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 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. He does not look like an enemy of the state. 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. In 1992, Guerrero joined the Popular Peasant and Workers' Movement, a civic organization which brings together petroleum workers with farmers seeking better C credit. The 1,500-member move- ment 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. Unfortunately for Guerrero, hundreds of the group's activism ruffled some established feathers. So did his and communi accusation of corruption among been caugh Sabana's municipal officials. 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. He would spend the next 20 months in jail, along with 15 other members of the Ecopetrol movement. 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 guer- rilla groups, the Army of National Liberation (ELN). He was also charged with masterminding the murder of a i a d tr t) t e nt 0O local politician. 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. In conflict areas like Magdalena Medio, the military often winds up exercising control. 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. The military's power often reaches beyond its mandate, how- ever, and combat troops start exer- cising police powers. In its effort l to root out "subversives" in con- flict zones, the army relies on intelligence gathered from a net- work of informants, which it often pays and sometimes houses and feeds. 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. Those fingered celess courts might be guerrillas. Or maybe to deal with they quarreled with their accuser, failed to repay a debt-or none of rug traffickers, the above. 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. "If I don't denounce in their web. someone, I can't buy clothes or other things," said one such infor- become a mant. "I have to give the army a name or two every week." Like means of anyone else trying to keep a cial protest. patron happy, an informant feeds the military what it wants. They tend to pick out likely candidates for the "subversive" label. Some- one, perhaps, like Anibal Guerrero, who's caused a little local trouble. Welcome to Colombia's faceless-justice system in action. Everyone but the accused is anonymous. 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. Allegations from an anonymous informant are enough to arrest and hold someone for years while the prosecutor investigates. 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. 31REPORT ON CRIME AND IMPUNITY or to run peasants off valuable land. These threats are not to be taken lightly. Anyone who's been fingered has reason to fear. 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. No one can prove this, of course, and government officials reject the charge. Yet this is pre- cisely the problem with any legal framework that lacks procedural protections. Official intentions notwithstanding, the system invites abuse. An informant's creativity can set in motion the nightmare machine, and few if any have the power to stop it. Prisoners in a Bogota jail await their food. Crimes are vaguely defined, and allegations often change during the process. The accused may not be informed of the nature of the evidence against him, and defense attorneys are not usually allowed to cross-exam- ine witnesses. The process is painfully slow, and because of the prosecutor's procedural advantages, often arbitrary. Anfbal Guerrero was lucky. 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. They conceded that no grounds existed to detain Guerrero or any of his colleagues. 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. 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. (Prosecutors are understandably wary of dumping cases brought to them by the military.) 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 desig- nated 200 special courts to inves- tigate cases of organized crime, kidnapping, terrorism and extor- tion. In response to the govern- ment'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. Between 1979 and 1991, 278 judges were killed in cold blood-rendering an already ineffi- cient judicial system virtually impotent to prosecute drug traffickers. At one point the Cali Cartel announced that it would kill ten judges for each trafficker extradited or asset seized. By 1987, President Virgilio Barco decided that something more drastic than the special courts was needed. Taking advantage of the presidential prerogative to wield emergency powers, he decreed the "public-order" courts-Colombia's first "faceless" courts-into existence. U.S. support for Colombia's faceless courts got its impetus from the top. Shortly before taking office in 1990, President Cdsar Gaviria met with then-President George Bush. Gaviria hoped to convince Bush to fund an ambitious plan to "reform" the Colombian legal sys- tem in order to strengthen its prosecutorial potential in drug cases. The Bush administration, immersed in another chapter of the "war on drugs," was buying. Unhappy over the Colombian Supreme Court's decision declaring the extradition of Colombian drug traffickers unconstitutional, the U.S. 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. Bush approved U.S. legal-reform assistance as a counter-narcotics measure, and the public-order courts were singled out as a prime beneficiary. Planning was soon underway at U.S. AID for a 6-year, $36 million administration-of-justice program, its largest ever. The U.S. government had previously funded a few justice-reform programs in Colombia, most notably police training to protect judges. 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. AID's Colombia mission. U.S. assis- tance helped strengthen the administration of the face- less courts, including measures to improve case tracking and information management. Office equipment pur- chased by the United States helps the courts process detainees. Ongoing support provides training to the anonymous prosecutors and judges, as well as to a hand- ful of defense lawyers. On July 4, 1991, the day the Colombian Congress promulgated a new Constitution, the faceless courts cel- ebrated a birthday of sorts as well. 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. In other words, the rechristened tribunals were upgraded from emergency-decree status. 