Consultant’s Analysis of US Senate Bill Cherry-Picks Facts

In an op-ed published on Tuesday—“Tribunal Is Tainted by Political Interference, but Not From U.S.”—Heather Ryan, a consultant to the Open Society Justice Initiative, responded to my commentary concerning U.S. Senate Appropriations Committee bill S.3117, wherein I asserted that the Senate is effectively engaging in political interference, impliedly calling on the co-investigating judges to indict my client, Meas Muth.

—Opinion—

Ms. Ryan claims that “it is an unfair leap…to interpret the statements [in the bill and report] as an instruction to the court to indict,” and that if there is any interference in Case 003 it is from the Cambodian government.

While finding the language of the Senate bill “confusing and ambiguous,” she opines that “a more reasonable interpretation of the ambiguous language…is that the U.S. government, as a condition of its donations to the ECCC, expects to see evidence that the court is free from political interference by the Cambodian government.”

This “reasonable interpretation” cherry-picks facts and gets some facts quite wrong.

First, the characterization of ambiguity ignores the unambiguous, though procedurally ignorant, statement of the Appropriations Committee about the bill: “In addition, section 7043(c)(2) of the act limits a U.S. contribution to the Extraordinary Chambers in the Court of Cambodia to Case 003, regarding former Khmer Rouge navy commander Meas Muth who is implicated in the 1975 Mayaguez Incident. The Committee endorses the Department of State’s plan to cease contributions to the ECCC if a closing order is issued for Case 003.”

Second, regardless of Ms. Ryan’s allegations concerning the Cambodian government’s actions, the U.S. Senate’s actions are wrongfully directed at Meas Muth’s rights to justice and the rule of law. Even if one accepts the Senate drafter’s premise, that the Cambodian government has sought to influence the process, the appropriate response is not to exert counterinfluence by wielding a bigger stick. Two wrongs do not make a right. Meas Muth’s rights and the system of justice represented by the ECCC are not ping-pong balls to be blithely batted around by reckless players.

Third, contrary to Ms. Ryan’s assertions, there is no evidence that the national co-investigating judge is refusing to cooperate or participate in the investigation of the case. To the contrary, there is ample evidence showing that while the two co-investigating judges may disagree on matters (all confidential at this point), they do consult and engage with each other.

Fourth, the international co-investigating judge is not “apparently diligently pursuing the case.” He is, in fact, diligently pursuing Case 003. Ms. Ryan asserts that there is uncertainty as to when the investigation will conclude. Fair enough. What she fails to grasp, however, is that there are legitimate reasons for this uncertainty that have nothing to do with interference by the Cambodian government or a lack of cooperation by the national co-investigating judge. Ms. Ryan does not know, and cannot know, the state of the investigation when the current international co-investigating judge was sworn in. Much of the investigative process is confidential. Those of us who are involved in cases 003 and 004 are in a much better position to discern the complexities and challenges of the cases, and the degree to which they are being investigated.

Fifth, as for the frequency with which international co-investigating judges have come and gone, there is a need for some intellectual honesty. The reserve international co-investigating judge was not sworn in (and thus stonewalled) because he was foolishly, if not recklessly, tweeting about the Office of the Co-Investigating Judges (OCIJ), occasionally unflatteringly.

As was their prerogative, those whose duty it was to consider his appointment concluded, from the evidence, that his lack of judgment and professionalism made him unfit for the ECCC. His predecessor, Siegfried Blunk, came under attack from his own staff when they disagreed with the exercise of his judicial discretion in closing the Case 003 investigation, prompting members of the OCIJ’s international legal team to privately write to U.N. Secretary-General Ban Ki-moon and complain that the investigation was deficient. As for Mark Harmon, the last international co-investigating judge to abandon the OCIJ’s ship, he left on his own accord and for personal reasons—not because he was prevented from effectively investigating cases 003 and 004.

This is not the first time there has been a whiff of political interference in the ECCC by U.S. officials. In his article “Cambodia’s Kangaroo Court” (Foreign Policy, July 20, 2011), Mike Eckel writes that “officials from the court’s main donors, which include the United States, Australia, and others, [were prompted] to intervene directly with [International Co-Investigating Judge Siegfried] Blunk and [International Co-Prosecutor Andrew] Cayley multiple times—by phone and in person,” concerning the very public controversy over Case 003. Mr. Eckel also describes the way in which the U.S. war crimes ambassador, Stephen Rapp, had “spoken to Judge Blunk directly, informing him that Washington had warned the Cambodian government not to interfere. But he also suggested that money was as much a factor as jurisdiction in deciding which cases to pursue.”

And then there was U.S. Representative Edward Royce’s June 29, 2011, letter to then-Secretary of State Hillary Clinton, wherein he noted that any further funding to the ECCC should be “conditioned, at the very least, upon an investigation in Case 003 that satisfies Prosecutor Cayley’s requests.” Mr. Royce effectively calls for the U.S. to take coercive measures against the ECCC: Unless the co-investigating judges produce a result that meets International Co-Prosecutor Andrew Cayley’s approval, funding for the ECCC should be cut off. If using the soft power of the purse to affect a judicial result is not political interference in the ECCC, then what is?

By definition, we want judges to be independent.  They should not be told how to do their job, how to carry out their mandate or what the results ought to be. When interference—by anyone—seeks to pervert the process, no one can have confidence in the result. The only “unfair leap” is over the rule of law and the rights of the individual accused, toward politically dictated outcomes. Those who do not know all the facts, or who have agendas outside the criminal justice process, should stop interfering and let the ECCC do its work.

Michael G. Karnavas is a criminal defense lawyer and Meas Muth’s international co-lawyer in Case 003 at the ECCC.

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