[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
SEEKING FREEDOM FOR AMERICAN TRAPPED IN BOLIVIAN PRISON
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON AFRICA, GLOBAL HEALTH,
AND HUMAN RIGHTS
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
AUGUST 1, 2012
__________
Serial No. 112-172
__________
Printed for the use of the Committee on Foreign Affairs
Available via the World Wide Web: http://www.foreignaffairs.house.gov/
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______
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COMMITTEE ON FOREIGN AFFAIRS
ILEANA ROS-LEHTINEN, Florida, Chairman
CHRISTOPHER H. SMITH, New Jersey HOWARD L. BERMAN, California
DAN BURTON, Indiana GARY L. ACKERMAN, New York
ELTON GALLEGLY, California ENI F.H. FALEOMAVAEGA, American
DANA ROHRABACHER, California Samoa
DONALD A. MANZULLO, Illinois BRAD SHERMAN, California
EDWARD R. ROYCE, California ELIOT L. ENGEL, New York
STEVE CHABOT, Ohio GREGORY W. MEEKS, New York
RON PAUL, Texas RUSS CARNAHAN, Missouri
MIKE PENCE, Indiana ALBIO SIRES, New Jersey
JOE WILSON, South Carolina GERALD E. CONNOLLY, Virginia
CONNIE MACK, Florida THEODORE E. DEUTCH, Florida
JEFF FORTENBERRY, Nebraska DENNIS CARDOZA, California
MICHAEL T. McCAUL, Texas BEN CHANDLER, Kentucky
TED POE, Texas BRIAN HIGGINS, New York
GUS M. BILIRAKIS, Florida ALLYSON SCHWARTZ, Pennsylvania
JEAN SCHMIDT, Ohio CHRISTOPHER S. MURPHY, Connecticut
BILL JOHNSON, Ohio FREDERICA WILSON, Florida
DAVID RIVERA, Florida KAREN BASS, California
MIKE KELLY, Pennsylvania WILLIAM KEATING, Massachusetts
TIM GRIFFIN, Arkansas DAVID CICILLINE, Rhode Island
TOM MARINO, Pennsylvania
JEFF DUNCAN, South Carolina
ANN MARIE BUERKLE, New York
RENEE ELLMERS, North Carolina
ROBERT TURNER, New York
Yleem D.S. Poblete, Staff Director
Richard J. Kessler, Democratic Staff Director
------
Subcommittee on Africa, Global Health, and Human Rights
CHRISTOPHER H. SMITH, New Jersey, Chairman
JEFF FORTENBERRY, Nebraska KAREN BASS, California
TOM MARINO, Pennsylvania RUSS CARNAHAN, Missouri
ANN MARIE BUERKLE, New York THEODORE E. DEUTCH,
ROBERT TURNER, New York FloridaAs of 6/19/
12 deg.
C O N T E N T S
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Page
WITNESSES
Mr. Yimy Montano Villagomez, attorney for Jacob Ostreicher....... 6
Mr. Jerjes Justiniano Atala, attorney for Jacob Ostreicher....... 11
Ms. Miriam Ungar, wife of Jacob Ostreicher....................... 25
Ms. Chaya Gitty Weinberger, daughter of Jacob Ostreicher......... 30
Mr. Steve Moore, Special Agent (retired), Federal Bureau of
Investigations................................................. 34
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Mr. Yimy Montano Villagomez: Prepared statement.................. 8
Mr. Jerjes Justiniano Atala: Prepared statement.................. 13
Ms. Miriam Ungar: Prepared statement............................. 27
Ms. Chaya Gitty Weinberger: Prepared statement................... 32
Mr. Steve Moore, Special Agent (retired): Prepared statement..... 37
APPENDIX
Hearing notice................................................... 56
Hearing minutes.................................................. 57
SEEKING FREEDOM FOR AMERICAN TRAPPED IN BOLIVIAN PRISON
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WEDNESDAY, AUGUST 1, 2012
House of Representatives,
Subcommittee on Africa, Global Health,
and Human Rights,
Committee on Foreign Affairs,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:49 p.m., in
room 2172 Rayburn House Office Building, Hon. Christopher H.
Smith (chairman of the subcommittee) presiding.
Mr. Smith. The hearing will come to order, and I want to
thank you all for joining us as the subcommittee continues to
shine the spotlight on and to search for a resolution to the
extreme injustice being perpetrated by the Bolivian Government
officials against Jacob Ostreicher, an American trapped in the
infamous Palmasola Prison, charged with crimes for which the
Bolivian Government has produced no evidence, either of the
crimes themselves or that Mr. Ostreicher committed either one.
He is being denied the most fundamental due process and
human rights both under Bolivian law and international human
rights standards.
On June 9, Sheri Rickert, my staff director on the
subcommittee and I went to Bolivia to meet with Mr. Ostreicher
and to attend a court hearing for his release on bail which had
been repeatedly delayed since September of last year.
The testimony presented at the subcommittee at the June 6
hearing about this case revealed that repeated due process
violations were being committed by Bolivian officials.
On June 11, I had the opportunity to witness some of that
myself. Two attorneys from the Bolivian Ministry of Government,
who I understand should not be intervening in the case in the
first place, aggressively threatened to take legal action
against the judge if he refused to recuse himself. Although the
judge rightly rejected the ludicrous reasons for which the
Ministry of Government attorneys based their threat, they
accomplished their goal of having the hearing postponed, and
Mr. Ostreicher returned to prison.
To underline the absurdity of the Bolivian judicial system,
Mr. Ostreicher's case was then referred to a court where the
judge is detained in the same prison as Mr. Ostreicher. It took
fully 6 weeks for the hearing to be rescheduled. Remember, this
is a bail hearing in another court that has a judge.
