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JBI MURDER INVESTIGATION IN HAITI
COLUMBIA LAW SCHOOL LIBRARY
3 5005 00598 0811
SUBCOMMITTEE ON CRIME
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
JANUARY 31, 1996
Serial No. 84
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
27-565 CC WASHINGTON : 1996
For sale by the U.S. Government Printing Office
4th Floe Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
KF ISBN 0-16-053666-9
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
CARLOS J. MOORHEAD, California JOHN CONYERS, JR., Michigan
F. JAMES SENSENBRENNER, JR., PATRICIA SCHROEDER, Colorado
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina RICK BOUCHER, Virginia
LAMAR SMITH, Texas JOHN BRYANT, Texas
STEVEN SCHIFF, New Mexico JACK REED, Rhode Island
ELTON GALLEGLY, California JERROLD NADLER, New York
CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia
BOB INGLIS, South Carolina MELVIN L. WATT, North Carolina
BOB GOODLATTE, Virginia XAVIER BECERRA, California
STEPHEN E. BUYER, Indiana JOSE E. SERRANO, New York
MARTIN R. HOKE, Ohio ZOE LOFGREN, California
SONNY BONO, California SHEILA JACKSON LEE, Texas
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia
ALAN F. COFFEY, JR., General Counsel/StaffDirector
JULIAN EPSTEIN, Minority Staff Director
SUBCOMMITTEE ON CRIME
BILL McCOLLUM, Florida, Chairman
STEVEN SCHIFF, New Mexico CHARLES E. SCHUMER, New York
STEPHEN E. BUYER, Indiana ROBERT C. SCOTT, Virginia
HOWARD COBLE, North Carolina ZOE LOFGREN, California
FRED HEINEMAN, North Carolina SHEILA JACKSON LEE, Texas
ED BRYANT, Tennessee MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio
BOB BARR, Georgia
PAUL J. MCNULTY, Chief Counsel
GLENN R. SCHMITr, Counsel
DANIEL J. BRYANT, Assistant Counsel
TOM DIAZ, Minority Counsel
January 31, 1996 .............................................................................................. 1
McCollum, Hon. Bill, a Representative in Congress from the State of Florida,
and chairman, Subcommittee on Crime ...................................................... 1
Gelbard, Robert S., Assistant Secretary of State for International Narcotics
and Law Enforcement Affairs, Department of State ..................................... 9
Perry, William E., Deputy Assistant Director, Federal Bureau of Investiga-
tion ...................................... ....................................................................... 19
Waxman, Seth P., Associate Deputy Attorney General, Department of Jus-
tice ...... ............................................................................................................. 14
Wides, Burton Victor, Esq., Arent, Fox, Kintner, Plotkin & Kahn, counsel
to the Government of Haiti ................................................... ..................... 64
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Conyers, Hon. John Jr., a Representative in Congress from the State of
Michigan: Prepared statement ..................................................................... 5
Gelbard, Robert S., Assistant Secretary of State for International Narcotics
and Law Enforcement Affairs, Department of State: Prepared statement ..... 12
Perry, William E., Deputy Assistant Director, Federal Bureau of Investiga-
tion ........................... ...................................................................................... 22
Waxman, Seth P., Associate Deputy Attorney General, Department of Justice:
Prepared statement ......................................................... ............................ 17
Wides, Burton Victor, Esq., Arent, Fox, Kintner, Plotkin & Kahn, counsel
to the Government of Haiti:
Letter dated January 31, 1996, from President Jean Bertrand Aristide ..... 109
Prepared statement ....................................................... ........................... 70
FBI MURDER INVESTIGATION IN HAITI
WEDNESDAY, JANUARY 31, 1996
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CRIME,
COMMITTEE ON THE JUDICIARY,
The subcommittee met, pursuant to notice, at 1:45 p.m., in room
2237, Rayburn House Office Building, Hon. Bill McCollum (chair-
man of the subcommittee) presiding.
Present: Representatives Bill McCollum, Stephen E. Buyer, How-
ard Coble, Fred Heineman, Ed Bryant of Tennessee, Steve Chabot,
Bob Barr, Charles E. Schumer, Robert C. Scott, Zoe Lofgren, and
Sheila Jackson Lee.
Also present: Representatives John Conyers, Jr., Major R.
Owens, and Alcee L. Hastings.
Staff present: Paul J. McNulty, chief counsel; Glenn Schmitt,
counsel; Audray Clement, secretary; Tom Diaz, minority counsel;
and Melanie Sloan, minority counsel.
OPENING STATEMENT OF CHAIRMAN McCOLLUM
Mr. MCCOLLUM. This hearing of the Subcommittee on Crime will
come to order.
On March 28, 1995, Mireille Bertin and Eugene Baillergeau were
shot to death as they sat in a car stopped in a traffic jam on the
street of Port-au-Prince, Haiti. Madam Bertin was a well-known
lawyer, outspoken critic of Jean-Bertrand Aristide. Mr. Baillergeau
was her client. They were on their way to a meeting.
In less than 24 hours, special agents of the FBI were in Port-au-
Prince to investigate the murders. In the days and months that fol-
lowed, the FBI sent more personnel, including senior officials and
substantial investigative support resources, to Haiti to carry out an
extremely difficult investigation.
The purpose of today's hearing is to ask, in retrospect, whether
the decision to send the FBI to Haiti was the right decision. This
subcommittee is charged with overseeing the activities of the FBI.
We must assure the American public that the Bureau's limited re-
sources are deployed in pursuit of sound priorities and in the most
effective and efficient manner possible.
For, make no mistake about it, the FBI's mission is far greater
in scope than its resources. With less than 10,000 agents, inves-
tigations such as the one in Haiti last year represent a real oppor-
tunity cost. More than 20,000 murders occurred in the United
States last year, only 16 percent of which resulted in an arrest;
and, as we all know, the FBI is able to investigate only a small
fraction of these murders.
The Bureau is currently struggling to find the manpower to ad-
dress issues such as health care, fraud, gang violence and inter-
national and domestic terrorism, all of which have been identified
by President Clinton as recently as his State of the Union address
as top priorities of this administration. So whenever we send
agents to foreign countries not to investigate violations of U.S. law,
which they regularly must do, and not to facilitate cooperation with
foreign law enforcement officials to safeguard America's national
security but rather to investigate violations of another country's
law, we must be certain that the benefits are well worth the costs.
So today's hearing is about the benefits and the costs of the FBI's
1995 murder investigations in Haiti. We will take a close look at
the major obstacles and difficulties faced by the FBI during their
7-month stay. We will hear about the enormous investigative and
logistical problems encountered by the agents in Port-au-Prince
problems involving language and cultural barriers, deficient local
law enforcement support, lack of compulsory legal process such as
subpoenas and search warrants, and an inadequate infrastructure
which severely hampered the Bureau's movements.
The FBI ran into major obstacles when attempting to interview
Government officials, including Cabinet members. Among these ob-
stacles was a demand to submit questions in writing in advance of
the agents' interviews. Most importantly, FBI agents were exposed
to threats of physical harm and personal liability.
Therefore, the specific and most critical question we raise today
is this: Did the administration have assurances from the Haitian
Government, before it dispatched American law enforcement offi-
cials to that country, that the FBI would have complete cooperation
from the Government and be allowed to follow the trail of evidence
wherever it led? If it did not have such assurances, why was the
FBI ever sent there in the first place? If it did have those assur-
ances, why was the FBI effectively prevented from interviewing
Government officials? Why was the administration willing to let
the FBI pick up and leave in October before it was finished, after
being so anxious to send it there in the first place?
It is my hope that we will get answers to these questions today.
It is also my hope that we will send a clear message to this admin-
istration and future administrations that Federal law enforcement
resources must not be wasted or submitted to circumstances that
are doomed to failure.
I look forward to hearing from our witnesses today, and I yield
to my colleague from New York, our ranking minority member. You
Mr. SCHUMER. Thank you, Mr. Chairman; and I intend to keep
my remarks brief because I understand that the subject of this
hearing is narrowly drawn.
One thing we are not here to examine is the nature or wisdom
of our foreign policy with respect to Haiti. We are not here to ques-
tion the conduct of the Haitian Government. We would be in a dif-
ferent kind of House of Representatives if we were doing that. And
we are not here to conduct a long distance inquest into murders in
Indeed, those questions are really not within our jurisdiction at
all. We are here instead to simply inquire into the use of the FBI
to conduct a specific investigation in Haiti at the request of the
Haitian Government, a crime that was apparently not a violation
of United States law.
The committee is quite properly entitled to examine the policy
underlying that use of the FBI's resources. It is also entitled to find
out how the investigation went and what problems it encountered.
Those facts will be helpful in deciding whether we have an ade-
quate policy for such investigations.
Given that understanding, I welcome this hearing. Because, as
you know, Mr. Chairman, the FBI and other Federal law enforce-
ment agencies, in fact, are increasingly operating in foreign soil in
many, many countries other than Haiti. For example, we heard
only last week from the FBI, in an excellent hearing, an excellent
presentation by them, about its training of foreign police agencies
abroad. We also heard about how the FBI is actually encouraging
some foreign governments to change their criminal laws to develop
better investigative procedures to fight international crime.
These activities that we described in this room last week do not
relate directly to any specific violation of U.S. law. So the practice
of sending Federal agents overseas on collateral matters is cer-
tainly not unique; and no one questioned, at least at those hear-
ings, and no one to the best of my knowledge has at all questioned,
their usefulness or wisdom.
So I would like to suggest, Mr. Chairman, that to gain a com-
plete and fair picture maybe we should conduct a series of hearings
on this topic and find out exactly how much of our Federal law en-
forcement resources overall are being used abroad and for what,
whether it is Russia, Bosnia, for France, Thailand or, as here, in
I thank you for the opportunity to speak.
Mr. MCCOLLUM. You are welcome, Mr. Schumer.
Does anybody else wish to make an opening statement?
Mr. BUYER. Yes. Mr. Chairman, I will be brief.
Because I am glad my colleague from New York brought up the
question of foreign policy aspects of this, because it is important.
When we-the hearing that we recently had did discuss the inter-
action with regard to threats to the United States, and we were
looking at international and transnational terrorism and that type
of thing or drugs. But here we have a question in Haiti where it
is a murder that has no distinct ties to vital national security inter-
This whole foreign policy initiative from President Clinton about
promotion of democracy abroad, I have the sense sitting on this
committee, no differently than when I sit on the National Security
Committee, Mr. Chairman, that the FBI in this case seems to be
in the same position as the U.S. military. They are being asked to
go into positions of peril, and these officers who are in peril then
have to question what are the direct ties to vital national security
So when we have this, I think there is a bigger issue out there,
this promotion of democracy abroad, that somehow, as the United
States moves into these nation-building operations, whether it is
Haiti and Somalia, and if there is a democratic government out
there that wants to have values like us that we have some moral
obligation to respond, so I think there are some vital questions that
we do need to ask. Why was the FBI sent when there is no direct
tie to vital national security interest?
As I sit here today, I feel as though I am siding here with the
FBI, just no differently than how I side with the U.S. military in
the operations that they have to take. So I am glad, Mr. Schumer
brought up that question about foreign policy, because I think it is
extremely important for us to look at as we look into this question
I would return my time.
Mr. MCCOLLUM. Well, thank you very much, Mr. Buyer.
Mr. Conyers, do you desire to make an opening statement?
We have our distinguished ranking minority member of the full
committee here with us.
Mr. CONYERS. Thank you, Mr. Chairman. Good afternoon, ladies
I always commend you, Mr. McCollum, for calling hearings. This
one I am holding up a little bit on. I am trying to make sure that
everything works out OK at this hearing and that there is indeed
an important reason for it being called.
Because if this is another hearing convened for the sole purpose
of discussing either whether the FBI has the authority to conduct
criminal investigations in other countries or whether it is wise for
the FBI to conduct criminal investigations in other countries, that
is fine. But this subcommittee has jurisdiction over the FBI, and
it is within our oversight role to consider how it utilizes the re-
sources Congress appropriates to it and that is one of our big jobs.
So if my chairman thinks that the FBI is misdirecting its ener-
gies, he is perfectly justified in asking for an accounting. So I am
laying aside my suspicions. I am laying aside some of the nonsense
I heard at another hearing in which some of these witnesses were
called and just wonder why this committee is choosing to look into
the role the FBI plays in other countries only now. Why hasn't the
committee considered-or maybe it is willing to-the FBI's activi-
ties in other foreign countries-the Soviet Union, Moscow, Colom-
bia, all over the world?
Which leads me to warn all of us to be careful, that if this is
some operation that gives a lot of people who may have some policy
differences about the United States role in and with Haiti to please
back up or if it is about embarrassing this administration by mov-
ing the focus from the Clinton's foreign policy success in Haiti to
an unresolved murder, please back up.
So I am very happy to be here, Mr. Chairman.
Mr. MCCOLLUM. I am happy to have you here, too. You missed
my opening remarks. They were basically along the same lines you
described. We are here to investigate-
Mr. CONYERS. Oh, isn't that wonderful? What wonderful vibes we
are having this afternoon.
I have got some other comments, but I will put them in the
record at this time. Thank you very much.
Mr. McCoLLUM. You are welcome.
[The prepared statement of Mr. Conyers follows:]
PREPARED STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
If this hearing has been convened for the sole purpose of discussing either wheth-
er the FBI has the authority to conduct criminal investigations in other countries
or whether it is wise for the FBI to conduct criminal investigations in other coun-
tries, I have no problem with that.
This Subcommittee has jurisdiction over the FBI and it is within our oversight
role to consider how the FBI utilizes the resources Congress appropriates to it. If
Chairman McCollum thinks that the FBI is misdirecting its energies, he is perfectly
justified in asking the FBI for an accounting.
That said, I remain suspicious of the timing of this hearing. Why is it that this
Subcommittee is choosing to look into the role the FBI plays in other countries only
now, when the FBI has been in Haiti? Why hasn't the Committee previously consid-
ered the FBI's activities in other foreign countries?
The FBI works with law enforcement agents in other countries, such as Russia
and Italy, to fight organized crime and the Justice Department sends people to
many foreign countries, including Bosnia, Somalia, Colombia and Rwanda to train
law enforcement agents. And in 1989, in circumstances somewhat similar to the sit-
uation at hand, the FBI undertook an investigation of the murder of six jesuit
priests in El Salvador.
None of my colleagues have complained about any of these global law enforcement
activities. In fact, only last week, Chairman McCollum praised the FBI for its efforts
in Russia. But for some reason, when the FBI ventures into Haiti, the role of the
FBI overseas is called into question.
This puts the FBI in a difficult position. Here the agency is being criticized for
going to Haiti, but earlier this month, the House International Relations Committee
criticized the FBI for leaving Haiti before solving the Bertin murder. This inconsist-
ency will inevitably leave the FBI uncertain as to how to proceed the next time a
foreign government seeks its assistance.
All of this leads me to believe that today's hearing is really nothing more than
a chance for some of my colleagues, many of whom have been adamantly opposed
to any U.S. involvement in Haiti, to embarrass the Clinton administration by mov-
ing the focus from Clinton's foreign policy success in Haiti to an unsolved murder,
which some claim, has political undertones.
Although Chairman McCollum has stated that we are not going to discuss the
Bertin murder, I suspect that some of my colleagues may take their cue from mem-
bers of the International Relations Committee and imply that the FBI's investiga-
tion into Mireille Bertin's murder was stymied by the Haitian government.
In fact, many of the problems the FBI encountered in its investigation were not
roadblocks set up by the Aristide administration, but were problems inherent to an
emerging democracy: Haiti lacks infrastructure and roadways which increases travel
time considerably. In addition, the FBI had trouble conducting interviews because
Haitians do not speak English and because the FBI could not offer protection to po-
tential witnesses because Haiti simply does not yet have a witness protection pro-
gram. These problems can hardly be put on President Aristide's doorstep, they are
simply the natural problems of an emerging democracy.
The House International Relations Committee has claimed that Bertin's murder
is linked to other political killings, suggesting a conspiracy to eliminate dissidents
in Haiti. But there is no evidence that would be admissible in a court of law linking
any particular person or group of people to Bertin's murder. Furthermore, there is
absolutely no reliable evidence suggesting that President Aristide had anything to
do with, or even any knowledge of Bertin's murder.
I am also distressed that there has been so much concern expressed over this par-
ticular murder, but literally no concern for the thousands of people murdered during
President Aristide's exile.
If my colleagues want to argue that America had no interest in Haiti that merited
FBI involvement, I suggest that they reconsider.
At the time of Bertin's murder, President Aristide had only recently been rein-
stated as President and his position as the leader of the country was still not secure.
Because Mireille Bertin was well-known as an adversary to President Aristide, her
murder set off renewed fears of further political violence.
An impartial investigation into Ms. Bertin's murder was critical to building con-
fidence among Haiti's citizens that government was stable and that there would not
be further political violence. It is for this reason that the FBI was called in to inves-
tigate the murder. By leading the investigation, the FBI was helping Haiti to main-
taining its democracy. When Haitian boat people were drifting onto the Florida
shores on a daily basis due to the political unrest and violence in Haiti, America
clearly had an interest in keeping the newly reinstalled Aristide administration sta-
In the past, maintaining the stability of a democracy been considered one of our
foreign policy goals and the United States has devoted tremendous resources to this
goal under both democratic and republican administrations. We have sent assist-
ance to countries such as Eastern Europe, Russia, Nicaragua and Grenada-all in
an effort toward growing and stabilizing democracies.
And, I might add, very few questions have been raised about our efforts in those
countries. It is only now, with Haiti that such questions have been raised.
Faced with this background, I am left to conclude that the only motivation for this
hearing is to attempt to discredit President Aristide and to embarrass President
Clinton. I will have no part of such a cowardly effort.
Therefore, I hope that this Subcommittee will focus its attention on the only issue
over which it actually has jurisdiction-where and how wisely the FBI is directing
Mr. MCCOLLUM. Does anybody else on this side of the aisle which
to make any opening remarks? Mr. Bryant.
Mr. BRYANT of Tennessee. Thank you, Mr. Chairman. I do want
to commend you for having this oversight hearing and do that
without any reservation.
It is an important role of the Crime Subcommittee to perform
oversight of the executive branch agencies under its jurisdiction.
This is part of the checks and balances system that our Founding
Fathers designed and set forth in our Constitution.
Second, I have significant concerns over the role the FBI played
in coordinating and conducting an investigation into the murder of
a foreign citizen in that foreign citizen's country. While I share the
administration's concern over the circumstances of this murder of
a political foe of the Haitian President, the murder itself did not
involve an American citizen, either as a victim or suspected killer.
It did not involve the breaking of any laws of the United States.
It did not fall under the express mission of the Federal Bureau of
The question arises, should the FBI be dispatched to perform in-
vestigations that have had, at best, marginal relation to the secu-
rity of the United States?
This murder investigation reflects a larger problem, a problem of
philosophy, a pressing policy issue. That problem is a trend toward
involving American resources in situations that have little or no
connection to our national security interest. We cannot and should
not be the world's policeman, militarily or otherwise.
At a time when Congress and the President are contending head
to head over how to end the era of big Government, to balance the
Federal budget, and to more clearly define the matters that con-
stitute America's national interest, this kind of investigation sends
the wrong signal. Just as we shouldn't send American troops to
serve ill-defined missions under foreign commanders who take
their orders from the United Nations, so we shouldn't commit our
law enforcement resources to ill-defined missions.
It further concerns me that the administration failed to get the
level of support from the Haitian authorities needed to complete
the investigation once initiated. Worse still, the FBI simply had to
leave the investigation unfinished when cooperation broke down.
The United States shouldn't take no for an answer. We should fin-
ish what we start. To let another country get away with this kind
of result undermines our national standing as a world leader.
Again, leaving a job unfinished sends the wrong signal.
Finally, Mr. Chairman, let me say that I had the opportunity
over the Christmas recess to accompany the commanding general
of Fort Campbell, KY, Maj. General Jack Keane, to Haiti. We in-
spected the operations of the 101st Airborne Division from Fort
Campbell and visited those troops who are a part of the peacekeep-
ing mission in Haiti.
While we may not all agree on the advisability of the mission,
I am pleased to assure this subcommittee that those troops, who
are partly based in my district, are performing their jobs very well
in Haiti. Their conduct reflects favorably upon the United States,
and I commend them for that.
Mr. Chairman, again, I thank you for holding these hearings.
Mr. MCCOLLUM. You are welcome.
Mr. Scott, Ms. Lofgren, either one of you wish to make any open-
Anyone else over here? Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman.
Mr. Chairman, the distinguished gentleman from New York, at
the conclusion of his opening remarks, said he was not aware of
anybody that had raised questions about the operation we are talk-
ing about here. Questions have been raised. They were raised in
the Judiciary Committee. I know because I raised some of them
and others did, I think, also, in hearings that we had last year-
I believe appropriations hearings-as well as hearings at which the
Director of the FBI appeared with regard to the counterterrorism
legislation. So there have been questions raised about this, and
they are very fundamental questions which need to be answered.
Mr. Chairman, we all know that the President of the United
States has very vast authority under the Constitution for the con-
duct of foreign affairs, for the conduct of affairs relating to our
Armed Forces, as Commander in Chief. And while some of us may
disagree strongly with policy decisions in those two areas that this
President is making, as well as which other Presidents have made,
what I worry about is we are entering a new phase of that in which
our domestic law enforcement agencies now are becoming, part and
parcel, tools, if you will, of those foreign policy and military prerog-
atives of the President; and that raises some very disturbing ques-
tions in my mind.
These may not be unique to this administration. Perhaps we will
hear testimony today that there are precedents for what happened
in Haiti. That doesn't make it necessarily correct for these sorts of
things to continue and to be accelerated.
So I appreciate the chairman convening these hearings. I think
they raise some very fundamental constitutional questions as well
as, as my distinguished colleague from Tennessee has just men-
tioned, some very disturbing questions about priorities and funding
at the very same time that our agencies in this administration are
coming before the Congress requesting additional funds because
they believe that there are not sufficient funds to carry out the nec-
essary law enforcement operations in this country to protect Amer-
ican citizens in this country.
We are funding, and hopefully we will learn today to the tune
of how many of tens of millions of dollars or whatever, operations
overseas that have nothing whatsoever to do with the legitimate
law enforcement needs, operations of this-of the United States of
America and our citizens.
So I commend the chairman for convening these hearings, and
hopefully we will have answers to these very important and fun-
Mr. MCCOLLUM. Thank you very much, Mr. Barr.
At this point, I would like to introduce our panel of witnesses
today. I believe three of you are prepared to make opening state-
ments. Any of you may. But first let me do that.
Robert S. Gelbard is the Assistant Secretary of State for Inter-
national Narcotics and Law Enforcement Affairs. Ambassador
Gelbard joined the Foreign Service in 1967 after serving in the
Peace Corps in Bolivia. During his career he served in the United
States missions to Brazil and France and was Ambassador to Bo-
livia from 1988 until 1991. He has served in numerous positions
within the State Department, including Deputy Assistant Secretary
for South America and Principal Deputy Assistant Secretary for
Inter-American Affairs, during which time he was responsible for
United States policy in Cuba, Haiti, and El Salvador. In 1993, he
was named to his present position.
James F. Dobbins is the State Department's Special Coordinator
for Haiti. Ambassador Dobbins is also a career Foreign Service offi-
cer, joining the Foreign Service in 1967 after serving in the Viet-
nam War. He has held numerous positions at the Department of
State, including Deputy Assistant Secretary for European Affairs,
Principal Deputy Assistant Secretary for European and Canadian
Affairs and U.S. Representative to the European Community.
Since 1993, Ambassador Dobbins has been responsible for coordi-
nating United States policy toward international trouble spots, in-
cluding Somalia and Haiti.
Seth Waxman is an Associate Deputy Attorney General at the
Department of Justice. Prior to this appointment in 1994, Mr. Wax-
man was managing partner of the Washington law firm of Miller,
Cassidy, Larroca & Lewin. His practice has specialized in complex
criminal, civil and appellate litigation.
William E. Perry is the Deputy Assistant Director for the Crimi-
nal Investigative Division of the Federal Bureau of Investigation.
This year marks Mr. Perry's 25th year as an FBI special agent. He
has served in the Detroit, Battle Creek and Philadelphia offices
and was associate special agent in charge of the Miami FBI divi-
sion office. In March, 1995, Mr. Perry assumed his present position
as Deputy Assistant Director of the FBI.
Paul Mallett, Jr., is the associate special agent in charge of the
Miami division of the Federal Bureau of Investigation. Mr. Mallett
has been an FBI special agent since 1971. He has served in the
New Orleans, Cincinnati offices, as well as in positions at FBI
headquarters in Washington, DC. He assumed his present position
in February 1995.
Mr. Gelbard, if you could begin the testimony today, we would
appreciate it. For the record, all of the witnesses' testimony that
has been submitted to us in writing, including yours, will be admit-
ted without objection.
Hearing none, it is so admitted.
You may summarize or present so much of your testimony as is
appropriate. Please proceed.
STATEMENT OF ROBERT S. GELBARD, ASSISTANT SECRETARY
OF STATE FOR INTERNATIONAL NARCOTICS AND LAW EN-
FORCEMENT AFFAIRS, DEPARTMENT OF STATE
Mr. GELBARD. Thank you, Mr. Chairman. Mr. Chairman, mem-
bers of the committee, thank you for the opportunity to meet with
We recognize all too clearly that international crime is a major
threat to world stability and to our own national security. Indeed,
unlawful acts impact negatively on every other foreign policy goal
we may contemplate from economic and democratic growth to ad-
vancement of peaceful settlement of disputes and respect for
human rights. And, as the President stressed in his State of the
Union speech, thwarting crime at home and abroad is one of our
highest national priorities.
In keeping with the topic today, I would like to provide you with
a synopsis of administration law enforcement and anticrime pro-
grams in the foreign policy context.
Since Secretary Christopher asked me to take formal responsibil-
ity for these activities over two years ago-augmenting the
counternarcotics function my Bureau has had the past couple of
decades-we have become involved in a variety of initiatives to
counter crime, one of the most serious threats we face in the post
cold war era.
President Clinton demonstrated the importance he attaches to
these efforts last October when, on the occasion of the 50th anni-
versary of the United Nations, he announced his comprehensive
International Crime Initiative. Our efforts, of course, do not only
involve the State Department. They also depend heavily upon the
expertise of the myriad of United States Government law enforce-
ment agencies. This is true whether we are contemplating extra-
ditions to bring felons to justice or basic police training-such as
we have sponsored in Haiti-so that countries can make sure their
citizens are safe and can manage their own law enforcement in ac-
cord with democratic principles.
We have learned from our experience with international narcot-
ics control that one of the most effective ways to achieve immediate
results is through law enforcement training. Insofar as we are able
to do so, we are conducting such training in the most threatened
countries. In this way, we achieve two key tangible benefits. First,
trustworthy links are established between U.S. and foreign law en-
forcement entities that counteract organized crime's move into the
United States. Second, improved law enforcement expertise height-
ens the ability of foreign governments to control organized crime
and specific major crime problems that negatively affect the growth
of free markets and democracy.
This training could not be done without the commitment of the
Departments of Justice and Treasury law enforcement agencies-
and others-who are passing along their know-how to foreign coun-
terparts. In the last year alone, these agencies have conducted over
120 training programs for more than 4,000 law enforcement offi-
In this vein, Mr. Chairman, I want to stress the critical role of
the International Criminal Investigation Training Assistance Pro-
gram, ICITAP-under Department of Justice auspices-in provid-
ing assistance in the establishment of the new National Police
Force in Haiti.
This includes, of course, ICITAP's solid training for highly quali-
fied police cadets who are also thoroughly screened to eliminate
those with past criminal activity or human rights abuses. You are
aware, I am sure, of ICITAP's superb police training record in El
Salvador, Panama and Bolivia, to mention just a few places.
I believe that Haiti and the United States can be justifiably
proud of what has been achieved. In just a year, in a nation whose
institutional development was extremely weak and where the es-
tablishment of professional institutions independent of political in-
fluence is almost unheard of, the new National Police Force is in
the process of becoming a capable, apolitical, professional force
with the potential to buttress this newly democratic nation.
As the committee recognizes, a great deal still remains to be
done; but we would be harsh judges indeed not to acknowledge the
tremendous progress. Continued United States engagement, strict-
ly defined requirements for police performance and action by the
Government of Haiti to make certain that the police remain a
strong, apolitical force are needed to ensure the force's success. In
particular, we have told our Haitian counterparts that the police
recruitment process must remain merit-based and that pressure to
fold ex-Fad'H officers into the regular police-without proper
screening and qualifications-must be resisted. The United States
Government will not support a force that harbors criminals in its
With my colleagues at the table, I would also like to provide
some perspective on the State Department's support for the FBI
and the Government of Haiti on the investigation of the plot and
subsequent assassination of Mireille Durochbe- Rertin, a spokesman
for the former Haitian military regime.
When the Multinational Force uncovered the plot, the United
States Ambassador and the MNF sought to secure a decision by the
Haitian Government to inform Mrs. Bertin and investigate and
take appropriate action, including suspension of the then Minister
of Interior, who was implicated. President Aristide told our Ambas-
sador that the then Minister of Justice warned Mrs. Bertin about
the plot. However, the Interior Minister was not suspended by the
Government, reportedly because the facts against him were lim-
On March 28, Mrs. Bertin and a companion were killed. Family
members said later that Mrs. Bertin had indeed spoken with the
Minister of Justice, but they also maintain that she had not been
warned of the plot.
As it happened, Ambassador Swing was meeting with Haitian of-
ficials at the Presidential palace when he first learned of the mur-
ders. After contacting appropriate offices in Washington about pos-
sible help from the FBI, the Ambassador discussed the idea with
President Aristide, who said he would welcome it. The next day,
FBI investigators arrived in Port-au-Prince.
While the decision to send the FBI was made very quickly, cir-
cumstances dictated that such a course of action was in the U.S.
First, the U.S. military contingent of the MNF, which had uncov-
ered the original plot, was ill-equipped to carry out a thorough sub-
sequent investigation of the murder. Moreover, the MNF mandate
was to end three days hence when incoming U.N. forces were to
Second, since the Government of Haiti had absolutely no inves-
tigative capability, it would have been irresponsible to disavow any
interest in the murder followup.
Third, engaging the FBI to work with the Government ensured
that the groundwork was laid for a professional investigation and
eventual transfer of full responsibility for it back to the Govern-
ment of Haiti.
The Justice Department and the FBI can most appropriately ad-
dress the subsequent difficulties that were encountered regarding
the investigation. Throughout, however, the objective of the United
States, acting through the State Department and other administra-
tion offices, was to provide the fullest support possible to the FBI
to overcome various obstacles, especially those over which the Hai-
tian Government had some control. Last October, the fundamental
problem was overcome when the Haitian Government announced
creation of a special investigative unit, recruited on the basis of
merit and already trained by ICITAP.
Further, Canadian and French police affiliated with the United
Nations were seconded to the unit; and two United States inves-
tigative experts are being contracted to provide additional guidance
and support. Now, it is up to the new Government to be inaugu-
rated in a few days to ensure that this body is allowed to conduct
its work unfettered.
Clearly, Haiti's total lack of strong law enforcement and associ-
ated institutions was central to drawing in the FBI. It filled an ob-
vious void. In this case, the circumstances were unique. It is highly
unlikely that any situation even close to it will be repeated. Fur-
ther, this episode indicates how highly imperfect the situation is on
the ground in Haiti. Nevertheless, this island nation is a close
neighbor and what happens to it affects importantly our own coun-
try. We had-and do still have-a responsibility to act responsibly
and quickly, as we did in the aftermath of Mrs. Bertin's murder,
to ensure that American interests are properly taken into account.
Mr. Chairman, whether dealing with the specifics of assassina-
tions in foreign countries or wider elements of transnational crime,
it is clear that our overseas policies and programs must be care-
fully crafted to advance security so that our broader foreign policy
goals can be met.
In the past several weeks, for example, I have been working with
the United States Government, the United Nations and our Euro-
pean allies to help lay the groundwork for democratic policing in
Bosnia. Supported by an effective local police force which can main-
tain order while respecting human rights, we will build the con-
fidence necessary to facilitate refugee resettlement and free and
More generally, our work is cut out for us; and I expect we will
be undertaking more, not fewer, of these efforts in the future.
There are no quick and easy solutions in our fight against criminal
elements and others who undermine the positive advances we seek.
We do, however, have the moral authority and the political will to
Thank you, Mr. Chairman.
Mr. MCCOLLUM. Thank you very much.
