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Golding's sternest political test

BY DESMOND ALLEN Executive Editor -- Operations Investigative Coverage Unit icu@jamaicaobserver.com

Monday, March 15, 2010    

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THE Christopher 'Dudus' Coke extradition dispute with the United States has thrown Prime Minister Bruce Golding his sternest political test to date, comparable perhaps only to the Michael Manley decision to expel American ambassador Vincent de Roulet in the early 1970s.

The Observer has pieced together information from several sources to mark out the trail taken by the dispute, which has become the most read news item by Jamaicans at home and abroad:

February 2, 2007 -- J'can Gov't seeks to have Coke's phone tapped

Based on a request, Jamaica's Attorney General and Justice Minister AJ Nicholson applies to the Supreme Court for a warrant to intercept all telephone communications by Christopher Coke. However, the Government is not aware that Coke has been charged and/or convicted of any offence in Jamaica.

The warrant is issued to Digicel by the Supreme Court pursuant to Section 4 of the Interception of Communications Act (ICA), to intercept Coke's telephone. Digicel is ordered to disclose all intercepted communications to the Commissioner of Police, a Superintendent of Police and the Head of the Military Intelligence Unit of the Jamaica Defence Force.

The transcribed information is also to be disseminated only to those individuals whose involvement in the investigation necessitates the receipt of this information.

Similar warrants are issued for the interception of Coke's telephone communications on March 27, 2007, July 13, 2007 and September 18, 2007.

August 25, 2009 -- Extradition request arrives

Diplomatic Note No 296 from the Government of the United States arrives at the Jamaican foreign ministry, requesting the extradition of Christopher Coke under their 1993 Extradition Treaty. The request for the Tivoli Gardens strongman is supported by authenticated documents.

The documentation includes, among other things, evidence in which a "cooperating witness" is alleged to have been in communication with Coke and others in recorded telephone conversations, about 'dealings' in narcotics and firearms.

The alleged conversation was intercepted in Jamaica and 'played back' by US agents to the cooperating witness who alleged that the voice was the voice of Coke.

An affidavit also came from 'Constable John Doe', an anonymous member of the Jamaica Constabulary Force, signed and sworn to on May 14, 2009. In it Constable Doe alleges to have been personally involved in authorised wiretap investigations in Jamaica during the period April 2007 through October 2007. Constable Doe alleges that based on that involvement, he is able to confirm the recordings as telephone calls that were recorded in Jamaica based on court authorisation covering the seven-month period.

Assistant US Attorney Jocelyn Strauber reports that Coke was indicted by the Grand Jury for the Southern District of New York, based on that affidavit evidence, on two counts:

* conspiracy to, inter alia, distribute and possess with intent to distribute narcotics; and

* conspiracy to traffic in firearms without a licence.

September 18, 2009 -- Jamaica wants more information

Jamaica insists that the evidence presented was not enough to convict Coke in a Jamaican court for these offences, as is required by the Extradition Treaty. A Diplomatic Note is dispatched, requesting additional information on, among other things: the identity of the cooperating witnesses; other evidence (if any) which was presented to the Grand Jury; independent evidence (preferably scientific) that the substance alleged was indeed cocaine and whether Coke has ever visited the US.

Critics immediately label the request as delaying tactics on the part of the Golding administration.

October 2, 2009 -- US says firm no to request

Two weeks later, the US says it will give no further information, and urges Jamaica to place the matter in the local courts.

October 3, 2009 -- Jamaica questions wiretapping

Jamaica again requests additional information on, among other things, the circumstances under which the US came in possession of the intercepted information. In particular, did it utilise the provisions of the Mutual Legal Assistance Treaty (MLAT)?

The US Government responds that the MLAT was not the exclusive means of obtaining such evidence and that the evidence was obtained in accordance with the mutual understandings arrived at between Jamaica and US law enforcement authorities.

No evidence linking Coke to US charges

Jamaica insists that apart from the evidence of the cooperating witnesses, who are convicted persons awaiting sentences from a US court, there is no independent and objective evidence linking Coke to the charges mentioned. The objective evidence, which corroborates that of the cooperating witness, is that of the intercepted calls done in Jamaica.