I've been informed that, unfortunately, the same scenario
occurred on June 11 at the hearing that took place, and again
on July 23. The Ministry of Government attorneys injected
themselves into the hearing and aggressively threatened the
judge if she failed to recuse herself. The judge rejected out
of hand the basis asserted for the threat, and again postponed
the hearing and returned Mr. Ostreicher to jail.
While in Bolivia I met with Vice Minister of Foreign
Affairs, Juan Carlos Alurralde, the Minister of Government
Carlos Romero, and Minister of Justice Cecilia Ayllon Quinteros
to advocate for Ostreicher's release. Each one of them have
made commitments with respect to this case but sadly have not
followed through.
And in the meantime, Mr. Ostreicher continues to face daily
threats to his life in the violent, unsanitary, drug infested
Palmasola Prison.
He has been on a hunger strike, as we know, since April 15,
and he was already extremely frail and weak when I saw him over
a month ago. A private and a Bolivian Government doctor have
examined Mr. Ostreicher and recommended that he be referred to
a medical clinic for evaluation. Given everything else that has
happened in this case, it is highly suspicious that the prison
officials are unable to find police escorts to take him there.
Although our own State Department officials are finally
acknowledging that Ostreicher's due process rights are being
violated, they continue to seem hesitant and uncertain about
what action to take on his behalf. The State Department was
invited to testify at this hearing, but indicated that they
were not available to do so this week.
I do look forward to arranging a follow-up hearing at the
earliest possible date when they are prepared to discuss their
efforts in this case.
Since undertaking my own advocacy efforts on behalf of Mr.
Ostreicher in early June, I have received reports about several
Americans who are imprisoned overseas and are being denied
their fundamental due process and human rights.
Out of a sense of obligation to do all I can to help Mr.
Ostreicher, but also to assist other U.S. citizens in similar
situations, I will introducing legislation this Friday that
will hold accountable those foreign government officials who
are responsible for the violation of due process and human
rights of imprisoned Americans.
The legislation is entitled Justice for Imprisoned
Americans Overseas Act, or Jacob's Law.
It is premised on the principle that foreign government
officials responsible for violations of fundamental due process
and human rights of imprisoned U.S. citizens as well as their
immediate family members should not have the privilege of
traveling to the United States while our citizens are unjustly
languishing in prisons and they are responsible for them.
The bill would prohibit the issuance of a visa and deny
entry to any foreign government official who is violating or
failing to fulfill a responsibility to uphold the rights of
imprisoned Americans.
The legislation would also deny entry to such officials for
10 years if the American dies from any cause while imprisoned.
These visa and entry prohibitions would likewise apply to these
officials' immediate family members.
Entry into the United States would be denied only when an
American's fundamental rights are being violated. Americans who
violate the legitimate laws of a foreign country must accept
the consequences of their crimes, but the United States cannot
stand by and simply monitor the cases when our citizens are
being held hostage contrary to international human rights
standards.
I would emphasize that already under current law, 22 U.S.
Code Section 1731, the President must demand the release of any
citizen who has been unjustly deprived of his liberty by or
under the authority of any foreign government, and to undertake
appropriate means to obtain the release of such citizen. We're
not talking about just monitoring the release of that person.
This legislation provides the State Department with a tool
that it should welcome in order to help it fulfill that
responsibility.
We are privileged to have with us today two attorneys who
are representing Mr. Ostreicher in the Santa Cruz courts. I
would like to thank them for coming all the way from Bolivia to
participate in this hearing on Mr. Ostreicher's behalf.
We will also receive an update about the case from Mr.
Ostreicher's wife, Ms. Miriam Ungar, and his daughter, a
constituent of mine from New Jersey, Ms. Chaya Weinberger.
Finally, I would like to express my appreciate to Mr.
Steven Moore, a retired FBI Special Agent who has spent
considerable time and effort investigating Mr. Ostreicher's
case, and who interrupted his book tour in Washington State
just to be with us today. Thank you for that sacrifice, and
thank you for the tremendous work that you have done.
I'd like to now yield to my friend and colleague, Ms. Bass,
the ranking member, for any opening comments she might have.
Ms. Bass. Mr. Chairman, thank you for continuing to focus
on Mr. Jacob Ostreicher, the U.S. citizen and businessman held
in custody in Bolivia for over 14 months. And let me just take
the opportunity to commend you for your aggressive action of
taking the time out and going directly to Bolivia. And as I
understand in reports from that there was concerns for your
physical safety, but you took it upon yourself to do that,
anyway.
I regret that no meaningful progress has been made toward
this release since our last hearing on June 6, as his forced
detention becomes more troubling each day and each minute that
he remains incarcerated.
Mr. Chairman, allow me to again express my deepest concern
for Mr. Ostreicher and his family who have endured such a great
deal since his June 2011 detention. Mr. Ostreicher, as has been
noted, has been held in detention for well over a year without
due process.
Hearings on this case have been postponed numerous times
including the most recent only on July 23. I must ask the
Bolivian Government why do they continue to stall on this case?
I am aware that the Bolivian justice system allows for up
to 18 months before an individual is charged. It's my
understanding that this is far from the norm, and in many cases
far exceed this time frame.
Although the difficulty of assessing justice in Bolivia is
clearly a problem that extends beyond the case of Mr.
Ostreicher, I would hope that this case, to be one of these
that I would hope that the necessary diplomatic and political
pressures would be applied to resolve this case.
