuser, failed to repay a debt-or none of rug traffickers, the above...
...The military's power often reaches beyond its mandate, however, and combat troops start exercising police powers...
...He does not look like an enemy of the state...
...Despite its 800-pound gorilla status among civilian institutions, the state prosecutor's office has proven no match for an army that lets few legal niceties get in the way of its work...
...The authorities never told Guerrero that his accuser was a teenage informant ' maintained by the army, whose * identity was kept secret by the equally anonymous prosecuting authorities...
...Few lawyers are able to travel repeatedly-in some cases, for up to ten hours-to review a file sitting in regional headquarters or to join in the evidentiary and other proceedings...
...Prosecutors routinely offer of the conflict drastic sentence reductions and zones...
...If I don't denounce in their web...
...VOL XXX, No 2SEr'rIOa 1996 33 VOL XXX, No 2 SEPT/OCT 1996 33REPORT ON CRIME AND IMPUNITY A second problem is Colombia's tradition of a permanent "state of exception," which has allowed presidents to decree-ostensibly temporarily-extraordinary powers that consistently benefit the security forces by legalizing arbitrary and repressive measures...
...The crucial legacy of Colombia's legal reform-for which the United States gets a dubious "assist"-has been the effective dismantling of the independent role of the judge and the creation of prosecutorial hegemony...
...legal-reform assistance as a counter-narcotics measure, and the public-order courts were singled out as a prime beneficiary...
...The debate over whether the faceless courts should continue to exist is polarized, and the stakes are high...
...On July 4, 1991, the day the Colombian Congress promulgated a new Constitution, the faceless courts celebrated a birthday of sorts as well...
...Some, like Deputy Prosecutor General Salamanca, freely admit the system's problems, while noting that the attorney general's office opposes the worst abuses...
...I have to give the army a name or two every week...
...By 1987, President Virgilio Barco decided that something more drastic than the special courts was needed...
...Prisoners in a Bogota jail await their food...
...Consider the right to cross-examine witnesses...
...This is no surprise, since the military is used to rolling over civilian authorities...
...But this is never a measure of a system's fairness...
...cozy conditions of confinement to high-level narcotics traffickers...
...Despite well-publicized arrests, drug trafficking continues undaunted...
...tor who was assigned to cases coming from the military in one of the conflict zones...
...Though the regional courts are bad in their own right, their worst effects are due to broader phenomena...
...The "evidence" was so flimsy that the prosecution had never even issued a formal indictment against them during the 20 months they spent in jail...
...Guerrero continues to receive death threats, however, presumably from paramilitaries-private armies that work closely with the local military to harass, neutralize or eliminate troublesome elements, C olombia's faceless-justice system dates back to a 1984 law which designated 200 special courts to investigate cases of organized crime, kidnapping, terrorism and extortion...
...An informant's creativity can set in motion the nightmare machine, and few if any have the power to stop it...
...Everyone but the accused is anonymous...
...The U.S...
...2. See Justicia sin rostro, pp.19-33...
...They tend to pick out likely candidates for the "subversive" label...
...The "class" distinction is crucial...
...They conceded that no grounds existed to detain Guerrero or any of his colleagues...
...The Bush administration, immersed in another chapter of the "war on drugs," was buying...
...Poor peasants accused of helping the guerrillas often plead guilty after serving what would have been their minimum sentence while still in pretrial detention, while rich drug traffickers have well-paid lawyers who negotiate better deals...
...Or are they those who move cocaine by the ton, and kill presidential candidates, justice ministers, and judges by the hundreds...
...Are the 70,000-plus suspects who have gone through the faceless courts hardened desperados, guerrillas who blow up oil installations and kidnap the rich...
...Only the lawyers, judges and the accused can enter the courts, which are housed in bunkers equipped with one-way mirrors and voice distorters to ensure that the identity of those involved cannot be detected...
