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Deportation/exile of the Chagos Islanders
Bribery
by Charles Judson Harwood Jr.
Congress – which first financed the Reagan/Bush unlawful war against Nicaragua (1981–1990), and then changed it’s mind – thereafter secretly appropriated U.S. taxpayers’ money for George Bush’s secret corruption payments, though such payments are concealed from most Members of Congress, who therefore don’t realize what they’re voting for. Those who probably did (on the two secret Intelligence Committees of Congress) doubtless considered it money well spent, to avoid a $3.5 billion damage award – a good piece of business.
By their committees, and their resulting self-imposed ignorance, Members of Congress normally confine their own complicity, in the foreign crimes of the U.S. Government, to the Members of those two committees, though the President and the CIA in turn conceal from them as well the most of their intended and past crimes, but not all. But, the prima facie criminal complicity of Members of Congress voting to sustain the U.S. war on Nicaragua is an exception, as the unlawful nature of that war was plain to any Member who chose to pay attention to the proof of that illegality which was periodically hand-delivered to the office of each of them, and reported in the Press.
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Such bribes are a mainstay of U.S. foreign policy and a U.S. crime, were they paid to a U.S. official. 18 U.S.C. § 201. The U.S. has signed a treaty which would require the U.S. to likewise criminalize bribes paid to officials of foreign governments and international organizations as well, like the United Nations.
Criminal Law Convention on Corruption (Strasbourg, January 27 1999, entered into force, July 1 2002) (Council of Europe, Legal Affairs, Treaty Office, Strasbourg). The U.S. signed this treaty on October 10 2000: ‘Fact Sheet: U.S. and Council of Europe Convention on Corruption’, October 11 2000 (United States Mission to the European Union, Brussels) (disappeared).
It’s U.S. policy to sign virtually every multilateral treaty, and bask in the international kudos which its signature elicits. But it’s also U.S. practice for the U.S. President, later, to submit few of these treaties to the Senate to ratify. Thus, as with nearly every multilateral treaty, the U.S. Government apparently signed this treaty too in bad-faith – with the specific intention to not ratify it – simply part of its routine propaganda practice to project the illusion that it’s a nation which conducts its affairs honorably and in accordance with the rule-of-law.
The truth is very different: The CIA has many foreign government officials on its secret payrolls, certainly hundreds and maybe thousands, precisely to insure their corrupt cooperation.
Absent a sea-change in history, Congress will continue to adhere the U.S. Government to the ‘law of empire’, and reject the rule-of-law, and thus will never make foreign bribes paid by the U.S. Government a crime, even in the remote liklihood a future President were ever to submit this treaty to the Senate for ratification, and the required Bill in Congress to implement it. And, if s/he and they did, they would certainly exclude bribes paid by the U.S. Government, by crafting a forthright exception for ‘national security’ bribes or, in an obscure manner, the equivalent.
Otherwise, the President, the Attorney-General, and the CIA Officers who authorize the disbursements, sign the checks, and make the funds-transfers would all simply ignore this crime, and carry-on as before, asserting their belief that the ‘political question’ doctrine (below) authorizes their bribes, thereby negating their ‘criminal intent’.
To ensure defeat of this defense would require a separate Act of Congress to deny funding for such bribes, permanently and indefinitely, as the CIA otherwise has ample funds always available for this purpose from its annual secret appropriation ($26.7 billion, fiscal 1998, “aggregate amount appropriated for intelligence and intelligence-related activities” for all 11 U.S. intelligence agencies).
This, Congress would not likely do, even in the unlikely event they enacted foreign bribes as a U.S. crime in the first place, preferring to avoid political heat by permitting this obscure ‘political question’ defense to pass unnoticed by the press. And, if they did confront the issue, squarely and publicly, who would investigate the bribes, and who would prosecute the corrupt U.S. Government officials?
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But, foreign bribes paid by U.S. Government officials are already a U.S. crime
if paid:
“in order to assist such person in obtaining or retaining business for or with, or directing business to, any person”.
15 U.S.C. § 78dd-3.
By bribing Nicaraguan officials to abandon their judgment for damages, President George H. W. Bush certainly obtained for the U.S. Government a $3.5 billion business windfall, though this was not the typical scenario Congress had in mind when it enacted that Foreign Corrupt Practices Act (Dec.19 1977).