Let me take the time to urge the U.S. officials to do all
that is possible to find a solution to what is a crisis that
divides a family, and robbed a mother, wife, children of a son,
husband, and father.
Ms. Ungar, I empathize with the frustration that you, your
husband, and your family have endured. I say I empathized, I
can't say that I know exactly how you feel because I don't
think anybody knows how you feel unless they have been in that
exact situation. But let me say again that we have not
forgotten your husband and we, too, are worried about his
mental and physical health and well being.
I once again encourage you and all parties involved to keep
channels of communication open so that every effort to bring
transparency and progress to this very serious crisis can be
resolved.
I hope that you are able to keep the faith and believe that
your husband will be returned to you, and that you will soon be
able to put this tragedy behind you.
Thank you, Mr. Chairman, and I look forward to hearing from
today's witnesses.
Mr. Smith. Thank you very much, Ms. Bass. I'd like to now
turn to Mr. Turner, the gentleman from New York.
Mr. Turner. Chairman Smith, Ranking Member Bass, thank you
for calling this hearing today.
Chairman Smith, let me applaud you for your effort on
behalf of Jacob Ostreicher. I also want to thank Jacob's wife
and daughter for coming to Washington again to share their
thoughts with us.
A little over a month ago we had a similar hearing and it
was entitled, ``The State Department's Inadequate Response to
Human Rights Concerns in Bolivia.'' Frankly, this hearing could
now be entitled, ``The State Department's Inadequate Response
to Human Rights Concerns in Bolivia Part II.''
And perhaps even that is not completely accurate because
unlike movie sequels, nothing has changed.
Jacob has still not been formally charged, he has been
denied a hearing, he continues to live in squalor, and in
constant fear for his life, and his health continues to
deteriorate.
The State Department's response is still inadequate.
They have been invited but they have declined to testify
claiming that it is better to work behind the scenes. This
strategy has been employed for over a year, and I ask what are
the results. So, if the State Department were here I would have
one question; what are you doing to help him? He has been
detained without a hearing, no trial, no jury, no verdict, no
due process, Mr. Chairman. I believe Jacob's family deserves to
know what is going on, and I hope the State Department will
answer that question.
Thank you. I yield back.
Mr. Smith. Mr. Turner, thank you very much. I now recognize
the gentlelady from New York, Ann Marie Buerkle.
Ms. Buerkle. Thank you, Mr. Chairman.
First of all, let me begin by saying thank you to all of
our witnesses and to Mr. Ostreicher's family for being here
today. I know how difficult this is, but we need you to help us
raise awareness about the issue and all of the challenges that
he faces, so thank you very much for your courage to be here
and to help us do our job even better.
I just want to thank the chairman. We are very fortunate to
have a chairman such as Mr. Smith who has the courage to
continue to focus on these human rights violations throughout
the world, and who has been steadfast. And as was mentioned by
the ranking member, by his trip to Bolivia, and again the
courage it takes to call attention and to remain vigilant on
behalf of not only Mr. Ostreicher but also his family.
I look forward to hearing your testimony today. It's going
to take all of Congress and this administration, it's going to
take a concerted effort for us to get him the liberty and the
freedom that he needs, and we want to pledge that to you. We
will remain steadfast, and we will continue to work on his
behalf as well as your's.
I thank you very much, and I yield back.
Mr. Smith. Thank you very much, Ms. Buerkle.
I'd like to now welcome to the witness table our very
distinguished witnesses beginning first with Yimy Montano
Villagomez who obtained his legal license at the Universidad
and a Master's degree as well, both in Santa Cruz in Bolivia.
He is admitted to the Bolivian bar. He has been the principal
at the law firm of Montano & Associates for the past 2 years,
and has represented Mr. Ostreicher since January 2012.
We will then hear from Jerjes Justiniano who attended the
school of Universidad, the Adventist University of Chile, and
obtained his license in law as well in Santa Cruz. He has
completed a Master's program in criminal law and is awaiting to
present his thesis. He is also admitted to the Bolivian bar and
has been a partner in the firm that he heads since 2000. Mr.
Justiniano has represented Mr. Ostreicher in this case since
November and December 2011, and again since March 2012.
We'll then hear from Ms. Miriam Ungar, who is the wife of
Mr. Jacob Ostreicher. She has visited Mr. Ostreicher in Bolivia
numerous times both prior to and after his arrest. She has gone
from having the normal life of a resident of Brooklyn, New York
to being the lead advocate for her husband imprisoned in a
foreign country with a different language, different culture,
and an incomprehensible disregard for fundamental human rights
and legal due process. She has striven to help her husband
maintain his physical well being and mental sanity in
horrendous prison conditions.
Ms. Ungar, once again I commend you and thank you for your
courage and your fidelity to your husband. When Sheri and I met
with him, he spoke about you, Chaya, and rest of the family
almost non-stop, about how much he just longs to be with you
both of you. And it was really extraordinary how much he misses
you and cherishes the family, and both of you.
We'll then hear from Ms. Chaya Weinberger, the daughter of
Mr. Ostreicher. Ms. Weinberger is married and the mother of
five small children. She is a resident of Lakewood, New Jersey
in the district which I have the honor of representing, and
she's also visited her father in the notorious Palmasola Prison
in Bolivia, and has attended several of his hearings. We are
deeply appreciative of her willingness, and again to the both
of you, thank you so much.
We then will hear from Mr. Steven Moore who served as FBI
Special Agent and Supervisory Special Agent in the FBI for 25
years retiring in 2008. Mr. Moore led the investigations of
many high profile crimes in Los Angeles, including the first
ever conviction for an anthrax threat and the Buford Furrow
shooting murder spree at the Los Angeles Jewish Community
Center.
