Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip

Last Wednesday, the U.S. Senate Appropriations Committee approved a bill: S.3117. Buried 221 pages into that bill is a provision that would stop U.S. contributions to the Extraordinary Chambers in the Courts of Cambodia unless the U.S. secretary of state certifies and reports to the committee that the ECCC “will consider Case 003.”

—Opinion—

It’s hard to argue that the U.S. cannot decide how it should spend its taxpayers’ money abroad. The U.S. customarily applies the soft power of its purse to affect political change in countries where elected opposition officials and civil society groups appear under threat, and where the rule of law is ethereal. Fair enough.

But since when does the U.S. Senate brazenly use its financial might to game a judicial proceeding? Though clumsily phrased, S.3117 carries a threat to the ECCC judiciary involved in Case 003: The co-investigating judges must issue a closing order for the prosecution of Meas Muth (and inevitable conviction—hint, hint), or U.S. funding for the ECCC will be cut off.

The report accompanying S.3117 explains: “Section 7043(c)(2) of the act limits a U.S. contribution to the Extraordinary Chambers in the Courts 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.”

It is unclear what “consider[ing] Case 003” means. Is Case 003 not under consideration? Has this case not been under investigation? Is there any evidence that the Office of the Co-Investigating Judges is shirking its responsibilities in dealing with Case 003? Of course not.

The report also confuses matters and demonstrates the drafters’ ignorance of the proceedings they seek to influence by referring to ceasing contributions if a closing order is issued. The bill’s lead sponsor, himself a military lawyer with supposed expertise in international affairs, should know that a closing order does not mean that the case has been dismissed. A closing order could either be an indictment or a dismissal order, and is the necessary next step in a case’s progression. Uninformed though the drafters of S.3117 may be, their message is clear: indict.

How is that for promoting the rule of law? We, the U.S. Senate, know the result that you, the judges, must reach, even if we do not know the facts or, apparently, the procedure, are not involved in the investigation and are not privy to the ongoing activities of the co-investigating judges. Is this not political interference? Is this not an attempt to pervert the course of justice?  Granted, the report is unclear where it refers to “limit[ing]…contribution…to Case 003.” But does this really change how S.3117 should be interpreted? No.

As for dredging up the 1975 “Mayaguez incident,” the drafters of the bill are well advised to read “The Last Battle” by Ralph Wetterhahn, a riveting narrative about the U.S. government’s monumental and tragic blunders that led to an unnecessary assault to liberate the already liberated crew of the Mayaguez. Prejudging Meas Muth for the Mayaguez incident and insisting that he be indicted (and convicted) or the U.S. Senate will carry out its threat is a scandalous betrayal of all notions of international justice.

Were anyone other than a government to try so transparently to undermine the law and influence the outcome of a court proceeding, they would earn a contempt citation. Here, such unsavory efforts merely earn contempt. Justice and the rule of law at the ECCC are not served by a U.S. thumb on the scales. The U.S. should give or not give, as it sees fit. But purse strings must not become marionette strings. S.3117 must be amended so that it is not a directive for the indictment of Meas Muth, a man entitled to all the protections and presumptions of the law, without prejudgment of his guilt by the U.S. Senate or anyone else.

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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