[The prepared statement of Mr. Gelbard follows:]
PREPARED STATEMENT OF ROBERT S. GELBARD, ASSISTANT SECRETARY OF STATE FOR
INTERNATIONAL NARCOTICS AND LAW ENFORCEMENT AFFAIRS, DEPARTMENT OF
Mr. Chairman and Members of the Committee, thank you for the opportunity to
meet with you today. We recognize all too clearly that international crime is a major
threat to world stability and to our own national security. Indeed, unlawful acts im-
pact negatively on every other foreign policy goal we may contemplate, from eco-
nomic and democratic growth, to advancement of peaceful settlement of disputes
and respect for human rights. And, as the President stressed in his State of the
Union speech, thwarting crime at home and abroad is one of our highest national
THE INTERNATIONAL CRIME INITIATIVE
In keeping with the topic today, I would like to provide you with a synopsis of
Administration law enforcement and anti-crime programs in the foreign policy con-
text. Since Secretary Christopher asked me to take formal responsibility for these
activities over two years ago-augmenting the counternarcotics function my Bureau
has had the past couple of decades-we have become involved in a variety of initia-
tives to counter crime, one of the most serious threats we face in the post Cold-war
era. President Clinton demonstrated the importance he attaches to these efforts last
October when, on the occasion of the 50th anniversary of the U.N., he announced
his comprehensive International Crime Initiative. Our efforts, of course, do not only
involve the State Department. They also depend heavily upon the expertise of the
myriad of U.S. Government law enforcement agencies. This is true whether we are
contemplating extraditions to bring felon fugitives to justice or basic police train-
ing-such as we have sponsored in Haiti-so that countries can make sure their citi-
zens are safe and can manage their own law enforcement in accord with democratic
As Committee members will recall, the Crime Initiative is multifaceted. We are
working now to implement the President's October Executive Order under the Inter-
national Emergency Economic Powers Act (IEEPA), to deny major drug traffickers
centered in Colombia the benefit of assets subject to U.S. jurisdiction. The Presi-
dent's money laundering initiative will apply pressure on countries to take concrete
action against money laundering, or face U.S. sanctions. In addition, we are working
with other concerned nations to negotiate a universal Declaration on Citizens' Secu-
rity to help focus attention on linkages among crimes such as drug trafficking, ter-
rorism, illegal arms sales, and alien smuggling.
In other bilateral and multilateral activities, we are:
Supporting efforts of the U.N. Commission on Crime Prevention and Criminal
Justice to help countries update outdated criminal codes;
Using the international Financial Action Task Force to stress that illegal
money laundering is an important foreign policy problem throughout the world;
Working through the European Union and the G-7 Transnational Organized
Crime group to advance the international anti-crime agenda;
Developing domestic and overseas initiatives to combat international alien
smuggling, "the traffic in human misery," with all its hardship for would-be im-
migrants and still extremely low risk for the perpetrators; and
Conducting training for students from Russia, the NIS, and Central Europe
in basic and advanced community policing that is grounded in rule-of-law and
OVERSEAS LAW ENFORCEMENT TRAINING
We have learned from our experience with international narcotics control that one
of the most effective ways to achieve immediate results is through law enforcement
training. In so far as we are able to do so, we are conducting such training in the
most threatened countries. In this way, we achieve two key tangible benefits. First,
trustworthy links are established between U.S. and foreign law enforcement entities
that counteract organized crime's move into the United States. Second, improved
law enforcement expertise heightens the ability of foreign governments to control or-
ganized crime and specific major crime problems that negatively affect the growth
of free markets and democracy.
This training could not be done without the commitment of the Departments of
Justice and Treasury law enforcement agencies-and others-who are passing along
their know-how to foreign counterparts. In the last year alone, these agencies have
conducted over 120 training programs for more than 4,000 law enforcement officers.
USG POLICE TRAINING IN HAITI
In this vein, Mr. Chairman, I want to stress the critical role of the International
Criminal Investigation Training Assistance Program (ICITAP)-under DOJ aus-
pices-in providing assistance in the establishment of a new National Police Force
in Haiti. This includes, of course, ICITAP's solid training for highly qualified police
cadets who were also thoroughly screened to eliminate those with past criminal ac-
tivity or human rights abuses. You are aware, I am sure, of ICITAPs superb police
training record-in El Salvador, Panama and Bolivia, to mention just a few places.
I believe that Haiti and the U.S. can be justifiably proud of what has been
achieved. In just a year, in a nation whose institutional development was extremely
weak, and where the establishment of professional institutions independent of politi-
cal influence is almost unheard of, the new National Police Force is in the process
of becoming a capable, apolitical, professional force with the potential to buttress
this newly democratic nation.
As the Committee recognizes, a great deal still remains to be done. But we would
be harsh judges, indeed, not to acknowledge the tremendous progress. Continued
U.S. engagement, strictly defined requirements for police performance, and action
by the Government of Haiti to make certain that the police remain a strong, apoliti-
cal force are needed to ensure the force's success. In particular, we have told our
Haitian counterparts that the police recruitment process must remain merit-based
and that pressure to fold ex-Fad'H officers into the regular police-without proper
screening and qualifications-must be resisted. The U.S. government will not sup-
port a force that harbors criminals in its ranks.
USG LAW ENFORCEMENT SUPPORT FOR THE BERTIN INVESTIGATION
With my colleagues at the table, I would also like to provide some perspective on
the State Department's support for the FBI and the Government of Haiti on the in-
vestigation of the plot and subsequent assassination of Mirielle Durocher Bertin, a
spokesman for the former Haitain military regime.
When the U.N. Multinational Force (MNF) uncovered the plot, the U.S. Ambas-
sador and the MNF sought to secure a decision by the Haitian government to inform
Mrs. Bertin, and investigate and take appropriate action, including suspension of
the then Minister of Interior, who was implicated. President Aristide told our Am-
bassador that the then Minister of Justice warned Mrs. Bertin about the plot. How-
ever, the Interior Minister was not suspended by the government, reportedly be-
cause the facts against him were limited. On March 28, Mrs. Bertin and a compan-
ion were killed. Family members said later that Mrs. Bertin had spoken with the
Minister of Justice, but they said that she had not been warned of the plot.
As it happened, Ambassador Swing was meeting with Haitian officials at the pres-
idential palace when he first learned of the murder. After contacting appropriate of-
fices in Washington about possible help from the FBI, the Ambassador discussed the
idea with President Aristide, who said he would welcome it. The next day, FBI in-
vestigators arrived in Port-au-Prince.
While the decision to send the FBI was made very quickly, circumstances dictated
that such a course of action was in the U.S. national interest:
First, the U.S. military contingent of the MNF, which had uncovered the
original plot, was ill-equipped to carry out a thorough subsequent investigation
of the murder. Moreover, the MNF mandate was to end three days hence when
incoming U.N. forces were to take over.
Second, since the Government of Haiti had no investigative capability whatso-
ever, it would have been irresponsible to disavow any interest in the murder
Third, engaging the FBI to work with the government ensured that the
groundwork was laid for a professional investigation and eventual transfer of
full responsibility for it back to the Government of Haiti.
The Justice Department and FBI can most appropriately address the subsequent
difficulties that were encountered regarding the investigation. Throughout, however,
the objective of the U.S., acting through the State Department and other Adminis-
tration offices, was to provide the fullest support possible to the FBI to overcome
various obstacles, especially those over which the Haitian government had some
control. Last October, the fundamental problem was overcome when the Haitian
government announced creation of a special investigative unit, recruited on the
basis of merit and already trained by ICITAP. Further, Canadian and French police
affiliated with the U.N. were seconded to the unit and two U.S. investigative experts
are being contracted to provide additional guidance and support. Now, it is up to
the new government, to be inaugurated in a few days, to ensure that this body is
allowed to conduct its work unfettered.
Clearly, Haiti's total lack of strong law enforcement and associated institutions
was central to drawing in the FBI. It filled an obvious void. In this case, the cir-
cumstances were unique. It is highly unlikely that any situation even close to it will
be repeated. Further, this episode indicates how highly imperfect the situation is
on the ground in Haiti. Nevertheless, this island nation is a close neighbor and what
happens to it affects importantly our own country. We had-and have-a respon-
sibility to act responsibly and quickly, as we did in aftermath of Mrs. Bertin's mur-
der, to ensure that American interests are properly taken into account.
THE ROAD AHEAD
Mr. Chairman, whether dealing with the specifics of assassinations in foreign
countries or wider elements of transnational crime, it is clear that our overseas poli-
cies and programs must be carefully crafted to advance security so that our broader
foreign policy goals can be met. In the past several weeks, for example, I have been
working with the U.N. and our European allies to help lay the groundwork for
democratic policing in Bosnia. Supported by an effective local police force, which can
maintain order while respecting human rights, will build the confidence necessary
to facilitate refugee resettlement and free and fair elections. More generally, our
work is cut out for us, and I expect we'll be undertaking more, not fewer of these
efforts, in the future. There are no quick and easy solutions in our fight against
criminal elements and others who undermine the positive advances we seek. We do
however, have the moral authority and political will to overcome them.
Mr. MCCOLLUM. Mr. Waxman, would you please give us your
words of wisdom?
STATEMENT OF SETH P. WAXMAN, ASSOCIATE DEPUTY
ATTORNEY GENERAL, DEPARTMENT OF JUSTICE
Mr. WAXMAN. Mr. Chairman and members of the committee,
thank you for the opportunity to appear today on behalf of the De-
partment of Justice to discuss the role of the Federal Bureau of In-
vestigation in investigating the murders of Mereille Durocher
Bertin and Eugene Baillergeau, Jr., in Port-au-Prince.
To place the investigation in context, I believe it is important for
the committee to understand the Department of Justice's overall
responsibilities with respect to Haiti. First, our Immigration and
Naturalization Service is the agency principally responsible for pre-
venting illegal immigration from that country. As members of this
committee are aware, the flood of illegal Haitian migrants that
reached United States shores during the de facto regime in Haiti
has slowed literally to a trickle since the return of constitutional
Second, the Department's training components have been prin-
cipally responsible for providing training for police, prosecutors and
judges in Haiti, a country that little over a year ago lacked any
functional prosecutorial or judicial system.
Immediately upon President Aristide's return, the Department's
International Criminal Investigative Training Program, ICITAP,
began to establish the Haitian National Police Academy to train a
Haitian civilian police force. This has been a major objective of
United States policy in Haiti. The Academy has already trained
and deployed over 4,300 civilian police, and will have deployed an
additional 700 by March 1996, reaching our goal of 5,000 fully vet-
ted professionally trained police on time and within budget.
In January 1995, the Department's Office of Professional Devel-
opment and Training, or OPDAT, began a basic training course for
over 100 members of the Haitian judiciary. By the spring of 1995,
OPDAT had assisted the Ministry of Justice in establishing a per-
manent Judicial Training Academy in Port-au-Prince, where we
continue to provide critical training for prosecutors, magistrates
and judges. Now, let me turn to the Bertin investigation.
On the afternoon of March 28, 1995, Mireille Durocher Bertin, an
ardent political adversary of President Jean Bertrand Aristide, was
murdered on a busy thoroughfare in downtown Port-au-Prince. The
murder immediately set off fears of a renewal of the type of politi-
cal violence that had characterized Haitian life before the return of
Within hours, at the request of the Government of Haiti, United
States Department of State and the President's National Security
Advisor, the Attorney General, and the Director of the FBI agreed
to send an FBI team to secure the crime scene and investigate the
murders. By 5:30 a.m. the following morning, FBI agents were at
the crime scene in Port-au-Prince.
The FBI team was dispatched pursuant to 28 U.S.C., section 533,
sub 3, which authorizes the Attorney General to conduct investiga-
tions regarding official matters under the control of the Depart-
ment of Justice and the Department of State. It has been the De-
partment's consistent and longstanding interpretation of section
533(3), to require either the Department of State or the Depart-
ment of Justice have an official interest in the matter before an in-
vestigation may be authorized.
While I explain in more detail-as I explain in more detail below,
the Bertin investigation was a unique mission. The FBI has at
times been called upon to assist in criminal investigations outside
the United States in support of law enforcement and friendly na-
tions. Here, FBI assistance was considered to be critical for a num-
ber of reasons.
First, because Madam Bertin was a prominent opponent of Presi-
dent Aristide, there was great concern that unless the Government
of Haiti would demonstrate firm and immediate steps toward a
swift and professional investigation, the stability of the new Hai-
tian democracy and its commitment to the rule of law would be
jeopardized. Yet, Haiti had no functioning judicial or prosecution
system at the time, and its police lacked any capability to conduct
forensic examinations or criminal investigations of any complexity.
And with 20,000 U.S. troops on the ground, and the multi-
national force due to depart, and the President of the United States
due to visit in a few days, there was great concern that the lack
of a swift and strong law enforcement response could spark a wave
of renewed political violence.
During the most active phase of the Bertin investigation, which
dated from March 29 until late June 1995, the conduct of the inves-
tigation proceeded, as is customary, without active involvement by
the Attorney General and other Department officials outside the
But in late June 1995, as the investigation focused on employees
of the Haitian Government, FBI headquarters expressed to Depart-
ment leadership concern over acts that the agents in Port-au-
Prince perceived as designed to frustrate the investigation and per-
haps to intimidate the agents. In particular, the investigation had
identified a dozen or so Government employees, largely members of
the Interim Public Security Force and the palace guard it wished
to interview. During or immediately following the first few of these
interviews, the FBI agents felt that members of the IPSF were
threatening to obstruct their inquiries.
Then, on June 29, 1995, the FBI supervisory special agent in
Port-au-Prince was informed by the Haitian Minister of Justice
that all interviews of Government of Haiti employees were hence-
forth to cease unless certain conditions which were unacceptable to
the FBI were met. The Minister's communication essentially halted
the FBI's investigation, and at the request of the Attorney General,
I traveled to Haiti on July 3 with Deputy Assistant Director Perry
and Ambassador Dobbins to meet with President Aristide.
In the meeting, I advised President Aristide that it was the At-
torney General's intention that the FBI conduct an impartial and
professional investigation of the Bertin-Baillergeau murders and no
other murders, and that if this were not possible or desirable the
FBI would depart. In particular, I informed the President that the
investigation could proceed only if the FBI was permitted to inter-
view whomever it wished without any requirement of advance no-
tice to the Haitian Government or the presence of attorneys em-
ployed by or representing the Government.
President Aristide agreed to those conditions and he expressed
the desire that the FBI continue its investigation as far as it could.
He stated, however, that Haitian law requires the Government to
provide an attorney to any Government employee who is ques-
tioned in a criminal investigation. Mr. Perry and I agreed that
interviewees could be accompanied by-could be accompanied by
counsel to their interviews, so long as these lawyers did not also
work for and represent the Government of Haiti.
President Aristide acquiesced, and based on these understand-
ings and assurances that Mr. Perry and I received in a private
meeting we had at the FBI command post that the agents did not
consider their safety in jeopardy and that they wanted to continue
to pursue the investigation, Mr. Perry and I recommended to the
Attorney General and the FBI director that the investigation con-
Following this meeting, the FBI began again to arrange for the
planned interviews. Soon thereafter, however, a pair of U.S. attor-
neys, that is attorneys admitted to practice in the United States as
opposed to U.S. attorneys in the Department of Justice, purporting
to represent all of these individuals, advised the FBI that their cli-
ents would agree to be interviewed only if the questions were sub-
mitted in advance, a verbatim transcript were made available to
each interviewee and the same lawyers were permitted to sit in on
all of the interviews, conditions the FBI considered unacceptable.
Following a series of communications in August and September,
which failed to yield any agreement on acceptable interview terms,
the FBI, with the full approval of the Attorney General, concluded
that its investigation had come to the end of its useful life, and
that its efforts should be directed toward transferring its investiga-
tion to the appropriate Haitian authorities.
By mid October, the Government of Haiti announced the formal
creation of a special investigations unit or SIU, which with the as-
sistance of the United Nations, CIVPOL was tasked with pursuing
the investigation of several high profile murders. In a series of
meetings held in Port-au-Prince on December 21, FBI representa-
tives met with Haitian Commissar Brutus, members of the Haitian
investigative unit and CIVPOL, and others to discuss their inves-
tigation and to transfer most of what the FBI had learned.
The United States has indicated that at this point the FBI will
provide whatever forensic assistance is required and requested to
support the Bertin Baillergeau investigation and perhaps others
conducted by the SIU and CIVPOL, but in all other respects the
FBI's active involvement in the investigation has concluded.
The Bertin investigation was unusual in that it was conducted
in a foreign country and it involved only foreign nationals and vio-
lations of foreign law. It is unlikely that the FBI will be called
upon to conduct many such investigations in the future. While we
are disappointed that the investigation could not be completed, the
Department nonetheless believes that the FBI's involvement and
efforts played an extremely important role, among other things in
preserving evidence and laying the ground work of a competent,
impartial investigation upon which Haitian authorities can now
In light of the FBI's experience in Haiti, the Department is con-
sidering whether to promulgate certain guidelines with respect to
procedural issues that should be identified and resolved at the out-
set of any future involvement in these types of cases. The Depart-
ment would be happy to discuss this idea further with the commit-
tee. Once again, thank you for providing me with the opportunity
to discuss these issues with you. I'd be very happy to answer any
questions the committee may have.
[The prepared statement of Mr. Waxman follows:]
PREPARED STATEMENT OF SETH P. WAXMAN, ASSOCIATE DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE
Mr. Chairman, and Members of the Committee, thank you for the opportunity to
appear today on behalf of the Department of Justice to discuss the role of the Fed-
eral Bureau of Investigation in investigating the murders of Mireille Durocher
Bertin and Eugene Baillergeau, Jr.
DEPARTMENT OF JUSTICE ACTIVITIES CONCERNING HAITI
To place the investigation in context, it is useful to understand the Department
of Justice's overall responsibilities with regard to Haiti. First, our Immigration and
Naturalization Service is the agency principally responsible for preventing illegal
immigration from that country. As Members of this Committee are aware, the flood
of illegal Haitian migrants that reached US. shores during the de fact regime in
Haiti has slowed literally to a trickle since the return of constitutional democracy.
Together with the Coast Guard and the Department of State, however, we remain
Second, the Department's training components have been principally responsible
for providing training for police, prosecutors, and judges in Haiti, a country that
only a little over a year ago lacked any functional prosecutorial or judicial system.
Law enforcement training in Haiti has been conducted through two components
of the Department's Criminal Division: the Office of Professional Development and
Training ("OPDAT") and the International Criminal Investigative Training Program
("ICITAP'). Both OPDAT and ICITAP assist countries throughout the world to im-
prove their criminal justice systems. OPDAT provides training to prosecutors and
judges, while ICITAP provides training to local police.
Immediately upon President Aristide's return, ICITAP started work to establish
the Haitian National Police Academy to train a Haitian civilian police force. The
Academy has already trained and deployed over 4,300 civilian police, and will have
deployed an additional 700 by March of 1996. The development of a Haitian civilian
police force has been an integral focus of U.S. policy. At the same time that ICITAP
was embarking on the creation of a new Haitian police force, the need to "jump
start" the judicial system also became increasingly clear. Consequently, at the re-
quest of USAID, OPDAT began an emergency basic training course for over 100
members of the Haitian judiciary in January 1995, in partnership with the National
Center for State Courts. By the Spring of 1995, OPDAT assisted the Haitian Min-
istry of Justice in establishing a judicial training academy in Port-au-Prince, where
OPDAT continues to provide training to prosecutors and magistrates.
THE DEPARTMENT'S ROLE IN THE BERTIN INVESTIGATION
On the afternoon of March 28, 1995, Mireille Durocher Bertin, an ardent political
adversary of President Jean Bertrand Aristide, was murdered on a busy thorough-
fare in downtown Port-au-Prince. The murder immediately set off fears of a renewal
of the type of political violence that had characterized Haitian life before the return
of President Aristide.
Within hours of the murders, at the request of the Government of Haiti, the U.S.
Department of State, and the President's National Security Advisor, the Attorney
General and the Director of the FBI agreed to send an FBI team to secure the crime
scene and investigate the murders. By 5:30 a.m. the following morning, FBI agents
were on the scene in Port-au-Prince.
The FBI team was dispatched pursuant to 28 U.S.C. 533(3), which authorizes
the Attorney General "to conduct investigations regarding official matters
under the control of the Department of Justice and the Department of State." While,
as I explain in more detail below, the Bertin investigation was a somewhat unique
mission, the FBI has at times been called upon to assist in criminal investigations
outside the United States in support of law enforcement in friendly nations. Here,
FBI assistance was considered to be critical for a number of reasons. First, because
Madame Bertin was a prominent opponent of President Aristide, there was great
concern that, unless the Government of Haiti could demonstrate a firm and imme-
diate commitment to a swift and professional investigation, the stability of the new
Haitian democracy would be jeopardized. Yet Haiti had virtually no functioning ju-
dicial or prosecution system, and its police lacked any capability to conduct forensic
examinations or criminal investigations of any complexity. And with 20,000 U.S.
troops on the ground and the President of the United States due to visit Haiti in
a few days, there was concern that the lack of a strong law enforcement showing
could spark a wave of political violence.
During the most active phase of the Bertin investigation, which dated from March
29th until late June 1995, the conduct of the investigation proceeded-as is cus-
tomary-without active involvement by the Attorney General or other Department
officials outside the FBI. Periodically, the Department's leadership was apprised
generally by the FBI of the progress of the investigation, and representatives of the
Department's Criminal Division received briefings.
In late June 1995, as the investigation focused on employees of the Haitian gov-
ernment, FBI headquarters expressed to Department leadership concern over acts
that the FBI agents in Port-au-Prince perceived as designed to frustrate the inves-
tigation and perhaps to intimidate the agents. In particular, the investigation had
identified a dozen or so government employees-largely members of the Interim
Public Security Force and the palace guard-it wished to interview. During or im-
mediately following the first few of these interviews, the FBI agents felt that mem-
bers of the IPSF were threatening to obstruct their inquiries. Then, on June 29,
1995, the FBI supervisory agent in Port-au-Prince was informed by Haitian Justice
Minister Exume that all interviews of Government of Haiti employees were hence-
forth to cease unless certain conditions-unacceptable to the FBI-were met.
The Minister's communication essentially halted the FBrs investigation, and at
the request of the Attorney General, I travelled to Haiti on July 3, 1995, with Dep-
uty Assistant Director Perry and Ambassador Dobbins to meet with President
Aristide. In the meeting, which was also attended by Ambassador William Lacy
Swing, I advised President Aristide that it was the Attorney General's intention
that the FBI conduct an impartial and professional investigation of the Bertin/
Baillergeau murders-others-and that if this were not possible or desirable, the
FBI would depart. In particular, I informed the president that the investigation
could proceed only if the FBI was permitted to interview whomever it wished, with-
out any requirement of advance notice to the Haitian government or the presence
of attorneys employed by or representing the government.
President Aristide agreed to those conditions and expressed the desire that the
FBI continue its investigation as far as it could. He stated, however, that Haitian
law requires the government to provide an attorney to any government employee
who is questioned in a criminal investigation. Mr. Perry and I agreed that
interviewees could be accompanied by counsel, so long as these lawyers did not also
work for or represent the Government of Haiti. President Aristide acquiesced, and
based upon these understandings Mr. Perry and I recommended that the investiga-
Following this meeting, the FBI began again to arrange for the planned inter-
views. Soon thereafter, however, a pair of U.S. attorneys purporting to represent all
of these individuals advised the FBI that their clients would agree to be interviewed
only if the questions were submitted in advance, a verbatim transcript was made
available to each interviewee, and the same lawyers were permitted to sit in on all
of the interviews-conditions the FBI considered unacceptable. Following a series of
communications in August and September which failed to yield agreement on ac-
ceptable interview terms, the FBI, with the full backing of the Department of Jus-
tice, concluded that its investigation had come to the end of its useful life.
By mid-October, the Government of Haiti announced the formal creation of a Spe-
cial Investigations Unit ("SIU") which, with assistance from the U.N. CIVPOL, was
tasked with pursuing the investigation of several high-profile murders.
During October and November FBI representatives met with staff of the Criminal
Division to discuss the best means of transferring information to the SIU and appro-
priate Haitian judicial authorities so that the SIU could pursue and complete the
Bertin/Baillergeau investigations. In a series of meetings held in Port-au-Prince on
December 21, 1995, FBI representatives met with Haitian Commissar Brutus, mem-
bers of Haitian Special Investigative Unit and CIVPOL, and others to discuss their
investigation and to transfer most of what the FBI had learned. The United States
has indicated that at this point the FBI will provide whatever forensic assistance
is required and requested to support the Bertin/Baillergeau investigation (and per-
haps others conducted by the SIU and CIVPOL), but in all other respects, the FBI's
active involvement in the investigation has concluded.
The Bertin investigation was quite unusual, in that it was conducted in a foreign
country and involved only foreign nationals and violations of foreign law. It is un-
likely that the FBI will be called upon to conduct many such investigations in the
future. While we are disappointed that the investigation could not be completed, the
Department nonetheless believes that the FBI's involvement and efforts played an
extremely important role in preserving evidence and laying the groundwork of a
competent, impartial investigation upon which Haitian authorities can now build.
In light of the FBI's experience in Haiti, the Department is considering whether
to promulgate certain guidelines with respect to procedural issues that should be
identified and resolved at the outset of any future involvement in these types of
cases. The Department would be happy to discuss this idea further with the Com-
Once again, thank you for providing me with an opportunity to discuss these is-
sues with you. I would be happy to answer any questions you may have.
Mr. MCCOLLUM. Thank you, Mr. Waxman.
Mr. Perry, you may proceed.
STATEMENT OF WILLIAM E. PERRY, DEPUTY ASSISTANT
DIRECTOR, FEDERAL BUREAU OF INVESTIGATION
Mr. PERRY. Mr. Chairman and members of the committee, spe-
cial agents of the Federal Bureau of Investigation arrived in Port-
au-Prnce Haiti during the early morning hours of March 29, 1995,
to initiate an investigation into the murders of Mireille Durocher
Bertin and Eugene Baillergeau.
As the committee knows, Madam Bertin was a prominent politi-
cally active Haitian attorney and an outspoken critic of President
Aristide. At approximately 3:30 p.m. on March 28, 1995, both were
slain by 9mm and 5.56mm gunfire from at least two assailants as
their car sat in heavy traffic on Martin Luther King Boulevard in
During the early evening hours of March 28, 1995, the Depart-
ment of State contacted the FBI and requested that the FBI inves-
tigate the murder of Bertin in Haiti. It was also communicated by
the Department of State that such a request was being commu-
nicated to the Department of Justice. Communications between the
Department of Justice and the FBI ensued and the FBI expedi-
tiously assembled an investigative team to conduct the investiga-
tion in Haiti.
The FBI's authority to conduct an investigation in a foreign coun-
try in which there is no violation of United States law is based on
the provisions of title 28, United States Code, section 533(3). FBI
agents were dispatched to Haiti and arrived during the early morn-
ing hours of March 29, 1995.
Liaison was immediately established with the Haitian Govern-
ment officials and with United States Embassy personnel. Since
the FBI was conducting a law enforcement investigation in a for-
eign culture with a foreign language and with no contacts of our
own, FBI personnel met regularly in Port-au-Prince with represent-
atives of the United States Embassy, United States military and
other relevant United States agencies in order to obtain assistance
and advice and generally to apprise them of the course of our in-
vestigation. Discussions included investigative strategies, problems
experienced, certain investigative information developed on the
The FBI's investigative strategy was designed to ensure that a
thorough and comprehensive investigation was conducted, in spite
of the FBI's lack of compulsory process, witness protection, et
cetera, in a foreign country. The investigation sought to examine
all possible motives for the murders that included, but are not lim-
ited to, the following:
That the killings were random acts of violence in which Bertin
and Baillergeau were not the intended victims; that Bertin and
Baillergeau were the targets of a robbery attempt; that Bertin and
Baillergeau were targeted as a result of disputes with respect to
spouses or associates; that they were targeted-or that they were
targeted as a result of their involvement in drug trafficking and/
or association with the drug culture and that the victims were tar-
geted because of their involvement in other criminal activity or
that they were murdered because of their political affiliation.
Haitian Minister Justice John Joseph Exume and Prime Minister
Smarck Michel were apprised of the FBI's investigative plan during
the meetings on April 10 and 11, 1995. Contact was made with
Government of Haiti officials to coordinate investigative efforts and
obtain available information. FBI agents met with IPSF personnel
involved in the murder investigation. At these early meetings, it
was agreed that the FBI and IPSF would conduct parallel inves-
tigations and exchange information. However, the FBI is not aware
of whether or the extent to which the IPSF actually conducted sep-
arate investigation of the murders.
Once its own investigation began, the FBI did not pursue an evi-
dence exchange with the IPSF, and provided them no information.
The FBI encountered difficulties and major obstacles at the incep-
tion and throughout the investigation because of the investigation's
unusual nature and other uncontrollable circumstances. In this
case, the FBI was investigating a violation of foreign law. The in-
vestigation was conducted in a foreign country, in a foreign lan-
guage. Moreover, the investigation was commenced at a time when
the criminal justice system in Haiti had not functioned effectively
There were also serious logistical problems and cultural dif-
ferences to overcome. The Government of Haiti was requested to
grant FBI personnel investigating the murders some type of immu-
nity similar to that granted to Embassy personnel. The Govern-
ment of Haiti never responded formally to the request for immu-
nity for FBI personnel. As a result of investigative efforts, particu-
larly source information of unknown reliability, the FBI expressed
to the Government of Haiti the likelihood that it would be nec-
essary to interview Government of Haiti officials and employees,
including Cabinet members.
In early June 1995, FBI agents interviewed various IPSF mem-
bers. Subsequently, the FBI experienced significant investigative
difficulties because of its inability to interview Government of Haiti
officials and employees, including some members of the IPSF and
palace security service on terms consistent with an impartial pro-
The FBI and the attorneys representing the Government of Haiti
officials and employees never reached an agreement regarding the
conditions under which the interviews could be conducted. The
FBI's investigation did not produce sufficient information to iden-
tify any specific individuals as to whom we could attribute respon-
sibility for either the actual shootings or for directing or participat-
ing in the conspiracy in the homicides.
In our view, the question of whether the murder of Mrs. Bertin
was politically motivated remains open and should be pursued in
any future investigation by Haitian authorities. The FBI's inves-
tigation into the Bertin and Baillergeau homicides developed some
definitive evidence linking those murders to other execution style
murders that occurred in Haiti. A special investigative unit has
now been established in Haiti to pursue the investigation of several
high profile murders, including the Bertin and Baillergeau homi-
On December 21, 1995, FBI personnel involved in the Bertin in-
vestigation provided a briefing to Haiti's new SIU on the FBI's
findings in the investigation. The information provided to the SIU
included information that definitively linked the Bertin murder to
other murders. I hope my appearance today will address the com-
mittee's questions regarding the FBI's involvement in the Bertin-
Baillergeau murder investigation in Haiti.
[The prepared statement of Mr. Perry follows:]
PREPARED STATEMENT OF WILLIAM E. PERRY, DEPUTY ASSISTANT DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION
Mr. Chairman and members of the Committee, my name is William E. Perry, and
I am a Deputy Assistant Director of the Federal Bureau of Investigation.
Special Agents of the Federal Bureau of Investigation arrived in Port-au-Prince,
Haiti, during the early morning hours of March 29, 1995, to initiate an investigation
into the murders of Mireille Durocher Bertin and Eugene Baillergeau, Jr. As the
Committee knows, Madam Bertin was a prominent, politically active Haitian attor-
ney, and an outspoken critic of President Jean Bertrand Aristide. Baillergeau was
Bertin's client and had been driving her to a meeting, called on his behalf, concern-
ing a claim which he had made for alleged damage to his personal aircraft.
At approximately 3:30 p.m., on March 28, 1995, both were slain by 9mm and
5.56mm gunfire from at least two assailants as their car sat in heavy traffic on Mar-
tin Luther King Blvd. in Port-au-Prince. Members of the Multi-National Force
(MNF) and members of the Interim Public Security Force (IPSF) responded to the
site. Efforts were made to preserve the scene of the crime.
During the early evening hours of March 28, 1995, the Department of State (DOS)
contacted the FBI and requested that the FBI investigate the murder of Bertin in
Haiti. It was also communicated by the DOS that such a request was being commu-
nicated to the Department of Justice. Communications between the DOJ and the
FBI ensued and the FBI expeditiously assembled an investigative team to conduct
the investigation in Haiti.
The FBI's authority to conduct an investigation in a foreign country in which
there is no violation of United States law is based on the provisions of Title 28,
United State Code 533 (3).