He spent several years on SWAT, and was a case agent for
Los Angeles 9/11 investigation, and later chosen to supervise
all al-Qaeda investigations for the Los Angeles FBI.
In 2003, Mr. Moore stood up the FBI squad in charge of
responding to acts of terrorism against the U.S. in Asia and
Pakistan, including the bombings of the U.S. consulate in
Karachi, and the JW Marriott Hotel in Jakarta. He established
liaison and worked closely with the CIA and the U.S. Department
of State in several countries, conducting investigations at at
least six U.S. Embassies. Mr. Moore also served a term as
assistant legal attache at the U.S. Embassy in Nassau, Bahamas
during the summer of 2004.
In his retirement, Mr. Moore has written a book entitled,
``Special Agent Man: My Life in the FBI as a Terrorist Hunter,
Helicopter Pilot, and Certified Sniper,'' which was just
recently released. He also has voluntarily undertaken to use
his enormous skills and experience that he acquired as an FBI
Special Agent to help exonerate Americans wrongly incarcerated
abroad, including Amanda Knox who was convicted in 2009 in
Italy of murdering her roommate. Of course, because of his work
largely, the evidence was shown to be bogus and she is now
free.
He went to Bolivia in early April 2012 to visit Mr.
Ostreicher and to investigate his case, and we welcome him
back, as well.
Mr. Montano, if you would proceed with your testimony.
STATEMENT OF MR. YIMY MONTANO VILLAGOMEZ, ATTORNEY FOR JACOB
OSTREICHER
[The following testimony was delivered through an
interpreter.]
Mr. Montano Villagomez. I thank this committee for the
opportunity. I come here to transmit to you very important news
which is that a citizen of yours, of this country, is dying in
a Bolivian prison. I know his case entirely, and I have
absolutely no doubt regarding Mr. Ostreicher's innocence.
Bolivia is going through a very difficult time particularly
in administering justice. There is still a complete
concentration of power in the central government and this
concentration of power today has turned completely against Mr.
Ostreicher subjecting him to a trial, a trial which has--a
prosecution which has robbed him of his freedom. It is
attacking his life, his health.
In this prosecution there has been not even the least
respect for the laws and constitutional rights which as a
citizen he should be allowed to have through the Bolivian legal
system.
This illegal and cruel prosecution of Mr. Ostreicher has
been going on for the last 14 months. There is an innocent man
who is in horrific conditions. His health is suffering, and for
the last 20 hearings he has not been allowed to recover his
freedom. He's not even been allowed the assistance of a doctor
in this situation. And this comes about as a result of bad use
and abuse of power which has fallen upon Mr. Ostreicher.
If his rights to life and health have not been respected,
how is it possible that he would be given due process according
to the existing laws? This is reflected in the fact that there
are continuing efforts by the Ministry of Government and the
officials working for that Ministry who will not allow a bail
hearing to be heard to see whether he would be able to regain
his freedom.
All of the rights, whether they be in international
treaties, or through Bolivian laws to which he should be
entitled to have been left on paper. We can't imagine there
being due process when there's no independence of the different
branches.
The prosecutor's office from Bolivia and the judges act at
the behest of the government, and when they refuse to do so
they are removed from office. His right to freedom has been
continually compromised as have his life, his health, his
belongings, and his right to be with his family.
Although he is innocent, he continues to be detained while
people who commit crimes, even crimes against him continue to
be free.
I don't know what to tell you to ask exactly of your
government. I would only plead you and encourage you to act in
the most appropriate and timely fashion possible. If not, this
story may not have a happy ending. His life is gravely
compromised. He's quite weakened, and his family needs him back
so that he can be with them once again.
Thank you, Mr. Chair, and to the members of the
subcommittee for this opportunity to tell my truth.
[The prepared statement of Mr. Montano follows:]
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Mr. Smith. Mr. Montano, thank you very much for your
testimony and for your courage, both of the attorneys, to be
here. You know, Ms. Bass and I were just talking. It shows
tremendous courage and bravery for both of you to come to the
United States and to be here knowing the impunity, especially
the prosecutory impunity that currently reigns in Bolivia, and
we're seeing it with Jacob's case, so thank you for your
testimony.
Mr. Justiniano.
STATEMENT OF MR. JERJES JUSTINIANO ATALA, ATTORNEY FOR JACOB
OSTREICHER
[The following testimony was delivered through an
interpreter.]
Mr. Justiniano. Good afternoon, Mr. Chair, and to the
members of the subcommittee.
I first need to tell you that in my professional career I
do not take drug trafficking cases, so when Mr. Ostreicher
asked me to take a look at his case and after I found no
evidence to the effect that he was at all implicated or
implicated in drug trafficking, it was only then that I
accepted his case.
I also have to say that unfortunately I am not particularly
proud of the Bolivian judicial system. The levels of
corruption, political and economic machinations, the lack of
independence for the judges makes this system extremely weak.
And I would say that just because these political
characteristics, these characteristics in general have had a
great impact on Mr. Ostreicher's case.
This testimony is difficult for me for two reasons. This is
because of the political--because through the process the
Bolivian Government and the Ministry of Government has directly
interfered in the case. And it becomes difficult for me
personally, as well as for political reasons because of
personal ties that I have. My father has been named Ambassador
of Bolivia in Brazil, so I have personal ties to the
government.