Note: In a suit for damages against the United States, U.S. Courts apply a rebuttable presumption that Congress – in general legislation, and by using the word ‘person’ – did not intend to waive the ‘sovereign immunity’ of the U.S. Government itself to violate the law and escape accountability for damages, even though it was to escape dominion by such a corrupt and criminal sovereign that inspired the American Revolution (Apr.19 1775-1781 Oct.17) and the creation of the United States (Jun.21 1788) to be a nation governed by the rule-of-law and not by the chain-of-command. I haven’t researched the legislative history of this law to see if this topic was mentioned, and I doubt it was (bribes by the U.S. Government).
“Although our past decisions have assumed that ‘person’ in Rule 45 included the federal government, we have never expressly so held and our assumption may need to be reexamined in light of Al Fayed”.
Linder v. Calero-Portocarrero (26 kb), 251 F.3d 178 (D.C. Cir., No.00-5122, Jun.5 2001, panel: Douglas Howard Ginsburg, Arthur Raymond Randolph, Judith Ann Wilson Rogers) (U.S. Government waived its sovereign immunity to obey a summons – in this case, to the CIA, Defense Department, and State Department – to produce documents in a law-suit because ‘evidence’ is “relief other than money damages, in 5 U.S.C. § 702”; yet, the CIA, DoD, and DoS could refuse to comply with this particular summons, because the plaintiffs were unable or unwilling to pay half the $200,000 photocopy/labor costs, a condition imposed by the District Court, applying FRCP Rule 45(c)(2)(B) (“Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded”).
The Judges did not trouble themselves to mention what this case was about, referring instead to a previous decision in the same case by a different panel of the same Court:
“After graduating from college in 1983, Benjamin Linder, a U.S. citizen and mechanical engineer, moved to Nicaragua to help bring electricity to the country’s rural, undeveloped areas. Assisting in the building of dams and hydroelectric plants in the El Cua-San Jose de Bocay region, Linder began work on the construction of a weir, a small dam to measure water flow. On April 28, 1987, shortly after Linder and six other men arrived at the half-built dam, a Nicaraguan Democratic Force (‘FDN’) patrol, which had been waiting for Linder and his co-workers since early morning, attacked them with grenades and machine guns. Initially immobilized by non-fatal wounds to his legs and arms and stabbed thirty to forty times in his face, Linder died when a contra soldier shot him in the temple from less than two feet.
Seeking compensatory and punitive damages, Linder’s parents and siblings filed a wrongful death action in the U.S. District Court for the Southern District of Florida against three contra organizations operating out of southern Florida – the United Nicaraguan Opposition and the Nicaraguan Resistance, in addition to the FDN – and four of their leaders, Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aristides Sanchez Herdocia, and Indalecio Rodriguez Alaniz.”
Linder v. Department of Defense (63 kb), 133 F.3d 17 (D.C. Cir., No.97-5033, Jan.16 1998, panel: Karen LeCraft Henderson, Arthur Raymond Randolph, David S. Tatel), http://www.ll.georgetown.edu/Fed-Ct/Circuit/dc/opinions/97-5033a.html (remanding as to supoenas to the CIA and FBI, dismissing as to the State Department and Defense Department as not yet ripe for appellate review). See also Linder v. National Security Agency (19 kb), 94 F.3d 693 (D.C. Cir., No.95-5291, Sep.6 1996, panel: James Lane Buckley, Harry Thomas Edwards, David Bryan Sentelle) (NSA not required to comply with a subpoena because 95% of the responsive documents would likely be exempt from disclosure, the rest being press clippings in the public domain, this opinion based on an undisclosed sample, not examined by the Judge in camera, a search of all responsive documents being unduly burdensome, requiring 945 hours work and diverting the NSA computers from more important tasks; in accepting these assertions and opinions via affidavit, not subject to cross-examination, the trial judge did not abuse his discretion).
Benjamin Linder was murdered on orders, like many thousand others, by the U.S. incited and financed Contra ‘army’ which the U.S. Military and CIA actively assisted, in addition to participating themselves, directly and independently, in the U.S. war on Nicaragua (1981–1990):
“The amended complaint alleges that: ‘[t]he order to murder Benjamin Linder came directly from defendant Enrique Bermudez {commander-in-chief of the Contra army, salaried by the U.S. Government for this command} who knew of Linder’s work on a development project, his identity, and United States citizenship. Defendant Bermudez ordered this attack with intent of killing Benjamin Linder. He ordered the attack because Linder was a United States citizen working on a development project to benefit the people of Nicaragua. Upon learning of the murder of Linder, defendant Bermudez congratulated and rewarded the Commander who did it. On information and belief Calero, Sanchez and Rodriguez approved the attack and murder.’ ...