FBI Agents were dispatched to Haiti and arrived during the early morning hours
of March 29, 1995. Liaison was immediately established with Haitian Government
officials and with U.S. Embassy personnel. Since the FBI was conducting a law en-
forcement investigation in a foreign culture, with a foreign language, and with no
contacts of our own, FBI personnel met regularly in Port-au-Prince with representa-
tives of the U.S. Embassy, the U.S. military, and other relevant U.S. agencies in
order to obtain assistance and advice and generally to apprise them of the course
of our investigation. Discussions included investigative strategies, problems experi-
enced, and certain investigative information developed on the murders.
Initial FBI investigative efforts consisted of collecting and preserving forensic evi-
dence, including bullet fragments, shell casings, latent fingerprints, and photo-
graphs. Preliminary interviews attempted to establish specific circumstances of the
act and to identify potential witnesses and subjects. On April 9, 1995, managers
from FBI Headquarters and Miami, flew to Port-au-Prince to assess the matter, de-
termine personnel and equipment resource requirements, assist in the development
of an investigative plan, and to effect liaison with the Ambassador, Deputy Chief
of Mission, the Commanding General of the U.S. Army segment of the Multi-Na-
tional Force, and appropriate members of the Government of Haiti.
The FBI's investigative strategy was designed to ensure that a thorough and com-
prehensive investigation was conducted, in spite of the FBI's lack of compulsory
process, witness protection, etc., in a foreign country. The investigation sought to
examine all possible motives for the murders that included but are not limited to
That the killings were random acts of violence in which Bertin and
Baillergeau were not the intended victims;
That Bertin and Baillergeau were the targets of a robbery attempt;
That Bertin and Baillergeau were targeted as a result of disputes with respec-
tive spouses or associates;
That Bertin and Baillergeau were targeted as a result of their involvement
in drug trafficking and/or association with the drug culture;
That the victims were targeted because of their involvement in other criminal
That Bertin and Baillergeau were murdered because of their political affili-
Haitian Minister of Justice Jean-Joseph Exume and Prime Minister Smarck Michel
were apprised of the FBI's investigative plan during meetings on April 10th and
llth, 1995. Contact was made with Government of Haiti officials to coordinate in-
vestigative efforts and obtain available information. FBI Agents met with IPSF per-
sonnel involved in the Bertin/Baillergeau murder investigation. At these early meet-
ings, it was agreed that the FBI and IPSF would conduct parallel investigations and
exchange information. However, the FBI is not aware of whether, or the extent to
which, the IPSF actually conducted a separate investigation of the murders. Once
its own investigation began, the FBI did not pursue an evidence exchange with the
IPSF and provided them no information.
The FBI encountered difficulties and major obstacles at the inception and
throughout the investigation because of the investigation's unusual nature and
other uncontrollable circumstances. In this case, the FBI was investigating a viola-
tion of foreign law. The investigation was conducted in a foreign country and in a
foreign language. Moreover, the investigation was commenced at a time when the
criminal justice system in Haiti had not functioned effectively for years. Traditional
investigative resources typically relied upon by the FBI are not readily available in
Haiti, for example, public source information and automated vehicle registration in-
formation. The FBI had greater difficulty interviewing witnesses than it would in
the United States because of the language barriers and cultural differences.
Security of FBI personnel was of paramount importance. Although they wore no
uniforms, the Agents were easily identified as outsiders, and thus were potential
targets. The only acceptably safe and secure lodging for FBI personnel was in facili-
ties controlled by the U.S. Army. There were also serious logistical problems in Port-
Au-Prince. It was not unusual for a single trip to conduct an interview or to follow-
up on a lead to require three or four hours of travel time. This was primarily due
to the density of the population, the poor road conditions, and lack of traffic control.
This problem also intensified safety concerns in that it would have been impossible
to respond effectively to a call for emergency assistance by an Agent.
The Government of Haiti was requested to grant FBI personnel investigating the
murder some type of immunity similar to that granted to Embassy personnel. The
Government of Haiti never responded formally to the request for immunity for FBI
The language barrier was a substantial impediment. In order to interview or talk
with most people in Haiti, the Agents had to utilize the assistance of U.S. military
linguists as interpreters. However, notwithstanding the military interpreters consid-
erable skills, obtaining information from Haitian citizens was extremely difficult.
Many witnesses, including persons at the crime scene, were reluctant to talk appar-
ently for fear of retribution from the Government of Haiti and/or individuals respon-
sible for the murders of Bertin and Baillergeau. The citizens of Haiti have been ex-
posed to years of oppression, terrorism, and physical abuse at the hands of individ-
uals represented to be Haitian government or law enforcement authorities. This fac-
tor and other cultural differences made the task of soliciting information and co-
operation from the citizens of Haiti extremely difficult. The interviewees slowly
began to provide more information, but nonetheless continued to express a prevalent
fear of reprisal or retaliation and provided information only on the condition of ano-
Further complicating the investigation was the fact that the FBI has no legal sta-
tus in Haiti. The FBI cannot obtain orders from judicial authorities to compel wit-
nesses to give statements. There is no legal obligation for persons to cooperate or
provide truthful information to the FBI. Similarly, the FBI has no authority to con-
duct searches or obtain subpoenas to gather evidence. The FBI also has no authority
to offer any form of witness protection.
All of these factors slowed the pace of the FBI's investigation of the Bertin/
Baillergeau murders and were frustrating to the FBI Agents in Port-au-Prince.
As a result of investigative efforts, particularly source information of unknown re-
liability, the FBI expressed to the Government of Haiti the likelihood that it would
be necessary to interview Government of Haiti officials and employees including
cabinet members. In early June 1995, FBI Agents interviewed various IPSF mem-
bers. Subsequently, the FBI experienced significant investigative difficulties because
of its inability to interview Government of Haiti officials and employees, including
some members of the IPSF and the Palace Security Service on terms consistent with
an impartial, professional investigation.
Issues were raised regarding the conditions under which the FBI could interview
IPSF personnel. The FBI had extended negotiations with Government of Haiti offi-
cials and the attorneys representing the IPSF officers regarding these interviews.
Ultimately our efforts were stymied by what in our professional judgement were un-
reasonable conditions placed upon any such interviews by private attorneys purport-
ing to represent these individuals.
The FBI's investigation did not produce sufficient evidence to identify any specific
individuals as to whom we could definitively attribute responsibility for either the
actual shootings or for directing or participating in the conspiracy in the homicides.
We do believe, however that we have conducted sufficient investigation to conclude
that it is unlikely that any of the following were motives for the murder: (1) the
victims were the targets of a robbery attempt; (2) the victims were targeted as a
result of a dispute with a spouse or associate; or (3) the victims were targeted be-
cause of their involvement in drug trafficking or other criminal activity. In our view,
the question of whether the murder of Ms. Bertin was politically motivated remains
open and should be pursued in any future investigation by Haitian authorities. Also,
it is the FBI's position that certain members of the IPSF, Palace Security Force, and
the GOH, should be questioned to determine whether they may have information
regarding the murders. The FBI's investigation into the Bertin and Baillergeau
homicides did develop some definitive evidence linking those murders to other exe-
cution style murders that occurred in Haiti.
A Special Investigative Unit (SIU) has now been established in Haiti to pursue
the investigation of several high profile murders including the Bertin and
Baillergeau homicides. On December 21, 1995, FBI personnel involved in the Bertin
investigation provided a briefing to Haiti's new SIU on the FBI's findings in the in-
vestigation. FBI personnel provided reports of forensic laboratory examinations per-
tinent to the investigation as well as autopsy reports and crime scene photographs.
The information provided to the SIU included information that definitively linked
the Bertin murder to other murders.
I hope my appearance today will address the Committee's questions regarding the
FBI's involvement in the Bertin/ Baillergeau murder investigation in Haiti.
Mr. MCCOLLUM. Thank you very much, Mr. Perry.
Ambassador Dobbins, or, Mr. Mallett, do either of you wish to
make an opening statement?
Mr. DOBBINS. No, sir.
Mr. MALLETT. No, sir.
Mr. MCCOLLUM. Neither do.
I would like to open the questions then, and ask you, Mr. Wax-
man, I think, and, Mr. Perry, about the end of the investigation.
I know we usually start at the beginning, but I am going to start
at the end. And what concerns me here are the conditions that
were placed by these attorneys purporting to represent these indi-
viduals that you alluded to, Mr. Waxman. You said that these two
American attorneys who represented them would not agree to the
interview unless the questions were submitted in advance, a ver-
batim transcript were made availableto each interviewee and the
same lawyers were permitted to sit in on all of the interviews.
Were there other conditions?
Mr. WAXMAN. Sir, first of all, let me just say as someone whose
last name starts with "W," I appreciate the effort by anyone to
start at the end of something rather than the beginning.
Mr. McCOLLUM. Very good.
Mr. WAXMAN. The answer to that question is, yes. But before I
give you a more fulsome answer, I am going to caveat my response
by making sure that the committee is aware that I, myself, and the
Justice Department were actually not a party to those communica-
tions. The communications were between the lawyers purporting to
represent the individuals and the FBI, principally the FBI agents
conducting the investigation, although I think Mr. Perry received
some of those letters himself.
Mr. MCCOLLUM. Was Mr.-
Mr. WAXMAN. But I have read the correspondence, and I can at-
tempt to respond in more detail to you.
Mr. MCCOLLUM. Would Mr. Perry or Mr. Mallett be better able
to respond to the actual questions?
Were either of you present at the interviews themselves that we
are talking about? Mr. Perry, Mr. Mallett.
Mr. PERRY. No, I wasn't, Mr. Chairman, but Mr. Mallett, I be-
lieve, can answer that.
Mr. MCCOLLUM. Can you answer that question, Mr. Mallett?
Mr. MALLETT. Mr. Chairman, there were no interviews that were
conducted. We were in the negotiating phase with the U.S. attor-
neys for a period of time.
Mr. MCCOLLUM. Could you pull the microphone over to you,
Mr. MALLETT. I am sorry. I have got a sore throat I am fighting
here. I hope I am responding loud enough for everybody's benefit.
My recollection was they asked for five conditions. One was a
recordation of the interviews, a stenographic or tape recording of
the interviews. Following the interviews, they wanted a prompt re-
view of the interviews, and they wanted to have and maintain a
copy of the transcripts of the interviews. They wanted the one at-
torney to represent, at that time, 13 individuals. They did want an
advanced copy of the interview questions provided to them, and I
think lastly they wanted to have their own interpreters/translators
provided during the interview process.
Mr. MCCOLLUM. Rather than our interpreters? Do we pro-
Mr. MALLETT. Rather than the interpreters that the FBI had
been using during the course of this investigation, yes, sir.
Mr. MCCOLLUM. Were we not going to be allowed to have our
own interpreter there? Or was this in addition to our interpreter?
Mr. MALLETT. These issues were never resolved, but it was our
intention to use our own interpreters during the course of this
Mr. MCCOLLUM. Aren't these extraordinary requests compared to
what you run into in the United States or in other FBI investiga-
tions? Aren't these extraordinary requests?
Mr. MALLErr. Yes, in our estimation they were extraordinary.
Mr. MCCOLLUM. And how did you view this as impeding the in-
vestigation? I mean, obviously there are some reasons why you
didn't-couldn't find these acceptable.
Mr. MALLETT. Well, it became an impediment because it took us
a while to resolve these issues. I believe we started negotiating
with one attorney around July 5 in written format, either by letter
or by facsimile, and they would set forth the identity of their cli-
ents. We would respond to that letter that we were concerned
about one attorney representing as many clients and in whose best
interest that representation would be in.
From that point, there was a-there were the number of stipula-
tions that they placed on the interview process. We responded in
kind and took exception to these stipulations or conditions that
they set on us. A responding letter to us from them was they
couldn't understand why we were objecting to this method so it
was-it was a back and forth letter campaign essentially.
Mr. MCCOLLUM. Were these people you were going to interview,
wanted to interview suspects?
Mr. MALLETT. Well, I think it is safe to say that they were poten-
tially suspects. They were crucial to, I think, the avenue we were
Mr. MCCOLLUM. And some of them were pretty high level offi-
cials in the Aristide Government, were they not?
Mr. MALLErr. They were high level officials in the Interim Public
Security Force and in the Palace Guard.
Mr. MCCOLLUM. Well, they included Cabinet officials, did they
not? Am I not reading that correctly in Mr. Waxman's testimony
and Mr. Perry's?
Mr. MALLETT. I am not sure.
Mr. PERRY. I don't believe that list-I think that list was pri-
marily IPSF and Palace Security Guard. There was-there was in-
terest in interviewing-early on in the investigation we had an in-
terest in-had the anticipation of wanting to interview Minister
level officials some time during the investigation. But these delib-
erations really went towards the initial stages of interviewing Gov-
ernment of Haiti officials in the IPSF and palace security guard.
Mr. MCCOLLUM. All right. I am going to pursue this and then I
am going to yield to Mr. Conyers. But you ran into this problem
in July to begin with? Then, Mr. Waxman, you and Ambassador
Dobbins and Mr. Perry, I guess it was, went to see Mr. Aristide,
President Aristide, and you got concessions you thought were going
to work on this, and then you went back to have these interviews
and these conditions that these attorneys presented that Mr.
Mallett just outlined were presented.
And then you said to us in your testimony, Mr. Waxman, that
after this occurred, following a series of communications in August
and September which failed to yield agreement on acceptable inter-
view terms, the FBI with the full backing of the Department of
Justice, concluded its investigation had come to an end of its useful
life. What communications?
Mr. WAXMAN. OK. Let me just-let me see if I can explain, Mr.
Chairman. The problems, the roadblocks that precipitated my re-
quest-the Attorney General's request that I go down and meet
with President Aristide had nothing to do with private lawyers for
these individuals. There were no private lawyers for these individ-
uals. They were-there were separate roadblocks which I can ad-
dress if you're interested and you have time.
When we went down and discussed those perceived roadblocks
with President Aristide head on and got an acquiescence on his
part and on behalf of the Haitian Government that we could pro-
ceed on our terms with the understanding, which we recognized,
that based on his representation that Haitian law required the
Haitian Government to provide a lawyer for a Government em-
ployee in a criminal investigation, we agreed that if they could-
that the people we wanted to interview could have a lawyer so long
as it was not a lawyer employed by or representing the Haitian
Government, very similar to our own judicial system here.
When the FBI wants to go interview a criminal suspect or a wit-
ness in a criminal case, an individual is free to say, I want to have
my lawyer present or to place any number of conditions on the
interviews. What is different-what was different in that cir-
cumstance was that here, if the FBI says, well, we are not going
to agree to those conditions, the FBI goes to an assistant U.S. at-
torney and says, I want to pursue this. I would like you to sub-
poena this individual before the grand jury and he'll be questioned
in the grand jury where he won't even have a lawyer. In Haiti, we
didn't have the ability to go beyond those.
Mr. MCCOLLUM. No, I understand that. But what were the com-
munications that you had in August and September that led to the
conclusion that you couldn't reach acceptable interview terms? And
with whom were those communications?
Mr. WAXMAN. There was an exchange of letters between the FBI
and the American lawyers purporting to represent these three indi-
viduals-these 13 individuals, negotiating the terms. That is, they
started off saying, fine, you can do the interviews, but you have to
agree to the following five conditions.
Mr. McCOLLUM. All right.
Mr. WAXMAN. The FBI then wrote back and said, well, we will
agree with you on four-on one of them, but the other four condi-
tions have to apply. They, then, wrote back to the FBI with a legal
brief about why the conditions were still unreasonable and the FBI
came back again and said, OK, we will agree-for example, we will
agree to let you have the lawyers be in there. OK. We will agree
to let you have your interpreter in there, but we are going to have
our own interpreter in there.
And then, finally, the FBI agreed, in a manner that is quite un-
usual for it, to have a verbatim transcript of the interviews main-
tained but on the condition that they be treated the same way
grand jury transcripts are treated here. That is, we would make a
verbatim transcript of the interview and keep-and maintain its
secrecy until such time as it was turned over to the Haitian au-
thorities for prosecution.
And they could not-they would not agree to produce their wit-
nesses unless their witnesses and these two lawyers saw and main-
tained copies of all of these transcripts. And it was at that point
that the FBI communicated to the Attorney General that in their
view that was inconsistent with the investigation.
Mr. MCCOLLUM. Well, did, at that point-or did you or Mr. Perry
or did Ambassador Dobbins or Ambassador Swing or anyone else
go to meet again with President Aristide and say, look, we have got
a problem. You committed to us to allow these interviews to hap-
pen, and now this-this attorney is insisting on this. We have
been-we have gone overboard to meet their demands. Do some-
thing about it.
Mr. WAXMAN. I know that I personally and the FBI and the Jus-
tice Department corporately did not go back to President Aristide.
I would be surprised if the State Department didn't, although I
think in fairness it was our perception that since these lawyers
were purporting to represent only the individuals and not the Hai-
tian Government, and ostensibly that was true, we couldn't con-
clude that this-what we viewed as the intransigent position of the
defense lawyers could be attributed to the Haitian Government.
Mr. MCCOLLUM. Ambassador Dobbins, did you go back to talk to
Aristide at any time about this?
Mr. DOBBINS. I don't recall a conversation with President
Aristide, although I can check and put for the record whatever Am-
bassador Swing might have said on the subject to the President.
I certainly expressed on several occasions in this time period my
impatience to Government of Haiti representatives who were famil-
iar with this issue and urged that these issues that we are talking
about be wrapped up as quickly as possible and that more flexibil-
ity be shown meeting the FBI's conditions.
Mr. MCCOLLUM. Well, since you didn't have any subpoena power
in that country, since there weren't certain rules and regulations,
didn't President Aristide have the power to basically say, all right,
come on guys, give the interview, be responsible? Couldn't he have
ordered that? It looked to me like somebody had that power.
And why didn't you then go there at this point, if you really want
to investigate these murders, and insist on your position with him
again? It is very frustrating for us to sit up here and hear you say
today that, you know, you ran into this back wall and you had this
deal and you went further down the road than I realized until this
afternoon, and you got to this point and then this one lawyer
stands up and says whatever he did at the end, and you said, no,
and you walk away from it because you assume that he has got the
power to do that, and you can't get around it. I am perplexed. I
really am perplexed by that.
Well, Mr. Conyers, would you care to inquire?
Mr. CONYERS. Yes, thank you very much.
Thank you, Mr. Chairman.
Your 10 minutes are up, Mr. Chairman.
Mr. MCCOLLUM. If you want to use more than 10 minutes.
Mr. CONYERS. No, I don't need them. I just wanted to point out
you were asking such salient and pertinent questions that no one
on the committee would dare interrupt the chairman during his
presentation, but there was-the clock was ticking all the time.
And also, Mr. Chairman, I would like to point out to you that we
were visited by the gentleman from Florida, Mr. Alcee Hastings,
distinguished member of the Committee on International Relations.
He has since departed, but he was in conversation with many of
these same witnesses on this same subject, and I want the record
to reflect that.
Mr. MCCOLLUM. Certainly, it would reflect that and we are glad
to have Mr. Hastings in here sorry he had to leave.
Mr. CONYERS. Yes, and while we are reflecting, we have Major
Owens of New York, who also visited that committee and is
present, and he incidentally, heads up the Haitian Task Force
within the Congressional Black Caucus, and he is with us pres-
Mr. MCCOLLUM. I see Major Owens down there, you slipped in
on me. I welcome you to sit in. Obviously, not being a member of
the subcommittee we can't grant you powers here but we are happy
to have you visiting with us.
Mr. CONYERS. Now, this is a very prestigious panel. I can't re-
member the last time we had a couple of Ambassadors, No. 2 men
in the Department of Justice, the FBI. This is big time.
I am sorry that the subject is so small. I mean, we could solve
a lot of problems and criminal justice international law and other
jurisprudential matters with all of you here today. But hey, I am
ranking and we have a chairman that is doing a good job.
Do you find it ironic that according to your version, a couple of
American lawyers came down and gummed this process up; is that
what you are, in effect, telling me?
Mr. WAXMAN. Did you want to direct that at someone?
Mr. CONYERS. Do you mean, am I serious? Do I really want an
answer on that?
Mr. WAXMAN. No, I just want to know who is supposed to answer
I think you know one could characterize it that way. I think it
is somewhat simplistic. I am-I have not been in the position of
representing these individuals and I am not in the position of hav-
ing been an FBI agent conducting this investigation.
I will say, and this is somewhat in response to the chairman's
last question, but it most directly responds to yours, Mr. Conyers,
that if this were-if this had been an investigation in the United
States subject to U.S. laws, the assertions by the defense lawyers
for these individuals that their clients could be questioned only
under these certain terms would have been readily and effectively
challenged, as such claims are readily and effectively challenged all
It is quite common in complex law enforcement investigations for
defense lawyers to come in and say they represent a whole group
of people and you can only talk to them if you wear a red tie and
you are really nice and you speak Serbian-Croatian to them and all
these other conditions, and the FBI can try and negotiate or it can
simply say we can't go forward on that basis, and send it to a pros-
ecutor to pursue and to use compulsory process in the United
Mr. CONYERS. OK
You want to add?
Mr. MALLETT. Yes, Congressman, in talking with individuals as
we do during the course of our investigation, we employ an inves-
tigate strategy to do that and we want to put the people that we
talk to in the position that we are going to get as much out of them
as we possibly can in furthering our investigation and also not
being in a position where we tell them more than we find out dur-
ing the course of an investigation.
So it is a strategy employed in that and we felt in this particular
case, with the conditions that were involved in going forward with
this, in a U.S. court or U.S. investigation, we would clearly at this
point in time go to probably a compulsory process, the grand jury,
for example, to give a subpoena for him to appear in that regard.
We are in a position that complications existed in terms of how
far we could go forward and whether those people would be in a
position where we wanted them to be in to talk to us in the way
we wanted to.
Mr. CONYERS. All right.
Now, all three of you have spoken to this already in your state-
ments, but let's make sure everyone on the committee, particularly
our chairman, is not disturbed about the unusual circumstances
that surround this matter.
This was not a routine FBI mission. Everything from language
to culture, to transportation, to law, to no existing judicial system,
no police capacity, no investigative-no guarantee to a witness
talking to them, what on earth would happen? We are in a new
country almost rebuilding from scratch, and don't all those cir-
cumstances make it plausible that what you did and how you re-
acted-and even how the Government of Haiti reacted-were pret-
ty normal under the conditions that you were all working?
Mr. WAXMAN. I would use the term understandable, recognizing
that we were really, not only we, but the Government of Haiti were
attempting to do something, really writing on a clean slate. I mean,
we have not had experiences in the past where we have been
called-Ambassador Gelbard may recall one or two precedents, but
they are precious few, in which we have been asked by a sovereign
nation for reasons of its lack of its own resources, to come in and
do an investigation of a violation of their citizens in their country
of their laws, particularly when there have been allegations that
very senior members of the Haitian Government itself, in the for-
eign government itself may be implicated.
So I would prefer to answer-I would prefer to substitute the
word understandable for your remarks. I can understand what I
believe to be and has been explained to me as the motivations of
the Haitian Government, but I also well understand the reactions
that we had and that the Attorney General's insistence that if we
were going to be there to investigate, we be so on terms that our
FBI considered to be consistent and essential to an impartial pro-
It was-let me say, it was certainly-everybody understood from
the outset of this unusual operation that there would come a time
in which the investigation would have to be turned over to Haitian
authorities. We don't have the-as everyone on the panel has men-
tioned, we do not have compulsory process, we don't have access to
the judicial system. If these-the perpetrators of these crimes were
going to be prosecuted or questioned under oath, it would have to
e by a Haitian authority.
And so I think what was disappointing to us is that we could not
find a way consistent with our professional methods to do this next
round of interviews and any others that we can discern as a result
of what we obtained, but it was not a source of disappointment that
we had to turn the investigation over to the Haitians to complete.
Everybody understood from the outset that that is what was re-
quested, desired and required.
Mr. CONYERS. Thank you very much.
Would you care to add, Ambassador-
Mr. DOBBINS. I would just like to add an answer to that question
and the preceding one. And I have to say personally I share the
chairman's frustration and impatience with this situation at the
time it existed, and I share it still. And the need for a thorough
investigation to be conducted into this crime remains a high prior-
ity with the administration. It hasn't been done and it needs to be
Mr. GELBARD. Could I just add something else, too, Congressman?
As Mr. Waxman said, I can cite some other examples where we
have requested assistance from the FBI in other countries. They do
not involve circumstances where there was a total lack of institu-
tional framework as we have here. It is rare that there are cir-
cumstances where there is no counterpart. Normally, the whole
purpose is to work with a counterpart, assist an investigation and
try to assist some type of action.
Two cases come to mind immediately. One was to assist the Gov-
ernment of El Salvador in the investigation of the Jesuits who were
murdered. I have to say we experienced great frustration because
there were obstacles presented there by the Salvadoran Army, as
you well know, Congressman.
Second, when I was Ambassador in Bolivia and had the pleasure
of you visiting me, we had a case where terrorists kidnapped a very
prominent Bolivian. The President of Bolivia asked me to see if we
could get FBI technical assistance. We got readily two outstanding
members of their hostage rescue team to help with negotiations.
In spite of that the Bolivians went on with their own operation
and the Bolivian who was kidnapped was murdered. The Ameri-
cans who came in from the FBI were ignored.
It is a difficult set of problems. We cannot be in a situation as
with the Jesuit murders in El Salvador where we can ignore a re-
quest for assistance. We cannot be in a situation as in Bolivia
where the President of the country came to me and asked for ad-
vice in a terrorist kidnapping. By the way, the same group later
attempted to blow up our Marine house and blow up my house.
The difference here, as you said, Congressman, is the lack of any
counterparts, any institutional framework as we have begun, as I
said in my statement, and as you said, sir, we have begun from the
beginning to try to help with the development of the institutional
framework. At the same time, as Ambassador Dobbins said, we
share the chairman's frustration very much because we were un-
able to proceed to a successful conclusion here. Some of it was sus-
picion, some of it may be other things, including the possibility that
some of the people who were-who we felt might be implicated, in-
But as Mr. Waxman said, in the final analysis what we wanted
was for the Haitians to be able to begin to establish that kind of
institutional framework as we have begun to do through the train-
ing of a new independent Haitian police and a special investiga-
So we hope and indeed expect that there still will be a satisfac-
tory outcome to these investigations by apprehending those who ac-
tually committed the crimes.
Mr. CONYERS. Thank you very much, because my final question
is where do we go from here? That is to say what are you doing
or what can this committee be told about your future relations with
the new Government of Haiti in terms of criminal justice, law en-
forcement efforts and other cooperative activities that are going on?
Mr. GELBARD. We continue to believe that in any country, devel-
oping country or developed country, the core of any democracy is
a strong justice sector that involves the establishment of an honest
professional police, judiciary, prosecutorial system, penal institu-
tions and legal framework. We have been trying to approach this
in Haiti on a comprehensive basis.
It has moved slowly, it has never existed. There have already
been extensive meetings between United States Government offi-
cials, including Ambassador Swing and others, with President-elect
Preval and others on his transition team, to talk about all these
issues, including the need for honest, professional individuals to
head the new Haitian police.
It is interesting, by the way, one proof that democracy is func-
tioning is that the Haitian Senate recently rejected the nomination
of the man who had been-who was commander designate of the
Haitian police, rejected him overwhelmingly, and he was somebody
whose background has indeed concerned us deeply. We feel that
there are other good signs in terms of the removal of people who
are, we believe, corrupt.
Recently-yesterday, I saw from the Haitian press that a num-
ber-a dozen members of the Haitian IPSF, the interim public se-
curity force who will now be subject to an examination process, to
look at whether they have committed human rights violations or
common crimes, removed themselves from consideration rather
than be subjected to these investigations. This is exactly why we
wanted, and indeed insisted on, this kind of investigations process.
So we are optimistic. The fact that over the course of only 1
year-it is important to remember this-1 year in the history of a
country that you know well, Congressman, 200 years, no demo-
cratic tradition, we have been able to, as Mr. Waxman says, train
4,300 of our target 5,000 police, people who were selected on the
bases of honesty, no political background, I think bodes very well
for the future of that country. But we need to stay the course, and
the Haitian people and the Haitian Government need to stay the
Mr. MCCOLLUM. Well, thank you very much, Mr. Conyers.
Mr. CONYERS. Just let me thank him, too, sir.
I would like to conclude by saying that I am grateful to you for
A number of us are going to Haiti for the installation, the swear-
ing in ceremony of the new President and this information is very
important to us.
Thank you, Mr. Chairman.
Mr. MCCOLLUM. We have now had our equal time and I am
going back to enforcing the 5-minute rule when I think you have
more than equal, but that is OK.
Mr. Buyer, you are recognized for 5 minutes.
Mr. BUYER. Thank you, Mr. Chairman.
I think we all recognize that when you jump into cynicism some-
times it can come back and bite you.
I am bothered here for a moment. Who requested the FBI inves-
tigate the murder, who actually made that request, State Depart-
ment, the Haitian Government or United States Ambassador, who
Mr. GELBARD. At the time of the murders, the United States Em-
bassy in Port au Prince informed the State Department, various
people in the State Department that these murders had occurred
and suggested that we try to get assistance from the FBI.
Mr. BUYER. OK, State Department made request to DOJ.
Mr. GELBARD. If I may finish, because I will give the answer.
At the time, based on consultations within the State Department
and with my superiors with the White House, I called the FBI, I
called the then Deputy Director of the FBI, Larry Potts.
Mr. BUYER. Who in the White House?
Mr. GELBARD. Who-
Mr. WAXMAN. Are we talking about who you spoke to?
Mr. GELBARD. Who did I speak to in the White House?
Mr. BUYER. Yes.
Mr. GELBARD. I don't remember. It was several people. But ulti-
mately senior White House officials did talk to the Attorney Gen-
eral on a parallel basis to request FBI assistance.
Mr. BUYER. So for-Mr. Waxman, to state before this commit-
tee-I am going to give you an opportunity to clarify your remark-
that we did this because we were asked by a sovereign nation to
come in; that comment to this committee then is not accurate, or
Mr. WAXMAN. No, it is fully accurate. That is based on our under-
standing-the Justice Department was-if I may finish, sir-the
Justice Department was advised that the Government of Haiti had
requested and the State Department was similarly therefore re-
questing on behalf of the Government of Haiti that the-
Mr. BUYER. Mr. Aristide requested that we-
Mr. WAXMAN. I can answer that-let's just make sure we under-
stand what everybody is understanding, this-that Madam Bertin
was murdered at 3:45 in the afternoon. My understanding-
Mr. BUYER. And this was 3 days before President Clinton was to
Mr. WAXMAN. I will give you a disclaimer up front, and then say,
yes, I think so. I was not personally involved in any of these events
that we are about to talk about, and that is how we got to be there.
But what I do know is that the President's National Security Ad-
viser, Mr. Lake, called the Attorney General a few minutes before
6 o'clock that evening and said-and asked whether or not if the
Department of State and the Government-of Haiti were to request
FBI assistance with respect to this terrible event, which he de-
scribed, would the Justice Department be favorably inclined to
grant that request? She said yes.
There were thereafter-were direct communications, as Ambas-
sador Gelbard has explained, from the State Department directly
to the FBI, and then a conversation between the Attorney General
and the Director of the FBI, following which a decision was made
to dispatch the team.
Mr. BUYER. Right now answer the question; did Mr. Aristide re-
quest that we come?
Mr. GELBARD. If I can please answer the question, sir.
Well, since I have firsthand knowledge of this-as I said in my
statement-maybe I should read the paragraph again.
What I said in my statement was after contacting appropriate of-
fices in Washington about possible help from the FBI, Ambassador
Swing discussed the idea with President Aristide who said he
would welcome it. The point was we wanted to be sure that before
the Ambassador specifically went to President Aristide, that the
FBI was prepared and the Justice Department was prepared to
provide the assistance.
Mr. BUYER. OK. Will you do this for me; will you provide for me
the cable traffic between the Ambassador's office to us because-
there is some controversy perhaps about what was actually said
and who is to comment on-Aristide's feelings that he is really
doing this because of the pressures he is feeling at the moment. So
if you would provide for us the cable traffic in the State Depart-
ment in July and August 1995; is that all right?
Mr. GELBARD. We would be happy to do that, Congressman.
Mr. BUYER. That would clear this up real quick.
Mr. GELBARD. The Clinton administration-just to be clear on
this, much of this, because these were very rapidly unfolding
events, took place by telephone, as I just
Mr. BUYER. You know-take a step back for just a moment. Here
is my concern, why I am sitting here at this hearing. This isn't so
much for Haiti. I have been so wrapped up in Bosnia, we are get-
ting involved in all these nation-building-type exercises when gov-
ernmental structures aren't in place. The President the other night
comes before us in the State of the Union, says he doesn't want to
use the Nation's military as the world's peacekeeper, what, we are
going to use the FBI as the world's policemen?