...Taking advantage of the possibility granted by the faceless courts of using secret, paid witnesses, the military has been able to arrest anyone it suspects of "subversive" tendencies, setting in motion a drawn-out legal process that keeps suspects off the streets for years...
...See Public Order Private Injustice...
...Between the time charges are filed by the prosecutor to the final verdict, the average wait is 11 months, despite a statutory limit of 45 days...
...Like means of anyone else trying to keep a cial protest...
...In Barrancabermeja, virtually all arrests in regionalcourt cases are carried out by the local military...
...AID director Lars Klassen...
...One of every two are peasants or workers, and most earn less than $100 per month...
...Judges don't issue judicial orders...
...But they were still the same faceless courts: the Supreme Court itself noted that the transition from "public-order" courts to "regional" courts entailed "no change whatsoever" in the courts' jurisdiction or functioning...
...What Colombia's justice system needs are police who perform better investigations, prosecutors who know how to try cases properly, and judges who are able and willing to enforce procedural rights...
...Statistics compiled by the International Commission of Jurists and the Andean Commission of Jurists (Colombian Section), Justicia para justicia: Violencia contra jueces y abogados en Colombia, 1979-1991 (Bogota: Andean Commission of Jurists, 1992...
...5. For a study of Peru's faceless-court system, see the U.S...
...These threats are not to be taken lightly...
...Office equipment purchased by the United States helps the courts process detainees...
...Its use has helped the country's legal system deflect a lot of human rights criticism, a fate its neighbors must envy...
...Successful prosecutions in the military tribunals of officers accused of human rights violations are, according to an attorney in the state prosecutor's Bogota headquarters, "conspicuous by their absence...
...Gaviria hoped to convince Bush to fund an ambitious plan to "reform" the Colombian legal system in order to strengthen its prosecutorial potential in drug cases...
...For Colombian heads of state, however, going cold turkey has failed...
...Anfbal Guerrero was lucky...
...Hence, subversives are permanently in flagrante delicto...
...Anyone who's been fingered has reason to fear...
...Crimes are vaguely defined, and allegations often change during the process...
...We have no control over this," says Salamanca, making it clear that he's tried...
...Unhappy over the Colombian Supreme Court's decision declaring the extradition of Colombian drug traffickers unconstitutional, the U.S...
...The accused are overwhelmingly male and under 40...
...asks U.S...
...These do not correspond to any of the ordinary judicial districts...
...Vot XXX, No 2 SEPT/Ocr 1996 Robert Weiner is Coordinator of the Latin America and Caribbean Program at the Lawyers Committee for Human Rights in New York City...
...Since 1991, the number of prosecutors has grown to 20,000...
...A system which relies on secret evidence and places strict limitations on the right to defense in order to ensure a high conviction rate breeds incapacity among these officers of the law...
...This legal alchemy has a long history in Colombia, where the extraordinary and the extralegal are often made over and incorporated into the regular legal framework...
...The offenses are so broadly defined and cover so to discover the wide a range of activity, however, that it's nearly impossible identity of to gauge the seriousness of the a faceless typical case...
...Functionally speaking, prosecutors are the judges, and the real judges are largely window dressing...
...In conflict areas like Magdalena Medio, the military often winds up exercising control...
...Only a small fraternity of those tried It took me are cocaine kingpins, and fewer still are soldiers or members of two minutes, paramilitary groups...
...In 1992, Guerrero joined the Popular Peasant and Workers' Movement, a civic organization which brings together petroleum workers with farmers seeking better C credit...
...Shortly before taking office in 1990, President Cdsar Gaviria met with then-President George Bush...
...So did his and communi accusation of corruption among been caugh Sabana's municipal officials...
...Gaviria was hailed as a legal reformer, while Peru's Fujimori was roundly-and rightly-criticized for rupturing the rule of law...
...He would spend the next 20 months in jail, along with 15 other members of the Ecopetrol movement...
...The 350 case sample represented 15% of the 2,327 cases that went to verdict between June, 1993 and May, 1994...