However, it's also difficult for me because it's hard to
explain the situation of an American citizen in a completely
different legal system. In spite of that, human rights are
human rights for anybody and everybody. And in this particular
case it's the human rights of Mr. Jacob Ostreicher that have
been violated. And, particularly, this is the case with the
procedural aspects of this, so I think it might be hard for you
to understand this fully, but in this particular case both the
prosecutor and a judge have indicated that it is impossible to
say that he has committed the crime because he has not proven
the legality of his financing.
The Bolivian authorities have said that he has not denied
the ties with these other people and the illegality of the
financing and, therefore, he is guilty.
While they may be different, the Bolivian and the American
legal systems, there is, in fact, one guiding principle in both
of them which is the presumption of innocence, which means that
the accuser must, in fact, prove the guilt of the party, and
this has not happened at all in the case of Mr. Jacob
Ostreicher.
As soon as there was a quest to end the detention of Mr.
Ostreicher and a judge reviewed the evidence provided by the
defense, he decided that, in fact, there was no evidence to
indicate that there was any illegal source of the funding, and
he was granted his freedom. Curiously enough, 6 days later that
same judge without word from or to anybody changed his opinion
and ordered his detention once again.
As Mr. Montano stated, there have been over 20 hearings
that have not been held because of interference by the Bolivian
Ministry of Government on the Bolivian justice system. I cannot
give you the reasons behind this interference, but I can
definitely say that there is interference by the Ministry of
Government on Mr. Jacob Ostreicher's case.
I can identify public officials like Fernando Rivera and
Dennis Rodas Limachi who have directly interfered in the
government, and interfered in this procedure. And you, Mr.
Chairman, have seen it yourself.
I personally believe that it is not only Jacob Ostreicher
who is at risk because of his health, and because of his
illegal prosecution, but the Bolivian justice system is also at
risk.
The democracy has certain pillars and separation of powers,
and as soon as the executive branch interferes with the
judicial branch by threatening a judge, democracy itself is
threatened.
And, finally, I would like to state that I cannot
understand why a U.S. citizen who decided to invest in Bolivia,
and who decided to create jobs in Bolivia is being treated the
way he is treated. Jacob Ostreicher's companies would pay
higher salaries than what Bolivia pays its police officers.
Still, he is being held illegally with no reason, and through
direct interference on behalf of the government. That is why I
consider this not only illegal but truly unjust.
Thank you, Mr. Chairman, for your time.
[The prepared statement of Mr. Justiniano follows:]
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Mr. Smith. Mr. Justiniano, thank you very much again to
both of you. Again, I can't underscore for the American
audience how courageous it is for you to come here and testify.
But having been in the courtroom and watching what I truly
thought was a stellar representation on behalf of Jacob,
despite the intimidation tactics that were clearly on display,
and despite the judge who went from being confident in the
morning to being a nervous wreck because he was so fearful
about the sword of Damocles that was hanging over his head. And
you two gentlemen were in the court standing up on behalf of
Jacob, and have come here now to Washington.
I would hope the people of Bolivia would realize that you
have given a great deal of encouragement to all of us, that
Bolivian democracy in the future, providing people of your
stature are robustly involved with the democracy, has a great
future.
Very often, it is the defense attorneys and their stand for
human rights and human dignity that determines which course a
country takes, so I want to say how this subcommittee applauds
you for the stellar defense you're providing for Jacob, but
also for your courage.
Ms. Ungar.
STATEMENT OF MS. MIRIAM UNGAR, WIFE OF JACOB OSTREICHER
Ms. Ungar. Thank you, Mr. Chairman and members of the
subcommittee for taking the time to hear my testimony today. My
name is Miriam Ungar and I'm the wife of Jacob Ostreicher, a
53-year-old American citizen currently detained in Santa Cruz,
Bolivia. As I've already testified on June 6 before this
subcommittee, I will only give a short recap of my husband's
story.
On December 26, 2010, Jacob went to Santa Cruz, Bolivia to
take over management of a rice business after investors
suspected that the local manager they hired was embezzling
money from the company. When Jacob arrived in Bolivia, the
local manager was nowhere to be found, and Jacob immediately
hired lawyers to start filing criminal and civil charges
against her.
Before she fled, the local manager purchased a parcel of
land from a man wanted in Brazil in the 1990s. When Bolivian
authorities realized that the company was operating on his
land, they raided Jacob's office and deposed him. Even though
Jacob did not purchase the land himself, Jacob cooperated fully
with the authorities and notified the U.S. Embassy of the
deposition.
After enduring two additional depositions, Jacob was
arrested on June 3, 2011. At the arraignment, the prosecutors
alleged criminal organization and money laundering. It is my
understanding that no evidence was reviewed by the judge.
Following three postponements, on September 23, 2011, a
judge ordered Jacob's release on bail based on evidence
submitted, only to reverse his decision 6 days later. Of the 22
hearings that have been scheduled, 19 hearings were postponed.
Most of the stated excuses for these postponements were
illegal. During Jacob's last two scheduled hearings, the
Bolivian Ministry of Government resorted to a new tactic to
postpone Jacob's hearings.
Mr. Chairman, as you mentioned before, at the June 11
hearing the legal advisor to the Ministry of Government
demanded that the third judge on Jacob's case recuse himself.
By law, the higher court that he referred it to must make a
decision within 48 hours. They failed to do that. They did not
follow due process.
Forty-two days later on July 23, the 22nd scheduled hearing
in Jacob's case, Jacob was brought into the courtroom only to
hear a repeat of what occurred at the June 11 hearing. The
fourth judge on Jacob's case was ordered to recuse herself by
the Ministry of Government's legal advisor. She refused. The
legal advisor threatened to file charges against her. The judge
refused, but referred it to a higher court anyway. By law, the
higher court must make a decision within 48 hours. It is now
August 1 and we are still waiting.