Jamaica further maintains that telephone conversations are intercepted in Jamaica under the Interception of Communications Act 2002 (ICA). There is a general Constitutional right of freedom of expression in Jamaica. This also includes the right of freedom from interference to receive and impart ideas, as well as freedom from interference with one's correspondence and other means of communication.

Moreover, Jamaica argues, because the ICA is an intrusion on a citizen's Constitutional right to freedom of expression, its provisions have to be scrupulously observed and followed. Applications authorising the interception of communications are made to a judge of the Supreme Court ex parte. If the judge is satisfied that the circumstances warrant interception of the named person and his telephone number, a warrant is issued for the interception of his telephone conversations.

This court order is always subject to the condition that the intercepted communication must only be disclosed to the Commissioner of Police, the Assistant Commissioner of Police, the head of the Military Intelligence Unit and the Superintendent of Police in charge of the interception.

No order was ever made authorising the disclosure of information to a foreign government, agents of a foreign government or an agency of a foreign government, says Jamaica.

The Act provides that any person who intercepts communication in unauthorised circumstances commits a criminal offence and is liable to imprisonment for a period of three years or a fine not exceeding J$3 million or both; and that any person who knowingly discloses the contents of any communication commits a criminal offence and is liable to imprisonment for a period of five years or a fine of J$5 million or both.

Constable 'John Doe' not authorised

Jamaica insists that the relevant court orders show that Constable 'John Doe' was not a person who was authorised to disclose any information in his possession arising from interception of Coke's telephone conversations as ordered by the court. This is because the court never intended by its various orders that the information would be released to anyone other than the authorised officers.

The evidence was therefore obtained by the unauthorised use of the warrant and cannot be relied on by the US for the purpose of extradition. Additionally, the disclosure of the intercepted communication to the authorities in the US was in contravention of the Act and is illegal.

And finally, the anonymous police officer has committed an offence under several sections of the ITA, according to the Government.

'We want his name'

The Jamaican Government asks the US to disclose the name of the officer and the circumstances in which the intercepted communication was disclosed to them, in order that steps may be taken to investigate the matter. The plan was to lay criminal charges against Constable John Doe, and provided he is in our jurisdiction, to place him before the court.

The offence committed under the abovementioned sections is an extraditable offence within the meaning of article 11(i) of the Treaty and section 5(1)(b) of the Extradition Act. If the police officer is within the jurisdiction of the US, Jamaica could request his extradition so that he can be tried in Jamaica.

Jamaica's position is that the US is obliged to provide the Government with all relevant information in order that it may be determined when, where and how the communication was intercepted and whether or not it was done under the authority of a valid warrant.

Legal luminaries argue that there are established procedures under the Mutual Legal Assistance Treaty, which the US was at liberty to employ in obtaining evidence to secure the extradition of Coke.

The MLAT makes it possible to obtain such evidence through established channels, and alternatively, the Attorney General could have sought a modification of the judge's order authorising the disclosure to the US.

The Memoranda of Understanding

There are suggestions that the US should have used its recourse to two Memoranda of Understanding (MOUs), dated July 4, 2004, entered into with the US, the United Kingdom and Jamaica. The MOUs set out the parameters in which the parties would share intelligence, particularly from intercepted communications, but stipulate that if they are to be used as evidence in a court of law, it must be done in accordance with Jamaican law.

This was not done in this case and the US Government clearly received the information in breach of the provisions. In these circumstances, it is difficult to appreciate the position of the US that the information was obtained in an authorised manner.

Why the justice minister cannot sign

Jamaica is also said to be relying on the terms of the Extradition Treaty, and specifically Section 7(1)(e), which says: "A person shall not be extradited...if it appears to the minister that his extradition is prohibited by any law in force in Jamaica.

"Section 8(3): The Minister may not issue an authority to proceed if it appears to her that an order for the extradition of the persons concerned could not lawfully be made or would not in fact be made in accordance with the provisions of this Act."

Additionally, a request for assistance made by a foreign state under the Mutual Assistance (Criminal Matters) Act Section 16(1)(a)(1) "...shall be refused if, in the opinion of the Central Authority (the minister) compliance with the request would contravene the provisions of the Constitution, or prejudice the security, international relations or other essential public interest of Jamaica."

December 9, 2009 -- Golding responds to Peter Phillips

In response to questions posed in the House by the Opposition's Dr Peter Phillips, Prime Minister Golding maintains that the delay in extraditing Coke was the fault of the US authorities, for not following proper procedure in issuing the request.