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. This constitutional sleight of hand not only normal- ized the system of faceless justice, it also created an ingenious mechanism for converting any presidential emergency decree into permanent law. If a president proposes that an emergency measure become perma- nent law, it automatically happens unless Congress votes it down. Ironically, as Colombia's ordinary legal framework becomes increasingly laden with repressive provisions, Colombian presidents will have less need to resort to exceptional measures. The renamed regional tribunals, for instance, needed no new laws detailing procedure; they simply incorporated the leg- islation that had previously been converted from emer- gency-decree status into permanent 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 frame- work. Colombians call it "making the extraordinary ordinary." Its use has helped the country's legal system deflect a lot of human rights criticism, a fate its neigh- bors must envy. 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. Gaviria was hailed as a legal reformer, while Peru's Fujimori was roundly-and rightly-criticized for rupturing the rule of law. The term "regional," as applied to the faceless courts, derives from an idiosyncratic division of Colombian ter- ritory into six regional jurisdictions. These do not corre- spond to any of the ordinary judicial districts. Each regional seat has one regional court, through which all of that region's cases must pass. Access to the case files is carefully controlled, though distance is probably an equally effective guardian of the state's "secrets." Few lawyers are able to travel repeatedly-in some cases, for up to ten hours-to review a file sitting in regional head- quarters or to join in the evidentiary and other proceed- ings. Even if they were able to travel such distances with more frequency, defense lawyers in subversion cases are rarely notified of the pro- ceedings. In Guerrero's case, for instance, the initial pro- ceedings took place in Sabana. 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. The prosecutor has his own solution to the problem of travel-he doesn't move. A local prosecutor handles the case on one end, while a team in Bogota takes over the appeal on the other. The U.S. government, immersed in another chapter of the drug war, decided to pour $36 milion into the faceless courts. Though the regional courts are bad in their own right, their worst effects are due to broader phe- nomena. The crucial legacy of Colombia's legal reform-for which the United States gets a dubious "assist"-has been the effective dismantling of the inde- pendent role of the judge and the creation of prosecuto- rial hegemony. In the Orwellian lexicon of Colombia's reformed criminal procedure, the word "judicial" refers to the prosecutor. 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. In exasperation, I produced a copy of the Constitution and pointed to Article 28: "judicial order required." My counterparts smiled. Judges don't issue judicial orders. Prosecutors do. Functionally speaking, prosecutors are the judges, and the real judges are largely window dress- ing. Since 1991, the number of prosecutors has grown to 20,000. 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. 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 perma- nent "state of exception," which has allowed presidents to decree-ostensibly temporarily-extraordinary pow- ers that consistently benefit the security forces by legal- izing arbitrary and repressive measures. Under one name or another, states of exception characterized Colombia for about 35 of the 40 years prior to the 1991 Constitution. "We broke with the past," says Vice Minister of Justice Jaime Cabrera of the new Consti- tution, which lifted the state of siege then in effect. For Colombian heads of state, however, going cold turkey has failed. Gaviria was on the wagon barely a year before issuing the first of three "states of internal com- motion"-their new name under the 1991 Constitution -during his term. So far, current President Ernesto Samper has declared two. 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. Since 1992, Presidents Gaviria and Samper have issued more than 50 such emergency decrees. When peace talks with the guerril- las collapsed in 1992, for example, Gaviria declared a state of internal commotion. 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. States of internal commotion legitimize the soldier as policeman. The military has been quick to jump in-and slow to depart after a state of internal commotion expires. Taking advantage of the possibility granted by the faceless courts of using secret, paid wit- nesses, the military has been able to arrest anyone it sus- pects of "subversive" tendencies, setting in motion a drawn-out legal process that keeps suspects off the streets for years. 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"]. Law, it seems, has become war by other means-and wars are run by soldiers, not lawyers or judges. 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. This is no surprise, since the military is used to rolling over civilian authorities. 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. 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." In Barrancabermeja, virtually all arrests in regional- court cases are carried out by the local military. 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. Local prosecutors are often consigned to "legalizing" the army's modus operandi by authorizing arrests after the fact. 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. Subversion, according to the military, is a 24-hour-a-day offense. Hence, subversives are permanently in fla- grante delicto. Suspects are their own walking arrest warrants, and the military insists it has carte blanche. "We have no control over this," says Salamanca, making it clear that he's tried. ince 1992, the faceless courts have opened files in some 70,000 cases, many involving more than one suspect. 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. Half of Colombia's 30,000 prison inmates come from the faceless-court cases; more than 90% of these are still awaiting trial. 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. 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? Or are they those who move cocaine by the ton, and kill presidential candidates, justice ministers, and judges by the hun- dreds? Statistics are scarce, in part because the faceless courts have been removed from the nation's regular judi- cial-information system. A recent National University study of a sample of 350 cases provides one of the few bases for analysis. The accused are overwhelmingly male and under 40. One of every two are peasants or workers, and most earn less than $100 per month. It is impossible to tell how many are actually guerrillas-an affiliation rarely advertised. 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. 