Today marks 426 days and my husband, Jacob Ostreicher, has
been incarcerated in Palmasola Prison without being formally
charged with a crime. Palmasola is a notorious prison ruled by
the most hardened criminals. Every day that Jacob remains in
that prison is another day that his life remains in constant
danger.
I am beyond frustrated by the Bolivian Government's
consistent interference in my husband's case resulting in a
denial of his due process and basic human rights. Although I'm
aware of the shortcomings of the Bolivian justice system, I
believe that what my husband has endured is more than the
average prisoner in Bolivia. Evidenced by the two most recent
hearings in his case, the Ministry of Government is playing an
active role in preventing Jacob from having his case heard.
I would like to address a report I received from the U.S.
Embassy on the meeting on July 5, 2012 with Roberto Desogus
from the United Nations High Commissioner of Human Rights'
office in Bolivia. I received a report on July 12. Following
the meeting, the U.S. Embassy reported that it is the opinion
of the UNHCHR Office in Bolivia that Jacob is not being
persecuted or targeted by the government, but rather he is yet
another victim of a brutally slow, inefficient, underfunded and
corrupt judicial system.
According to the UNHCHR, the procedural delays, the
rotation of prosecutors, the recusal of judges, and the
apparent lack of hard evidence in Jacob's case are all factors
which are common in the majority of cases in the Bolivian
judicial system.
As our Bolivian attorneys attested, the totality of what
Jacob has experienced is not common. Moreover, even if it was,
the UNHCHR, an international body charged with upholding and
advocating for international standards of human rights should
not sit idly by and accept it. Nor, in my opinion, should the
U.S. Government. Jacob is a U.S. citizen and the U.S.
Government should do everything in its power to insure respect
for his rights and due process regardless of how unjust, slow,
and corrupt the justice system in Bolivia is.
I am utterly distraught and frustrated beyond words that it
has been 15 months since the crisis began and we are still
right where we are in June 2011. We have not moved forward in
this case. Fifteen months in prison just seems to flow so
easily from out mouths, but 15 months is a milestone in the
life of a human being.
In the 15 months that Jacob has been kept hostage in a
foreign country, his grandchildren have learned to walk, to
talk, and some even started school. These are lost milestones
that can never be recovered.
In summary, Mr. Chairman, Jacob's rights are continuously
being violated every second that he remains in prison. The last
two hearings in his case have provided evidence that he is
being targeted by the Bolivian Government and, thus, I hope
that the United States Government will continue to advocate for
and protect its citizen.
Thank you, Mr. Chairman, for the opportunity to appear
before you and this subcommittee today.
[The prepared statement of Ms. Ungar follows:]
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Mr. Smith. Thank you again, Ms. Ungar, for, as I said at
the outset, your steadfast advocacy, so effective and
aggressive, all involvement completely motivated by the love
for your husband. Thank you for, again, your advocacy.
Ms. Weinberger.
STATEMENT OF MS. CHAYA GITTY WEINBERGER, DAUGHTER OF JACOB
OSTREICHER
Ms. Weinberger. Thank you, Mr. Chairman and other members
of the subcommittee for bringing my father's plight to the
forefront, and for scheduling this hearing. I will never forget
all that you have done for my family during this time of crisis
and will be forever grateful.
The image of my dear innocent father accompanies me as I
speak before you this afternoon. It is an image that causes me
to shutter when I think of it. His face is swollen with hunger.
His skin is pale and lifeless, but his eyes are alive. They are
very much alive and filled with longing pleading with me to try
with all my waning energy to recuse him before it's, God
forbid, too late. He still hopes after all these months for
freedom and liberty back home in the land that he loves.
I cannot let him down, and so although it is very hard for
me to be in the limelight once again, I appeal to you, the
government on my homeland, my father's situation has not
changed in the slightest since his detention 426 days ago. It
has been a long painful year filled with let downs and
postponed hearings, and we have just had enough.
We are enraged at the injustices, lies and scandalous acts
that are being committed against my father. We have tried going
patiently through the Bolivian legal system and bearing with
their way of governing but they have shown us that their
justice system is flawed beyond repair.
Rather than pursue justice for victims and the accused
alike, the Bolivian justice system appears to be a vehicle for
political maneuvering. I have been appalled by what I have
witnessed firsthand while in attendance at one of my father's
hearings in Bolivia.
At my father's very first scheduled hearing the judge was
texting on his Blackberry and even answered a phone call while
the defense lawyers were arguing their case. Although I was not
in attendance at my father's most recent hearings, we have
learned that the Ministry of Government requested that the
judges should recuse themselves, a political maneuver to
postpone my father's hearing for as long as possible done in
the course of a hearing for everyone to witness.
How can my father possibly be receiving fair treatment in a
country with a government that does not even bother to hide its
corruption? How much longer must he wait and wonder when his
salvation will come, for it will not come through the Bolivian
justice system. Time has shown us that. It is clear to us that
his only chance for liberation is if the American Government
will jump into action and demand his freedom from his captors
before it's too late. He deserves to be free.
It is my sincere belief that the only reason for his being
kept hostage is because he stood for the American ideals of
free enterprise and capitalism, and the Bolivian Government saw
him as a threat to its way of life and control of the rice
markets.
The abuse and torture my innocent father is going through
both mentally and physically would stun the mind of any sane
person. I have seen it with my own eyes. It was so ghastly, I
felt as I were in a horror movie.
