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Nov
17

UNITED POLICE STATES OF THE AMERICAS – THE “INCOMMUNICADO INTERROGATION” RUSE

In this age of tyrannical police with unchecked power, it is frightening to note that the “police state” mentality has gone viral and global.  Criminal defense lawyers who defend international cases involving defendants extradited from South America are threatened by the specter of joint ventures that create incommunicado conditions to facilitate the extraction of confessions by U.S. agents.

An extradition case from Colombia illustrates the extraterritorial “incommunicado interrogation” police ruse employed by a joint venture of U.S. and Colombian agents to obstruct a major target’s access to counsel before and during incommunicado interrogations expressly condemned as far back as the landmark Miranda opinion.

The U.S. government does not target foreign nationals for extradition to the United States unless they are major targets with knowledge of high-value information for desired debriefing.  Given the ultimate goal of gathering intelligence about the participants and methods of major criminal organizations, foreign-soil interrogation (“interviews” preferred by the government) is the most critical phase of the criminal proceedings for the defendant and for the information-gathering U.S. government agents. However, U.S. agents operating abroad should not capitalize on incommunicado detention conditions to extract involuntary incriminating statements from a prisoner awaiting extradition to face charges in the United States.

Any obstruction to the right to counsel by the Colombian “joint venture” partners must be imputed to the U.S. agents when the extraterritorial relationship goes beyond mutual cooperation and rises to the level of “agency” because the Colombian agents cede primary control over the foreign-based investigation to their U.S. agency counterparts.

On the issue of extraterritorial waivers, the district court decision in United States v. Bin Laden, 132 F.Supp.2d 168, 185-192 (S.D.N.Y. 2001) provides guidance to the analysis of the waiver forms signed by U.S. government targets in foreign custody.  The district court in Bin Laden painstakingly analyzed the “advice of rights” (“AOR”) form that had been used by federal agents operating overseas and reached a conclusion that the AOR was flawed with respect to the crucial advice as to the right to counsel.  The court concluded that the improper advice of the right to counsel given under the wording of the AOR form required suppression of certain statements that had been the product of an interrogation conducted by U.S. agents abroad.  Id. at 189-192.  U.S. agents cannot “deliberately ignore” any obstruction of access to counsel committed by their “joint venture” partners.

The Bin Laden decision found that, within the extraterritorial context, a “principled but realistic application of Miranda’s familiar warning/waiver framework, in the absence of a constitutionally adequate alternative, is both necessary and appropriate under the Fifth Amendment.  Only by doing so can [trial] courts meaningfully safeguard from governmental incursion the privilege against self-incrimination afforded to all criminal defendants in this country – wherever in the world they might initially be apprehended….” See Bin Laden, 132 F.Supp.2d at 185-186 (emphasis and brackets added).

When a defendant is arrested by a joint venture of agents from Colombia and the United States, his or her words cannot be used against him or her unless the prosecution shows that those admissions were preceded by a proper advice of rights, followed by a valid waiver.  When a waiver obtained by U.S. agents fails to observe the Miranda safeguards, the defendant’s statements should be suppressed, thereby protecting the right against self-incrimination from government violation, as well as deterring future police misconduct.  See Bin Laden at 187.

In our hypothetical extradition case, the defendant was denied access to counsel before U.S. agents initiated their interrogations aimed at obtaining his “confession.”   The U.S. courts cannot countenance “incommunicado interrogations” wherever they are conducted in the world by U.S. agents.  The Bin Laden decision insightfully found it was “far more likely” that a custodial interrogation “carried out beyond our borders and under the aegis of a foreign stationhouse”, id. at 186, would “present greater threats of compulsion since all that happens to the accused cannot be controlled by the Americans.” Id.

It is not uncommon for a defendant to be held incommunicado for a prolonged period after his formal arrest and transportation. In Colombia, the accused is often “isolated and without assistance [of counsel] for a duration not seen today in America.” Id. U.S. agents should not be permitted to initiate a textbook “incommunicado” interrogation session by obtaining a waiver under the Notification of Extraterritorial Rights to extract incriminating statements from a target being deprived of the opportunity to have access to counsel. Detention in the notorious underground “bunkers” of Colombia also constitutes “[s]ubstandard detention conditions” contributing to the coercive atmosphere.  Thus, “strong countervailing forces… run head first into the free will of the accused.”  Id.   The “guiding hand of counsel” is essential to advise a defendant of his rights before and during any post-arrest interrogations.  See Powell v. Alabama, 287 U.S. 45, 69 (1932); see also Massiah v. United States, 377 U.S. 201, 204 (1964) (interrogation is “stage when legal aid and advice were most critical to petitioner.”).