Phillips, the Opposition's lead spokesman on the issue, holds to his position that the Government is taking an inordinately "longer than the average period of time" to comply in this particular instance.

Golding also brushes off suggestions that Justice Minister and Attorney General Senator Dorothy Lightbourne has been reluctant to deal with the request, saying the "minister would be authorising something she knows is in violation of the law".

Phillips questions whether it had been appropriate for members of the Cabinet to meet with Coke and whether the Government had more to gain by retaining him, to which Golding retorted by making a veiled reference to his (Phillips') attendance at the funeral of a figure linked to the infamous Black Roses Crew in 2001.

Dispute worsens with little hope of a resolution

The Jamaican and US governments continues their dialogue on this matter but with each passing day, prospects for a resolution dim. The US is adamant that it has done no wrong and that the matter can be best resolved by the minister signing the authority to proceed and placing the matter in the Jamaican courts.

For its part, the Jamaican Government insists that the US position is not in keeping with the intentions of the Treaty and the Memoranda of Understanding.

At the dawn of the New Year, speculation is rife that the failure of the US to name an ambassador to replace Brenda LaGrange is linked to the dispute. The US refutes the suggestion.

February 24, 2010 -- Wayne Chen's visa is cancelled

Head of the State-run Urban Development Corporation, Wayne Chen, is severely embarrassed when he turns up with his family at the Norman Manley International Airport in Kingston, to be informed by local immigration officials that his US visitor's visa was cancelled.

Chen, who was travelling to a business meeting in Los Angeles, expresses shock and surprise at the move by the US Government, and maintains that he is unaware of the reasons for that drastic action.

It is widely held that the visa cancellation was related to the 'Dudus' dispute.

March 1, 2010 -- A scathing report from the US

The US State Department releases its annual International Narcotics Control Strategy Report, blasting Jamaica for its handling of the Coke extradition request.

The State Department said the delay in extraditing Coke, as well as a temporary suspension in the processing of all other pending requests, raised "serious questions" about the Jamaican Government's commitment to combating transnational crime.

March 2, 2010 -- Golding hits back

Golding, defiant in the face of the US report, responds in the House that "it was not intended by this Parliament when the legislation was framed that the minister was to be some lubricated conduit through which extradition requests were to automatically pass". He reiterates the claims that the US had breached Jamaican laws and repeats the request for more evidence.

March 10, 2010 -- PSOJ turns up the heat

The Private Sector Organisation of Jamaica turns up the heat in the 'Dudus' affair by urging Golding to let the nation's courts decide on matters relating to extradition requests from the US.

"It seems to us that the proper forum for these matters to be dealt with in a transparent manner is in the courts of Jamaica," said Jamaica's most powerful businessman's lobby group in a news release.

Finding a way out

Local experts, who did not want to be named in this article, suggest that the dispute cannot be resolved if the two sides stick to their positions. They agree with the Jamaican Government that taking the matter to the local courts will not resolve the issue, on grounds that the US is under no obligation to accept the ruling of a Jamaican court.

They have suggested to government advisors, apparently with some success, several options which they believe could lead to an amicable resolution of the dispute.

* First, the US supplies the additional credible evidence required by Jamaica, upon which it would be possible to secure a conviction. Previous requests on similar charges have been favourably considered by the minister, and persons have been extradited for these offences.

* Second, the US withdraws the existing request, and issues a superseding indictment with additional evidence for further consideration by the minister.

* Third, invoke the provisions of the Extradition Treaty and in particular article 7(3) which deals with the issue of refusal to extradite on the grounds of nationality. Jamaica has given its undertaking to the US that if it refuses the request it would submit to the Director of Public Prosecutions (DPP) the evidence in its possession and any additional evidence which the US is likely to furnish with a view to prosecute Coke. On this basis, the DPP, which represents the US in extradition matters and enjoys complete independence under the Constitution, would ultimately decide on whether Coke should face prosecution in Jamaica.

* Fourth, both parties agree to submit the issues which have arisen under the treaty to mediation by mediators to be agreed upon. These could be the United Nations, the Organisation of American States, the European Union or a third party or organisation with international standing.

Highly placed Observer sources say the US, while not fully sold on the mediation option, said it would give it some consideration.

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