So I wanted to get into the decisionmaking process of why we go
into these nations and if I can better understand that. I read the
statute, Mr. Perry here just said here is our justifications about
why we are going in. Wow, I have got to broadly take this statute
to figure out how I can get the FBI to go in. That would be very
helpful to me to get that information. I appreciate you-thank you
Mr. GELBARD. But as I said in my opening comments, you are
concerned about this whole issue of involvement of U.S. agencies
overseas. I think it would be useful either now or I would be happy
to have a private discussion with you to talk to you about this in
terms of why we feel, as I said earlier in terms of response to a
question, that it is important to support the establishment and con-
solidation of democracy. What this often means is that it is impor-
tant to provide support for establishing laws and legal framework.
Mr. BUYER. Well, please include in your remarks the cable traffic
from March 1995, and the June and July.
Mr. MCCOLLUM. Thank you, Ambassador Gelbard.
Thank you, Mr. Buyer.
Mr. Scott, you are recognized 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
Just to follow up on that, and I am a little confused about what
the point of the hearing is, but let me just follow up on that last
It doesn't concern me really whose idea it was to begin with, but
you are satisfied that President Aristide-suggested to him or not
suggested to him, invited the FBI to come to Haiti; is that right?
Mr. WAXMAN. It was-the Justice Department's understanding
that both the Government of Haiti and the United States Depart-
ment of State were requesting the FBI to come to Haiti-
Mr. SCOTT. And it might have been-the idea may have started
off on our side, but the Government of Haiti invited the FBI or ac-
cepted an offer that they wanted the FBI there; is that right?
Mr. DOBBINS. I think-I mean, this is an oral recollection, but I
think the exchange, as the Ambassador recounted it to me, was-
he told President Aristide, we have just heard about Mrs. Bertin's
assassination. President Aristide said I am so outraged by this I
cannot speak-something to that effect. Ambassador said, would it
be helpful for you in dealing with the situation if the FBI were to
come down to assist? President Aristide said, I would welcome that.
Mr. SCOTT. So-so whosoever idea it was, the Government of
Haiti wanted the FBI there; is that-Ambassador Dobbins is
Mr. DOBBINS. Yes.
Mr. ScoTT. And we can get back into whose idea it was and all
of that, but I think that-one of the questions that keeps coming
up in dealing with the witnesses, they were-I guess, understand-
ably concerned about who was transcribing the statements and
what they might say after translation. If they had been brought be-
fore a grand jury, a good transcript would have been taken and
they would not have to worry about it. Is that the gist of the prob-
lem with the investigation, is that the major roadblock?
Mr. WAXMAN. Well-
Mr. ScoTT. Work out that negotiation?
Mr. WAXMAN. It is really hard, it was hard for me at the time
looking-examining at the time the correspondence was going back
and forth, and even looking back in retrospect, to identify what the
problem was. The FBI did not have in mind to have transcripts at
all. They wanted to do the kind of interview they always do. There
is no transcript there. The idea of a transcript was a demand by
the defense lawyers.
Mr. SCOTT. I think we are dealing with getting the FBI out of
the country. And in general, do you have similar roadblocks in
doing an investigation if you are doing an investigation in other
countries? Do you have-I mean, you always-you never have road-
blocks, always have roadblocks doing a drug investigation in Co-
lombia-I mean, do you have roadblocks?
Mr. PERRY. Well, when we do investigations in foreign countries,
usually it is also based on violation of U.S. law and perhaps foreign
law. I think this is somewhat of a unique situation, where it is
based solely on foreign law. But we still proceed in terms of what
we think would be a professional and complete investigation and
the circumstances under which we want to talk to people, we want
to make it professional from the standpoint of the opportunity to
get the information in a manner that the person that is going to
provide the information to us feels comfortable in the venue that
they are giving it, and also the facts.
Mr. SCOTT. If you are doing a drug investigation in Colombia, do
you have roadblocks?
Mr. GELBARD. Yes.
Mr. ScoTT. How do they compare to these roadblocks?
Mr. GELBARD. Well, the difference is we don't do independent in-
vestigations in places like Colombia. We are working there to sup-
port the activity of the Colombian National Police.
As I said earlier, what happened here, and as Mr. Perry says, the
FBI was dealing on their own without counterparts, with no legal
framework and, of course, they were-
Mr. ScoTT. I think the point is you have roadblocks any time you
do an investigation out of the country.
Trying to keep to the subject matter; how do you decide whether
we are going to use FBI resources outside of the United States-
what are the guidelines? I think a couple of you kind of alluded to
it in your statements.
Can you kind of restate just generally-how you get the FBI out-
side of the country?
Mr. WAXMAN. I don't think I can make a comprehensive state-
ment, and perhaps Mr. Perry can fill in. But-I have cited the au-
thority that the Justice Department uses to dispatch the FBI in the
infrequent instances it does in foreign countries, to be subsection
3, of 28 United States Code 533, which authorizes the Attorney
General to appoint officials to conduct investigations regarding offi-
cials-official matters under the control of the Department of Jus-
tice and the Department of State, and it is our-it has been long-
standing and consistent interpretation across many administra-
tions in the Justice Department that that subsection requires that
either the Department of State or the Department of Justice have
an official interest in the matter before an investigation may be au-
Mr. SCOTT. Any question on this investigation, whether or not
those facts were there?
Mr. WAXMAN. We were satisfied based on the representations
that were made to the Attorney General and the FBI by the Na-
tional Security Adviser and the Department of State, that those
conditions were met. Now, there is-I am sure there is no one in
the Government that is more concerned about the appropriate de-
ployment of our growing, but nonetheless, scarce law enforcement
investigative resources in the Justice Department to particular-to
devote to particular law enforcement-type problems, and we do not
have a policy where any time any foreign government or the State
Department says, you know, it would be a great idea to have the
FBI do this, this or this-we just say, yes, that is fine, send them
These kinds of missions assigned to the FBI are very much the
exception and not the rule. And therefore, all I can say I think in
response to your question is that in order to send the FBI to inves-
tigate or to provide investigative assistance in a foreign country,
the Attorney General has to be satisfied A, the statute is satisfied,
and B, that the circumstances surrounding the State Depart-
ment's-the State Department's request are of such a magnitude
that they justify spending the-twice the FBI's resources in this
manner, as I think the chairman averted to in his opening state-
Mr. MCCOLLUM. Thank you, Mr. Scott.
Mr. Coble, you are recognized for 5 minutes.
Mr. COBLE. Thank you, Mr. Chairman.
Gentleman, good to have you all with us today.
Mr. Perry, I guess you probably appropriate one to answer this.
We live and work in a town up here that is awash in red ink.
You cannot get away from red ink in this town. Having said that,
do you have any idea, and few don't have, can you provide us with
the information as to the cost of this exercise?
Mr. PERRY. Yes, Congressman, I have an estimate that we did.
The total cost in terms of-that includes personnel resource
Mr. COBLE. If you don't have it precisely, an approximate figure.
Mr. PERRY. Approximately, $791,000, the estimated costs, and
that includes approximately 55 percent of which are personnel
Mr. COBLE. $791,000?
Mr. PERRY. Yes, sir.
Mr. COBLE. I want to extend-the gentleman from Virginia was
talking about roadblocks. I want to get back to roadblocks. Road-
blocks, as he pointed out, are not a case of first impression in this
case. I guess you all encounter roadblocks from time to time.
Did anyone involving these roadblocks, did anybody go to Presi-
dent Aristide or his people and say, listen, we are getting hassled
here, clear this roadblock or remove this roadblock so we make
some progress here? Was that ever done?
Mr. GELBARD. Yes, Congressman, it was done by me on two occa-
sions, one by Mr. Waxman and Mr. Dobbins, and another incidence
with the Ambassador, Mr. Mallett and myself.
Mr. COBLE. And did the roadblocks, in fact--did they disappear?
Mr. GELBARD. We believe we had resolution on the roadblocks,
that initial meeting that I had with President Aristide on the 27th
of June. We felt we could proceed investigatively with the interview
of the Government of Haiti officials under circumstances, that was
fine with us.
Subsequent to that meeting, approximately 2 days later we re-
ceived information that we can no longer conduct any interviews,
and that primarily occurred from a phone call from Minister of Jus-
tice Exume to the FBI, in which he said we could not proceed until
the FBI agreed to conduct-other murder investigations of people
that were murdered in Haiti.
Mr. COBLE. Well, gentleman, do you think these roadblocks
Is it your belief that these roadblocks were with the knowledge
and the approval of President Aristide or his enemies, or a com-
bination of both, or do you have a good feel for that?
Mr. WAXMAN. I have to say that with respect to the roadblocks
that existed that precipitated my visit down there, I think to a very
large extent they were the understandable result of a foreign sov-
ereign government attempting to figure out what the ground rules
should be when you let a law enforcement agency of another gov-
ernment come in and do an investigation.
I mean their position was, look, if you all wanted to interview
members of the Haitian Government, that is fine, but we want to
have a Haitian Government official there because these people
work for us.
I can understand why they took that position, but I can also un-
derstand why the FBI, investigating a case in which a prominent
alleged motive is Government involvement in a political assassina-
tion, had to say, look, given the allegations, we just can't do that.
So when I went down there, it was to address a number of, we
can call them roadblocks, but positions that the Haitian Govern-
ment, I believe with President Aristide's knowledge if not his direc-
tion, had imposed, and what the Attorney General asked me to go
down and do is two things: first of all, to meet with the agents and
find out whether they had any concerns about their personal safety
and whether they felt that the investigation should continue; and,
secondly, to sit and to find out from them what frustrations and
what problems they were having and then to go meet with the
President of the country and very respectfully identify for him the
conditions under which we would agree to go forward.
I did that, and he agreed with our conditions, but he did state
in that meeting and thereafter that under Haitian law these indi-
viduals that we wanted to interview had a right to be represented
by counsel, and the Haitian Government would not seek to inter-
pose its own counsel in those things but they could hire private
lawyers. And that's entirely consistent with Justice Department
and FBI policy here. And we said, fine.
The problem that came up after the-after that-was that the
private lawyers that the these people hired turned out to, A, be the
same people in each instance and, B, to impose conditions on an
interview that the FBI felt would compromise its investigation. At
that point, the position of the Haitian Government was, don't talk
to us, we told you you could interview these people and you didn't
have to tell us in advance, and we're not insisting on anybody
being there, but these people have private lawyers and their law-
yers can impose whatever conditions they want.
Mr. COBLE. Mr. Waxman, pardon me, that much dreaded red
light illuminates. The chairman does not like red lights.
Mr. Chairman you've been very generous so far. Can I have one
more question? And I hate to cut you off, but I want to put this
question to you all.
The SIU, the special investigative unit, was that entity formed
principally at the urging of American Government officials there.
Is that why that was put in place?
Mr. WAXMAN. I don't know about principally. But I know that for
several months the United States Government had been urging the
Haitian Government to create such a unit to develop its own capac-
ity to investigate, solve, and prosecute these crimes. We have
leaned very heavily on them.
Mr. GELBARD. I add to that: When we first began the process of
trying to design a new comprehensive national police force, and the
planning for that began as early as late 1992, one of the elements
of that, one of the plans, was to first have basic training, as it
were, for the basic police and then begin to develop specialized
units: forensics, homicide, and so on. One of them was always going
to be a special investigations unit.
What we did in this case was accelerate the development and
training for this unit. And, yes, it was done principally at our sug-
gestion, but that fit with the design and architecture of the whole
new police force which we have been working on with the Haitian
Mr. COBLE. Do you want to add anything to that Mr. Dobbins?
Mr. DOBBINS. Only that precisely because of the possibility that
Haitian Government officials might be involved in these murders,
we urged that this unit be given a certain degree of autonomy of
the structure and some steps in that direction were made.
Mr. COBLE. I want to get into this in more detail later. But, Mr.
Chairman, I thank you for your courtesy.
Mr. MCCOLLUM. Ms. Jackson Lee.
Ms. JACKSON LEE. I thank you, Mr. Chairman, for the oppor-
tunity to pose questions.
Hopefully, I can be narrowly focused on, maybe you were asked
before, but certainly within the context of our international linkage
and international partnerships.
These questions will go to Mr. Waxman and to Mr. Perry. I am
somewhat confused, or maybe-and I apologize if these questions
have been previously answered and I might have been reviewing
some material and may not have caught all the details that you of-
fered-but I am understanding that you engaged in, at the request
or inquiry of certain parties, a murder investigation, in particular
Madam Bertin, it is my understanding, and in pursuing it you had
gotten to a point where you secured the net or obtained several in-
dividuals who needed to be questioned, had their names, as I un-
derstand it, a number of about 13, and they wound up with either
a single representation or two lawyers representing them.
I would offer to say, as I understand the facts, that maybe we
were not as familiar with both the culture and some of the con-
cerns that might have been expressed by these defendants. The
murder was tragic. I would hope that we could find a solution or
resolve several of the murders that have come to our attention.
Certainly, the 5,000 killings under the previous despot were also
tragic. But can you tell me why it was difficult to operate with
counselors representing these defendants, who had an attorney-cli-
ent privilege where you could not have participated with the client
with the lawyers there present and also have them-or responding
to their request about transcripts and reviewing the transcripts?
Because I guess what I hear in the request, unless I did not see
the underpinnings of the request, there was a cultural difference,
a language difference. They had every right to feel comfortable as
witnesses that what they said in French or whatever dialect they
spoke in was being clearly understood by your agents, many of
whom, I assume, did not speak French.
Why did you stop the investigation for some simple conditions
that we would have adhered to somewhat in the United States, not,
I understand, in the investigatory process? I know you're working
within the police mode, but this was sort of a different operation
where you were investigating, but you were in a foreign country.
And I think you should have leaned toward getting the facts or get-
ting as much, because you could have culled through that and pos-
sibly through your own investigatory talents and ability you would
have been able to see what witnesses and their demeanor and how
they answered questions may not have been as truthful as others,
but out of the whole pool you would have gotten something versus
not getting anything.
I ask Mr. Perry and Mr. Waxman to respond.
Mr. PERRY. Yes, Congresswoman. At some point in time we knew
we had to turn this investigation over to the Haitian Government
to be adjudicated in any way it could be adjudicated, based on an
investigation. We at the FBI were trying to conduct that independ-
ent investigation as best we could to find out as much information
that dealt on the murder investigation as possible.
OK. It is important, when we interview witnesses or people that
we feel have knowledge or possible involvement, that we put them
in the position as well as us to best-to give the opportunity for
us to get the most amount of information we possibly can.
In a situation like this, where we had the requests of the coun-
sels, we did not want them to go back and to correct testimony, et
cetera, in several of those.
But we also had the position of one attorney being paid by the
Government of Haiti to represent all the people that we wanted to
talk to in the Government of Haiti when we were looking to probe
to those individuals about their possible involvement because part
of the information that was-we were getting was that there were
perhaps people from the Government of Haiti. It was the motiva-
tional aspect of the murder that we were probing at that particular
So, given the fact that we in a foreign country are probing and
investigating possible involvement of people within the Govern-
ment of Haiti that might have been involved, it is important to us
that we put ourselves and them in a position where we can get in-
formation in the best way possible. If that is a compulsory process,
then so be it, and that is the way we should go. We should not take
anything less than that in terms of-
Ms. JACKSON LEE. If I may briefly just respond. Obviously, I
know we could go on and on about a debate about this question.
You were put in an unorthodox set of circumstances. You were
more or less called in to be investigators and to have authority
where the authority was in question, at best.
What I would argue, I would argue differently, is that because,
again because of your investigatory skills and recognizing that
there was some merit to these defendants having counsel and even
though traditionally that might not have occurred, the cart before
the horse in the United States where you do your investigation,
lawyers are not involved. But by you questioning these individuals
as to the 13 of them, you asked a question that said, was the Gov-
ernment involved, and each of them, if attorney was present, was
instructed not to answer it.
You at least had a consistent pattern that would have given
some evidence to you or you could have put in the report. We asked
13 witnesses, and everybody said no. And to us, it seemed strange.
And so you seem to me to have cut out your opportunity for devel-
oping some knowledge about this tragic murder and maybe other
murders by refusing to participate or to agree to certain restraints
that I don t think were that extreme, especially in a foreign coun-
try, especially since you were not part of the security force.
So I just question that, not your ability and not your goodwill or
intent. I would have wanted us to really accept the fact that those
were realistic entries that were made.
May I get a little flexibility, Mr. Chairman, because others have
Mr. BUYER [presiding]. One more question quickly.
Mr. PERRY. I would like to defer to Mr. Mallett to respond.
Mr. MALLETT. I would like to respond by saying that the stipula-
tions placed on the investigation by the attorneys, there were five
stipulations and there were no negotiations between the stipula-
tions. It was all or none.
The FBI acquiesced on the stipulation with regard to recording
or transcribing the interviews. The FBI acquiesced on the stipula-
tion that there be a translator or an interpreter present during the
What we did not acquiesce on was an advanced list of the ques-
tions. We did not acquiesce on their demands that the transcription
be given to the witnesses or the counsel subsequent to or after the
Quite simply, we have a lot of people to interview, and we didn't
want subsequent interviews tainted or tarnished by previous infor-
mation provided. So it wasn't a situation where we weren't bending
to accede to their requests or their demand. We did do that in
many instances. We just didn't accede to all of them.
Mr. BUYER. The gentlelady's time has expired.
Ms. JACKSON LEE. I think others-more time, Mr. Chairman. I
am sorry the chairman is not in the chair because the others have
questioned for 10 minutes, and I think I can at least have Mr.
Mr. BUYER. We'll be having a second round.
Ms. JACKSON LEE. That is just absolutely-I won't be here for the
second round, that's for sure.
Mr. WAXMAN. I would, at some appropriate time--
Mr. BUYER. Hold on. Let me ask this: Does anyone else have any
further-to answer to that question, if so, I will indulge.
Mr. WAXMAN. I had thought that the question was at some point
directed to me.
Ms. JACKSON LEE. It was, Mr. Waxman.
Mr. WAXMAN. I certainly-I affirm everything that Mr. Perry and
Mr. Mallet have said.
I also just want to point out I think you need to understand
First of all, first of all, we did not perceive this as an all-or-noth-
ing proposition; that is, either we conduct these interviews or
they're not going to be conducted. This, in our view, was-the ques-
tion in our mind was, is this the time to turn this over to the Hai-
tian unit to do these interviews, or do we want to proceed on the
terms in which the two U.S. lawyers were demanding?
And it is that question that we were answering. We would very
much have preferred-I can tell you because I talked to the agents
on the ground, and Agent Mallet will confirm it, our agents on the
ground did not want to leave Haiti. They felt they could solve this
case. But it was our judgment, it was the FBI's judgment, that be-
cause of the factors that these two agents have identified and
also-and this very important-also the fact that we were operat-
ing here in an environment of Haitian law where the rules of eth-
ics, the standards for criminal investigation and the standards for
the type of evidence that could go before a juge d'instruction in a
formal legal proceeding were very, very unclear.
We were never, for example, able to identify in the Haitian Code
the requirement that President Aristide articulated for us that a
Haitian Government official must have a Haitian Government-pro-
vided lawyer in a Government investigation. And we were con-
stantly being reminded that we had to conduct our investigation in
a manner that would not prejudice the subsequent prosecutions of
these cases consistent with the dignity of the Haitian law.
Now, one thing that Haitian law doesn't have, for example, is
verbatim transcripts when a witness or suspect is questioned by
the investigating magistrate. There is actually a system where
there is a scribe who takes notes, and that is the transcript.
We actually had some questions in response to the defense law-
yer's inquiries as to whether it would bollix things up for the pros-
ecution if we took a verbatim transcript. And we satisfied our-
selves, we think, that we could have. But these other requests
about having the same lawyers do it and having these lawyers
have access to and retain copies of the transcripts, it's not just that
they made-they were so inconsistent with professional FBI prac-
We were also concerned not to do something that could be held
up later after the fact to have jeopardized the Haitians' own follow-
on prosecution. And that, I hope, provides you some of the context
for the way in which we saw it.
Ms. JACKSON LEE. Thank you. And I thank the Chair for his in-
dulgence. I will question you later by writing.
Mr. BUYER. Thank you.
Mr. Heineman, you are recognized for 5 minutes, literally.
Mr. HEINEMAN. Why are you stopping now, Mr. Chairman?
Let me get back to the transcript business. Did those lawyers
want transcripts of everybody's testimony, the questions and an-
swers, or did they just want the transcripts of those people that
they were representing?
Mr. PERRY. Well, Congressman, the one lawyer represented all of
them. So he would get all of them.
Mr. HEINEMAN. OK.
Mr. Perry, how long have you been Deputy Director in FBI?
Mr. PERRY. Almost 1 year, Congressman.
Mr. HEINEMAN. OK. Do you recall whether the FBI ever sent any
agents to Somalia to investigate American deaths?
Mr. PERRY. Congressman, I don't know.
Mr. HEINEMAN. Mr. Mallett.
Mr. MALLET. I don't recall, sir.
Mr. HEINEMAN. I don't, either.
Who investigated, Mr. Mallett, who investigated past murders in
Mr. MALLETT. Well, I'm not an authority on that. But when we
got into the country, it was a widely held belief that probably no-
Before the preceding 2 years, it was estimated that 400 murders
had been committed in Haiti. I don't think any of those-
Mr. HEINEMAN. Four hundred murders in Haiti in 2 years, and
this was the first one you have been asked to investigate. Is that
Mr. MALLETr. My understanding.
Mr. HEINEMAN. OK.
Mr. Gelbard, you indicated that there was no support, you indi-
cated that there was a total lack of institutional framework, where
law enforcement was concerned, in Haiti.
Mr. GELBARD. That's correct.
Mr. HEINEMAN. And, Mr. Dobbins, you were the liaison with
Haiti. Were you in Haiti or were you-
Mr. DOBBINS. No. My job is here. I am a advisor of Secretary of
State Christopher on Haiti. We have an Ambassador, Haiti Ambas-
Mr. HEINEMAN. When did we-and I don't recall specifically-
when did we put troops in Haiti?
Mr. DOBBINS. September 1994.
Mr. HEINEMAN. September 1994.
Do you recall having to-a civilian assigned to Haiti relative to
organizing their police force, a Mr. Ray Kelly?
Mr. DOBBINS. Absolutely.
Mr. GELBARD. Mr. Kelly's responsibilities, since I hired him, were
to manage the international police monitors who were going to
monitor the activities of the Haitian military and police, military-
The training of the police was something that, as I said in my
statement, was done by an office that comes under the Department
Mr. HEINEMAN. And was Mr. Kelly's assignment there to train
Mr. DOBBINS. His assignment was, as Ambassador Gelbard said,
was to run a corps of 1,000.international police, who went in coinci-
dent with the American troops, to relieve the American troops of
law enforcement responsibilities during a period where there was
no effective police force, Haitian police force.
Those individuals, those 1,000 international police, were to mon-
itor and, in large measure, to themselves assist and do criminal po-
lice work while a Haitian-a new Haitian police force was created.
Mr. HEINEMAN. And by the nature of crime and priorities, cer-
tainly murder had to have a very high priority as it relates to that.
Mr. DOBBINS. Sure.
Mr. HEINEMAN. So when the murder occurred on the 28 of
March, Mr. Mallet, do you recall where there was any investigation
prior to your people going to Haiti to conduct their investigation?
Mr. MALLETT. Yes, sir. When we arrived in the country about-
at the scene of the crime about 5 o'clock or 6 o'clock that morning,
the crime scene has been preserved. That was the extent of the in-
vestigation. I think some evidence had been picked up. Shell cas-
ings had been picked up, I believe, by members of the multi-
national force that were preserving the crime scene. But that was
the extent of it.
Mr. HEINEMAN. And there was no technical support down there
for that, for the investigation, crime scene investigation, photo-
Mr. MALLETT. Prior to our arrival, there was no investigation, no.
We sent an evidence response team down with the first flight, and
they initiated the crime scene investigation to include photographs,
lifting of latent fingerprints, ballistics examination and such.
Mr. HEINEMAN. Did you get any support from-I don't know
whether Mr. Kelly was there at that time.
Mr. GELBARD. The murder occurred on March 28. The multi-
national force and Mr. Kelly and his international police monitors
were also departing March 31, 3 days later. Mr. Kelly, at my re-
quest, sent a few of his international police monitors who had pro-
fessional police skills over to at least help preserve the crime scene,
working with the multinational force until the FBI could come.
Mr. HEINEMAN. OK. I see my red light on. Mr. Chairman, I
just-I agree with, halfway agree with, my colleague from Michi-
gan when he characterized the problem as so small. My immediate
question was, with such a small problem, why did we have to send
the FBI down to Haiti for 7 months? And probably your reference,
my friend from Michigan, was not in that respect, and I can-
Mr. CONYERS. Would the gentleman yield?
Mr. HEINEMAN. I yield.
Mr. CONYERS. Yes. My reference to the small problem was in
comparison with the size and magnitude of this awesome panel
that is before us.
Mr. HEINEMAN. Well-
Mr. CONYERS. Not the FBI that went down there.
Mr. HEINEMAN. Well, the FBI went to Haiti for 7 months, and
these folks came across town.
I yield back my time.
Mr. MCCOLLUM [presiding]. Thank you very much.
Mr. Barr, you're recognized for 5 minutes.
Mr. BARR. Thank you, Mr. Chairman.
Mr. Waxman, I just want to clear up one quick question here be-
fore moving on to a more fundamental one, and that regards the
attorneys, the attorneys from the United States we are talking
about. They were, in fact, being paid by the government of Haiti;
is that correct?
Mr. WAXMAN. That is my understanding.
Mr. BARR. And they were the ones that essentially thwarted the
Mr. WAXMAN. Well, they-
Mr. BARR. Placed conditions that the FBI, in the conduct of its
investigation, deemed inappropriate and basically avoided the
whole purpose of the interviews.
Mr. WAXMAN. I certainly prefer your latter characterization.
Mr. BARR. However you-
Mr. WAXMAN. They were the ones who imposed conditions,
which, under the circumstances, as I've explained to them-them
to Ms. Jackson Lee, the FBI felt it was no longer prudent for it to
proceed, but rather to turn it over to Haitian authorities.
Mr. BARR. No; I understand. I just want to make sure I under-
stood that they were being paid by the Haitian Government.
Mr. WAXMAN. I have no firsthand knowledge of it, but it is my
understanding, and I believe in a prior hearing-
Mr. BARR. You say there are records of that also?
Mr. WAXMAN. In a prior hearing on this subject before the House
International Relations Committee, another one of the esteemed
members of this panel said they were paid by the Haitian Govern-
ment, and I-
Mr. BARR. I share your understanding on that. I mean it is my
understanding, as well.
Mr. WAXMAN. Was-
Mr. BARR. Would it be fair to say, then, that this investigation
was proceeding insofar as it could proceed under Haitian law?
Mr. WAXMAN. I'm sorry, could I ask you to restate-
Mr. BARR. Would it be accurate to say that the investigation was
proceeding under Haitian law?
Mr. WAXMAN. Our investigation?
Mr. BARR. Yes.
Mr. WAXMAN. Well, it was an investigation as to alleged violation
of Haitian law.
Mr. BARR. But the terms, the terms under which it was proceed-
ing, for example, that the attorneys had to be present and so forth,
would it be accurate to say that as the investigation proceeded, not
what brought us there in the first place, was proceeding under the
terms of Haitian law?
Mr. WAXMAN. We tried to conduct the investigation. In fact, the
FBI, one of his senior advisers brought down to Port-au-Prince to
try and make sure of it, we tried to conduct the investigation in
a manner that was not in any way inconsistent with Haitian proce-
The problem I have with saying under Haitian law is that we
didn't have access to commissaires and judges of instruction and
the kinds of process that ordinarily exist in Haiti and all other civ-
ilized countries to conduct a criminal investigation.
Mr. BARR. It wasn't being conducted under the terms of U.S. law,
the procedures themselves certainly-
Mr. WAXMAN. The procedures that the FBI employed were proce-
dures that were consistent with two objectives: one, the Attorney
General's direction that the investigation be conducted independ-
ently, impartially and professionally; and, two, that it be conducted
in a manner to the extent possible and knowable that was nbt in-
consistent with Haitian procedures.
Mr. BARR. Well, what I'm trying to get at, and this gets me to
the fundamental question here, you all have referred to 28 U.S.C.
533(3). I was generally familiar with it. But I asked my staff per-
son to bring it in so I can be certain, and I read it over several
times during the course of the proceedings here today, including
the annotations. I'm sure that you are much more familiar with it
than I am, seeing as you all cite it for the basis for this whole oper-
ation in the first place.
In looking at the language of the statute itself, I find one of the
operative phrases, one of them, by the way, says that the Depart-
ment of Justice and the Department of State-not or, I don't know
who was saying or, but it doesn't say or, it says and, but I find one
of the key operative phrases under 533(3), matters under the con-
trol of the Department of Justice and the Department of State
under the control of.
How does one conclude that this investigation was a matter in
any way, shape or form under the control of our Department of
State and/or the Department of Justice? Clearly, it wasn't under
I look under the only annotation that provides any FBI guidance
here in U.S.C.A., which is annotation from page 117, and it relates
to an immigration judge in the Virgin Islands as being something
under the control of the Department of Justice, and I think that
clearly would be the American Virgin Islands, an immigration
judge down there. This one doesn't bear any relationship at all to
How in Heaven's name, other than simply trying to search
around and find something that provides a basis for a policy deci-
sion that was made by the President, was this a matter regarding
official matters under the control of the Department of Justice and
the Department of State?
Mr. WAXMAN. Well, as I said previously, sir, it has been the De-
partment's consistent and longstanding interpretation of that sub-
section that you have cited to require that either the Department
of State or the Department of Justice have an official interest in
the matter before an investigation may be offered.
Mr. BARR. It doesn't say "matters of interest to." And words are
important here, I think. I mean, they may not be in Haiti, but they
are under our system of Government. It says official-"official mat-
ters," that is one important term of art, "under the control of,"
which is another operative phrase there.
What was the official matter that gave rise to this in the first
place? And how in heaven's name was it under the control of either
the Department of State or the Department of Justice? And quite-
I am not talking about anything previously with regard to murder
of United States priests or nuns in El Salvador or whatever. I am
talking about in this instance. I am really having a hard time find-
ing out how 533(3) applies.
Mr. WAXMAN. I know I am going to start repeating myself. I fully
understand your interpretation of this statute. I want to assure you
that we didn't make this-make up the interpretation upon which
we based our decision to send these agents at the time. The De-
partment consulted longstanding rulings within the Justice Depart-
ment that construe this provision in the manner in which I have
just said. And I-I completely understand your reading of the stat-
ute, and I have given you, as best I can, our reading of the statute.
Mr. BARR. Will we have time, Mr. Chairman, to have more ques-
Mr. McCOLLUM. We will have a second round, indeed.
Mr. BARR. Thank you.
Mr. MCCOLLUM. Thank you very much, Mr. Barr.
Mr. Bryant, we are just about to finish the first round of ques-
tioning and go to a second round. Would you like to ask some first
round questions or do you want me to proceed with the second
Do you want to go ahead and ask first round questions now, or
do you want me to proceed with the second round? We are going
to have a second round, if we have time.
Do you want to yield to me at this point?
Mr. BRYANT of Tennessee. Yes.
Mr. MCCOLLUM. All right. Let me ask a couple of quick questions
in the 5 minutes that Mr. Bryant is yielding to me.
Mr. Mallett or Mr. Perry, maybe one of you can tell me this, my
understanding from reading published reports in the Haitian press
is that Cabinet Minister of the Interior Beaubrun was implicated
in the press in the Bertin murder. Was the FBI ever able to inter-
view this particular Cabinet member? I think Beaubrun is his
Mr. PERRY. Yes. Mr. Chairman, we did not interview Mr.
Beaubrun. We knew at some point in time that we would proceed
towards interviewing Cabinet officials, but we hadn't done that
with Mr. Beaubrun. Mr. Beaubrun was reputed-reported to be in-
volved in the initial conspiracy investigation. I think that was al-
luded to earlier. That occurred, I think, the military uncovered
that-that conspiracy on the 19th of March. We didn't investigate
that, but it was reported that Mr. Beaubrun was involved in that
Mr. MCCOLLUM. Did you investigate any other political murders
besides the Bertin one while you were there, or attempt to?
Mr. PERRY. No, we didn't. We didn't, Mr. Chairman. We didn't
do investigations of others, but we-we looked to retrieve informa-
tion from possibly others to see if it would help in our investiga-
Mr. MCCOLLUM. Well, did you find from any of this that you col-
lected that the Bertin murder was connected with any other mur-
ders in Haiti?