The “joint venture” exception must be extended to condemn obstruction of access to counsel being perpetrated by our federal government’s Colombian “joint venture” partners who work in unison with U.S. agents in the investigation and apprehension of major targets.  See Bin Laden at 187 (citing United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840 (1983), abrogated on other grounds (U.S. personnel, despite asking no questions directly, used the foreign officials as their interrogational agents in order to circumvent the requirements of Miranda); United States v. Molina-Chacon, 627 F.Supp. 1253, 1262 (E.D.N.Y.1986), aff’d sub nom, United States v. DiTommaso, 817 F.2d 201 (2d Cir.1987)).

The existence of the exception for “joint ventures” is based on a salutary requirement that U.S. constitutional safeguards must apply to any aspect of an overseas interrogation conducted by U.S. agents.  See Bin Laden at 188 (“To the maximum extent reasonably possible, efforts must be made to replicate what rights would be present if the interrogation were being conducted in America.”). Under these unique circumstances, it is essential to impose a requirement that U.S. agents remove their blinders and remain vigilant of their foreign partners’ conduct rather than later claim ignorance of their “joint venture” partners’ denial of fundamental rights, such as the defendant’s right to have timely access to counsel before and during interrogations initiated by U.S. agents abroad.  The right is violated with Machiavellian impunity when agents engage in the functional equivalent of “incommunicado” interrogations.

The  standard Notification of Extraterritorial Rights (“Notificación Extraterritorial de Derechos”) contains language that should trouble any American trial court in “joint venture” cases, where U.S. agents have primary control over investigations ceded by their foreign counterparts.  The poor language would permit agents to obtain carte blanche to “deliberately ignore” obstruction of access to counsel committed by their “joint venture” partners abroad.  SeeNotificación Extraterritorial de Derechos” at ¶6 (“Sin embargo, porque usted no está bajo nuestra custodia y no estamos en los Estados Unidos, no podemos asegurar que se le permita acceso a un abogado… antes de o durante nuestra entrevista.”).

The above paragraph is translated as follows: “However, because you are not under our custody and we are not in the United States, we cannot ensure that you will be permitted access to counsel … before or during our interview.” Notification of Extraterritorial Rights at ¶6 (emphasis added).

Our courts cannot countenance any such gamesmanship by U.S. agents whenever the evidence clearly demonstrates that their “joint venture” partners obstructed access to counsel in a case where the relationship goes beyond mutual cooperation and rises to the level of “agency” because the foreign partners ceded primary control of the overseas investigation to U.S. agents seeking extradition of a defendant to face charges in the United States.

The above-emphasized language cannot pass constitutional muster because it would invite an “incommunicado” interrogation ruse where the foreign partners obstruct access to defense counsel while U.S. agents put on blinders in order to enjoy unfettered access to prisoners in order to conduct such tainted foreign-soil interrogations.

Indeed, the decision in Bin Laden was careful to “leave open whether th[e] assumption [that foreign law on access to counsel trumps American procedure] remains valid if foreign authorities cede to U.S. law enforcement primary control of the foreign-based investigation…. The relationship in such a hypothetical scenario will have shifted from mutual cooperation to one of agency.”  Bin Laden, 132 F.Supp.2d at 188-89, n.18 (emphasis and brackets added). Where primary control of an investigation is ceded to U.S. agents by their foreign joint venture partners, the case clearly presents the “agency” scenario. Therefore, all of the actions of the foreign partners must be imputed to the U.S. agents under basic principles of agency law.

Because Colombian “joint venture” police partners have created incommunicado detention conditions for prolonged periods after arrest and have compounded their error by continuing to obstruct access to defense counsel before and during successive “incommunicado” interrogations initiated by U.S. agents in control of the investigation, suppression of all statements so obtained is required.

A voluntary waiver as to the rights contained in the Notification of Extraterritorial Rights cannot be obtained and “interviews” cannot be held while a prisoner is being held incommunicado.  Without a significant break in the events between an initial interrogation conducted while the prisoner is under incommunicado detention and a subsequent interrogation where counsel is denied access to his client before the interrogation, the taint of the initial involuntary confession renders any subsequent waiver extracted within a few days defective. U.S. agents cannot turn a “blind eye” to any obstruction of access to counsel committed by their “joint venture” partners to avoid complicity.

It should insult the intelligence of the courts whenever U.S. agents attempt to avoid any responsibility for the actions of their foreign joint venture partners that are clearly designed to obstruct access to counsel before and during interrogations conducted by U.S. agents in a controlled incommunicado environment.