Sewerage runs through the streets of the huge prison. There
are no guards to protect the inmates, and the only security
comes from other inmates. Fistfights erupt between the
prisoners often. It is a common occurrence for a corpse to be
carried out. It is a scene from a nightmare and my dear father
is living this nightmare daily. Every day that he is being kept
there his basic human rights are being violated.
Our Web site is being visited daily by hundreds of people
who are praying and care very much about my father. More than
35,000 people have signed a petition to the White House in
support of his release from detention. These people see how the
Bolivian Government has perverted justice and they are sickened
by it. They want to see their country act on behalf of their
fellow citizen.
My father is literally clinging onto his sanity. He tells
me that the one thought that gives him the strength to endure
is the hope that the American Government will do everything in
its power to secure his release. He often stares at the
American flag painted on the wall by his cell and dreams about
the day when he will proudly sing the song of liberty and
salute to his homeland.
Mr. Chairman and members of the subcommittee, let's show my
father that his dreams will become a reality. Show him and the
world that America is what it professes to be, a country that
stands for liberty, a land that will fight for her citizens, a
country that will not allow its innocent citizen be kept
hostage in a foreign country, and won't let anyone stand in her
quest for truth. Prove that American citizenship is a commodity
worth having, and that the Star-Spangled Banner will triumph
once again over those who mock all she stands for; that she
will not stay in my father's cell in the Palmasola Prison, but
will rather be carried back with my father to the greatest
nation on earth. Let her be back where she belongs together
with my father, dual witnesses to the supremacy of their
country, the United States of America. Please do everything in
your power to bring my father back to his homeland, back to his
children and grandchildren before it's too late. And for all
the time and effort that you're investing in this cause, may
God bless you all, may God bless my father, and may God bless
the United States of America. Thank you.
[The prepared statement of Ms. Weinberger follows:]
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Mr. Smith. Thank you very much, Ms. Weinberger.
Mr. Moore.
STATEMENT OF MR. STEVE MOORE, SPECIAL AGENT (RETIRED), FEDERAL
BUREAU OF INVESTIGATIONS
Mr. Moore. Chairman Smith, Ranking Member Bass, and
distinguished members of the committee, I want to thank you
again for your diligence in keeping this before the American
public. And I want to thank Mr. Justiniano and Mr. Montano.
They are brave men for doing this. We know what could happen in
Bolivia.
When I was in the FBI, if I did an undercover SWAT
operation I slept at home. Nobody knew where I lived. These
people go back to a country after appearing here and people
know where they live.
I want to thank you again. The damage that has been done to
my confidence in the government by the inaction of the State
Department has been in many ways rebuilt by the actions of this
subcommittee, and Mr. Smith in particular.
The legislation that I've just found out about and done as
much research as I can here, it addresses a vast governmental
blind spot that is costing people part of lives and entire
lives. This is essential legislation.
In 25 years of working for the government, I have never
seen such egregious inaction by any department of the
government as I'm seeing by the State Department. And I say
this as somebody who worked in an Embassy. I don't think it's
endemic to necessarily everybody in State. There are brave
people in State, but there are cowards in State, too.
I will do, Mr. Smith, whatever I can do to assist in
support of this legislation. I am bothered by the State
Department inferring that they're doing something behind the
scenes. Notice that they never said they were doing anything
behind the scenes, they're saying we prefer to do things behind
the scenes.
I would think that if the State Department was doing
anything, even behind the scenes, they might appear in one of
these hearings and they might give some kind of wink and a nod
to a member of the subcommittee, but they're not.
We used to say in the FBI that sometimes what you didn't
see was better evidence than what you saw. What I don't see is
the best evidence I see of exactly what the State Department is
not doing.
When I testified before, I then followed up with an
investigative report which was provided to the U.N. High
Commissioner on Human Rights by Mr. Smith's office. In that, I
noted more than nine violations, egregious, obvious violations
that are not subjective, they're objective violations in the
custody alone of Mr. Ostreicher.
For instance, according to the First U.N. Congress in 1955
which Bolivia and the United States are participants, untried
prisoners shall be kept separate from convicted prisoners. Mr.
Ostreicher is kept with serial rapists, mass murderers. The
person who claims to protect him has only killed one or two
people, so I'm sure he feels much more reassured by that.
That's a violation of international treaty.
``Where sleeping accommodation is in an individual cell or
rooms, each prisoner shall occupy by night a cell or room by
himself.'' Mr. Ostreicher and many of the prisoners slept
outside, and many of the prisoners still sleep outside on
garbage heaps because you have to pay to have a cell.
``There should be regular supervision by night in keeping
with the nature of the institution.'' There is not. The only
monitoring I saw in that prison at night was when the guards
fired over our heads to intimidate us.
``All accommodation provided for the use of prisoners and,
in particular, all sleeping accommodations shall meet all
minimum requirements for health due to being climatic
conditions, particularly due to cubic content of air, minimum
floor space, lighting, heating and ventilation.'' There's no
such thing as that. Raw sewerage runs through the street. This
is a squalid cesspool. Mosquitoes are everywhere. There is no
hygiene. Their garbage dumps are literally in living spaces.
``No prisoner shall be employed, in the service of the
institution, in any disciplinary capacity.'' We know that
lifers, murders, serial rapists are the internal security for
that prison. That's not a nuanced phrase about how things are
run in there, that is the de facto government-approved manner
of maintaining internal discipline.
``All parts of the institution regularly used by prisoners
shall be maintained and kept scrupulously clean at all times.''
I refer you to my comments on raw sewage and open garbage
heaps.
``Corporal punishment, punishment by placing in a dark cell
and all cruel, inhuman or degrading punishments shall be
completely prohibited as punishments for disciplinary
offenses.'' Coincidentally, every single one of those practices
are undertaken at Palmasola.
