This Week in Haiti November 9 - 15, 2005 Vol. 23, No. 35
KURZBAN REBUTS DE FACTO LAWSUIT AGAINST ARISTIDE
Haiti Progres - On Nov. 2, the illegal government of de facto Haitian Prime Minister Gérard Latortue filed a civil lawsuit against exiled Haitian President Jean-Bertrand Aristide and eight others in U.S. District Court for the Southern District of Florida "to recover money stolen from the people and Government of Haiti."
Also named in the complaint is a Turks and Caicos-based corporation, Mont Salem Management, Ltd., that the suit claims worked to "defraud Teleco," the Haitian national phone company, "through a pattern of racketeering activities."
The lawsuit, filed when the Washington-installed de facto regime's own corruption, incompetence and unpopularity are increasingly manifest, charges that "Aristide abused his power and deceived and betrayed the Haitian people by directing and participating in ongoing and fraudulent schemes to: (a) loot the public treasury and launder the illicit proceeds; (b) divert and steal revenues rightfully belonging to the Haitian national telephone company; and (c) encourage, protect, participate and profit from illegal drug trafficking in and through Haiti." Through these activities, the plaintiffs allege, "Aristide and his accomplices converted to their own use millions of dollars of public funds."
However, neither the lawsuit nor the de facto government's reports on which it was based can concretely demonstrate who was enriched or how, explains Ira Kurzban, the attorney for Haiti's elected constitutional governments from 1991 to 2004. "Even if everything in this complaint were true," Kurzban told Haiti Progres, "and none of it is - I want to be clear about that - but even if you accepted the facts as stated as true, there is no evidence of any wrongdoing by anybody."
The lawsuit comes on the heels of a second report put out by the de facto government's Central Unit on Financial Information (UCREF) two weeks ago. UCREF put out its first report alleging Aristide administration malfeasance in July. The de facto government published a third report also in July through its Commission of Administrative Inquiries (CEA), headed by Paul Denis, the current presidential candidate of the rabidly-anti-Aristide Struggling People's Organization (OPL).
In the 1990s, on the newly-elected Haitian government's behalf, Kurzban investigated and sought to recover millions of dollars stolen by the dictatorship of Jean-Claude "Baby Doc" Duvalier. In the following interview, he analyzes the de facto government's lawsuit and motivations.
Ha*ti Progrès: How would you characterize this lawsuit?
Kurzban: The lawsuit is a political document more than a legal one. It's based on a highly charged political investigation that occurred in
Haiti where both the methodology and the factual findings have been seriously questioned, particularly the claims made on what funds were allegedly taken and what happened with them.
The reason for that, quite simply, is that none of these reports have ever said that money was taken for some illicit purpose. In other words, unlike with Duvalier, there is no money in Swiss bank accounts.
If you recall, a lot of the venom was spewed against President Aristide both before and following the coup - wild accusations that he had $280 million in a bank account somewhere in Europe and so forth. To my understanding, the United States sent seven people from the Treasury Department immediately after the coup to investigate financial wrongdoing, and a number of Haitians have been working day and night to find the money that President supposedly took. But, it's now obvious, there is none.
There are no Swiss bank accounts, no yachts, no Trump Tower apartments, all of which there were with Duvalier. There are none of the things that one classically identifies with the claim that a president has abused his authority and stolen money for his own benefit.
Washington has had teams of people in Haiti investigating this, and the Bush administration, using its considerable resources, has had Treasury officials fanned out all over the world trying to find these bank accounts. Of course, they found none because none exist.
So none of these reports have suggested that Aristide ever took money for his own benefit. There is a very fine line here from violating what is known in the federal rules on civil procedure as "Rule 11," which may impose sanctions against both the attorneys and the plaintiffs for making claims that they can't substantiate. In this case, the UCREF report in Haiti makes claims that money was misappropriated, but they never say, as far as I know, that it was for anybody's personal use.
The lawsuit, really takes the next step, and says that this money was misappropriated for the "Aristide group," which obviously makes it a totally political document.
The so-called "Aristide group" are the people, they claim, that misappropriated the funds, but when they talk about misappropriation, there is no end to the money trail. They never say it is in somebody's bank account. There is no evidence that anybody enriched themselves by doing this.
So what do they have in the end? Even if everything in this complaint were true, and none of it is - I want to be clear about that - but even if you accepted the facts as stated as true, there is no evidence of any wrongdoing by anybody.
For example, this complaint alleges that the government gave money to a corporation to purchase a sound system, and that somebody received a commission on that. There is nothing illegal about that under Haitian law or under U.S. law. There is no evidence that there was any wrongdoing by anybody to either purchase a sound system for the Haitian government or to get a commission on the purchase of a sound system. If that were the logic, then every U.S. corporation doing business anywhere in the world would be guilty of a RICO violation, which is what they have alleged here. [The Racketeer Influenced and Corrupt Organizations (RICO) Act, passed by the U.S. Congress in 1970, is what the plaintiffs base most of their charges on.]
If you look further in this, they make claims, for example, that money was given to purchase rice. Even if what they are saying is accurate, the government had every legitimate right to purchase rice at a lower price to provide for its citizens. They could do that any time they wanted to. Governments do that all the time.
There are allegations here that money was "diverted" to give to an NGO [non-governmental organization] like the Aristide Foundation. The U.S. government gives to NGOs all the time in Haiti. The Haitian government has the right to give money to NGOs in Haiti. There is nothing illegal about that.
This raises a whole other issue. Why is this being brought in the U.S. and not in Haiti, when in fact, virtually everything they are talking about has to do with Haiti, not the U.S.?