Mr. PERRY. Yes, Mr. Chairman, we found definitive links be-
tween the Bertin Baillergeau murders and other murders that had
been conducted in Haiti.
Mr. MCCOLLUM. And how many murders do you estimate that
were connected, that you had evidence of the connection?
Mr. PERRY. I believe five murder investigations somehow con-
Mr. MCCOLLUM. And all of this has been turned over to the SIU
at this point; am I correct?
Mr. PERRY. Yes, Mr. Chairman, it has.
Mr. MCCOLLUM. Is it correct, and I am not sure who to ask this
to, that at one point President Aristide requested, suggested, I am
not sure which, but I got down here requested, the FBI to inves-
tigate not just Bertin but a whole lot of other murders, 5,000 or
something like that, is the number I have got written down on my
piece of paper here. Is there any truth to that, Mr. Waxman?
Mr. WAXMAN. Yes, there is, to this extent: The President ex-
pressed on a number of occasions in conversations, I think both
with FBI agents and Embassy and other State Department offi-
cials, a desire that the FBI investigate not only the Bertin inves-
tigation, but other investigations as well, pointing out the very
large number of political assassinations or apparent political assas-
sinations that had occurred during the prior regime and in particu-
lar he mentioned the assassination of former Justice Minister
Malary, Father Vincent and one or two other cases.
Our response to that, and this was a subject that I addressed
with the President when I met with him, and I know others did
on other occasions, was that one of the things that we-one of the
things that the Justice Department did in putting together a jus-
tice-criminal justice assistance package to Haiti was to set up
something called a felony trial unit, which consisted of two or three
United States prosecutors who went down under a USAID contract,
who worked with Haitian investigations and Haitian police depart-
ments and with FBI forensic sources, and offered itself to the Hai-
tian Justice Minister, and this predates Madam Bertin's assassina-
tion, to help them kind of pursue and investigate and prosecute fel-
ony crimes. And I must say I will give credit where I think it is
due, to Ambassador Dobbins, who felt and has strongly articulated,
since we are starting essentially from scratch building a police
force and building a Judiciary, why don't we put our efforts into
a unit that can show the Haitian people tangible results?
Mr. MCCOLLUM. Well-
Mr. WAXMAN. And our response-I will just be 1 more minute,
Mr. Chairman. Our response to President Aristide was, the FBI
does not have unlimited resources and in particular does not have
resources that are sufficient to allow it to take over another 1, 2,
3, or 5,000 investigations in Haiti.
Mr. MCCOLLUM. Exactly.
Mr. WAXMAN. We will, again, renew our offer to the Government
of Haiti to assist in a very significant way in the investigation of
these crimes through the felony trial unit that is in Haiti awaiting
Mr. MCCOLLUM. Do you, Ambassador Dobbins, or Ambassador
Gelbard or you, Mr. Waxman, or any of you know, Mr. Perry, is the
SIU actually investigating the November 7 murder of President
Aristide's cousin, Deputy Jean Uber Valval and the wounding of
Deputy Gabriel Fortune? Do we know that they are actually inves-
tigating it? Have they done anything with that? Because we under-
stand that Mr. Fortune had a press conference in January of this
year in which he implicated members of the President's inner cir-
cle, et cetera, et cetera. And this, to me, the reason for asking this
question goes to the credibility of the SIU. Are they?
Mr. DOBBINS. Insofar as we are aware, they have not initiated
such an investigation.
Mr. MCCOLLUM. And the last question for you, Ambassador Dob-
bins, that I have, it is my understanding and I want to know, is
it true that in-in August or thereabouts, at the time the discus-
sions were going on about what was going to happen with this FBI
investigation, that Ambassador Swing actually, our Ambassador in
Haiti, suggested that Justice Department officials make another at-
tempt to convince Aristide to resolve this matter?
In other words, you-that goes to the heart of my point and ques-
tion earlier. Why didn't we go back? And there is indication here
that I have that Ambassador Swing made a request back here to
Washington presumably through your shop, but I don't know that.
Mr. DOBBINS. I-I think-I think-that is entirely plausible, in-
deed probable. I don't recall the particular telegram if that is what
it was in, but it is the sort of thing that would have happened. I
think he and I and others had repeatedly stressed the importance
of clearing up these difficulties and moving this investigation for-
Mr. MCCOLLUM. But the bottom line--
Mr. DOBBINS. I understand your question, sir. I think the ques-
tion was whether to send another special delegation down to meet
with the President and essentially elevate it in that sense. And I
think that the-the answer was that we had-we were coming to
the conclusion that if these obstacles were raised, we would find
other ones, partially for structural reasons having to do with the
incompatibility of our legal systems, partially because a lot of the
people we wanted to question may not have wanted to be ques-
tioned and that the better approach was to put the burden of con-
ducting this investigation on the Government of Haiti, with assist-
Mr. MCCOLLUM. Well, this goes back to begging the question all
the way around. Why did we go down in the first place if we didn't
recognize the obstacles? Why didn't we have a book like Mr. Wax-
man or a procedure like Mr. Waxman says you are now developing
as to what you are going to expect of a Government like this before
you go in, and then once you are in there, you put 750,000 dollars'
worth of resources of FBI into it to just drop this investigation be-
cause you are frustrated after the attorney is saying you won't-
you get down to one impediment, Mr. Waxman said, and we still
didn't go back to Aristide after putting all of those resources in.
Mr. DOBBINS. I don't think-
Mr. MCCOLLUM. That bothers me. It really does bother me. I am
not trying to say you didn't have some rationale for getting out of
there, but the point of our oversight is the use and the proper use
of the FBI, not criticizing foreign policy. That is not our role. But
why in the world would we allow our FBI to go down, and I think
they are a wonderful institution, and be frustrated like this and
then Vice President Gore was down there at one point publicly in
all this period, no indication he ever talked to Aristide about it. I
mean-and this request apparently of Ambassador Swing, and no-
body went-nobody went back down there to talk with him. Nobody
tried to convince Aristide to intervene after that July meeting and
the impediment. And I know what you are saying, but it does both-
Mr. DOBBINS. I don't think-I mean, I will have to check the
record. I don't think that it is correct that nobody talked to
Aristide. I suspect Ambassador Swing did and I expect he did it
with our encouragement. But I think the point is at what point did
we decide to change tactics? Now, the situation had changed.
In March, the Haitians had no capability of conducting an inves-
tigation and the United States, as the leader of the MNF, had a
responsibility for security in Haiti, which we then transferred
gradually back. So the situation had changed.
Mr. MCCOLLUM. Well, I understand. I don't want to take a lot
more time, but it just seems to me with your comment about the
SIU not doing any investigation that we know of about Fortune
and Futwa, they haven't changed. We didn't get our job done. For
whatever reason, they ain't doing it either.
Mr. CONYERS. Thank you, Mr. Chairman.
Mr. MCCOLLUM. Oh, I am sorry. Mr. Chabot, you have not had
your first round. I took Mr. Bryant's time.
Mr. GELBARD. Could I just add one thing, please, sir?
Mr. MCCOLLUM. Mr. Gelbard.
Mr. GELBARD. The fact of the matter is that the SIU is still a
small entity. They are investigating many cases right now. They
have a list of cases which do include the Bertin investigation. They
include other people who-
Mr. MCCOLLUM. Well, Mr. Gelbard, I know what you want to
say. I don't want to waste a lot more time, but my point is made
only in the sense that you have got a guy up in Canada, Fortune
or whatever, Fortune, saying, you know, all these things implicat-
ing the Government, and that is a pretty big deal and SIU is choos-
ing not to investigate. I don't think that looks too good for them.
Mr. GELBARD. No, but I think the-
Mr. MCCOLLUM. Mr. Chabot.
Mr. CONYERS. Can the witness respond, though, Mr. Chairman?
The Ambassador has spent all afternoon with us.
Mr. MCCOLLUM. If he would like to respond. I just didn't want
him to waste anymore of his time on this.
Mr. CONYERS. Well, it is your question that he is responding to.
Mr. GELBARD. Well, I hope my response wouldn't be considered
a waste of time, Mr. Chairman.
Mr. MCCOLLUM. No, I did not want to waste more of the commit-
tee's time in an area that had perhaps already been probed enough.
Mr. CONYERS. Your questions are very important, Mr. Chairman.
They deserve a response.
Mr. MCCOLLUM. If you want to respond some more, and Mr. Con-
yers wants the ambassador to respond.
Mr. GELBARD. We have had extensive discussions with the Gov-
ernment of Haiti, with the SIU, in the aftermath of the establish-
ment of that unit. They are investigating a large number of these
supposed political assassinations. Because there has been a sub-
stantially greater number than their capacity can deal with right
now, they are trying to deal with the ones that were agreed upon
from the beginning.
As I mentioned earlier, there are advisors from the French Gov-
ernment, from the Canadian Government. We are providing assist-
ance very soon. But they can only at this point deal with a certain
number of these murders. Haiti is a very violent society. There
have been a large number of murders committed. And they are try-
ing to accomplish the investigation and try to find the culprits in
the murders of many of these cases, including the one which we are
discussing today. It is my full expectation that they will also at-
tempt to investigate these others.
I think it would have been a most serious mistake to drop, for
example, the Bertin investigation if they had to then pick up some
Mr. MCCOLLUM. Now, Ambassador Gelbard, I don't see any indi-
cation that they have gotten anywhere with Bertin, but that is be-
yond the point, I guess.
Mr. Chabot, you are recognized for 5 minutes in the first round.
Mr. CHABOT. Thank you, Mr. Chairman. I will yield my time to
the gentleman from Tennessee, Mr. Bryant.
Mr. BRYANT of Tennessee. Thank you.
Mr. CONYERS. Mr. Chairman, point of order. I just wanted you
to observe that you have consumed 12 minutes.
Mr. MCCOLLUM. Mr. Conyers, I think at least half that time was
consumed because you asked me to pursue this a little bit further.
Mr. CONYERS. Well, you consumed it nevertheless. I always ap-
prove of you following my suggestions, sir.
Mr. McCOLLUM. Mr. Chabot is recognized for 5 minutes.
Mr. BRYANT of Tennessee. Thank you. I have his time.
Mr. McCoLLUM. He yielded to Mr. Bryant. All right.
Mr. BRYANT of Tennessee. Mr. Perry, on behalf of the FBI, can
you tell us how many agents were involved in the investigation of
this murder in Haiti?
Mr. PERRY. It varied during different segments of the investiga-
tion, Congressman. By, I think, 4 or 5 the next day, the 29th, I be-
lieve, there were 16 agents on the ground in Haiti. The murder
took place on the 28th, about 3:45. The first agents arrived about
3 or 4 in the morning on the 29th, proceeded to the crime scene.
During that day, additional agents arrived and a total of 16 were
on board at the time.
During April and May, I would say during that period of time 16
investigative agents were in Haiti during April and May. From
that point on, I think it declined until the time-it declined during
the latter-next period of time, and I would say in September or
October, that time frame, we are talking about the two that were
left-until they departed on October 13, those last two. I would say
16 for the first couple of months and then 10 to 12, somewhere in
that vicinity, until July, August, when it cut down considerably be-
cause there was less investigative activity.
Mr. BRYANT of Tennessee. Those were the agents that were in-
Mr. PERRY. That is agents in-country, yes, Congressman, and
there were also some support people accompanying them. Early on,
I would say four or five and then down to none for the last couple
Mr. BRYANT of Tennessee. Let's see. Mr. Ambassador-Ambas-
sador Dobbins, let me ask you a couple of questions, if I may, about
Ambassador Swing. I had the occasion to meet with him down
there, and let me commend him. He is an outstanding Ambassador,
and I think-
Mr. DOBBINS. Thank you.
Mr. BRYANT of Tennessee. And a fine career officer.
Would it be a fair statement to say that before the FBI came into
the country, that the Ambassador did not have the express agree-
ment with Haitian officials that they would fully cooperate or make
witnesses available to these investigators?
Mr. DOBBINS. I think in the light of hindsight, probably more ex-
plicit assurances of that kind would have been desirable. I think
that in the circumstances of the case, at the time and in the short
term, Haitian cooperation was almost a nonissue because you had
a situation in which the Haitians had no institutions with which
we could interface, other than the President. This began to be an
issue as their own institution slowly took form and as the case
began to move toward interviewing a certain number of people.
So, I mean, I think the answer is in retrospect more assurances
of this sort certainly would have been desirable. I am delighted
that the FBI is sort of doing up-or the Department of Justice is
doing up a checklist. I think we learn from our experiences.
At the time we were practically governing the country in March.
I mean, that is a slight exaggeration, but the U.N. hadn't taken
over. The mandate was still very broad. And the FBI was, if any-
thing, relieving the U.S. military of tasks which otherwise might
have fallen to it as much as they would to the Government of Haiti
at that particular time.
Mr. BRYANT of Tennessee. When I was there, I did not get into
this at all with the Ambassador. I was there to visit with the sol-
diers and see how they were doing. But I am wondering now, did-
of course, he is your man onsite. Did he have any views toward the
FBI leaving later that year as opposed to maybe going ahead and
talking to these witnesses, notwithstanding the guidelines laid
down by their lawyers?
Mr. DOBBINS. I don't think he and certainly not I or the State
Department had a view on the appropriateness of whether tran-
scripts should or should not be provided. We just weren't expert
enough. It wasn't an area in which we had background. We there-
fore didn't advise the FBI. We were confident that whatever they
decided on that was appropriate. We very much wanted the FBI to
stay as long as there was a prospect of them breaking this case.
When they told us that they had concluded that there wasn't and
that turning it over to the Haitians was, in the view of the Depart-
ment of Justice, the right way to go, the State Department con-
curred in that.
Mr. BRYANT of Tennessee. Let me just close and ask either Am-
bassador or either gentleman from the FBI a question that I
think-Mr. Waxman, I don't mean to ignore you.
Mr. WAXMAN. Go right ahead.
Mr. BRYANT of Tennessee. I think this is a question that one of
them can answer. But would I be right in concluding that basically
the FBI effort down there was wasted? I mean, we have nothing
to show for it in terms of actually identifying culprits with suffi-
cient evidence that would lead towards a successful prosecution?
Mr. PERRY. We don't-
Mr. BRYANT of Tennessee. Whomever, I don't know.
Mr. PERRY. We don't have sufficient evidence to lead toward a
prosecution, but we have information that I think that we provided
to people that could continue this investigation under a judicial
process, if it existed, to go ahead like in our country, I think that
it could proceed.
Mr. BRYANT of Tennessee. But those people don't exist down
there now, do they, that you could turn this information over with
Mr. PERRY. We turned it over to the SIU. In terms of the ability
of the now infrastructure to do that, I don't know, Congressman.
Mr. BRYANT of Tennessee. Thank you.
Mr. DOBBINS. Could I add a point to the question of whether it
Mr. BRYANT of Tennessee. Yes.
Mr. DOBBINS. I think the chairman or somebody in opening the
hearing noted that only 14 percent of the murder cases in the Unit-
ed States are solved. But one doesn't consider it a wasted effort to
seek to solve the others. It is a form of deterrence. It is a form of
a society trying to do something about a problem it considers intol-
We were trying to do something about a problem which we be-
lieve is and should be intolerable, which is political violence in a
society that has had too much of it. We felt that this could make
a start in addressing that, not in any conclusive fashion, and we
continue to believe that is a serious problem that needs to be ad-
dressed, and we are going to continue to use our resources to con-
tinue to address it.
Mr. BRYANT of Tennessee. Thank you, gentlemen.
Mr. WAXMAN. Could I just take you up on your statement that
you didn't intend to pass over me and offer my thoughts? Because
I really do think you asked a question that I know in the Justice
Department we have asked ourselves quite a bit since the FBI
went down there.
Was it a waste? I will offer my own personal view. I don't think
it differed substantially from the Justice Department's formal view.
But I feel very strongly that the FBI's efforts in Haiti were not a
waste. I am quite proud, actually, about what the FBI was able to
accomplish, for a number of reasons.
We are talking about an incident as it was portrayed to us, and
I believe to be the case, that occurred at one of the most fragile
possible moments in Haiti's United States-assisted transition to de-
mocracy and the rule of law. That is the week that the multi-
national force was leaving, and there would be a much lower level
of assistance and supervision by the United Nations. We are talk-
ing about an era in which from the time that President Aristide
came into-resumed his Presidency until the date of the assassina-
tion, had been a period remarkably free, even by the standards of
a United States city, of murders and political violence of any sort.
Consequently, when this event occurred at this critical time,
there was a real fear of not only-not only in Haiti, but people who
were concerned about United States policy in Haiti and our troops
in Haiti that this-all we needed was a spark and that the assas-
sination, cold-blooded assassination of President Aristide's most
vocal critic in broad daylight in Port-au-Prince could provide that.
Now, we will never know whether or not if the FBI didn't come
there would have been a wave of violence or not, but it was a real
fear by people all across the political spectrum that this was a
threat coming at the most vulnerable time, and I don't think there
is any doubt that the immediate show of FBI force at the time had
the effect of dampening tensions.
The agents on the ground have told me, and I know they have
told Special Agent Mallett, and I believe he feels this way, too, that
this was in no way a waste of time; that it not only provided a very
solid basis for the first major part of an investigation that never
could have been done if the FBI hadn't been down there, and gave
people in Haiti-and General Senzur, the U.N. commander, has
stated this on a number of times, the impact on the morale of the
developing Haitian National Police and the Haitian people, who
were seeing for the first time that there actually is a criminal jus-
tice process which can proceed scientifically and impartially to try
and establish the rule of law, I think those are very important con-
tributions, and I really-I must differ with the characterization-
I think I heard the chairman say that we did all this work and
then just left and gave up and it was for nothing.
We have left the Haitians not only with a sense of what the rule
of law means, but we have left them with essentially a file that
contains real, solid, hard investigative work upon which they can
build. We have all-the FBI has already heard from the SIU ask-
ing for more information and assistance with respect to the Bertin
investigation. And I just-you know, I don't think it was wasted.
Would we do this every second Tuesday? No way. Would we do
it if a similar request came up next year? We would look at it on
the merits. Would it have been better if we could have continued
and done all these things and presented a complete portfolio to the
Haitian prosecutors? You bet. There was nobody more disappointed
when we decided to leave the two agents than the agents who had
been there in Port-au-Prince, you know, putting their professional
efforts on the line. It could have been better, but it sure wasn't a
Mr. BRYANT of Tennessee. I understand. And I would close just
by saying that I certainly concur that the FBI, given the cir-
cumstances you had to work under, did a great job in getting as
much as you got. My comment was more, well, so what? They got
to that point and they had to be pulled out because of the cir-
cumstances there and, in fact, probably nothing will ever come of
this, but this is not a criticism of the FBI.
Mr. WAXMAN. No, I understand completely.
Mr. BRYANT of Tennessee. Thank you.
Mr. MCCOLLUM. I am going to recognize Mr. Conyers, but I can't
help but to comment in doing so that the SIU has not yet proven
that my skepticism is unjustified.
Mr. CONYERS. Thank you, Chairman McCollum. I would like to
correct the record in terms of my initial comments when this hear-
ing was commenced. I questioned its purpose and its usefulness,
and I would like to withdraw that comment or at least modify it,
to applaud the chairman of this committee for holding these hear-
ings, applaud the witnesses for giving us not only this afternoon
but the hours of preparation for this committee and other commit-
tees in Congress that you have been before and knowing my Con-
gress, other committees you may yet go before.
This is an important hearing, and I want to-I want my full sup-
port to be reflected in the record about it.
I also wanted to indicate to Ambassador Dobbins and to Associ-
ate Deputy Attorney General Waxman that your attempts to set up
a felony unit are only characteristic of the long chronology of at-
tempts to create a nation almost out of whole cloth that had been
going on. That is just one random instance that has been brought
to the committee's attention. But, you know, this is not a computer
game. We are talking about 6 million people without a Govern-
ment, without a law enforcement system, with no police, with no
ballistic, scientific capabilities.
I mean, this is very critical and the impressions that are given
are very sensitive and sometimes are misconstrued. And so it is im-
portant that we proceed with the care and caution that has been
reflected by all of you as witnesses on what our Government did
I find myself really sympathetic and rather proud of what you
have been doing down there.
The question that looms to me far more than one incident, ter-
rible incident of murder, is we now have-we don't have a world
celebrity like President Aristide. We have a second person elected.
Seven people in this room can tell you his name. What happens
now, not to this trial, but to this government, to this system that
we have worked so hard on? And not have poured $791,000 into
it, but hundreds of millions of dollars and the American imprima-
tur of what democracy is supposed to be about.
Where do we go from there? And seated before us, Chairman
McCollum, are very important members of the Federal Establish-
ment that are going to determine that. And so I would like to ask
you if you can share with me any anticipated plans and programs
for President Aristide's successor?
Mr. WAXMAN. I will defer on everything other than the Justice
Department programs to the State Department.
Mr. GELBARD. I think you have put it exactly correct in context,
Mr. Congressman. Those people who have worked on issues related
to the establishment of democracies have often come around to say
that the first election for a democracy, while difficult, has often
turned out to be the easy part.
It is the second election in many ways which is more important
and the third and the fourth. A democratic election is a necessary,
but insufficient condition for democracy. The really important part
is exactly what you referred to, sir, which is institution building.
Haiti is of fundamental national security importance to us. It is
a neighbor of the United States. Most people don't realize that. A
lot of people, I believe, were utterly misguided when they asked-
when they alleged or thought that Haiti had no national security
importance. As the chairman knows, we had lots of very important
reasons because of boat people, which had a direct effect on his
State and on the security of the national-of the United States.
The best way to keep people from trying to leave Haiti is to build
a solid, prosperous democracy. And because it is our neighbor lit-
erally, we share a territorial sea, it is critical to us, both on the
basis of our principles supporting strong democracies and because
Haiti is our neighbor, that we need to remain committed to support
what President Preval intends to do after his inauguration next
week and his successor and that President's successor and on.
But it is essential that we remain committed to build these insti-
tutions, whether they are the various elements of a strong demo-
cratic justice sector, including what Mr. Waxman was going to refer
to, or all the other institutions, including economic, social and polit-
ical institutions. And it is certainly the strongly held view of the
Clinton administration that we intend to stay fully engaged.
Mr. CONYERS. Thank you so much.
Mr. WAXMAN. I would just like to say, with respect to our pro-
grams, of course, that the Bertin--our involvement in the Bertin
investigation and in any other active criminal investigations in
Haiti is over, except that we have continued our standing offer to
the Haitian authorities to provide lab and other forensic assistance
that can't be provided and that aren't available in Haiti to support
those investigations. But on the-and with respect to our INS, I am
very happy to say that it is now-we have been able to redirect its
efforts in Haiti and on Hispaniola from running around trying to
avoid or minimize a flood of illegal immigration to dealing with a
country that understands the rule of law and processing visas for
legal immigration within the limits set by United States law.
With respect to training, we take pride, and I think justifiable
pride, for the work that ICITAP and OPDAT have done to build
oth the police and the institutions of justice. Those programs are
not over, and it is our intention and great desire to stay the course
so that when we leave, we will be able to say that we have actually
completed it, and are leaving this country, whatever may happen
with this country, leaving it with a well-trained, well-run, inde-
pendent police force and a judiciary where the judges know the
laws, know the procedure, have copies of the laws on their desks
and have court procedures that allow them to figure out which
cases, in fact, are on their docket.
We would like to be able to continue those efforts. Our ability to
do that is contingent on funding decisions that the Congress is
making, that my friends from the State Department are more fa-
miliar with than I am. Because although it is our Justice Depart-
ment employees that are performing these functions, they are
doing so with money from Mr. Gelbard s shop and USAID.
Mr. CONYERS. Thank you very much, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Conyers.
Mr. Heineman, would you like a second round?
Mr. HEINEMAN. Just to clear up a few points.
Mr. MCCOLLUM. You are recognized for 5 minutes.
Mr. HEINEMAN. Were you in communication with Mr. Aristide
prior to the request for the FBI?
Mr. GELBARD. I am sorry, sir. I couldn't hear you.
Mr. HEINEMAN. Were you in conversation--did you communicate
with Mr. Aristide or his designee prior to requesting the FBI?
Mr. GELBARD. I did not. Ambassador Swing, as we said earlier,
I know, was in communication with him.
Mr. HEINEMAN. Well, did Mr. Aristide promise support for the
FBI were they to come there?
Mr. GELBARD. My understanding, if memory serves, is that, as I
said in my testimony, Ambassador Swing and his deputy called us
at the State Department-
Mr. HEINEMAN. No, no. I only have 5 minutes. Are you aware of
anybody promising the FBI technical assistance should they get re-
assigned to it?
Mr. GELBARD. I don't remember the exact words, but Ambas-
sador Swing did get from President Aristide a statement of a desire
to have their presence and willingness to support them.
Mr. HEINEMAN. OK Mr. Perry or Mr. Mallett, there was a for-
eign language barrier there. Did you get support from the Govern-
ment of Haiti to bridge that gap?
Mr. PERRY. Congressman, the interpreters that we used were
U.S. military interpreters.
Mr. HEINEMAN. And that was sufficient?
Mr. PERRY. Yes, Congressman.
Mr. HEINEMAN. Were there foreign culture problems?
Mr. MALLETT. Can you explain that question a little bit? There
were several cultural obstacles that we ran into in Haiti.
Mr. HEINEMAN. Was there someone there to walk you through
those, to help you, to assist you?
Mr. MALLETT. I don't think so. I am not sure I understand what
you mean, the nature of cultural problems.
Mr. HEINEMAN. Well, there are different ways of saying the same
thing and meaning something else.
Mr. MALLETT. Are you talking about idiomatic expressions?
Mr. HEINEMAN. Yes, that type of thing.
Mr. MALLETT. Or their cultural values? Because there were situ-
ations where we needed to move the investigation forward and in
the course of that we may have to offer incentives or something
like that. They were of assistance in that regard.
Mr. HEINEMAN. Were they?
Mr. PERRY. Congressman-
Mr. HEINEMAN. Did you have criminal history records informa-
tion? Did they have a system of criminal history records?
Mr. MALLETT. No. Part of the problems that we had in Haiti was
a lack of automated retrieval of any records from-
Mr. HEINEMAN. Do they have manual records?
Mr. MALLETT. Well, there were scattered records. For example,
the phone companies had offices throughout Port-au-Prince that
would have handled different calling areas.
Mr. HEINEMAN. Did they have vehicle registration records?
Mr. MALLETT. One of the things that they did have that was fair-
ly modern and automated was vehicle records. However, the-they
were not completely up to date, so there were some problems in
Mr. HEINEMAN. Did they make that available to you?
Mr. MALLETT. Yes, they did.
Mr. HEINEMAN. Was there anything such as witness protection
programs there? I know that has a lot to do with people who wish
to give information but are afraid.
Mr. MALLETT. There was no existing witness protection program
in Haiti as there was no existing judicial system or law enforce-
Mr. HEINEMAN. OK.
Mr. MALLETT. That is not to say we did not exercise or explore
that possibility during the course of this investigation.
Mr. HEINEMAN. OK I just have one more question, Mr. Chair-
man, and that has to do with, again, policy. I don't know what the
policy is, and I don't know if you knew what the policy was for this
type of civilian intervention. I don't know how to look forward to
be able to determine whether we can do this or whether we can't
do this. Is there a written policy or was there a written policy at
the time that pertained to this type of intervention?
Mr. Waxman? I haven't talked to you yet, so I figured I would
get you on record.
Mr. WAXMAN. I appreciate the opportunity.
The policy that pertained to this type of intervention is, as I stat-
ed at some length in response to Mr. Barr's question, is the statute
that I have cited; and the Justice Department's consistent and
longstanding interpretation of that statute, blended with a recogni-
tion that all U.S. Justice Department law enforcement investiga-
tive resources are scarce ones and that just because a particular re-
quest is made, although we have had-we get very, very few re-
quests under this provision, even though a request is made does
not mean that there is a-it is granted or that there is a presump-
tion it will be granted.
Mr. HEINEMAN. Well, we made the request of Mr. Aristide, do
you want us to come in and assist you in this? So that request
originated with us. And I am just wondering what basis-what
basis was that-or what was that based on relative to national pol-
Mr. WAXMAN. Well, I am going to-I am going to let Mr. Gelbard
answer that question, because the Justice Department wasn't privy
to any conversations with Mr. Aristide.
But from our perspective, the operative-it was obviously of
great relevance to us that the Haitian Government wanted us to
do this. But that was-but the operative request under the statute
has to come from the State Department. That is, the State Depart-
ment has got to indicate that this is a matter of very considerable
concern to them in an area in which they operate and feel that it
is so important that they would like the Attorney General to exer-
cise her discretion to do this.
The fact that President Aristide either requested or acceded to a
request was, I think-at least in my own mind demonstrated the
seriousness of the request. But we were really, frankly, much more
interested in what this man and his boss, the way they perceived
it and the extent to which they felt that this was critically impor-
tant, as opposed to whatever the personal feelings of Jean-Bertrand
I hope that has been responsive.
Mr. HEINEMAN. Yes, you are in the ballpark. I am just one of 435
Members of the House that-and I am sure most of my colleagues
and many senators are still trying to determine why we are in
Bosnia and to justify it in our minds so when we are asked these
Mr. CONYERS. Would the gentleman yield?
Mr. HEINEMAN. When I finish, I will yield.
Mr. CONYERS. Thank you.
Mr. HEINEMAN. I am sure the chairman will give me the time.
Because I am at sea when it comes to determining or answering
questions as to why-and I am in a position where I am supposed
to know the answers-why did we do this? And I am certainly not
looking to open up Bosnia.
Mr. WAXMAN. I cannot-I can't answer any questions with re-
spect to Bosnia. And the only answers that I can give you with re-
spect to why we did this, that is, why we sent the FBI down to con-
duct a crime scene and subsequent investigation of the Bertin mur-
der, I think I have given you. I-it may or may not be sufficient
to you, but those are the reasons.
Mr. HEINEMAN. I yield to the gentleman from Michigan.
Mr. CONYERS. Thank you, Mr. Heineman.
It sounds like you may, in the future, be requesting of our chair-
man that we hold hearings related on Bosnia.
Mr. HEINEMAN. That is not the jurisdiction of this committee.
Mr. CONYERS. Well, I wouldn't be so sure.
Mr. HEINEMAN. Not unless we send FBI agents over there.
Mr. CONYERS. If I might suggest to you, Haiti is not the jurisdic-
tion of this committee, but where there are law enforcement and
Department of Justice activities taking place, our oversight, I am
happy to report to you, expands into those areas. But, at any rate,
were you to make such a suggestion to Chairman McCollum, who
has been gracious in entertaining the aspirations of many of the
members, I might want to join you in such a request.
Mr. MCCOLLUM. Mr. Scott, you are recognized for 5 minutes, if
Mr. SCOTT. Mr. Chairman, could I reserve my time?
Mr. MCCOLLUM. Sure. Mr. Bryant, you are recognized for 5 min-
Mr. BRYANT of Tennessee. Thank you again, Mr. Chairman.
Let me ask the members of the State Department, and if you
could-I have got just two, three, four questions-if you could keep
your answers as concise as possible. My understanding, from re-
viewing some of the files and the information that the committee
has given me, is that on more than one occasion the administration
requested of President Aristide immunity for the FBI agents who
were in-country; and I understand that this was never given, that
it was denied on each occasion.
Realizing that we had concern that our agents might be down
there facing some folks who didn't like them being down there who
might trump up charges or whatever, and I assumed that is why
we wanted immunity, my question would be, why were these
agents left down there during this time when President Aristide
and his Government refused to give them immunity from this type
of harassment, potential trumped up charges? Is there an answer
Mr. DOBBINS. Well, of course, ultimately, they weren't. I mean,
ultimately they were withdrawn; and this is probably one factor, al-
though I don't think it was the decisive one. I think it is-we re-
peatedly made requests for sort of formal grants of immunity. They
were never, as far as I can recall, turned down. We just got a limp
Mr. BRYANT of Tennessee. No response.
Mr. DOBBINS. We just got no response to these repeated requests;
and, ultimately, for a set of reasons of which this was probably one,
if not the lead-although probably not the leading one, we made
the decision we did.
Mr. BRYANT of Tennessee. OK. Let me ask the agents-let me go
ahead and ask the questions, and then, if we have time-were the
agents actually subjected to threats of physical harm; and, if so,
who made these threats? Not a prosecution or anything dealing
with immunity, but just actual threats.
Mr. MALLETT. I understand, Mr. Bryant. Yes, there were several
instances of perceived threats, intimidation, acts that were inter-
preted to be-to persuade us not to pursue our goals.