...Allegations from an anonymous informant are enough to arrest and hold someone for years while the prosecutor investigates...
...In response to perceived escaltions in Colombia's armed conflict, the government resorts to declaring a "state of internal commotion," which provides special presidential powers to issue emergency decrees giving broad powers to the military...
...Planning was soon underway at U.S...
...Justicia sin rostro, pp...
...My counterparts smiled...
...Official intentions notwithstanding, the system invites abuse...
...In exasperation, I produced a copy of the Constitution and pointed to Article 28: "judicial order required...
...Colombia's presidents use emergency powers to declare states of exception in such areas, making official the obvious fact that the military is in charge...
...31REPORT ON CRIME AND IMPUNITY or to run peasants off valuable land...
...AID for a 6-year, $36 million administration-of-justice program, its largest ever...
...Vague, one-page "intelligence reports"-"pretty generic," according to one faceless prosecutor assigned to review them-become the basis for arresting someone like Anibal Guerrero or Arturo Ulloa [see "Colombia's Most Unlikely Prisoner...
...A practicing physician, Guerrero was elected president of the municipal council in late 1994-despite the fact that he is a jailbird, an accused terrorist...
...Have the faceless courts at least protected judges from attack...
...Ministry of Justice and Law, El crimen organizado y la justicia (Bogot6: National Press of Colombia, 1995...
...A recent National University study of a sample of 350 cases provides one of the few bases for analysis...
...Between 1979 and 1991, 278 judges were killed in cold blood-rendering an already inefficient judicial system virtually impotent to prosecute drug traffickers...
...The number of judges killed has effectively dropped since the regional-court system was put in place...
...and Colombian officials have also pointed to a 95% criminal conviction rate as a measure of the system's effectiveness...
...Several weeks after the 1992 They hav municipal elections, Guerrero found himself aboard an army heli- conveniel copter en route to a prison in "chilling" s Bucaramanga, a five-hour drive from Sabana...
...Soldiers rarely wait for a prosecutor to issue an arrest order, nor do they bother to notify the state prosecutor's office before bringing in the latest suspect...
...3. El crimen organizado y la justicia, p. 32...
...From the moment the case enters the investigative phase, this adds up to an average of two years and seven months-if the defendant is acquitted...
...Many say that those with the means and want to be the inclination to arrange murders--even from a jail cell-- one who can easily find out who is abolished these handling their case...
...they simply incorporated the legislation that had previously been converted from emergency-decree status into permanent law...
...Someone, perhaps, like Anibal Guerrero, who's caused a little local trouble...
...The U.S...
...assistance helped strengthen the administration of the faceless courts, including measures to improve case tracking and information management...
...The figure doesn't measure the efficiency of the facelessjustice system either, since it refers to the minuscule proportion of cases-a mere 4%-which have actually come to judgment...
...So far, current President Ernesto Samper has declared two...
...Samper did the same in the aftermath of escalating violence in the northern region of Urubi and some well-publicized guerrilla attacks on oil facilities...
...It is impossible to tell how many are actually guerrillas-an affiliation rarely advertised...
...We broke with the past," says Vice Minister of Justice Jaime Cabrera of the new Constitution, which lifted the state of siege then in effect...
...If a president proposes that an emergency measure become permanent law, it automatically happens unless Congress votes it down...
...The new charter rechristened the former "public-order" courts as "regional" tribunals and moved them to a more respectable legal neighborhood: Colombia's newly reformed ordinary criminal-procedure code...
...Yet it's easy to find out who many of the anonymous "Would you functionaries are...
...Prosecutors do...
...13.Justicia sin rostro, pp...
...War by Other Means 1. For additional information on the faceless-justice system, see Nat- ional University of Colombia Faculty of Law, Political and Social Sciences, Justicia sin rostro (Bogot6: National University Press, 1996...
...Putting the military in the driver's seat does little to enhance the integrity of beleaguered legal institutions...