That is why the lawsuit really skirts the violations of Rule 11, by making claims that there is illegal or unlawful conduct that enriched someone. Even the UCREF report does not suggest that anyone has been enriched, and that's because, if any money was spent by the Haitian government, it is clear that it was not done to enrich any individual. It was done for the sole and express purpose to help people in Haiti, which it did.
Haiti Progrès: Concerning jurisdiction, how is it that affairs in Haiti can be brought before a U.S. court, especially in a civil case?
Kurzban: First of all, there clearly isn't any jurisdiction against President Aristide. He is not here, he is not a party to it, he's not in the U.S.. So when they try to make him a party to a complaint in the U.S., they have to get personal service over him. There is no personal service over a president. He has head of state immunity and so forth.
With respect to some of the other defendants, some of them are in the state of Florida, so there may be jurisdiction if there are truly events that involved people in Florida. But I think the reality is that all of these events occurred in Haiti. What they are saying, in a very vague way, is that some money was wire-transferred through accounts in the United States, and therefore there is jurisdiction in the United States.
I think that's a pretty open question of whether there is jurisdiction in the Southern District of Florida simply because there were some financial transactions which used U.S. banks somewhere along the way, without of course any specificity.
Haiti Progrès: The complaint also talks about Aristide and his "accomplices" providing safe-passage for transshipments of illegal drugs to the U.S.. What do you think about that?
Kurzban: There are a lot of patently false statements in there. For example, they say that the percentage of drug trans-shipments increased by 20% under Aristide. That is just false. In fact it decreased to about 8% in the last year that President Aristide served before the coup, at which point the U.S. Ambassador said that you really can't rely on those statistics.
This complaint alleges falsely - again a Rule 11 violation - that there was a 20% transshipment of drugs through Haiti, which no one had ever claimed before.
Haiti Progrès: Since the de facto government's status is essentially illegal under the Haitian Constitution, do they, in fact, have the authority to bring a suit?
Kurzban: That is an interesting issue. Traditionally under U.S. law, the courts have deferred to the executive on questions of who is the proper government. In this case, the perpetrators of the coup, the Bush administration, would vouch for the de facto government. So it's almost circular. The U.S. takes this Chalabi-like character, Latortue, from Boca Raton, Florida, airlifts him into Haiti, and makes him the prime minister after arranging the coup against the democratically elected president. Then he goes into a U.S. court, and the same Bush administration says he is the legitimate Haitian government.
Ha*ti Progrès: Can you tell us anything about the Mont Salem Management Company, which is the one corporation identified in the suit?
Kurzban: Yes, that's the only defendant against whom there are any concrete allegations. I don't know anything about it. I know that the FBI has been conducting an investigation about it, as the result of allegations made by a disgruntled employee of IDT [a telecommunications company] some time ago.
What I do know is that Teleco was trying to recoup funds by getting companies to purchase large amounts of minutes. There is something called the grey market in telecommunications, where a company will buy 50 or 100 million minutes of time from Teleco. They then turn around and go to companies like Sprint, MCI and other large U.S. companies, and work deals with them to purchase those minutes. Part of that had to do with the fact that the large U.S. companies were not paying their bills.
I know. I was involved in trying to collect funds from MCI and others because they were not paying what they were supposed to pay to the Haitian government. So maybe Teleco decided to go with smaller companies that were willing to make those payments and have them make the arrangements with larger companies.
Now, they've made allegations in this that seem very serious on their face, but probably have a very benign explanation.
Haiti Progrès: If there was a verdict found against the defendants, what would be the result? Fines?
Kurzban: Yes, this is just a civil case. People should understand that this is not a criminal case. There are no criminal charges involved. It' s a civil lawsuit to recover money on a claim that these people appropriated money improperly. It seems to me that one of the things they are going to have to prove, which no one has ever said until this lawsuit - and even in this lawsuit, they have skirted the issue, maybe because they are afraid of a Rule 11 sanction - but nobody has ever said that they misappropriated money for their own use.
In other words, all of these claims are that somehow money was misappropriated, but it is not clear who got the money. The only place where they claim that there was money set aside, was the Mont Salem arrangement, which had to do with a claim that 3 cents of every transaction was put in a bank account in the Turks and Caicos islands, but they don't say for whom the money was put in the account, who received the money, who was enriched by it, or what happened to it.
And that is because there was no illegal conduct by anybody in the Haitian government, there was no corruption, there was no fraud. When you look at this complaint, in the end, ultimately what they are claiming is that money was diverted from the Haitian government and given to NGOs to help the Haitian people.
The first question is whether it even occurred. Secondly, if it did occur, is it even an illegal act under Haitian law to take money from the Haitian government and give it to NGOs to help the Haitian poor. That's what they are going to have to prove.
HP: What do you think about the timing of this suit?
Kurzban: That's very interesting. I think Latortue and the others panicked and realized that they are now caught between a rock and a hard place. They see that Bush is trying to have [Haitian-born Texan businessman Dumarsais] Siméus become the president of Haiti. So their own game of corruption that's been going on in Haiti since the coup is going to end. They also see the possibility of [former Haitian president and now presidential candidate] René Préval winning the election. If Préval wins, the base of LAVALAS, which is apparently now supporting him and have made demands for the return of President Aristide, may get their way and the president may be back.
So in my view, they prematurely filed this lawsuit because this opens them up. If I was the attorney for one of these people, I would demand to have Latortue's deposition taken in Miami, as well as all the people in Teleco, all the people who were members of the de facto government of Haiti. I think they jumped the gun and are subjecting themselves to a huge amount of discovery. When you make claims like this, you are going to have to back them up. I don't think they can just show the UCREF report, which itself is a political document, and claim that it's the basis for the lawsuit. They are going to have to show facts and figures.
They're going to have to show where the money was actually misappropriated, who got the money, whether any of these individuals accused actually received any money, and there is no indication that this is so.
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