On one interview that we had with a member of the IPSF, the
interview became very vocal and boisterous. When that occurred, a
number of his supporters appeared at the office door, and all were
heavily armed; and the agents had to force their way out of that
There was another instance when agents went to a phone com-
pany to retrieve records and were greeted by, I believe, eight shot-
gun wielding security personnel, as they identified themselves; and
the agents had to discontinue that lead as well.
There were instances where the agents would conduct interviews
and seemingly Government vehicles would appear in those neigh-
borhoods shortly after the agents left, so even for witnesses there
was some form of implied, if not very real, intimidation.
Mr. BRYANT of Tennessee. When you say Government vehicles,
what type of Government are we talking about there? Are we talk-
ing about elected-I mean officials of the ongoing Government?
Mr. MALLETT. Our interpretation was that they were members of
the IPSF that were following our agents from location to location.
Of course, there is no-the vehicles down there have no particular
description. They are any make or model and anything that has
four wheels on it.
Mr. BRYANT of Tennessee. Believe me, I saw that down there.
Mr. Waxman, if you could put the conclusion on it, either way.
Mr. WAXMAN. I just want to respond to the issue of the immunity
status of the agents down there. This is one of the principal things
that I have had in mind in terms of doing a checklist for those very
rare instances in which our agents might find themselves in a simi-
The whole issue really got confused. Because on April 21, shortly
after the FBI got there, Ambassador Swing sent a letter to Presi-
dent Aristide in which he simply said, we assume that such status
applies to all FBI agents and employees from the commencement
of their duties, and then attached a list of who the agents were.
It wasn't a letter that requested a response; and, therefore, when
we didn't get a response, I think everybody felt, in retrospect, look,
why didn't we ask them to sign up and respond to it?
And when the-when, at our insistent request, Ambassador
Swing sent a couple of other requests saying, I really would like
you to affirm this in writing, they were ignored.
I think this is-this is an example of one thing that we could do
better, where we either assert it and assume that it is-assert it
and say, unless we hear from you differently, they will be granted
this status, or ask for an answer up front. What we drafted, I
think, in retrospect, caused some confusion in everybody's mind as
to the status. It is certainly something we wanted to have cleared
up, and it wasn't.
Mr. MCCOLLUM. Thank you, Mr. Bryant.
Mr. Barr, you are recognized for 5 minutes, assuming that Mr.
Scott wishes to continue to reserve.
Mr. SCOTT. I reserve, Mr. Chairman.
Mr. McCOLLUM. Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman. I thank my colleague from
I would have to say, very bluntly, I see very little has come out
of this. There may be some stuff that could be gone into in a classi-
fied briefing in terms of forensic and other intelligence information
that may make this all worthwhile; but, in terms of the policy deci-
sions, I don't think we obtained anything out of it; and I think the
SIU is just a fig leaf. We went down there, and we failed, and we
have this fig leaf, and we came back out.
I am not interested, though, in discussing, Mr. Waxman, those
policy decisions. What I am interested in, again, is law; and I
would like to go back to 28 U.S.C. 533, which you have cited as the
sole legal basis for the operation in the first place, the utilization
of FBI-DOJ resources to go into a foreign country. You and others
have also said today that the circumstances which were presented
to us were very unique. Therefore, I think it is a very legitimate
question, that I ask you for a very specific answer.
Given the fact that this is the authority that this administration
is citing for this operation, given the fact that I can only find one
OLC opinion from 1980 that has nothing to do with facts and cir-
cumstances similar to this case at all, given the fact that this case
was unique, there must be, I think-if your rationale that 533(3)
provides a proper constitutional legal basis, there must have been
some analysis taking you from, oh, yes, we have longstanding opin-
ion that 28 U.S.C. 533(3) allows us to do this, to take you from that
to somebody sitting down and determining, as I believe administra-
tions do, OK, how do we apply that to the facts and circumstances
here in this situation, which are unique, to provide, as I hope you
are concerned with, the constitutional basis for the utilization of
FBI and Department of Justice resources to go into a foreign coun-
Because I read the very clear language of 28 U.S.C. 533, section
3, to pertain only to official matters under the control of the De-
partment of Justice and the Department of State.
Now, where is that analysis?
Mr. WAXMAN. I-Mr. Barr, I understand your point. I understand
your interpretation. I disagree with your policy conclusions; but as
to the legal matter, I can't--
Mr. BARR. This is not policy. I am saying, where is the legal
analysis by the Department of Justice for this operation? You have
cited-I didn't cite-you cited 28 U.S.C. 533(c) as the basis for this.
Did the Department of Justice not undertake an analysis? Is there
no opinion? Were there no memorandum? Is there nothing to sub-
Maybe the answer is, yes, there is nothing to substantiate it. I
am asking you.
Mr. WAXMAN. If you are asking me whether there is a piece of
paper which was created at the outset or shortly after this decision
was made that conducted an ab initio analysis of whether or not
this was justified, the answer is no; and the reason is because it
was not thought to be necessary. The Department has-
Mr. BARR. That is very disturbing, and I think it is symptomatic
of numerous instances in which this administration has taken that
Mr. WAXMAN. Well, I can't-
Mr. BARR. I am not interested, Mr. Ambassador-I am talking
about legal issues here with a representative from the Department
of Justice who is here in the capacity as a lawyer for the Govern-
ment, not as a policymaker but as a lawyer for the Government.
Given the fact that there was, apparently, no analysis done, no
opinion rendered as to make-provide the specific legal basis and
rationale here for the use of taxpayer moneys under the Depart-
ment of Justice authorization, given that, as you have just said,
that was not done, can you provide me today, other than just your
general remarks-I am not interested in rehashing those-some
27-qWq QA I
connection that shows me what was the official matter under the
control of the Department of Justice and the Department of State?
Mr. WAXMAN. It is not true-
Mr. BARR. Because, if not, I intend to pursue this from a legal
standpoint. I think that raises a very serious constitutional ques-
tion, quite aside from the policies.
Mr. WAXMAN. I understand what you are saying. It is not accu-
rate to recount my remarks as saying there was no analysis done.
We did not create a piece of paper for this exercise. There was an
analysis done. The analysis disclosed that.
Mr. BARR. By whom?
Mr. WAXMAN. By our-I can't give you the names of the people.
I am assuming it was people within our Criminal-
Mr. BARR. What are you here today to do? These, I think, are
very legitimate questions.
Mr. WAXMAN. Sir, if you would like to know the identity of the
people who considered the legal questions, I am not prepared to
give you those names today. If you submit such a request in writ-
ing, we will endeavor to answer it. I am trying to tell you that we-
the Justice Department looked at the statute, looked at prior opin-
ions about applications of this statute in instances like this.
Mr. BARR. Are there prior written opinions, other than the one
cited in the footnote, the annotation to the U.S.C. volume, U.S.C.A
volume, that I have already cited and you are familiar with?
Mr. WAXMAN. I don't have the U.S.-the annotated volume, and
I don't know which one you are referring to.
Mr. BARR. I thought you did.
Mr. WAXMAN. All I have is the statute itself.
Mr. BARR. Well, it is-
Mr. WAXMAN. The answer is, yes, there are prior opinions of the
Office of Legal Counsel that date back to, certainly, the early and
mideighties and the 1970's.
Mr. BARR. This one is from 1980 that is cited in the annotation.
Are there others?
Mr. WAXMAN. Yes, there are.
Mr. BARR. Will you provide those?
Mr. WAXMAN. I will consult with the Attorney General and the
head of our Office of Legal Counsel and respond as to whether we
think that is appropriate.
Mr. BARR. You are not prepared today to provide any specific in-
formation that satisfies my question, whether it goes directly to my
question, with regard to what was there about this operation that
provided an official matter, that constituted an official matter,
under the control of the Department of Justice and the Department
Mr. MCCOLLUM. Mr. Barr, I think Mr. Waxman has responded
that he will consult with the Attorney General.
Mr. BARR. I prefer for him to answer the question.
Mr. WAXMAN. I will answer the question as I answered it before,
which is that we consulted our internal authorities and concluded
that in order for this statute to be a permissible source of authority
for the Attorney General, either the Department of State or the De-
partment of Justice must have an official interest in a matter be-
fore-in such a matter before an investigation may be authorized.
We concluded that that was-that that case had been made out by
the Department of State in stating its reasons why assistance was
required. It was not thought at the time, by whoever it is that con-
sidered it-it was not me-to require an additional ab initio legal
I am not trying to fight with you. I am trying to explain to you
that this was an instance in which the Department, consulting its
precedents and authorities and its consistent interpretation of this
statute, concluded that it was within its authority to offer this as-
Mr. MCCOLLUM. Mr. Barr, I think anything else will have to be
in writing or a more formal request.
Mr. GELBARD. Could I just add something to that, Mr. Chair-
Mr. MCCOLLUM. Very briefly. We have another witness, and I
feel badly we have let him go this long.
Mr. GELBARD. I have the tremendous advantage that I am not
a lawyer, but I can state, as a policymaker, that consistently, al-
though not frequently, certainly in my memory going back through
the Reagan administration, through the Bush administration and
into this administration, there have been occasions when we have
sought and received the assistance of the FBI, Justice Department
or other law enforcement agencies for assistance in various kinds
of cases overseas. They don't respond affirmatively in every case
and we only request in rare cases, but it clearly has been under-
stood that there can be opportunities or occasions when this type
of assistance may be sought and received.
Mr. MCCOLLUM. Mr. Scott, do you care to exercise your reserved
Mr. SCOTT. Mr. Chairman, I think the gentlemen have enjoyed
our hospitality as long as is necessary.
Mr. MCCOLLUM. Well, I want to-in that case, all the questions
have been asked.
I want to thank the witnesses for the time today. I do think this
is a very important hearing. It may not have seemed so to some,
but it was to us. Because we think what the FBI is sent to do and
what it does have the capability of doing is extremely important.
And the fact you are now, Mr. Waxman, proceeding to develop
some conditions is encouraging. I am unhappy, as you heard me
say earlier, that those were not in place when this decision was
made. The guidelines, I hope, will include some that involve things
such as the attorney's questions and the restraints that might be
imposed on your ability to interview people, not just immunity
questions and things of that nature.
So, having said that and fulfilled our mission of this hearing, I
thank the panel; and we will go to our second panelist. Thank you.
As I call him to the witness table, our second panel is a single
witness, Burton V. Wides, a partner with the Washington law firm
of Arent, Fox, Kintner, Plotkin & Kahn. Since 1992, he has rep-
resented the Government of Haiti on a pro bono basis. He has also
been a consultant to the Russian KGB and Minister of Justice con-
cerning reform of the KGB and internal security policy.
His public service has included positions such as senior counsel
and chief investigator for the Senate Select Committee on U.S. In-
telligence Activities, legislative counsel of the Senate Judiciary
Committee and chief of staff to Senator Paul Sarbanes. I want to
welcome Mr. Wides to the witness stand at this time.
I would suggest that his statement be admitted for the record in
its printed form; and, without objection, it will so be admitted. I
would suggest further that he might summarize, if you would, Mr.
Wides, any testimony that you have for us; and we will certainly
welcome it. But the complete statement is admitted into the record
Mr. WIDES. Excuse me a minute. It has been a long afternoon.
Mr. MCCOLLUM. It has been. Take your time.
STATEMENT OF BURTON VICTOR WIDES, ESQ., AREN'T, FOX,
KINTNER, PLOTKIN & KAHN, COUNSEL TO THE GOVERN-
MENT OF HAITI
Mr. WIDES. Thank you, Mr. Chairman, for including my whole
statement in the record; and I would like that to include the at-
tachments which are an integral part of the statement.
Mr. MCCOLLUM. Without objection, so ordered.
Mr. WIDES. I will depart from even summarizing my prepared
statement, if I can.
I know it is late in the afternoon, but there have been a large
number of statements or assumptions that have come out in the
hearing so far which are simply, from my perspective, inaccurate
or very misleading; and I hope that in the course of the questions,
although it is late in the day, there will be a chance to address,
if not all, most of them.
I feel a little awkward because of the fact that to some extent
my perception of the FBI investigation's problems down there that
developed and the nature of the cooperation received from the Gov-
ernment of Haiti and the reasonableness of the requests by the pri-
vate attorneys although they were in no way under the control or
direction of the Department-the Government of Haiti, differs sub-
stantially from what you have heard so far and what has been im-
plicit in some of your questions.
I feel awkward, first, because the people of Haiti and the Govern-
ment of Haiti were extremely grateful for the very long hours
under extremely difficult circumstances, and certainly in a strange
context, that the FBI agents down there put in over a long period
of time. I also feel awkward because I worked closely with the FBI
on counterintelligence, criminal and background investigations, and
regard them as the best investigative organization in the world, as
least to my knowledge. Nonetheless, when I finish you may feel a
little bit like President Kennedy in the anecdote recounted by Ar-
thur Schlesinger in "A Thousand Days" in which he sent two dif-
ferent people to Laos in 1961, and when they each finished briefing
a National Security Council, he asked, are you sure you two people
have just been back from the same country?
But let me try to focus on four main points. Before that, I want
to make two quick comments, one I am fairly certain, but not posi-
tive and I will check and get back to you, Mr. Chairman, that the
SIU is investigating the field pace, although as I think was pointed
out before, they have limited resources and they were in the midst
of other cases when that killing occurred, and it would be ineffi-
cient for them to drop something where they are right in the mid-
dle of an investigative part and put all the resources on another
The second point is that based on my experience and my reading
the Haitian people are not a violent people; they are an extremely
peaceful people. Americans have seen a lot of scenes on television.
There has been a lot of violence practiced against the Haitian peo-
ple by a very small minority of the 7 million people. Unfortunately,
sometimes people who are trained abroad and received assistance
abroad and were kept in power by foreign assistance, but in fact
the overwhelming bulk of Haitian people are known to be peaceful
and this was confirmed to me by many of the people who operated
assembly plants there and thought the work force was so wonderful
that even though they have relocated elsewhere, they are very anx-
ious to get back.
The four main points I would like to leave you with today, if pos-
sible, are these--or to try to convince you to keep an open mind
and read my full statement and the attachments. The first is that
President Aristide and the Government of Haiti cooperated fully
with the FBI. I would say under the circumstances when you learn
them all you will agree that he bent over and the Government bent
over backwards under the circumstances to be cooperative. I know
that is a strong statement based on what has been said before, but
I will stand by it.
Second, the nature of the investigation that the FBI conducted
was not what President Aristide and the highest officials of our
Government had agreed on. I will explain that. The fact that their
investigation turned into something quite different than he had ac-
cepted an offer of was one of the basic reasons for a lot of the prob-
lems that subsequently developed.
The third thing is that although I can assure you that the Gov-
ernment of Haiti did not try and could not have exercised direc-
tional control over these private attorneys who represented people
the FBI wanted to interview because they felt so strongly about the
fact that they represented only the interests of those individuals
and made that clear both to us and to the people representing, I
was intimately familiar with the back and forth that you tried to
penetrate today. In fact, there were times when I was involved in
discussions with members of the United States Government and
with the attorneys to see if there was a way to resolve the dif-
ferences because, frankly, on behalf of the Government of Haiti I,
too, was anxious to have these interviews go forward. I thought it
would have been extremely salutary given all the press columns ac-
cusing certain people close to the President, et cetera, but I also
spoke with dozens of former United States attorneys and FBI
agents now practicing criminal defense law and it confirmed my
view that what the lawyers were asking for, contrary to what was
suggested, was standard practice up here.
It is not accurate to say that the FBI was being asked or faced
with demands for things that were off the wall. They were often
saying down there that we cannot do it this way, but each time it
was pointed out that in fact that is the way it is done up in the
United States, with one narrow exception, they agreed to go for-
ward, and that narrow exception was the question of the tran-
scripts being provided-not the question of whether there would be
a transcript which had been agreed to, but the sole question of
whether someone could read their own transcript, see it make sure
it was accurate, and I hope to convince you that that is standard
practice in the United States as opposed to one comment earlier
which was this is never done or this is absolutely a no-no.
Let me go back to the first issue. The first question is what was
the basis on which the people came in, the FBI team came in.
President Aristide accepted an offer and, if you will, at that point
asked for the FBI to come in. The basis was that they would assist
the Ministry of Justice which had begun an investigation.
President Aristide wrote a letter on July 13 to Ambassador
Swing, which the full text of which is in my attachments in which
he wrote the following: I welcome the Attorney General's recon-
firmation of the intent of her original offer of FBI assistance. This
was and remains the basis on which I accept your gracious offer.
We remain committed to cooperation between the United States
and Haiti on the issue which is the highest priority of my Govern-
ment. He then went on to say the role of the FBI in Haiti is to,
and Ambassador Swing's letter, which you can get, makes this
clear, is to provide assistance to the Haitian Government under the
authority of the Haitian Ministry of Justice.
The Ministry of Justice is responsible for the investigation and
prosecution of all crimes committed in Haiti. I must once again em-
phasize the FBI must work with the Minister of Justice and not
attempt to bypass him.
What President Aristide was addressing in the letter is this:
Once the FBI came, they were faced with the fact that there were
accusations against several people but particularly a Minister in
the Government, and he took the view, which I can understand, as
a theoretical matter that it might contaminate their investigation
if they talked to the Haitian Government at all because informa-
tion from the investigation could get to suspects.
At the same time, the Aristide Government was very concerned
that in a place which was not Buffalo, not New York where the FBI
knows the lay of the land like the back of its hand, they were in
a strange situation and without a close collaborative relationship,
they would not necessarily understand the context of much of what
they were hearing or receiving.
To take one example which I elaborate on here, and if you want
I will in questions, but I just mention it. A number of the people
against whom the FBI received accusations, the most senior ones,
are people against whom the right wing, violent right wing and the
forces of corruption and drugs and crime have been conducting a
vendetta for at least 10 years, since 1986, with all sorts of misin-
formation and smear campaigns that found their way into U.S.
files. Why? Because these are the reform-minded young officers
who for 10 years have been trying to get rid of drugs, who refused
to participate in assassinations, et cetera, and I quote from an
independent human rights group that has been critical of parts of
President Aristide's human rights record in 1991 which nonethe-
less recognizes that that is who these people were.
Without that kind of background and understanding, it was ex-
tremely difficult for the FBI to do a meaningful investigation.
Nonetheless, voicing his concern President Aristide did not stop the
FBI. As a result, they were riding really untethered, either by su-
pervision at Justice in the normal criminal supervision with the
U.S. attorney, the Criminal Division back in Washington, or the
Government of Haiti.
I would like to just ask you if the Royal Canadian Mounted Po-
lice were invited to send people to help the Justice Department in
the Northwest United States because they had expertise in illegal
fur pelt trading or the like and they suddenly said one of the Unit-
ed States attorneys or assistants has come under suspicion so we
now cannot talk to the Justice Department, we will just ride
around the United States and do our investigation, can you imag-
ine what the reaction of the Justice Department and your commit-
tee would be?
But President Aristide said you should work with the Depart-
ment of Justice but he did not physically try and stop them. They
made clear they wouldn't. As a result, there was very little con-
sultation, and the FBI, which you may not be aware, essentially
told the Government of Haiti nothing, nothing, until December,
even the autopsy reports while the Ministry of Justice was trying
with its resources to continue investigation.
The third point is that the attorneys were asking for what was
quite reasonable. I just like to take you through it very briefly.
These are-first place, I was at the meeting that was described
on July 2. At that meeting Mr. Dobbins, Ambassador Dobbins, Mr.
Waxman, Mr. Perry were there along with Ambassador Swing. It
was agreed that it was fine, as they said, to have an attorney sit
in as long as it was not someone like myself representing the Gov-
ernment. That was a gimmick, that was not a major concession by
the Justice Department. That is done all the time here. Sometimes
they may say in an investigation here we don't want an attorney
sitting in, but the bulk of the time that is a matter of course. So
that was not a major issue or major concession by the Justice De-
The second point that came up was that the Government of Haiti
could not afford-that the Government of Haiti would hire and pay
for attorneys if the individuals to be interviewed wanted them.
That was agreed to. And it was commented on by either Ambas-
sador Dobbins or Mr. Waxman or both that that was common-
both when a-if there is an investigation of a defense contractor,
the defense contractor will pay for, at least in the initial stages,
often a lawyer for a number of employees. And there are occasions
when the United States Government, like for the FBI agents in
Ruby Ridge where there is an alleged conflict so that the internal
government attorneys cannot help them, that they will hire, pay for
outside attorneys if there is a special prosecutor investigation, or
in Ruby Ridge, State attorneys. And it was agreed that was quite
It was also agreed that it was quite appropriate to have one law-
yer at least in the initial stages represent many persons. This is
also done all the time in the United States, at least until such time
as someone is accused of-or the lawyer is told that someone is a
target of an investigation, they ask the FBI if any of these people
were targets and were never told-with one exception they were
told as a subject.
The question of the translator came up particularly because the
FBI was using as its translator a special forces sergeant, Sergeant
Claude, whose role in the entire affair was quite questionable and
who had been aggressively-really being the interrogator, not the
mutual interpreter, but that was agreed to as a matter of course.
The real issue with the transcripts-I have been advised by peo-
ple very familiar with Justice practice and FBI practice that while
transcripts are not as commonplace as an attorney sitting in, they
are not infrequently provided if special circumstances of the FBI
Here you have heard about the cultural problems particularly be-
cause some of these witnesses or prospective witnesses were the
group I described before who have been the victims of slander and
smear campaigns for over a decade because they are the better,
more reform-minded members of the military. It was thought par-
ticularly important to have an accurate transcript. That was agreed
Then the question and the narrow question was, would the de-
fendants be entitled, or not the defendants, the witnesses at that
point, be entitled to see their transcript? None of these were de-
mands insisted upon by the attorneys. That is inaccurate. They
asked the Bureau in each case, would you do this, could we have
this? So that they could go back to their clients, which as most of
you, both lawyers, all lawyers know, would be their duty. So that
to tell the client, here are the conditions that they will agree to,
here are your options, what do you want to do? And they never got
an answer from the FBI; they never got a definitive answer.
The agents indicated that they were disinclined, the lawyers
sent, if you will, an appeal, asking for any FBI regulations or policy
that would be against that, asking what the practice was, et cetera.
Now in fact the practice in the United States I think I can tell
you confidently is this: In those instances where a transcript is
kept for a FBI interview, the transcript is automatically sent to the
interviewee's lawyer by the court reporter. It is not even a question
that comes up.
Now they did raise one question and the question was, and it
came up here with regard to the representation of multiple clients
and I think you have to keep two issues separate: One, is a tran-
script-one, is there a conflict or danger for mischief by multiple
As for the multiple representation, Mr. Chairman, the courts
have repeatedly upheld against objections sometimes by the Justice
Department any objection to multiple representation unless and
until there is a good showing that there might be a conflict and
even that in the United States at least is up to the attorney who
is subject to sanctions if there is a conflict and judges have warned
against too readily exceeding to a prosecution's suggestion that it
is problematic to represent a number of people, but there might
have been a conflict or there might have come about a conflict.
If you read my attachments, you will see that the attorneys kept
asking the FBI what is the conflict, and all they got back was some
vague, well, there might be down the road, we do not know.
As to the question of the transcript, let us assume, Mr. Chair-
man, that these attorneys in fact were not conscientious from your
State subject to the strict canons of ethics of your State's bar asso-
ciation about conflict and were going to try to be up to some mis-
chief. The premise was that after you have been interviewed by the
FBI-if I were representing both you and Congressman Conyers, I
would have learned enough about the questions from the FBI and
your answers to be able to hold Congressman Conyers and do some
I submit that any lawyer who sat in on your interview and took
notes and was not able to accomplish all the mischief he wanted
in coaching Congressman Conyers without a transcript should have
his LLB taken back by the law school he attended. So I really
didn't see that as a valid objection. But it was a very narrow-it
was a very narrow issue. We tried to figure out ways to resolve it
and-just one more point on this, Mr. Chairman-assuming there
was some validity to the concern that if there was a transcript
given to me I could use it of your interview with Congressman Con-
The lawyers for the individuals offered to have the FBI do all the
interviews, not provide any transcripts and then provide the tran-
scripts afterwards, which clearly would have taken care of that
problem. So while it was unfortunate, and I understand the FBI
wanted to do the best that it could in a vigorous investigation, I
think that it would have been better had they gone forward with
the interviews if they considered them important.
I would just like you to distinguish before I leave these three dif-
ferent statements or criteria. One is was anything that was asked
that was not a demand? They wanted to know if the position was
inconsistent with U.S. practice. That is one standard. I submit not.
Second, was anything asked inconsistent with the vigorous pro-
fessional, as they said, "neutral investigation"? I submit not.
The third question, and I think you have to listen very carefully
to what is said, is what the FBI preferred in trying to go all out
to solve the case.
Mr. Chairman, any law enforcement officer in the world would
most like to question witnesses without lawyers, without any has-
sle, without transcripts, et cetera. If you ever watched "N.Y.P.D.
Blue" and you have seen Detective Sipowitz, you know that is the
preference of a hard-working, aggressive law enforcement officer,
but the glory of our system is that we do not make maximum effi-
ciency the sole hallmark for our criminal justice process, and we
have spent thousands, if not millions, of dollars trying to teach the
Haitians just that. So hopefully we do not want to say to them, do
as we say, not as we do.
The last thing I would like to say and then I welcome your ques-
tions is that the-the issue of whether-although it has not been
mentioned here fully, it has been so skated on and I really need
to address it-the FBI noted that it turned over to the Haitian
Government its results, truncated as it was, and said, here, now
you can pursue.
There have been statements in the press and on the media and
in the Congress suggesting that there was a very substantial
amount of evidence pointing towards people around President
Aristide. That is not true. The FBI told the Government of Haiti
we essentially have only their accusation without any substan-
The FBI in briefing the SIU-this is very important, Mr. Chair-
man-said repeatedly, repeatedly, we don't know if the people mak-
ing these accusations have an ax to grind or are telling the truth,
they may not be. They may be a 100 percent garbage, I think was
their phrase, and if it is, these people are totally innocent, and
therefore you should handle this material with great discretion.
I know that no Member of Congress or the executive branch
would want to be asked to step aside or be branded a criminal on
the basis of a bare accusation made by perhaps a libel or an enemy
to a law enforcement agency in this country without more, and I
think it is very important when you-if you think that the evidence
that the FBI did find makes the fact that the interviews did not
take place look very suspicious, you ought to be aware of the fact
that really there was no significant evidence against any of these
people. There were accusations and in a couple of cases which I can
brief the committee on in closed session, if you like-it is sen-
sitive-I know for a fact that these people did have some big axes
to grind, and that concludes my statement. I would be happy to an-
swer any questions.
Mr. MCCOLLUM. Mr. Wides, we appreciate, very much, your testi-
[The prepared statement of Mr. Wides follows:]
PREPARED STATEMENT OF BURTON VICTOR WIDE, ESQ., AREN'T, Fox, KINTNER,
PLOTKIN & KAHN
Mr. Chairman, thank you for the opportunity to testify on this important topic.
Our law firm advises and represents the Republic of Haiti on various matters.1 My
experience relevant to today's hearing is twofold. First, I have been involved in the
restoration of constitutional government in Haiti and the effort to establish the rule
of law and justice. This has included: assisting the Ministry of Justice in the inves-
tigation of several murders; providing liaison between the Government of Haiti
("GOH") and the U.S. Government on the FBI investigation of those murders; pro-
viding the FBI with ongoing results of the GOH's investigation; and trying to help
resolve procedural issues between, on the one hand, the FBI and Department of Jus-
tice and, on the other hand, attorneys representing certain Haitians.
Last spring, after the FBI team arrived in Haiti, they felt it necessary not to con-
sult with or share any substantive information about their efforts with the GOH-
at least until their investigative efforts had terminated. Therefore, the President
and the Prime Minister of Haiti asked me to assist officials of the GOH with its
own ongoing investigation of the "Durocher Bertin" and other possibly related mur-
ders. As I continued this effort, I sought to provide any results of my investigative
efforts to the FBI--on tne unilateral basis they required.
I participated extensively in the discussions between the GOH and tne FBI, De-
partment of Justice and Department of State regarding the FBI's investigative pro-
cedures and the GOH's cooperation. This included my participation in a July 2
meeting, at the National Palace, involving President Aristide and Messrs. Waxman,
Peary, Dobbins and Ambassador Swing. investigated several subsequent incidents
regarding alleged failures to comply with the agreements reached at that meeting.
Thereafter, as had been previously agreed to by the FBI and Justice Department,
some of those whom the FBI sought to interview retained independent private coun-
'The law firm of Arent Fox is registered with the Department of Justice, Washington, D.C.,
under the Foreign Agents Registration Act, as an agent of the GOH. The required registration
statements are available for public inspection at the Department of Justice. Registration does
not indicate approval of the contents of these materials by the U.S. Government.
sel. I followed the negotiations between private counsel and the FBI regarding how
the interviews should proceed.
I am also generally familiar with the results of the FBIs investigation-as briefed
by the U.S. in mid-December to Haitian officials. I know that the FBI would not
present a different version of those results, on the one hand, to the GOH whom it
was sent to assist and, on the other hand, to Administration officials or to Congress.
Therefore, I can only assume that any understanding of those results are based on
a lack of information as to how the investigation was carried out. This, of course,
is understandable, given the complexity of the subject and the importance of many
substantive and procedural details.
The second relevant aspect of my experience is that I have reviewed many sen-
sitive FBI investigations-counterintelligence, criminal and background investiga-
tions-for the U.S. Senate and for the President's Intelligence Oversight Board
which I helped establish under President Carter. Because of my previous experi-
ence, I am familiar with the manner in which FBI reports sometimes ambiguously
phrase the results of an inconclusive FBI investigation-especially when the so-
called "evidence" or "leads" merely consist of bare allegations from sources of ques-
tionable or unknown reliability.
Today's topic is how and when the FBI should be used to help foreign nations in
criminal investigations abroad. However, the main factual experience which will be
analyzed to draw lessons from will be the Bureau's recent murder investigation in
Port-au-Prince, on behalf of the Haitian government. In various newspaper stories
and congressional discussion, it has been alleged that:
(1) The FBI's investigation was stymied by the GOH and by private attorneys
whom the government had hired to represent government employees in FBI
(2) Because of those obstacles, the FBI was unable to follow up on strong
leads and evidence of complicity in those by Haitian interim police and palace
The implications for your committee's conclusions, if these suggestions were true,
might be one thing. In fact, however, these assertions are not true. There is no cred-
ible evidence of such complicity and Haiti fully cooperated with the FBI directly or
Actually, the major "obstacle" which led the FBI to end its investigation because
it could not complete certain interviews, was an obstacle of the FBI's own making-
because of inadequate coordination and communication-which could and should
have been easily resolved. In any event, it was a question that arose between the
FBI and private counsel for the prospective interviewees, over whom the GOH exer-
cised no control. Ultimately, the only narrow issue that they could not resolve, after
agreeing that the interviews would be transcribed, was whether the interviewees
could review a copy of the transcript for their own interview, in order to make sure
it was accurate and complete.
This is an important matter to understand. Your subcommittee analysis of the
"lessons of Haiti" for future use of the FBI abroad will be badly skewed if your
members do not know the true facts. Such misunderstanding would not only distort
your subcommittee's analysis of today's topic. It also could well be irreparably dam-
aging to Haiti's ability to combat drugs, terrorism and subversion in the near fu-
ture-including narcotics traffic to the U.S.
POSSIBILITIES FOR FBI ASSISTANCE ABROAD
The best contribution that the FBI can make to law enforcement in a host country
is to improve the positive investigative capabilities with that other country.
Indeed, the most important assistance that any U.S. law enforcement agency can
provide to another country is expert education and supervisory training of the indig-
enous law enforcement personnel. In fact, this is true whether the U.S. participants
are FBI special agents and lab technicians; other federal personnel from DEA, the
Secret Service, the Board of Patrol; state and local law enforcement officers tempo-
rarily assigned to help the U.S. assistance program, or retirees from these agencies.
A famous proverb reflects the fact that it is better "to teach a man to fish" than
to merely "give him a fish." Similarly, the best form of assistance to law enforce-
ment in other countries is to improve their own capability to carry out prevention,
investigation and assisting prosecutions.
In the case of most countries, they will have a fairly well-established law enforce-
ment system. The U.S. contribution would normally be a narrowly focused one, such
as training in aircraft based surveillance or sensitive electronic technical surveil-
lance or specialized laboratory analysis, e.g., of clothing fibers or paint chips. Occa-
sionally, the recipient countries will be in a transitional stage: replacing a corrupt,
virtually untrained and often military "police force" with an embryonic, profes-
sionally trained, civilian police force. In those cases, U.S. and other international as-
sistance may be needed to help establish and train the entire law enforcement sys-
In either type of situation, the FBI can play a useful role as teachers, "clinical"
on the job trainers and advisors, if the overall policy assessment suggests that such
assistance is appropriate under the circumstances and in the national U.S. interest.
