U.S. URGING SHIFT IN CARIBBEAN LEGAL STANDARDS BECAUSE OF DRUG WAR

Effort Made To Curb Defendants' Rights

The U.S. government, in its zeal to fight money-laundering by drug
traffickers, has been pressuring Caribbean countries to enact laws that
would be unconstitutional in the United States, U.S. and foreign officials
said.

The proposed laws would shift the burden of proof in money-laundering cases
from the prosecution to the defense. That is, accused money-launderers
would have to prove that their assets were amassed legally, as opposed to
current rules of due process that require prosecutors to prove guilt.

If passed in the United States, legal authorities said, such laws almost
certainly would conflict with a bedrock principle of the American legal
system: the presumption that a defendant is innocent until proven guilty
beyond a reasonable doubt.

US officials defended the policy in recent interviews, but Caribbean
officials and some US legal authorities decried it as hypocrisy.

"These small nation-states don't like it, but they won't dare to tell the
United States, 'Hey, you're not doing it, why should we?' " said Henry
Baarh, director of the Aruba Department of Foreign Affairs, who said he has
personally been subject to the pressure from US officials.

"We're all aware that the United States is so extremely powerful that if we
don't cooperate we might get screwed somewhere else," Baarh added.

Asked how US officials could expect his nation to pass a law that probably
would violate US principles of due process, Baarh said: "International
politics isn't always fair."

Placing the burden of proof on prosecutors "is fundamental to the American
ideal and tradition of fairness, that nobody should be convicted of a crime
without the government proving all the elements of a crime and proving them
beyond a reasonable doubt," said Richard Fallon, a Harvard University law
professor who is an authority on due process. He called the US policy
"troubling."

A State Department official defended the policy as necessary to combat
Caribbean money laundering. The United Nations has estimated that $60
billion in criminal funds are hidden each year in the Caribbean, out of
about $600 billion worldwide.

"One has to recognize that if countries' laws are not up to dealing with
the kind of crime that they are dealing with today, they have to change
them," said the State Department official, who spoke on condition of
anonymity. "I suppose anybody can criticize the means we're going to use to
get there, but we have to figure our how to get there."

Asked whether the United States should be urging countries to enact laws
that would appear to violate the US Constitution and their own
constitutions, the official said: "In situations such as these, we don't
have a problem saying, 'Well, change your constitution.' "

The US effort to change burden of proof laws is mentioned in a State
Department document issued in March called the International Narcotics
Control Strategy Report. The 152-page document details country-by-country
efforts to stymie the drug trade and the laundering of drug money, a
process that usually involves circuitous financial transactions to disguise
the true source and make tainted cash seem "clean."

While most of the report involves routine antidrug and anti-money
laundering efforts, the following passage appears in the report's section
on Aruba: "The US continues to urge that the" government of Aruba "amend
its anti-money laundering legislation to shift the burden of proof from the
prosecutor to the defense. With this amendment, and once Aruba's anti-money
laundering program is fully implemented, successful prosecutions of money
launderers should follow."

Although the policy is not detailed as specifically for other countries in
the report, US officials confirmed that similar attempts to change
burden-of-proof laws are under way elsewhere in the Caribbean. Those
efforts, the officials said, are focused on St. Vincent, Dominica, and St.
Kitts-Nevis, among other island nations thought to be centers for money
laundering.

US officials said none of the countries have acted in response to the
initiative, but the pressure is continuing quietly through diplomatic
channels and openly at meetings of groups such as the Caribbean Financial
Action Task Force, of which the United States is a participant.

Although Aruba is not considered to be among the world's most notorious
havens for money laundering, the resort island has been a flash point on
the issue for several reasons.

For one, it is considered vulnerable because of its proximity to
drug-producing countries in South America, its thriving casinos, and its
growing offshore industry. Also, US officials have been frustrated by the
fact that Aruba has never successfully prosecuted a money-laundering case
despite apparent involvement by businessmen on the island.

For instance, until their extradition to the United States in 1998, three
Aruban nationals allegedly engaged in large-scale money-laundering with
virtual impunity. Two, cousins Eric and Alex Mansur, are members of a
powerful business family. The third, Randolph Habibe, was alleged to have
been the chief of a Columbian drug ring called La Costa Cartel, which
purportedly sent 80 tons of cocaine to the United States and laundered some
$800 million.

Baarh, the Aruban director of foreign affairs, said his country has been
aggressive in trying to crack down on drug traffickers and
money-launderers, and does not appreciate the US efforts. Aruban laws are
based on Dutch legal principles, which put a premium on the rights of
defendants.

"We're all trying to get as tough as possible on drugs," Baarh said. "It's
in this atmosphere the United States has tried to influence not just us,
but all the Caribbean islands to put the burden of proof on the one being
accused."

"I don't think it will happen, and I don't think it should happen," he
added. "It's not part of our legal system."

Baarh said he did not know what price Aruba might pay for resisting the US
efforts, but he noted that the country is dependent on the US tourist
trade. Some 400,000 Americans visit the island each year.

Criticism also came from Martin Weinberg, a Boston lawyer who is chairman
of the money-laundering task force of the National Association of Criminal
Defense Lawyers.

"At least publicly, we are engaged in attempts to democratize the political
and legal systems in other countries, yet here's an example where we are
doing just the opposite," Weinberg said.

Barbara Stephenson, the US consul general for Aruba, said the United States
"is not urging Aruba to trample on due process at all." Rather, she said,
the discussions are more subtle.

"We have an ongoing dialogue with Aruban law enforcement officials about
the merits of incremental shifts in the burden of proof," she said. "One of
the reasons we have consulates and embassies overseas is for us to advocate
for a strong legal framework which benefits both the United States and the
host country."

Despite Baarh's criticism, Stephenson said, "Arubans who are fighting to
keep law and order welcome our weighing in and being part of the process.
They see us as partners."

Although placing the burden of proof on prosecutors is a cornerstone of US
constitutional law, legal authorities said there are certain exceptions
even in the United States.

In cases where a person admits the elements of a crime but pleads a special
defense, such as insanity, the burden is on the defendant to prove his case
to win acquittal. Also, in some jurisdictions a person who carries a gun in
public is guilty of a crime unless he can prove he had a permit or a
reasonable excuse to do so.

But in cases of alleged money-laundering, US legal authorities say the
burden lies squarely on prosecutors.

"If in fact these countries are not truly seeking to prosecute money
launderers and indeed are tolerating them, one can understand the
government's frustration," said Daniel Meltzer, a Harvard law professor and
an authority on criminal procedure.

"At the same time," Meltzer said, "there is something unsettling about the
government's urging other nations to dispense with a procedural protection
that we view as fundamental."