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. without money, Some three-fifths of the face- less courts' caseload consist of mirrors or narcotics offenses and arms advance notice, possession. The offenses are so broadly defined and cover so to discover the wide a range of activity, how- ever, that it's nearly impossible identity of to gauge the seriousness of the a faceless typical case. It is clear that the faceless courts operate as if two prosecutor in one distinct jurisdictions existed. Prosecutors routinely offer of the conflict drastic sentence reductions and zones. cozy conditions of confinement to high-level narcotics traffick- ers. For all others, particularly those accused of subver- sion, prosecution has been full bore. The "class" dis- tinction is crucial. 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. "Major" cases of the sort which prompted the courts' creation constitute a small percentage of the docket. The United States used to tout Colombia as the model for U.S.-sponsored judicial reform. Colombia was a committed partner, not one dragged in like other aid recipients, such as El Salvador. Officials of both coun- tries claimed concrete results: of the cases that went to verdict, early reports had conviction rates way up. 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. Now, the U.S. govern- ment limits itself to a soldierly defense of the courts as a necessary evil to combat serious crimes. 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. Despite well-publicized arrests, drug trafficking continues undaunted. The gov- ernment itself claims that guerrilla ranks have swelled dramatically. 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. Serious violent crimes have increased since 1992. Have the faceless courts at least protected judges from attack? The number of judges killed has effectively dropped since the regional-court system was put in place. Yet it's easy to find out who many of the anonymous "Would you functionaries are. Many say that those with the means and want to be the inclination to arrange mur- ders--even from a jail cell-- one who can easily find out who is abolished these handling their case. It took me two minutes, without courts if they money, mirrors or advance notice, to discover the true start shooting identity of a faceless prosecu- judges again?" tor who was assigned to cases coming from the military in one of the conflict zones. 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 estab- lished-then the combination of faceless courts and mil- itary-run states of exception has been a triumph. U.S. and Colombian officials have also pointed to a 95% criminal conviction rate as a measure of the system's effective- ness. But this is never a measure of a system's fairness. The figure doesn't measure the efficiency of the faceless- justice system either, since it refers to the minuscule pro- portion of cases-a mere 4%-which have actually come to judgment. Despite the extensive use of another imported con- cept-the plea bargain-the system's slowness remains legendary. A defendant waits in jail without formal charges on average for 14 months-six months longer than the law allows. 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. If the defendant is acquitted, he is not released until the pros- ecutor's appeal and the acquittal have been confirmed by the National Tribunal--on average, another six months. 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. Some, like Deputy Prosecutor General Salamanca, freely admit the system's problems, while noting that the attorney general's office opposes the worst abuses. 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. Another problem, of course, is that being "faceless" provides judges with the perfect cover for corruption. Even if the defendant can deter- mine a judge's identity, the public can't. Payoffs become easier, and public accountability harder. In Colombia, word and deed are rarely identical, par- ticularly when human rights issues are at stake. Consider the right to cross-examine witnesses. 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. 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. In subversion- related cases, however, the defense rarely has an effec- tive opportunity to participate in evidentiary proceed- ings-let alone to cross-examine the prosecution's witness. 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 debate over whether the faceless courts should continue to exist is polarized, and the stakes are high. "Would you want to be the one who abolished these courts if they start shooting judges again?" asks U.S. AID director Lars Klassen. This would be a more diffi- cult 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. 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. 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. Putting the military in the driver's seat does little to enhance the integrity of beleaguered legal institutions. Meanwhile, U.S. AID's assistance no longer places special emphasis on the faceless courts. The U.S. gov- ernment is now training both ordinary and faceless pros- ecutors and judges, as well as some public defenders, to help them overcome some of the procedural problems in the system. Perhaps their efforts will succeed. 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 blind- fold of Justice with a hood. 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); Ministry of Justice and Law, El crimen organizado y la justicia (Bogot6: National Press of Colombia, 1995); Lawyers Committee for Human Rghts, Public Order Private Injustice, (New York, 1994). 2. See Justicia sin rostro, pp.19-33; 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). 3. El crimen organizado y la justicia, p. 32. 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). 4. Constitutional Court Decision C-090 (Februrary 27, 1993). 5. For a study of Peru's faceless-court system, see the U.S. State Department, Report of the Commission of International Jurists on the Administration of Justice in Peru (Washington, D.C., 1993). 6. Since April 1948, every Colombian President has issued an emer- gency decree. See Public Order Private Injustice. 7. Diario Nacional (Bogot,), various. 8. El crimen organizado y la justicia, p. 176. 9. Author interview, Colombian Comission of Jurists, Bogota, May, 1996. 10.Author interview, Barrancabermeja, May, 1996. 11. Justicia sin rostro, pp. 142-143. The 350 case sample repre- sented 15% of the 2,327 cases that went to verdict between June, 1993 and May, 1994. 12.Justicia sin rostro, p. 53; El crimen organizado y la justicia, p. 196. 13.Justicia sin rostro, pp. 47-48.