Even in the case of such training assistance, however, the bedrock prerequisite is
a clear understanding and meeting of the minds between the recipient country and
the U.S. Government as to what training tasks the FBI or other federal law enforce-
ment officers will undertake, and how they will relate to heads of the relevant agen-
cies in that country.
This mutual agreement, based on a common understanding, is even more essential
when U.S. law enforcement officials are sent to actually Participate and help conduct
a major criminal investigation-especially one with significant political implications
in the host country. When and whether the FBI should undertake major investiga-
tive responsibilities is a question heavily dependent upon the particular cir-
cumstance. When such assistance is given, however, such advance agreement on the
ground rules of how the Bureau will interact with officials of the host country are
crucial. In addition, a mechanism should be created for ongoing review of how U.S.
investigators and the host country's investigators are relating to one another. Other-
wise there is potential for misunderstanding, failure to resolve different viewpoints
promptly and constructively, and after-the-fact questions about cooperation and mo-
It is also important that FBI or other Federal law enforcement agencies which
will undertake investigative roles abroad understand and think through with the
Justice Department and the State Department Legal Advisor the differences (as
well as common elements) between the U.S. criminal justice system and that of the
host country. This is necessary in order to determine how the U.S. assistance can
best be provided in that foreign context.
Finally, all of these considerations clearly are most acute when U.S. law enforce-
ment officials are participating in an investigation that comes to involve accusations
against law enforcement officials or other members of the host government.
I. Training assistance
The potential benefits of U.S. federal law enforcement assistance in the form of
training and initial advisory supervision can be readily seen in the past year in
Haiti under the government of President Aristide. President Aristide started with
a police force that was an organic part of the Haitian army and which had a poor
record with regard to corruption, human rights abuse and drug enforcement. With
help from the U.S. Justice Department and USAID, and from a U.N. civilian police
component of international forces in Haiti, the government created a transitional in-
terim police force with some screening of applicants, as well as police and human
rights training. At the same time, the government of Haiti, working with U.S. ex-
perts and the U.N. civilian police component, has established a new civilian police
academy and has begun graduating a series of police cadet classes for a new profes-
sional police force. This is pursuant to a new statute creating for the first time a
civilian police force under the Ministry of Justice. They were selected from a much
larger group of applicants, using stringent standards.
This new police force is already on the job in Haiti, gaining more experience every
day, although they face major threats from terrorists, subversive and criminal ele-
ments which remain well-organized and, unfortunately, better armed than the police
themselves. The new police force continues to benefit from supervised training by
law enforcement personnel from other countries. In addition, with respect to a large
number of high profile homicides committed either during the coup regime or since
President Aristide's return to Haiti, the Haitian government has established a spe-
cial unit to investigate them. Known in Haiti as the Brigade Criminelle. and within
the U.S. Government as the Special Investigative Unit (SIU), this unit is currently
aggressively investigating more than 75 such murders and will be receiving invalu-
able assistance from a variety of foreign sources. This includes not only experienced
human rights investigators, out also an experienced U.S. state-level homicide pros-
ecutor and a retired agent from a U.S. federal law enforcement agency. The FBI is
providing the expertise and guidance of forensic and other investigative specialists
and other experts.
In addition, the U.S. Justice Department's ICITAP office will continue to help the
Haitian government run the police academy; graduate additional classes of new ca-
dets, and provide special training in command and supervision for designated senior
officers in the new police force.
All of these positive efforts will continue under the new administration of Presi-
dent elect Rene Preval, who will be inaugurated as President on February 7.
II. Investigative assistance
The U.S. presence in Haiti has also provided experience in the second type of FBI
assistance to a foreign country, namely, major participation in an actual criminal
Last March, President Aristide accepted an offer from President Clinton and At-
torney General Reno to have the FBI assist in the inquiry into these murders that
the Haitian interim police and Ministry of Justice had already commenced. The fact
is that in addition to the FBI inquiry, the Haitian government has been intensively
investigating the Durocher murder for many months-and providing the facts un-
covered in that investigation to the FBI and to other U.S. officials. The Aristide gov-
ernment will take whatever additional steps are appropriate-based on its own in-
vestigation and the truncated FBI inquiry. In the meanwhile, the facts are these:
Preliminarily, it is important at the outset to make clear that the government and
the people of Haiti are extremely grateful for the dedicated efforts of the individual
FBI Special Agents and Supervisory Agents, who have labored under adverse condi-
tions in a foreign country and in what, at times, has doubtless been a perplexing
foreign cultural setting.
The first issue which has implications for your subcommittee's inquiry is the ex-
tent and nature of cooperation between the GOH and the FBI. Haiti cooperated
fully. There have been inaccurate intimations that Haiti did not cooperate and hin-
dered the investigation. This simply is not true.
It is necessary to understand the original basis on which President Aristide ac-
cepted the offer of FBI assistance made by President Clinton and Attorney General
Reno. This understanding was that the FBI would work with and assist the Haitian
authorities already conducting an investigation of the murders. President Aristide,
in a July 13 letter to U.S. Ambassador Swing, referred to that understanding as fol-
I welcome the Attorney General's reconfirmation of the intent of her origi-
nal offer of FBI assistance for the benefit of the Haitian Ministry of Justice.
This was, and remains the basis on which I accepted your gracious offer.
We remain committed to cooperation between the United States and Haiti
on the issue which is the highest priority of my government: the assurance
of justice and the establishment of a state of law in Haiti.
The role of the FBI in Haiti is to provide assistance to the Haitian gov-
ernment under the authority of the Haitian Ministry of Justice. The Min-
istry of Justice is responsible for the investigation and prosecution of all
crimes committed in Haiti. Therefore, I must once again emphasize that the
FBI must work with the Minister of Justice and not attempt to bypass him.
The full text of President Aristide's letter is Attachment A of my testimony.
Either the FBI was not adequately informed of this arrangement, or the FBI
somehow felt free unilaterally to change that agreed-upon mission shortly after they
arrived in Haiti, without the GOH's agreement. The FBI team in effect constituted
itself as an "independent special prosecutor" operation, conducting a wholly separate
investigation in secret and declining to work jointly or cooperate with the GOH's
inquiry. The FBI team promptly decided not to provide any substantive assistance
to the Ministry of Justice and its investigation. Not even the autopsy reports and
ballistics analysis were shared with the Ministry of Justice until very recently. Nev-
ertheless, the GOH bent over backwards to accommodate the FBI effort. While
President Aristide made clear the COH concern, he did not actually stop the FBI
investigation, which went forward on a secret basis, independent from the host gov-
ernment they were sent to assist.
Thus, the GOH had to continue its own investigative efforts on its own. The two
inquiries, the FBI's and Haiti's, while conducted independently at the FBI's insist-
ence, inevitably were overlapping.
This created several problems. There was scant opportunity for the GOH inves-
tigators to provide the FBI team with helpful guidance in regard to leads that might
be pursued and, equally important, a "reality check" with regard to erroneous or in-
complete information that the FBI team receives from sources eager to smear the
officials of the Aristide government or to divert attention from their own culpability.
The GOH could have provided more information that would permit the FBI to prop-
erly assess the credibility and potential motivation of sources from which it obtained
information-either directly from a Haitian source, or via other U.S. Government
agencies who passed on information from U.S. intelligence files.
For example, there have been public assertions that the FBI found significant evi-
dence to support accusations against certain Haitian officials. Those statements are
inaccurate. The Bureau has told the GOH that it does not know whether the accus-
ers are telling the truth or have an axe to grind, i.e., whether their accusations are
garbage and are 100% untrue. Thus, according to their own assessment, the FBI's
recommendations for further investigation essentially is based solely on unsup-
ported allegations from persons of unknown credibility. (The "ballistics evidence"
connected several murders, but did not implicate these officials.) The Haitian Min-
istry of Justice and its investigators could have provided invaluable perspective on
their credibility and potential motive. This example of the potential benefits of close
consultation is detailed in Attachments C and D of my testimony. I ask that all of
the attachments, which are an integral part of my testimony, be included in the
record as the last part of my prepared statement.
Let me briefly summarize. The more prominent accused officials are members of
a group of Haitian Officers, recognized by independent human rights organizations
as "reform minded" Haitians who spoke up against the narcotics trafficking, brutal
repression and thwarting of democracy by their superiors, and who did so often at
risk to their own lives. The FBI received accusations against a group of Haitian offi-
cials that included several senior officers in the interim police and the palace secu-
rity guard. In fact, for over a decade, these officers have been the target of similar
accusations of illegal activity made against them by the biggest real criminals in
Haiti: former Haitian dictators; their allies in the army and Right-wing vigilante
groups; and, in the past few years, members of the recent coup regime. Ironically,
these charges were made precisely because these accused officers were widely known
in Haiti to be the core of reform elements within the army. Therefore, they were
a threat to the entrenched corruption and criminality of Haiti's former rulers. Over
time, they also became the subject of negative reports in U.S. Intelligence files. This
is either because the principal U.S. sources of information were the same criminal
elements ruling Haiti conducting the disinformation campaign against the reform-
minded officers, or, unfortunately, because some individuals in the U.S. Government
wanted to protect questionable Haitians on the U.S. payroll and to maintain the
Haitian army status quo. Since then these officers, against whom the FBI received
accusations, have been the target of an ongoing campaign to discredit them, and
preclude them from any Aristide led government.2 One of the dictators, General
Prosper Avril, ordered the ouster of the leadership of the younger, reform-minded
officers, such as Medard Joseph and Pierre Ch6rubin, who had continued to press
Avril to end repression and army drug trafficking, and to hold democratic elections.
With brazen gall-since he continued to mastermind the narcotics trade-Avril ac-
cused those reformers of involvement in drugs and corruption. This is a classic di-
versionary tactic used, for example, by corrupt American police precinct captains
who file charges against, or have transferred, a clean cop who won't "go on the pad,"
i.e., accept underworld kickbacks. U.S. Embassy and intelligence officials were well
aware of Avril's brutality, corruption and drug involvement. Still, they dutifully re-
ported to Washington Avril's spurious rationale for dismissing or arresting the
young officers who had repeatedly pressed him for reform, i.e., his claim of their in-
volvement in narcotics or other corruption. More recently, those opposed to President
Aristide's return and his proposed reforms-which included eliminating the corrupt
army leadership and developing a legitimate civilian police force-assisted the con-
tinuing campaign of disinformation against these reformers.
The existence of this Cherubin-Toussaint reform group was recognized by Ameri-
ca's Watch and the National Coalition for Haitian Refugees and Caribbean Rights
in their independent November 1, 1991 report: "The Aristide Government's Human
Rights Record." The report, while critical of the Aristide administration in other re-
gards, notes with approval that:
A group of reform-minded officers and soldiers who had been dismissed
under floor who had, in some cases, deserted the army rather than carry
2The consensus is that Haiti's stability must be preserved against threats of violence from
former FAd'H supporters of the coup; FRAPH members and the narcotics underworld, now high-
ly armed and waiting until the international forces depart so that they can seek to regain
power-as they kill off opponents in the meanwhile. Even with the most advanced police science
instruction, the "rookie" new Haitian police force will have a very difficult time coping with
these violent and sophisticated forces of subversion. People like some of the currently accused
officials are precisely those who have the institutional memory, the expertise and the experience
to provide guidance in combating these real threats to the common goal of peace, stability and
drug enforcement in Haiti. Indeed, it is possible that this is precisely why they have been the
subject of a vendetta and smear campaign for so long-and why that campaign has been revived
with a renewed intensity as Haiti approaches the critical stage of largely self protection.
out retrograde orders, were reinstated and in some instances promoted.
Among them were Pierre Ch6rubin, who was named chief of the Port-au-
Prince Police, and several who became members of Aristide's personal secu-
rity detail, including Dany Toussaint, who was promoted to captain, and
Fritz Pierre-Louis, who became a lieutenant. Pierre-Louis was killed by sol-
diers who arrested President Aristide in the course of the coup.
In addition, with real collaboration, the GOH could have discussed more fully with
the FBI several categories of critical information that the FBI might not have fully
received from the official sources on which they are relying, because U.S. agencies
were concerned about political embarrassment if Haitians who have been on their
payroll might then become suspects in a murder investigation. The GOH could only
effectively provide such background in direct and mutually cooperative consultation
with the FBI team. Nevertheless, the investigators for the GOH sought to provide
the FBI teams with leads, names of persons who should be interviewed, and specific
information relevant to solving the murders.
Next, there was a procedural problem regarding certain FBI interviews. The basic
issue which ultimately caused the FBI to avoid conducting those interviews was ex-
ceedingly narrow. The problem of resolving it illustrates the need for high level U.S.
monitoring to ensure that such policy questions are sorted out rapidly, reasonably
The Haitian government continued to cooperate fully. The GOH has not obstructed
the FBI's attempts to interview persons believed to have relevant information about
the case. The FBI notified the GOH of its intent to interview some 15 persons who,
for the most part, were (or recently had been) senior police and Palace officials.
Once again, the FBI objected to having any attorney representing the GOH sit in
on these interviews, claiming this would "compromise" its inquiry. The GOH pointed
out that numerous U.S. federal officials had been interviewed by the FBI, or by
Independent Counsel prosecutors, in the presence of both their personal attorney
and a government attorney from the interviewee's office or agency. Nonetheless, the
GOH acceded to the FBI's request that only private attorneys for the subject be
This issue was resolved amicably on July 2, 1996, in a meeting with President
Aristide of senior officials from the FBI, the State and Justice Departments and the
U.S. Ambassador. The participating U.S. officials, including senior representatives
of the FBI and the Department of Justice, agreed that it would be appropriate for
the interview subjects to have Private defense attorneys who could sit in on the inter-
views if their clients wished-as the FBI often Permits in the U.S.-so long as no
attorney representing the GOH, itself, participated in the interview. President
Aristide also explained the Government's policy that GOH employees should have
legal representation when questioned by law enforcement officers, if they desire it,
and that the GOH would pay for such outside counsel. Again, the U.S. representa-
tives, including the senior FBI official, agreed that the interviews could go forward
on that basis, especially since it is sometimes done that way in the U.S.3 At that
July meeting, the GOH agreed to still another procedural request by the U.S. dele-
gation on behalf of the FBI. The FBI had notified the GOH of 15 prospective
interviewees. At this meeting in President Aristide's office, it was agreed that, be-
yond those 15 persons, the FBI could approach any other government official or em-
ployee for an interview in a private setting, e.g., at their residence, without notify-
ing the GOH, as long as the FBI fully apprised the employees (I) of their right to
have counsel; and (2) that the GOH was prepared to arrange and pay for competent
counsel if the prospective interviewee so desired. It is important to distinguish these
3This was perfectly appropriate. In the United States, federal employees being questioned by
the FBI are sometimes represented at such interviews by the General Counsel's Office in the
agency where those interview subjects work. Because they are being represented, at least in the
first instance, by counsel for their agency, the question of the U.S. Government's paying for sep-
arate private counsel often does not arise. In some cases, however, it is deemed inappropriate
for the agency counsel to sit in on the interviews, representing the person interviewed. In those
cases, the Government can and has helped pay for private counsel. One example is a Special
Independent Prosecutor situation where, by definition, the triggering of appointment for an
independent prosecutor raises a potential conflict of interest between the investigator and the
Federal Government. In such cases, outside counsel may be retained and paid for by the Govern-
ment, as it also did in the case of FBI agents being prosecuted by state criminal justice agencies
in the Ruby Ridge case.
Moreover, in those situations, the Justice Department will not only mention several alter-
native attorneys familiar with the type of case at hand, but will recommend a couple of attor-
neys whom it thinks are particularly competent to help in a given type of situation.
two parts of the agreement reached at the meeting in President Aristide's office last
The agreement that the persons noticed for interviews in the FBI's letter to
Minister of Justice Exume would be accompanied, if they so desired, by private
attorneys paid and arranged for by the GOH; and
Other persons whom the FBI subsequently identified as prospective
interviewees could be approached privately and without necessarily going
through the GOH.
A subsequent series of procedural issues between private counsel for the prospective
interviewees and the FBI has been resolved, with one very narrow exception. The
briefest consideration of this series of issues-and the current impasse-makes clear
that it is not the counsel for the Haitian interviewees who has been responsible for
the delay. Their request was reasonable under the circumstances. The very narrow
issue on which the FBI failed to conduct these interviews, and other procedural is-
sues which were resolved, are detailed more fully in Attachment B. Let me summa-
Counsel for the interviews asked on their behalf whether the FBI would agree to
a full transcript being made of each interview. To his surprise, the FBI expressed
reservations, insisting that it would suffice to have the so-called "302" interview re-
ports that Bureau agents write up after the interview. The FBI team in Haiti
claimed that it was not its practice to permit a transcription or recording to be made
of interviews. Since this position, in fact, did contrast sharply with FBI practice in
the U.S. in similarly appropriate situations, private counsel for the interviewees ap-
pealed that initial response through several levels of the FBI management. His de-
tailed memorandum noted that the creation of a transcript is not in violation of any
known FBI rules or regulations. Eventually, the FBI agreed to have the interviews
transcribed. But resolving this simple issue took several months and further delayed
the investigation. (Although the issue was eventually resolved, the substantial delay
it caused makes clear the reasonableness of the request for a transcript, rather than
relying on FBI "302" interview reports-widely acknowledged to be selective and,
sometimes, inaccurate-in case the contents of an interview is disputed.) Once there
was agreement to transcribe the interviews, the pending issue became whether the
interviewees would be given prompt access to the transcripts of their own interviews
in order to be able to point out any errors or omissions. The private counsel's August
memorandum submitted to the FBI also pointed out that, when a U.S. citizen makes
it a condition of being interviewed, the FBI not only will sometimes permit a tran-
script of the interview, but also permits prompt access to the transcript by the
interviewee and his counsel, for purposes of study and correction where necessary.
Indeed, the normal practice is for the court reporter to provide a copy of the tran-
script directly to each party to the proceeding, i.e., a copy to the FBI, and a separate
copy to the counsel for the person interviewed.
It is not correct to claim that the counsel imposed conditions. They merely sought
to determine definitively what conditions might be agreed to. In his August commu-
nication to the FBI, counsel for the interviewees asked what the genuine FBI policy
and practice in the U.S. has been when prospective interviewees ask to review a
copy of a transcription. This request was made so that his Haitian clients could be
accurately informed about how the FBI treats such requests in the U.S. and could
then decide what conditions, if any, they wish to attach to granting an interview.
The FBI never responded to these inquiries.
If the FBI believed that these interviews were- important to their inquiry, then
there was no good reason why they could not have proceeded. That would both have
made the FBIs inquiry more complete. The irony will be this: the U.S. Government
has provided thousands of dollars to assist the Haitian Government's improvement
of its criminal justice system and establishment of the rule of law, and has sent
scores of judges, prosecutors, defense attorneys and police officers to Haiti to advise
Haitians on appropriate criminal justice procedures, including the full protection of
the rights of citizens subject to investigation by the State. Then the U.S. turns
around and now would tell the government and people of Haiti:
Do what we say, not what we do. The procedural rights afforded citizens
in America by our preeminent police force will not be applied in Haiti be-
cause the FBI feels that it might theoretically make the job a bit harder.
Understandably, every law enforcement investigator would prefer to question citi-
zens without any annoying complications, such as an attorney being present or a
complete, accurate record being kept. Anyone who has seen the character of Detec-
tive Sipowitz grill a witness on the television show N.Y.P.D. Blue, knows that. After
all, Detective Sipowitz is just trying to do his job as efficiently and effectively as
possible. But the glory of the U.S. criminal justice system is that pure expediency
has never been the sole determinant of accepted criminal procedure. No matter how
urgently both governments seek to resolve this and other heinous crimes, we should
not press the Haitians to make expediency the sole determinant for them-espe-
cially not in the same breath that we ask them to learn and respect our safeguards
of civil liberties.
Moreover, it would not have been appropriate for the GOH to pressure the attor-
ney for prospective interviewees to ignore his professional responsibility regarding
his clients' interests for the sake of expediency. That would be just as inappropriate
as asking the U.S. Attorney General or President Clinton to pressure a private at-
torney here to abandon his best judgment about a reasonable procedural request on
behalf of his American client.
The FBI also questioned the fact of multiple client representation. It is, of course,
quite common for a single attorney to represent multiple persons in U.S. criminal
investigations who are employees of the same company or government agency. This
is especially true when they are employees of a common employer and are merely Per-
sons whom the police want to interview as possible witnesses with relevant informa-
tion. It is also quite common in the U.S. for a company that is the employer of such
multiple witnesses to pay for their legal expenses. If a possible conflict develops
downstream, that is another matter and one clearly for the private attorney to
Also hovering in the background, was the FBI's vague suggestion that, because
the private counsel was representing more than one of the interviewees, he could
be laboring under a conflict of interest, which the FBI would specify at some future
point. "[The FBI] cannot concur a priori that you could ethically represent all 15
individuals." (FBI letter of August 15 to counsel.) The canons, codes and rules of eth-
ics in virtually every American jurisdiction allow multiple representation in both
civil and criminal matters. In Florida where the private counsel practices, the state
rule permitting it is based on the ABA Model Rules of Professional Conduct. It is
not at all unusual for one attorney to represent many clients in the same investiga-
tion. This is especially true if they have not been informed that they are targets.
Lawyers, of course, must be alert and careful that no client's interest is sacrificed
or impaired by this multiple representation. They are bound by that obligation. If
they violate it, they can be sanctioned. Still, federal courts of appeals repeatedly
have refused to curtail simultaneous representation of multiple clients. This has
even been true when the clients were principal targets of a grand jury investigation,
had pleaded the Fifth Amendment or had been immunized. Moreover, multiple rep-
resentation has been upheld, even where fees for the attorney's representation of
multiple clients were being paid by their common employer.
The FBI also seemed to have been given an inadequate grounding in the cor-
responding aspects of the U.S. and the Haitian systems of criminal justice. The FBI
noted that it lacked access to grand jury subpoena and other compulsory process
available in the U.S., but that is somewhat misleading. First, there are also con-
straints on the FBI in cases prosecuted in the U.S.4 In the case of the Haitian crimi-
nal justice system, the FBI's complaint that it had no opportunity to obtain compul-
sory process and have the prospective witnesses interrogated is inaccurate. True,
there is no grand jury in the Haitian system. Nevertheless, the juge d'instruction
serves as both an examining magistrate (like those in Italy who led the fight against
the Mafia) and the counterpart of our grand jury, for purposes of determining
whether the case should go to trial. A juge d'instruction had been assigned. He had
already questioned the six persons connected with one alleged "plot' in the case.
The FBI could have asked the juge d'instruction to compel testimony and to ask par-
ticular questions of persons they sought to interview. But they did not. Apparently,
the FBI did seek to obtain a search warrant from the juge d'instruction or another
Haitian official in charge of supervising the case, but apparently they failed to per-
suade him to issue one. Finally, the FBI responses blurred two separate issues: (1)
conflict of interest allegedly raised by multiple representation; and (2) providing
interviewees with a copy of their transcribed interviews. The FBI suggested to other
4Even in the U.S., the FBI does not have carte blanche to instigate or conduct grand jury
hearings. Rather, the FBI must convince the U.S. Attorney's Office that the case warrants a
grand jury and that particular witnesses should be called. Even if they testify before a grand
jury, while they may not be accompanied in the grand jury room by their attorney, witnesses
are allowed to consult with their attorney out in the hall in-between questions. Moreover, they
are allowed to invoke the Fifth Amendment privilege against self-incrimination. It is U.S. Jus-
tice Department policy that, if a prospective grand jury witness authoritatively demonstrates a
firm intent to invoke the privilege against self-incrimination, then that prospective witness
should not be called before a grand jury, just to have the grand jury see the privilege involved.
This is especially true in the case of someone whom the prosecutors view as a subject, let alone
as a target of the investigation.
U.S. officials that, if private counsel for those interviewed had current access to
such transcripts, it would enable him to use the information he learns from the
interview of 'Mr. Smith"-about the questions or the answers-to prepare "Mr.
Jones" for his interview, in a way that could hinder the FBI's investigative strategy.
But that concern, which must be balanced against equally important interests dis-
cussed above, goes to the issue of multiple representation and participation in inter-
views. It does not meaningfully relate to the unresolved issue of whether a copy of
the transcript will be provided. To the extent a counsel for an interviewee wanted
to act improperly in this regard, he or she certainly would not need a verbatim tran-
script. Counsel certainly would have a sufficient knowledge of the first interview
and have made sufficient notes on key matters to do so in any event. In fact, counsel
suggested that the FBI might complete all of these interviews first, and then provide
the transcript copies all at once, in order to avoid this concern. But even this sug-
gestion to resolve the matter and let the FBI complete its investigation was
This concludes my prepared statement, and I will be happy to answer any ques-
The following attachments are several documents previously prepared in other
contexts, but which are submitted as an integral part of Mr. Wides' testimony:
Attachment A is the full text of President Aristide's July 13 letter to Ambassador
Swing regarding the basis on which the U.S. offer of FBI assistance was accepted
by the Government of Haiti.
Attachment B is a memorandum entitled "Do As We Say, Not As We Do," which
details the full cooperation provided to the FBI by the Government of Haiti. It also
details the procedural arrangements developed by the FBI and the private attorneys
retained bye prospective FBI interviewees, and the very narrow issue of transcript
review that was the basis for the FBI's failure to interview various Haitian officials.
Attachment C is a memorandum entitled "McCarthyism in Haiti," which summa-
rizes the inaccuracies in various media reports and public statements made about
the "results" of the FBI investigation in Haiti.
Attachment D is a memorandum entitled "Background on Prosper Avril and the
Vendetta Against the Reform-Minded Group of Haitian Army Officers" describing
the origins of the decade-long vendetta and smear campaign that has targeted the
same senior officials against whcm accusations were made to the FBI.
PRH/Lt/2a8, Port.-uu-Prince, July 3, 3995
Dear Anmaanador Swing:
Thank you for your letter of July 11, g95., on bobalf of
Attorney General Janet Rano, in which you shared wit|U us your
underat&nding of the outcome of the July J, lavu moetinq among
ourselves and other U.S. officials. z vrite thic letter as a
response, though, t1ivn tho Uoegatinias of the issue. perhaps my
letter would batter bu addresocd to praaidant Clinton.
1 uelcone the Attorney General l reconfir=tion of tli intanz
of hoe original ofafr of I=I assistance tor the haonait of the
Haitian Kinistry of rustioas Thia vsa, and ro=ains tho ba ia on
uhich I aouepted your groaiousn offr. We remain coaitted to
cooperation baeuten the United states and aiti on the issue which
i~ the highoat priority of my gove ameht the assurance of justice
and the establishment or a state of law in Haiti. However, I fool
I aset rait.erate several points that were not reflucted in your
First, as X stated in ry initial conversation with you,
confirmed in my discussions with President Clinton during his March
31, 1995 visit to Haiti, and racffirmed in l1 subsegqunt
conversations relating to thie ioeut the assistance offered by the
1SI should extend to a33 viatin of violent crimu in Haiti. since
the coup of 1991, Haiti hIe lost 5,000 citizens. A i the President
of aach and every Haltian oiti en, I dv not aiii udnnot plaoc a
higher value on the l3e of one citizen above any other.
S.E. Willia Laoy Swing
Ambaanador of the United States
United Stnteo Mbajssy
second, the role of the FBI in Haiti is to provide assistance
to the Haitian government under the authority of the laitian
Ministry of Justice. The Ministry of Justice in responsible for
Ule investigAt: nn and prosCUtion of all cripas committed in Haiti.
Therefore, I must once again emphasize that the FBI must work with
the Minister of Justice and not attempt to bypass him.
'1Tird, When npa.ratitin in Haiti, the FBI must respect Haitian
law. The Haitian governnant beala the responsibility of protecting
the right of all individuals questioned by the Fal to be
raProeented by an attorney. P2I agents aannot force poerona 4t
speak with then without the benefit of a personal attorney present.
It is also the responsibility of the Haitian government to provide
lawyers to any government employee who is being questioned. on
this point I an glad that Wu agree, and I am sure a mutually
convenient procedure can we worked out between the lawyers.
The United Statex and Haiti currently enjoy a strong and
fruittful relationship, unprecedented in our hictoriea. Together we
have made great strides in establiahing a stablu democracy in my
nation. Through the experience of the past months, the Haitian
people have begun to view the United States in a new light. On
September 19, 1994, Haitian citizens welcomed U.S. soldiers with
open armn. In turn, the American public had the opportunity to
witness their sons and daughters peacefully uphold democracy and
protect human lives in a neighboring land.
I know that the future of my nation depends on the quality of
our releatonnhip with the United States. For this reason. 1 vwnt
to avoid any instanon which would caoe* tLh HaiLiln people to
perceive U.S. aotlons ao imporialiot, colonialst or racist. I ee*k
to avoid any nrpture in U.S.- Haitian relations.
If the conditions that I have outlined above are aetv by the
FBI agents in Haiti, we will continue to welcome their assistance,
and to facilitate their work. What we ask is liiple: that the FBI
agents offering their asaixtanoe-to the Haitian Ministry or Justice
abide by Haitian law and roopoot the dignity of the Haitian people.
Given the current concerns of the Haitian people ii tegarde to
the FBI's role in Haiti, it will bo my obligation to make uy
position public should the FBI fail to respect tlh sovereignty and
dignity of Haiti.
7 an confident that you will aipreciate tho ipportanca that I
place on this ircuo and that tngeotar ue vill Io abla to reach a
solution in the spirit or the harnonoums relations that have
developed between our nations.
Jean-Be ran Aristide
"DO AS WE SAY, NOT AS WE DO"
THE REAL RECORD OF HAITI'S COOPERATION WITH THE FBI
IN THE DUROCHER-BERTIN CASE
On January 4, at a House International Relations Committee hearing on Haiti, Administration
witnesses and members comments purported to describe evidence found by the FBI implicating certain
police officials in the Aristide government. The hearing testimony also purported to describe Haiti's
cooperation with the FBI investigation of the murders last March of Mrs. Mireille Durocher-Bertin and
Mr. Eugene Baillergeau. Similar information about the level of cooperation already had been leaked to
the press last summer. You heard, or will be told: (1) that several persons whom the FBI seeks to
interview, and their private counsel, are "frustrating" the FBI's investigation; and (2) that the Government
of Haiti should pressure them to stop "stonewalling". That formulation is tempting, simplistic and dead
wrong. Before unwittingly buying into the clever campaign of those whose real agenda is to fan flames
of distrust between the U.S. and Haiti, American policy makers should take the time to view the matter
in proper perspective.
In fact, a series of procedural issues between private counsel for the prospective interviewees
and the FBI has been resolved, with one very narrow exception whether witnesses can correct transcripts
of their interviews. The briefest consideration of the current impasse makes clear that it is not the counsel
for the Haitian interviewees who has been responsible for the delay.
As for the Government of Haiti ("GOH"), it actually has bent over backwards to be
cooperative in this high profile case. Haiti actually has accommodated the FBI's preferences to a
remarkable extent for a sovereign government accepting an offer of "assistance to its Ministry of Justice".
Moreover, it would not be appropriate for the GOH to pressure the attorney for prospective interviewees
to ignore his professional responsibility regarding his clients' interests for the sake of expediency. That
would be just as inappropriate as asking the U.S. Attorney General or President Clinton to pressure a
private attorney here to abandon his best judgment about a reasonable procedural request on behalf of his
The procedural options requested by the private counsel for the prospective interviewees have
been reasonable as judged by U.S. standards. At each juncture, the FBI's initial position has been that
they simply are following their U.S. practice, i.e., that they do not conduct interviews under the particular
format sought by the private counsel in this matter. It was pointed out each time, however, that such
procedures are often agreed to when requested by American investigative targets, let alone witnesses,
whom the FBI wants to interview in the U.S. Then the FBI eventually agreed to that particular requested
element of the format. This has been the repeated pattern except for the last step now in dispute. The
remaining issue is very limited; but it apparently threatens the FBI's willingness to continue its
investigation. Having agreed to a full transcript of the interview, the FBI has balked at permitting the
interviewee to review his own transcript, so that it might be promptly corrected while memories of the
questions and answers are still fresh. Yet such transcript review is both customary and clearly essential.
Otherwise, the potential is just too great for harmful leaks and unwarranted policy assumptions, based on
misunderstandings, inaccuracies or incomplete summaries. This is especially true given the complexities
of any such cross-cultural investigation and the intense political maneuverings in which this criminal case
is now enmeshed. The media coverage and Washington debate about this case already have amply
demonstrated that danger.