All of the authorities agree that torture and summary execution – the torture and killing of wounded non-combatant civilians – are acts that are viewed with universal abhorrence. {Citation omitted} There is no exception for deliberately planned and heinous acts even during an armed conflict. {Citations omitted}.”
Linder v. Calero Portocarrero, 963 F.2d 332, 336 (11th Cir. Fla., No.90-5862, Jun.17 1992, panel: David William Dyer, Peter Thorp Fay, Thomas Alonzo Clark) (an allegation of foreign murder, by U.S.-financed and assisted armed forces in a foreign war, is a justiciable issue in U.S. Courts like any other wrongful death tort action), links and text {in braces} added, reversing on this point Linder v. Calero Portocarrero, 747 F.Supp. 1452 (S.D.Fla., Sep.17 1990, Judge: Stanley Marcus, now a Judge on this 11th Circuit Court of Appeals) (this allegation of murder is a non-justiciable ‘political question’), via WestLaw (120 kb) and Lexis.
Query
Can the 60,000 Nicaraguan victims sue the U.S. Government in U.S. Court for the ‘headquarters’ bribery tort by U.S. President George H. W. Bush, and his CIA accomplices, which denied the victims the benefit of their Country’s judgment against the United States by the UN International Court of Justice?
U.S. Government lawyers, in the U.S. Department of ‘Justice’, on a pre-trial motion to dismiss, would doubtless argue what they’re doubtless going to argue in the Chagos case, namely: that the U.S. President has the ‘political question’ authority and the ‘discretion’ to commit both U.S. and international crimes, and certainly ‘prima facie torts’, in the conduct of U.S. foreign affairs, if that’s what s/he wants to do.
And, if the case came to trial, they would argue in Court what U.S. Government officials routinely assert in the court of public opinion, when questioned about their foreign crimes and torts – ‘plausible deniability’: That U.S. officials merely paid the $50-million (or so) – not for the personal bank accounts of the Nicaraguan officials, but instead – for their political party to spend on political campaigning to help them win the election (this and the reverse both being a crime under U.S. law, if paid for U.S. elections). And, that they had no idea Nicaraguan officials would be so corrupt as to actually pocket most of that money. And, that the U.S. Government certainly imposed no agreement, and had no ‘specific intent’, to influence the decisions of Nicaraguan officials, once in office, to discontinue the suit they had already won against the United States in the UN Court.
A civil court tort-jury would likely believe U.S. officials were ‘probably’ lying about their claimed belief, this being the tort burden-of-proof (‘more likely true than not’). Indeed, even a criminal-court jury would likely form the same opinion ‘beyond a reasonable doubt’, though additional evidence is needed.
This, because discontinuing a lawsuit you’ve already won – a first in the history of the world – gives rise to this compelling inference. Because the size of even the known U.S. Government payments to Nicaraguan officials exceeded the capacity of a political party to properly spend on a political campaign in a poor Country of 3.5 million inhabitants, half of whom were too young to vote. (In addition to the $9 million provided publicly by Congress – Public Law 101-119, Oct.21 1989 – other payments were made then and previously). Because of President George H. W. Bush’s violent threat and action to maintain the Contra army intact until after the Feb. 25 1990 election, paying their monthly payroll and providing them continuing tactical intelligence for their continuing criminal atrocities – a continuation of his nearly 4-year Contempt of the Order of the UN Court.
And this likely jury verdict, even if the CIA unlawfully concealed from the U.S. Court its own inevitable ‘carrot’: its large final secret installment on its bribes (after Nicaragua actually discontinued its suit in the UN Court).
I suppose the CIA’s ‘stick’ was its usual one: the promise to Nicaraguan officials of their assassination, if they didn’t do as they were told – the normal ‘stick’ of hoodlum organizations and one the CIA has wielded many times, not least in Nicaragua, where the CIA repeated its Phoenix program which, CIA Director William Colby confessed to Congress, targeted and murdered, on his order, non-combatant Vietnamese civilians (Aug. 1 1968–1973 Mar. 31, fronted and funded by USAID, thereafter to Apr. 1975 under local government control). Colby’s CIA murdered 40,994 non-combatant civilians there during 1968–1971.
