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 Website: http://www.newschoice.com/newspapers/alameda/times/ U.S. URGING SHIFT IN CARIBBEAN DRUG LAWS 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 "troubling." 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 laundering. 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." - --- MAP posted-by: Jo-D