Of course, in the U.S., the witnesses could simply refuse to be interviewed altogether unless
their procedural requests were honored. In the current situation, however, the Haitian subjects have
indicated that they want to be interviewed, so that they can clear the air, provided there are appropriate
Counsel for the interviewees asked the FBI months ago for an explanation of its actual FBI
procedures in similar situations in the U.S., as well as a specification of any actual "conflict of interest"
that the FBI has vaguely suggested might arise from his representation of multiple clients (also a common,
accepted practice in the U.S.). The FBI has not yet responded. It may be that the FBI team in Haiti is
simply looking for a reason to end an understandably frustrating and difficult assignment under taxing
conditions -- one that might have been less frustrating and less difficult had there been a more
collaborative effort with the GOH's inquiry. If the FBI believed that these interviews were important to
their inquiry, then there was no good reason why they could not have proceeded. That would both have
made the FBI's inquiry more complete and also would have avoided unfounded accusation of a "cover-
Otherwise, the terrible irony will be this: the U.S. Government has provided thousands of
dollars to assist the Haitian Govemment's improvement of its criminal justice system and establishment
of the rule of law, and has sent scores of judges, prosecutors, defense attorneys and police officers to Haiti
to advise Haitians on appropriate criminal justice procedures, including the full protection of the rights
of citizens subject to investigation by the State. Then the U.S. turns around and now would tell the
government and people of Haiti:
"Do what we say, not what we do. The procedural rights afforded citizens in
America by our preeminent police force will not be applied in Haiti because the
FBI feels that it might theoretically make the job a bit harder."
Understandably, every law enforcement investigator would prefer to question citizens without any
annoying complications, such as an attorney being present or a complete, accurate record being kept.
Anyone who has seen the character of Detective Sipowitz grill a witness on the television show N. Y.P.D
Blue, knows that. But the glory of the U.S. criminal justice system is that pure expediency has never been
the sole determinant of accepted criminal procedure. No matter how urgently both governments seek to
resolve this and other heinous crimes, we should not press the Haitians to make expediency the sole
determinant for them -- especially not in the same breath that we ask them to learn and respect our
safeguards of civil liberties.
This memorandum provides the full background explanation and the actual facts which
Members of Congress and the media must have in order to accurately understand the issues and appraise
unfair criticism of Haiti's cooperation with the FBI. But first, it is important at the outset to make clear
that the government and the people of Haiti are extremely grateful for the dedicated efforts of the
individual FBI Special Agents and Supervisory Agents, who have labored under adverse conditions in a
foreign country and in what, at times, has doubtless been a perplexing foreign cultural setting.
POINT #1: In the Durocher-Bertin investigation, it is the FBI and U.S. policy officials who have not seen
fit to fully cooperate with the Government of Haiti.
Last March, President Aristide accepted an offer from President Clinton and Attorney General
Reno to have the FBI assist in the inquiry into these murders that the Haitian interim police and Ministry
of Justice had already commenced. As U.S. Ambassador William Swing recently acknowledged in
subsequent correspondence with the GOH, the U.S. offered the FBI's assistance to help the Haitian
Ministry of Justice investigate these murders. Once the FBI team arrived in Haiti, however, the FBI
promptly decided to refuse to provide any substantive assistance to the Ministry of Justice and its
investigation. Instead, the FBI team in effect constituted itself as an "independent special prosecutor"
operation, conducting a wholly separate investigation in secret and declining to work jointly or cooperate
with the GOH's inquiry. Not even the autopsy reports and ballistics analysis were shared with the
Ministry of Justice until very recently.
This was completely contrary to the basis upon which the GOH had accepted the offer of FBI
assistance. In any event, the question of when a criminal inquiry should be conducted completely
independent of the Ministry of Justice and police is clearly a matter to be decided by the sovereign
government whose criminal laws have been violated.-'
Nevertheless, the GOH bent over backwards to accommodate the FBI effort. The GOH made
its concern clear but did not stop the FBI investigation, which went forward on a secret, basis, independent
from the host government they were sent to assist.
As a practical matter, the FBI provided virtually no information to the GOH, except for one
or two innocuous briefings, e.g., a video of the crime scene. Thus, there was scant opportunity for the
GOH and its investigators to provide the FBI team with helpful guidance in regard to leads that might be
pursued and, equally important, a "reality check" with regard to erroneous or incomplete information that
the FBI team receives from sources eager to smear the Aristide government or to divert attention from
their own culpability.
The ostensible justification for this bizarre approach to "assisting the Ministry of Justice" --
in a foreign country where the U.S. Justice Department has no criminal jurisdiction was this: there had
been allegations of a plot to murder Madame Durocher-Bertin that supposedly involved officials in the
Aristide government. The FBI expressed concern that the integrity of its investigation would be
compromised, therefore, if it shared any significant information with the GOH.
But the GOH was equally concerned that the inquiry retain the benefits of combining
synergistic efforts of the Haiti investigators and the FBI team. In particular, the GOH investigators could
provide information that would permit the FBI to properly assess the credibility and potential motivation
2- The soveeign U.S. Govrnment has decided by statute the general framewoor for making such decisions in the U.S. This is
the Independent Special Prosecutor Act That framework must then be applied in parcular cases by the Attorney General to determine. for
example, whether there should be a fully independent counsel investigation, or merely a "special counsel" reporing to the Attorney General
Suppose a team from Scotland Yard or the Royal Canadian Mounted Police were invited into the Northwest U.S. to assist a Justice Depatnmnt
investigation because of the RCMP's expertise in certain investigative rea., and then unlaerally decided because of an allegation against a U.S.
attorney thai they would operate as n "independent prosecutor-ype investigating team and would share none of their ongoing investganon with
the Department of Justice Imag-ne how the U S, Congress or the White House would ract
of sources from which it obtained information -- either directly from the source, or via other U.S.
Government agencies who may pass on such information from U.S. intelligence files.
In addition, the GOH could suggest categories of information that the FBI might not have
fully received from the official sources on which they are relying, because U.S. agencies are concerned
about political embarrassment if Haitians who have been on their payroll might then become suspects in
a murder investigation.2 They could only effectively do so in direct and mutually cooperative
consultation mutually with the FBI team.- Therefore, the GOH has offered to set up special secure
channels for consultation and exchanging information, but this was rejected by the FBI. In marked
contrast, the investigators for the GOH have repeatedly sought to provide the FBI team with leads, names
of persons who should be interviewed, and specific information relevant to solving the murders.
- The number of instances in which U.S intelligence "sources" providing false or largely inaccurate information crucal of
President Anstide and his colleagues have turned out to be former Hastan army officials, paramilitary leaders, and their political o-conspirators.
are too numerous to recount here. Many of those "sources" were responsible for countless murders, tortures, terror raping, narcotics traffic ito
U.S. cities, or other major crimes and human nights abuses They helped overthrow President Ansode and then bitterly fought his return
Whatever accurate information they may have provided about political maneuvernng within Ham's military or then-ruling cite, they had more
than ample incentive to lie about alleged murders by the Anstade government. Two notonous examples ane:
t he slanderous briefing about President Anstde. that was significantly based on information from persons who had
overthrown his egiumate government or have tried to have him killed, which the Congress received from the CIA in
the fall of 1993 and which were later shown to be false; and
the CIA's longstanding employment of the head of FRAPH after urging and aiding him to establish FRAPH's
predecessor following the 1991 coup. (FRAPH is the paramilitary organization most responsible for the brutal murders
and torture President Clinton cited it in the summer of 1994 as a principal justification for temporary U S military
involvement in Haiti.)
This is only the tip of an iceberg that knowledgeable observer have claimed dwarfs the recent CIA "Guatemala scandal", I can provide additional
information to appropriate congressional committees if they wish to pursue oversight n those manners
P Forexample, when Ambassador Wilhlam Swing and General Meade(U.S.A Commanderof the MNF) pressed President Anstude
to retain Claude Duperval (General Cedras former deputy) as acting Commander-m-Chief of the Hainan army. they apparently had not been
informed by U S. mtellgence that Duperval:
as Chief of Police during the 1990 elections, had refused to execute warrants for the arrest of the head of the dreaded
Tontons Macoules who had illegally returned to Haiti;
had been the key military conspirator in the abortive coup that almost prevented President Anside's inauguration in
was on the Justice Deparutent lis of high level Hantan officials whom it sought to indict This list was circulated to
U.S intelligence agencies to se whether those agencies would be embarrassed by such prosecutions
The most recent disturbing incident involves Marele Momrsamt. who has been implicated in several murders including the brutal
1993 slaying of Hait's Minister of Jusuce. Guy Mallory Monsannl was admittedly on the U S payroll With the murder charge against him
still pending. Momsamnt was released from Jail on the basis of an alleged failure of the releasing authorities to take account of perving charges
Now he cannot be found and may have left Haiti This was accomplished unbeknownst to the current Minister of Justce or his investigators in
the Mallory murder, and, according to news reports, with the clandestine assistance of U S officials
S There have already been several instances in which it became clear that the FBI was acting on infonmauon it thought was very
probatve of certain indiduals' likely involvement in the murders, e g certain electronic intercepts. There was additional information with which
the FBI had not been supplied by the other U.S Government agencies and which dramnatully reduced to near zro the probative value of the
maternal on which the FBI was proceeding A participant in the GOH's ongoing inquiry into the murders fortuitously learned of this evidence "
that the FBI was evaluating totally out of context and, at least in that instance was able to provide the additional corrective information
27-565 96 4
POINT #2: The GOH has not obstructed the FBI's attempts to interview persons believed to have
relevant information about the case.
When the FBI initially sought to interview members of the Haitian Cabinet and lower level
officials, the GOH indicated its desire to have members of its own inquiry also sit in on those interviews.
Once again, the Bureau demurred and said its practice was only to interview persons alone, or not at all.
That is not true. It is only their preference. The GOH pointed out that, in fact, the FBI often allows
attorneys in the U.S. to sit in on interviews of their clients, when the client insists upon it and the FBI is
interested in conducting the interview. The issue was temporarily put aside, while the FBI interviewed
other witnesses, examined the crime scene, performed forensic analysis, etc.
The FBI subsequently notified the GOH of its intent to interview some 15 persons who, for
the most part, were (or recently had been) senior police and Palace officials. Once again, the FBI objected
to having any attorney representing the GOH sit in on these interviews, claiming this would "compromise"
its inquiry. The GOH pointed out that numerous U.S. federal officials had been interviewed by the FBI,
or by Independent Counsel prosecutors, in the presence of both their personal attorney and a government
attorney from the interviewee's office or agency. Nonetheless, the GOH acceded to the FBI's request that
only private attorneys for the subject be present.
This issue was resolved amicably on July 2, 1993, in a meeting with President Aristide of
senior officials from the FBI, the State and Justice Departments and the U.S. Ambassador. The
participating U.S. officials, including senior representatives of the FBI and the Department of Justice,
agreed that it would be appropriate for the interview subjects to have private defense attorneys who could
sit in on the interviews if their clients wished as the FBI often permits in the U.S. -- so long as no
attorney representing the GOH, itself, participated in the interview.
President Aristide also explained the Government's policy that GOH employees should have
legal representation when questioned by law enforcement officers, if they desire it, and that the GOH
would pay for such outside counsel. Again, the U.S. representatives, including the senior FBI official,
agreed that the interviews could go forward on that basis, especially since it is sometimes done that way
in the U.S.I'
At that July meeting, the GOH agreed to still another procedural request by the U.S.
delegation on behalf of the FBI. The FBI had notified the GOH of 15 prospective interviewees. At this
meeting in President Aristide's office, it was agreed that, beyond those 15 persons, the FBI could approach
any other government official or employee for an interview in a private setting, e.g., at their residence,
without notifying the GOH, as long as the FBI fully apprised the employees (1) of their right to have
- This was perfectly approprate. In the Unted Stales federal empoyees being questioned by the FBI are sometmees represented
at such inerviews by the General Counsel's Office in the agency where those imtervcew subjects work. Because they are bang represented, at
leas in the first instance, by counsel for their agency the question of the U.S Governmenl's paying for separate prive counsel often does not
arise. In some cases. however, i is deemed napproprate for the agency counsel to sit n on the interviews, representng the person interviewed
In those cases, the Government can and has helped pay for pnve counsel. One example a a Special Independent Prosecutor sIuaion where.
by definaton, the tnrggern of appointment for an Independent prosecutor rises a potential conflict of Interest between the investigators and the
Federal Government. In such ca.se outside counsl Uay be retaned and paid for by the Goverment., as II also did in the case of FBI agents
being proscuted by state cnnnal justice agencies in the Ruby Ridge cs.
Moreover, In those situoaons. the Juslce Departent will not only mentoo several alternative attorneys fanuluar with the type
of case hand. but will recommend a couple of attorneys whom it thnks are particularly competent to help in a given type of situation
counsel; and (2) that the GOH was prepared to arrange and pay for competent counsel if the prospective
interviewee so desired.
It is important to distinguish these two pans of the agreement reached at the meeting in
President Aristide's office last July:
The agreement that the persons noticed for interviews in the FBI's letter to Minister of
Justice Exume would be accompanied, if they so desired, by private attorneys paid and
arranged for by the GOH; and
S Other persons whom the FBI subsequently identified as prospective interviewees could
be approached privately and without necessarily going through the GOH.
At the House of Representatives International Relations Committee hearing on January 11, Associate
Deputy Attorney General Seth Waxman blurred the distinction in his testimony, thereby leaving the
erroneous impression that it had been agreed the FBI could seek to interview even the persons noticed for
interviews in the FBI's letter without their having an attorney present. As for this second half of the
procedural agreement, the FBI apparently has suggested to some members of Congress in private briefing
that the GOH somehow breached it. In fact, it is the FBI who disregarded the agreement.
The So-Called "Guardhouse" Incident
Instead of approaching the additional IPSF or Palace security force personnel they wished
to interview on a private basis, e.g., at their home, a store, etc., the FBI purposely sought to interview a
Palace security force member by going to the desk sergeant at the guard house for the barracks where they
stay during the day. When the FBI asked for the individual in question, the sergeant, quite expectedly,
notified the head of the palace security force who then asked the Bureau to submit the request through
him. This is what would happen in the U.S. anytime the U.S. sought to interview someone in a
government agency or private company, as opposed to approaching him privately outside of his
The Miami Airport Incident
Far more alarming is the experience encountered by several members of the Palace security
staff when they went on a visitor's visa to Miami. In the Miami airport, they were accosted by several
persons who did not show any FBI identification -- contrary to the agreement in President Aristide's
office. Instead, they left the distinct impression that they were INS officials and that there was a problem
with the Haitian's visa or passport. Once in a small interrogation room, however, again without showing
any FBI identification, the Americans first sought to determine the subject's political orientation in Haiti,
his attitude towards President Aristide and his likely voting decision in the then-upcoming parliamentary
elections (no doubt the better to teach him the American value of the secret ballot). They then proceeded
to attempt to question him about the Durocher killing and desisted only when he loudly repeated that he
did not want to talk to them about it. When he asked what any of that had to do with his immigration
status, they simply backed off, never indicating their official position or showing identification.
POINT #3: The GOH provided the proposed interviewees an opportunity to retain counsel appropriately
experienced to represent their interests in this matter.
The persons that the FBI seeks to interview retained U.S. counsel to represent them. Lead
counsel was a highly reputable, former prosecutor and someone sufficiently familiar with complex criminal
investigations and FBI investigating policy to adequately outline the issues and options for his clients. That
is precisely what one would expect any attorney in the U.S. competent for this assignment to do as part
of his or her professional and ethical obligations. For example, when the U.S. Government offers to pay
for employees' counsel, e.g., FBI Agent at Ruby Ridge, the U.S. Government will say to them:
"You can have whomever you want; but we can recommend counsel who are
particularly experienced in this kind of investigation."
While the GOH is paying any legal bills of these interviewees, the GOH has made crystal
clear to the retained private counsel that his sole professional obligation is to the individuals whom he
represents. The GOH has not sought in any way to dictate the advice that he provides to his clients. The
counsel, in turn, has indicated explicitly to the FBI and to the GOH that he takes extremely seriously his
professional responsibility to represent his clients' individual interests.
The FBI also questioned the fact of multiple client representation. It is, of course, quite
common for a single attorney to represent multiple persons in U.S. criminal investigations who are
employees of the same company or government agency. This is especially true when they are employees
of a common employer and are merely persons whom the police want to interview as possible witnesses
with relevant information. It is also quite common in the U.S. for a company that is the employer of such
multiple witnesses to pay for their legal expenses. If a possible conflict develops downstream, that is
another matter and one clearly for the private attorney to evaluate.
Presumably, the U.S. would not seek to deny these Haitians the same adequate legal
representation, to which they would customarily have recourse in the United States, merely because of the
common concern shared by the U.S. and the GOH to solve this murder case, along with others, as
promptly as possible.
It should be emphasized that the remaining procedural issues discussed below are matters that
were negotiated between the FBI and counsel for the prospective interviewees not the GOH.
POINT #4: A subsequent series of procedural issues between private counsel for the prospective
interviewees and the FBI has been resolved, with one very narrow exception. The briefest
consideration of this series of issues -- and the current impasse -- makes clear that it is not
the counsel for the Haitian interviewees who has been responsible for the delay. Their
request was reasonable under the circumstances.
After counsel reviewed the matter and conferred with his clients over an extremely brief
period, compared to customary practice in the U.S. he asked on their behalf whether the FBI would
agree to a full transcript being made of each interview. To his surprise, the FBI expressed reservations,
insisting that it would suffice to have the so-called "302" interview reports that Bureau agents write up
after the interview. The FBI team in Haiti claimed that it was not its practice to permit a transcription
or recording to be made of interviews. Since this position, in fact, did contrast sharply with FBI practice
in the U.S. in similarly appropriate situations, private counsel for the interviewees appealed that initial
response through several levels of the FBI management. His detailed memorandum noted that the creation
of a transcript is not in violation of any known FBI rules or regulations. Eventually, the FBI agreed to
have the interviews transcribed. But resolving this simple issue took several months and further delayed
the investigation. (Although the issue was eventually resolved, the substantial delay it caused makes clear
the reasonableness of the request for a transcript, rather than relying on FBI "302" interview reports -
widely acknowledged to be selective and, sometimes, inaccurate -- in case the contents of an interview
is disputed. See more detailed discussion at Tab A.)
Once there was agreement to transcribe the interviews, the pending issue became whether the
interviewees would be given prompt access to the transcripts of their own interviews in order to be able
to point out any errors or omissions. The private counsel's August memorandum submitted to the FBI
also pointed out that, when a U.S. citizen makes it a condition of being interviewed, the FBI not only will
sometimes permit a transcript of the interview, but also permits prompt access to the transcript by the
interviewee and his counsel, for purposes of study and correction where necessary. Indeed, the normal
practice is for the court reporter to provide a copy of the transcript directly to each party to the
proceeding, i.e., a copy to the FBI, and a separate copy to the counsel for the person interviewed.
It should be noted that the FBI, when asked, would not for the most pan indicate to the
counsel whether these prospective interviewees, at this point, were (in one case they indicated the person
was a "subject") witnesses, subjects" or "targets" of a criminal investigation.
It also should be noted that normally, decisions on the conditions to be granted persons that
investigators wish to question would be made by a prosecutor, not the law enforcement agents,
themselves. In this situation, however, the FBI, in effect, is acting in Haiti not only as a freewheeling,
unaccountable police investigation force, but also as an independent special prosecutor without any
appropriate decisions in that regard having been taken by the GOH.
The FBI's failure to respond definitively to the request that a transcript be provided to the
interviewees was reviewed at the Justice Department, State Department and the White House. I was told
by senior officials in each that the above analysis was correct, but that they simply could not push the FBI
It is not correct to claim that the counsel imposed conditions. They merely sought to
determine definitively what conditions might be agreed to. In his August communication to the FBI,
counsel for the interviewees asked what the genuine FBI policy and practice in the U.S. has been when
prospective interviewees ask to review a copy of a transcription. This request was made so that his
Haitian clients could be accurately informed about how the FBI treats such requests in the U.S. and could
then decide what conditions, if any, they wish to attach to granting an interview. The FBI never
responded to these inquiries. (The importance of access to correct the transcript is detailed further at Tab
Lawyers for the respective witnesses appealed the hesitation of the FBI investigative team
to provide a copy of the transcript. The attorneys, however, never received a final response from the
Bureau as to whether a copy of the transcript of the interview would or would not be provided to them.
Nor were they ever told, despite the repeated request for an explanation, what FBI guidelines or FBI
Manual provisions, etc., precluded their getting a copy of the transcript. Instead, the FBI just decided, in
consultation with senior Administration officials, to walk away from the investigation without conducting
POINT #5: Any effort to cloud the interview procedure issues with veiled suggestion of improper multiple
representation is without merit and offensive.
Also hovering in the background, was the FBI's vague suggestion that, because the private
counsel was representing more than one of the interviewees, he could be laboring under a conflict of
interest, which the FBI would specify at some future point. "[The FBI] cannot concur a priori that you
could ethically represent all 15 individuals." (FBI letter of August 15 to counsel.)
(1) counsel cannot ethically represent all clients simply because there conceivably might
develop a potential conflict of interest;
(2) counsel cannot do so in this case as to particular pairs of clients because the FBI is
aware of facts indicating an actual conflict of interest;
(3) the law presumes there is an unreconcilable conflict of interest whenever more than one
witness chooses to be represented by the same lawyer, or
(4) the FBI simply would prefer not to have the same attorney because it would make it
easier for them to obtain statements by particular classic police interrogation stratagems, such as
suggesting the interviewee had been accused of wrongdoing by another interviewee when, in fact, that is
not the case.
Given the FBI's veiled threat that counsel may be acting unethically because he represents
more than one party, the conscientious attorney is now required to (1) inform his clients of the FBI's
concerns; (2) to meet with the clients again to discuss their desire for representation: and (3) to revisit the
choice of counsel questions.
The canons, codes and rules of ethics in virtually every American jurisdiction allow multiple
representation in both civil and criminal matters. In Florida, where the private counsel practices, the state
rule permitting it is based on the ABA Model Rules of Professional Conduct. It is not at all unusual for
one attorney to represent many clients in the same investigation. This is especially true if they are only
witnesses and have not been informed that they are targets. Lawyers, of course, must be alert and careful
that no client's interest is sacrificed or impaired by this multiple representation. They are bound by that
obligation. If they violate it, they can be sanctioned. Federal courts of appeals repeatedly have refused
to curtail simultaneous representation of multiple clients. This has even been true when the clients were
principal targets of a grand jury investigation, had pleaded the Fifth Amendment or had been immunized.
Moreover, multiple representation also has been upheld, even where fees for the attorney's representation
of multiple clients were being paid by their common employer. (Also see discussion in Tab C.)
POINT #6: These are the only pending procedural issues.
If it is suggested that the lawyer for the persons to be interviewed has demanded that the FBI
supply the proposed questions in advance, that is not true. The possibility of reviewing those questions
was raised early on, in terms of their intelligibility to the persons being interviewed, but the matter was
dropped. It has not been mentioned again by counsel for the witnesses, nor is it in the FBI letter to
counsel or in their response of July 27 to Deputy Assistant FBI Director William Perry.
POINT #7: The FBI's claim that it lacks access to grand jury subpoena and other compulsory process
available in the U.S. is inaccurate and misleading.
The Bureau's basic response to these points is its claim that the real reason why the
investigation was frustrated was the absence in Haiti of "compulsory process", i.e., search warrants and
compelled grand jury testimony, that are available in the U.S.
This is not accurate. Even in the U.S., the FBI does not have carte blanche to instigate or
conduct grand jury hearings. Rather, the FBI must convince the U.S. Attorney's Office that the case
warrants a grand jury and that particular witnesses should be called. Even if they testify before a grand
jury, while they may not be accompanied in the grand jury room by their attorney, witnesses are allowed
to consult with their attorney out in the hall in-between questions. Moreover, they are allowed to invoke
the Fifth Amendment privilege against self-incrimination. It is U.S. Justice Department policy that, if a
prospective grand jury witness authoritatively demonstrates a firm intent to invoke the privilege against
self-incrimination, then that prospective witness should not be called before a grand iury, iust to have the
grand iury see the privilege involved. This is especially true in the case of someone whom the prosecutors
view as a subject, let alone as a target of the investigation.
There are also constraints on the FBI and its U.S. Attorney partner in cases prosecuted in the
U.S. criminal justice system.
In the case of the Haitian criminal justice system, the FBI's complaint that it had no
opportunity to obtain compulsory process and have the prospective witnesses interrogated is misleading.
True, there is no grand jury in the Haitian system. Nevertheless, the juge d'instruction serves as both an
examining magistrate (like those in Italy who led the fight against the Mafia) and a one-man grand jury
for purposes of determining whether the case should go to trial. Ajuge d'instruction had been assigned.
He had already questioned the six persons connected with the alleged Beaubrun "plot". The FBI could
have asked the juge d'instruction to ask particular questions of persons they sought to interview. But they
did not. They did seek to obtain a search warrant from thejuge d'instruction or another Haitian official
in charge of supervising the case, but apparently they failed to persuade him to issue one.
In summary, although an FBI representative this summer claimed in their July letter to
counsel that they were insisting on certain procedures "because we are following U.S. investigative
practice ..", that claim was inaccurate. What does the Congress want to say about this situation to Haiti
and the world? Does Congress really want to tell Haiti:
"Do what we do in our own country for our own citizens -- except when the
U.S. provides law enforcement investigators to assist your criminal justice
system. Then do what we say, but not what we do. Haitians should accept a
second class system of justice and receive less protection than U.S. citizens."
That is not an appealing message.
Burton V. Wides
January 4, 1996
We represent the Government of Haiti and are registered under the Foreign Agents
Registration Act at the Department of Justice, where our registration is on file.
302 VERSUS INTERVIEW TRANSCRIPTS
Prospective interviewees understandably want a more reliable record, rather than the one-
sided, highly selective FBI interview report Form FD302. The FBI indicated that the preparation of
interview "302s" are accepted as appropriate practice by federal courts and also noted that these
might never be used in court, if the matter did not go to trial; and
might be overlapped by interviews conducted by the Judge of Instruction. (He is the
Haitian judicial official who, like the examining magistrate in European civil systems,
reviews and expands on prior investigative work and -- like a one-man grand jury -
decides whether there is enough evidence to justify trying one or more of the accused.)
The concern raised by counsel for prospective interviewees, however, is not what will come
out in court. If it were, they would refuse to cooperate now at all. Their concern is that inaccurate
information may start to circulate now within the Executive Branch of the U.S. Government, O.A.S.
or U.N.; in briefings of congressional committees; or in the media -- which would affect them personally,
as well as U.S. policy towards Haiti. Such inaccuracies could include outright fabrication completely
made up, i.e., without even partial leaks of the actual interviews. However, such inaccuracies also could
arise from selective leaking and quoting out of context, paraphrasing or other common distortions of what
was actually said and intended in those interviews. This particular case and the surrounding circumstances
have already been the subject of numerous harmful alleged leaks from official and unofficial sources that
are hostile to President Aristide and his government.
The assertion that 302 reports are a practice "accepted in federal courts" is true, but highly
misleading. The practice is most often acknowledged in judicial opinions refusing to require that copies
of the 302s be turned over to counsel under the so-called "Jencks Rule", where that refusal is precisely
based on the fact that they are "not a substantially verbatim account of an oral statement made by a
witness". Fed. R. Civ. P. 26(f)(2), 18 U.S.C. 3500(e)(2). Indeed, in the U.S. courts, federal prosecutors
argue almost daily that 302s are not a reliable account of an FBI interview, or at least that 302s omit
important context necessary to clearly understand particular excerpts. Courts recognize that 302s are mere
summaries of oral statements that evidence substantial selectivity of material (and sometimes even are
prepared after the interview, without the aid of thorough notes and rest on the memory of the agent). In
short, a transcript provides an accurate and complete record of the interview; a 302 report does not.
Thus, the FBI may tell Members of Congress, as they said in a previous letter to the private
counsel, that the "FBI historically has not taped or mechanically recorded its interviews". This is
incorrect, unless the word "historically" is distorted to mean only the FBI's historical preference in such
situations and their customary initial position. The FBI cannot deny that its practice in the U.S. has often
been to permit transcriptions of such interviews, with a copy being promptly provided to the client's
attorney, when the witness has required such an accurate record of any interview.
PROMPT INSPECTION OF INTERVIEW TRANSCRIPTS
Customarily, stenographic notes of a transcribed law enforcement interview are typed up and
promptly shown to the witness for reading and signing. In this particular matter, there are many potential
problems clearly requiring safeguards to ensure as much accuracy as possible.
Court reporters' shorthand or stenographic notes must be a true and accurate account
of what was said.
The type transcript must faithfully transcribe the notes.
Interpretations and translations between the English language and French or Creole must
be reliable as to questions and answers.
Interviews beset by language and cultural differences leave plenty of room for
These objectives can only be achieved if there is an opportunity to review the transcript as soon as
possible. Witnesses should be able to inspect a transcript while their memories are fresh from the
High-level Administration officials have privately acknowledged me that they do not
necessarily accept the FBI's position as a matter of law or historical practice, but rather, are merely
unwilling to try to budge the FBI bureaucracy any further. I had thought the Department of Justice
exercised supervisory power over the FBI in regard to such policy matters. (I have worked over 20-odd
years to protect the integrity of FBI investigations from improper outside political influence -- from
Watergate and background investigations of judicial nominees, to inquiries into alleged organized crime
ties of Cabinet officials and the creation of a lengthy statutory tenure for the FBI Director. I am sensitive
to the importance of preserving the integrity of FBI investigations. This, however, is a proper matter of
procedural oversight, especially since the FBI is assisting a foreign government as a matter of foreign
POTENTIAL CONFLICT OF INTEREST
The question of whether there is a conflict arising from multiple representation, absent
specific justification, is to be determined by the attorney. It can be established only by particular facts
in a given case. Courts warily view the asserted role of the prosecution in raising such a conflict. The
comment to the Florida rule cautions that objection by opposing parties "should be viewed with caution,
however, for it can be misused as a technique of harassment." Courts agree, even where the object is
raised by a prosecutor that:
"The rules of ethics are a guide for lawyering and not intended as procedural
weapons; assertions of conflict by an opposing party should be viewed with
It is also unclear why the FBI waited more than a month to raise the issue, when it had not
been mentioned in previous meetings and correspondence.
The FBI appears to assume that one or more of the persons to be interviewed are guilty of
crimes and that others have information that might implicate them, and to assume further that,-if a single
counsel represents both persons, he would seek to dissuade one witness from providing information about
the guilty party because the latter might also be that counsel's client. One should equally assume that if
such a situation developed, the American attorney representing both of them would adequately assess
whether there was a conflict of interest and, if so, end the multiple representation. The American counsel
to these clients is a former prosecutor and prominent member of the Florida legal community. It is
outrageous to suggest that he is unmindful of, or not complying with, his obligations to make known to
their clients any conflict of interest that should arise.
The last FBI communication to the counsel on this issue is confusing. The FBI letter states:
"It is highly likely that a conflict of interest will develop so that you could not
fairly represent individual interests of all [the requested interviewees]",
but then insists that, nevertheless, the interviews should proceed. The letter adds that the FBI will deal
with the conflict issue after each client has made his decision on going forward and given an interview
with the aid of a counsel who, supposedly, is so "likely" to be conflicted.
The FBI also noted that such multiple representation "might compromise the FBI's
investigative efforts", and might "taint the work product of [its] investigation under Haitian law ." The
FBI has not provided any legal opinion substantiating that suggestion which might be reviewed by the
American lawyer with Haitian co-counsel.
Finally, the FBI has sought to blur two separate issues: (1) a potential conflict of interest
allegedly raised by multiple representation; and (2) providing interviewees with a copy of their transcribed
interviews. The FBI has suggested to other U.S. officials that, if private counsel for those interviewed had
current access to such transcripts, it would enable him to use the information he learns from the interview
of "Mr. Smith" -- about the questions or the answers -- to prepare "Mr. Jones" for his interview, in a way
that could hinder the FBI's investigative strategy. But that concern, which must be balanced against
equally important interests discussed above, goes to the issue of multiple representation and participation
in interviews. It does not meaningfully relate to the unresolved issue of whether a copy of the transcript
will be provided. To the extent a counsel for an interviewee wanted to act improperly in this regard, he
or she certainly would not need a verbatim transcript. Counsel certainly would have a sufficient
knowledge of the first interview and sufficient notes on key matters to do so in any event.
In fact, it has even been suggested that the FBI might complete all of these interviews and
then provide the transcript copies all at once, in order to avoid this concern. But even this suggestion to
resolve the matter and let the FBI complete its investigation has been rebuffed.