• U.S. Congress, Senate Hearings, Vietnam: Policy and Prospects, 1970: Hearings on Civil Operations and Rural Development Support Program (U.S. Congress 91-2, Senate Committee on Foreign Relations, Hearings, February 17, 18, 19, 20, and March 3, 4, 17, 19, 1970, and Appendix, 7+750 pages, U.S. GPO, 1970) {SuDoc: Y 4.F 76/2:V 67/17, CIS: 71 S381-18, LCCN: 76610214}.
• U.S. Congress, House Hearings, U.S. Assistance Programs in Vietnam (U.S. Congress 92-1, House Committee on Government Operations, Subcommittee on Foreign Operations and Government Information, Hearings, July 15 {a.m., p.m.}, 16, 19, 21, and August 2 1971, 4+362 pages, U.S. GPO, 1971) {SuDoc: Y 4.G 74/7:V 67/4, CIS: 72 H401-3, LCCN: 71616178}. Ensuing report: U.S. Assistance Programs in Vietnam (U.S. Congress 92-2, House Report No. 92-1610, House Committee on Government Operations, October 17 1972, 5+107 pages, U.S. GPO, 1972) {SuDoc: [Y 1.1/8:]92-2:H.RP.1610, Serial Set: 12976-6, CIS: 72 H403-19, LCCN: 72603272. Full text: menu, pp.1-46 (2394 kb pdf), pp.47-97 (2790 kb pdf), pp.99-107 (501 kb pdf)}.
• U.S. Congress, Senate Hearings, Nomination of William E. Colby to be Director of Central Intelligence (U.S. Congress 93-1, Senate Armed Services Committee, Hearings, July 2, 20 {a.m., p.m.}, 25, 1973, 3+186 pages, U.S. GPO, 1973) {SuDoc: Y 4.AR 5/3:C 67/3, CIS: 73 S201-27, LCCN: 73603022}.
Colby quotes his 1969 prima facie criminal order, which the Committee extracted from him in these hearings, in his book: William E. Colby and Peter Forbath Honorable Men: My Life in the CIA, pp.270-271 (Simon & Schuster, New York City 1978). The resulting prima facie criminal order issued by the U.S. Military (which Colby testified he also drafted) is also quoted in these hearings.
The CIA duplicated its violent criminal program of cataloging, listing, designating, assigning, targeting, and murdering non-combatant civilians during the U.S. war against Nicaragua (1981–1990), killing 30,000 – most, like Benjamin Linder, non-combatant civilians murdered in cold blood – and in other Central American countries during the same decade.
The only issue in the bribery-tort case – besides proving the bribes, via the Court’s authority to compel discovery – would be to fix the size of the damages, which were essentially fixed already ($3.5 billion) by the time President George H. W. Bush paid his bribes.
Statute of Limitations? It doesn’t begin to run until the bribes are discovered, or could have been, by reasonable inquiry, as the Court held in the SWP case quoted below. Asking the CIA how much money they deposited into the secret Swiss bank accounts of which Nicaraguan officials – that won’t produce an answer, at least a truthful one. So the 2-year Statute doesn’t begin to run until the U.S. Government confesses. That hasn’t happened yet, and isn’t likely to, certainly not while the corrupt U.S. President’s son is himself President.
Never heard of a ‘bribery tort’? Well, neither have I, and I haven’t bothered to research it, because it doesn’t matter: It’s like the tort against the Chagos islanders: It’s an intentional act by the U.S. Government; it caused harm, and in mega-proportions; there’s no prima facie legal justification for that harm; that warrants a remedy; and U.S. Courts have the authority to fashion an equitable one, against the U.S. Government, in the form of cash money, injunctions, and such– It’s a ‘prima facie tort’.
Note: The District of Columbia doesn’t recognize this tort, but Virginia does.
Query
This document is not copyrighted and may be freely copied.
Charles Judson Harwood Jr.
Posted Sept. 1 2002. Updated June 17 2008.
http://homepage.ntlworld.com/jksonc/bribery.html