Records reflect that Colombian joint venture partners also include the logistical wing of law enforcement  (jailers/transporters working for “la Fiscalia,” the Colombian Prosecutor’s Office) who create incommunicado detention conditions by obstructing access to defense counsel while facilitating unfettered access for U.S. agents to conduct interrogations in cases involving major targets of our federal government.  This level of cooperation where primary control of the investigation is ceded to U.S. agents rises to the level of “agency.”  In such a scenario, U.S. agents in control of the investigation must incur responsibility for all of the actions taken by all of their “joint venture” partners under basic principles of agency law.

PRACTICE POINTS:

In defending such cases involving “incommunicado” interrogations, defense counsel will have to first persuade the court that the record clearly shows that Colombian jailers are a part of the “joint venture” team and that the level of cooperation between U.S. agents and their “joint venture” partners in Colombia rises to the level of “agency” because the Colombians ceded primary control over the investigation to the U.S. agents seeking extradition.  See United States v. Bin Laden, 132 F.Supp.2d 168, 188-189, n.18 (S.D.N.Y. 2001) (leaving open question of “whether th[e] assumption [that foreign law on access to counsel trumps American procedure] remains valid if foreign authorities cede to U.S. law enforcement primary control of the foreign-based investigation…. The relationship in such a hypothetical scenario will have shifted from mutual cooperation to one of agency.”).

The constitutional claims stand on much firmer ground if the relationship rises to imputable agency because all prisoners are entitled to a reasonable opportunity to seek and receive the assistance of their counsel. Procunier v. Martinez, 416 U.S. 396, 419 (1974).  If the actions taken by the “Fiscalia” (Prosecutor’s Office) jailers can be imputed to the U.S. agents in control, then an impermissible obstruction of the right to counsel can be attributed to the government.  See Procunier, 416 U.S. at 419 (an unjustified obstruction of the right to representation is impermissible). The unjustifiable obstruction of the right to obtain timely access to counsel is demonstrated by the fact that U.S. agents enjoy unrestricted jail access to prisoners facing extradition to the United States, while the same jailers unjustifiably obstruct defense counsel from obtaining timely access to their clients who need to receive advice of counsel prior to being interrogated by U.S. agents.  Statements obtained during “incommunicado interrogation” by U.S. agents cannot be admitted as evidence in an American court of law.

Any statements obtained while a prisoner is being held incommunicado and access to counsel is obstructed are involuntary.  Miranda v. Arizona, 384 U.S. 436, 476 (1966) (“Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of … incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.”) (emphasis added).  U.S. government agents cannot exploit any statements obtained during any incommunicado interrogations because the “practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles – that the individual may not be compelled to incriminate himself.”  Miranda, 384 U.S. at 457-458.

The Miranda Court observed that “incommunicado interrogation” in an “unfamiliar,” “police-dominated atmosphere,” id. at 456-457, involves psychological pressures “which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.”  Id. at 467.  See Darwin v. Connecticut, 391 U.S. 346, 349 (1968) (“The inference is inescapable that the officers kept petitioner incommunicado for [ ] hours during which they sought and finally obtained his confession. … The denial of access to counsel and the outside world continued throughout, and there was no break in the stream of events from arrest throughout [both confessions], sufficient to insulate the final events from the effect of all that went before.”) (citations and internal quotations omitted; brackets added).

These statements are fatally tainted by the obstruction to access counsel that is inherent in an “incommunicado interrogation.”  A prisoner’s right to counsel to protect all of his other rights implicates “both the due process right of access to the courts and the Sixth Amendment right to counsel.”  Benjamin v. Fraser, 264 F.3d 175, 187 (2d Cir.2001).  Similarly, “prison regulations restricting pretrial detainees’ contact with their attorneys” violate the Sixth Amendment “where they unreasonably burden [ ] the inmate’s opportunity to consult with his attorney and to prepare his defense.” Benjamin, 264 F.3d at 187 (emphasis added).  The first fundamental step to preparing a defense is timely advice of counsel exhorting a client to exercise his right to remain silent rather than provide statements that can eventually be regarded  by jurors as a “confession.”  Post-arrest interrogations constitute “the stage when legal aid and advice [a]re most critical.”  Massiah v. United States, 377 U.S. 201, 204 (1964).

Under basic principles of agency law, U.S. agents cannot claim ignorance of the unjustifiable obstruction of counsel committed by joint venture partners abroad who quite often cede primary control of the foreign-based investigation to U.S. agents seeking the extradition of major targets to face charges in the United States.  The federal courts cannot allow the admission of statements obtained during “incommunicado” interrogations facilitated by a police ruse being implemented by our “joint venture” partners.

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One Comment to “UNITED POLICE STATES OF THE AMERICAS – THE “INCOMMUNICADO INTERROGATION” RUSE”

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