...It's not uncommon to see the hooded informants, who go by code names, perched on a small tank or in a jeep, pointing out future defendants...
...For all others, particularly those accused of subversion, prosecution has been full bore...
...The regional trial court is ten hours away in Clicuta, and an appeal would have gone to the National (regional) Tribunal in Bogotd--a 14-hour drive through dangerous territory...
...Prosecutors are understandably wary of dumping cases brought to them by the military...
...When peace talks with the guerrillas collapsed in 1992, for example, Gaviria declared a state of internal commotion...
...Peru, for example, which modeled its own faceless courts on Colombia's, summarily shut Congress and purged the courts in order to set up its faceless-justice system...
...It's a small matter, since an informant's benefits ade unionists depend more on the effect and the quantity of the accusations than ~y activists have their quality...
...7. Diario Nacional (Bogot,), various...
...In other words, the rechristened tribunals were upgraded from emergency-decree status...
...142-143...
...The process is painfully slow, and because of the prosecutor's procedural advantages, often arbitrary...
...Colombia was a committed partner, not one dragged in like other aid recipients, such as El Salvador...
...If the defendant is acquitted, he is not released until the prosecutor's appeal and the acquittal have been confirmed by the National Tribunal--on average, another six months...
...Meanwhile, U.S...
...government, immersed in another chapter of the drug war, decided to pour $36 milion into the faceless courts...
...Ongoing support provides training to the anonymous prosecutors and judges, as well as to a handful of defense lawyers...
...Despite the extensive use of another imported concept-the plea bargain-the system's slowness remains legendary...
...State Department, Report of the Commission of International Jurists on the Administration of Justice in Peru (Washington, D.C., 1993...
...Reformers have lost ground in their attempt to obtain civilian jurisdiction over the military's human rights abuses, for example, which are now tried in military courts by active-duty army officers...
...Others, such as the Ministry of Justice, assert that the regional courts have developed into a rights-oriented system- "una justicia garantista "-as though they had been designed by a Colombian version of the American Civil Liberties Union...
...ince 1992, the faceless courts have opened files in some 70,000 cases, many involving more than one suspect...
...Stung by criticism of this blatant violation of due process, the Colombian Congress in 1993 granted the defense the right to cross-examine secret witnesses, provided their identity remains protected...
...Another problem, of course, is that being "faceless" provides judges with the perfect cover for corruption...
...Statistics are scarce, in part because the faceless courts have been removed from the nation's regular judicial-information system...
...This constitutional sleight of hand not only normalized the system of faceless justice, it also created an ingenious mechanism for converting any presidential emergency decree into permanent law...
...U.S...
...Jaime Prieto, director of the Solidarity Committee for Political Prisoners, notes that out of an estimated 500 faceless-court cases handled by his office, they have never been notified of such proceedings, nor have they ever taken part in one...
...The military has been quick to jump in-and slow to depart after a state of internal commotion expires...
...Suspects are their own walking arrest warrants, and the military insists it has carte blanche...
...In Guerrero's case, for instance, the initial proceedings took place in Sabana...
...Access to the case files is carefully controlled, though distance is probably an equally effective guardian of the state's "secrets...
...Taking advantage of the presidential prerogative to wield emergency powers, he decreed the "public-order" courts-Colombia's first "faceless" courts-into existence...
...The government itself claims that guerrilla ranks have swelled dramatically...
...patron happy, an informant feeds the military what it wants...
...Six years after Colombia's touted legal reform, however, it appears that the United States and Colombia are likely to be remembered as the ones who replaced the blindfold of Justice with a hood...
...without money, Some three-fifths of the faceless courts' caseload consist of mirrors or narcotics offenses and arms advance notice, possession...
...Ironically, as Colombia's ordinary legal framework becomes increasingly laden with repressive provisions, Colombian presidents will have less need to resort to exceptional measures...
Vol. 30 • September 1996 • No. 2