``The medical officer shall daily visit prisoners
undergoing such punishment . . . .'' There is no doctor at
Palmasola. They have trouble getting a doctor to come into the
prison because it's so dangerous.
This information was provided to the United Nations High
Commissioner on Human Rights. It had to be provided by the
State Department, and when the State Department met with the
U.N. High Commissioner on Human Rights, they filed a report
because they're watching carefully what's going on, and said
that basically the legal procedure in Bolivia is corrupt, it's
brutal. These are quotes, these are not my adaptations of this.
It is ``corrupt, brutal, slow, inefficient, under-funded,'' and
that's okay?
What they said was this is their procedure; therefore, if
it's corrupt, if it's brutally slow, inefficient, and under-
funded, because that's the way it is, that's okay. What if the
Bolivians were to enact tomorrow stoning for accused prisoners?
That would be under the Bolivian law. Would the State
Department go ahead with that?
The fact that it is a part or claimed to be a part of law
does not make it legitimate. And State Department hiding behind
corruption in a country like Bolivia is--it's the worst type of
duplicity.
On the State Department's Web site today is a statement
that says, ``We work to insure that Americans are afforded due
process under local laws.'' I don't believe that to be true. On
the State Department Web site today it also says, ``The State
Department is committed to insuring fair and humane treatment
for American citizens imprisoned overseas.'' I have just
mentioned nine violations of international law that I witnessed
and photographed while I was in Bolivia. If the State
Department is committed to insuring fair and humane treatment
for American citizens imprisoned overseas, what standards do
they use, and how are they going to enforce it?
When the report came back to Ms. Ungar on their meeting
with the U.N. High Commissioner on Human Rights, not one
mention was made of the violations of Jacob's captivity. It was
ignored. They discussed the legal procedure, but more than half
the report dealt with the illegal and inhumane treatment he was
receiving in prison; yet, it wasn't addressed.
We don't have dumb people in State. They knew that more
than half this report had to do with illegal procedures in his
captivity; yet, they didn't even address it. Committee members,
they didn't forget. These people are not fools. It did not
serve their purposes to discuss it.
This is embarrassing to me as somebody who served his
country and who loves his country, who has friends in State.
There are people I admire in State, but if we are depending
upon other governments to tell us what's okay for our citizens,
the State Department is nothing more than a rubber stamp for
despotic governments.
There needs to be, as this legislation proposes, a way to
hold State, all of State, not just the good people but the
people who are career oriented, there needs to be a means to
hold them to their responsibilities to the American people.
My dad used to tell me that fences aren't necessary until
the cow leans up against it. I think it is important that the
good people of State are not betrayed by the inaction of the
other people in State who should be held in line by this type
of legislation, or there should be an organization within State
dedicated to the investigation of Americans who are held
overseas.
I agree 100 percent with Representative Smith, I put
Americans in jail for 25 years. If an American earns his way
into a prison overseas, fine. That's fine. I am not so
xenophobic as to say that all Americans in prison overseas
should be released. They shouldn't, but they should at least be
held to some type of decent treatment and the legal process
should be valid, because some of those people are really
innocent.
I've heard recently that 70 percent of Bolivian prison
inmates, not jail inmates, prison inmates have not received a
trial. Is that okay with State?
If Jacob Ostreicher dies in Palmasola Prison, both the
Bolivian Government and the United States Department of State
will have the same blood on their hands.
And, again, I want to thank the attorneys from Bolivia
because they show us that our struggle here is not against a
people, it's not against a country, it's not America gets its
way, it is simply that we're fighting corrupt governments and
trying to help the good people of those governments reclaim the
name that their countries deserve. Thank you.
[The prepared statement of Mr. Moore follows:]
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Mr. Smith. Mr. Moore, thank you so very much. Especially
given your background, I think you bring enormous gravitas to
Jacob's innocence, the denial of due process rights which has
been pervasive and systemic. And, again, I thank you for taking
time out of your work to fly here, to be here to advocate and
to provide insights on behalf of Jacob Ostreicher.
You know, it does strike me, and you made a very strong
point, your final point, about the blood being on the hands of
those both in the Government of Bolivia and those at State who
have been asleep at the switch, or indifferent, or whatever it
might. And I would have to say, you know, there were people,
especially the people in the Consular Affairs that were very
robust in their concerns about Jacob, and I mean deeply
concerned about him. And even people within the Embassy who had
knowledge, and they seemed to--after Miriam Ungar's testimony
and your's, and Ms. Weinberger at the previous hearing--seemed
to have gotten more up to speed on the policy side of State,
but it doesn't seem to go any further. And I think that's where
the huge tragedy is, because I have found in 32 years as a
Member of Congress that despotic governments look at how high
up the chain of command are the concerns being expressed.
We are the legislative branch, we do write the laws, and we
do oversight. And the fact that State is not here is
disconcerting. Maybe they had a good reason, but I would have
loved to have had them here. We will re-invite them. This
invitation is an open one to them. But where is, with all due
respect, President Obama? Where is Secretary of State Hillary
Clinton when it comes to Jacob Ostreicher? Have they contacted
Evo Morales, picked up the phone and said, ``Mr. President, you
need to personally look into this.''
I was amazed when I met with Mr. Romero, the Minister of
Government, when he said, and counsel might want to speak to
this, that it was Jacob and his lawyers who sought delays for
bail hearings. And I said, ``Time out, Mr. Minister. First of
all, it defies the straight face test,'' as we say, ``and
defies all logic to suggest that a man would want to stay in
prison and would delay a bail hearing.'' This wasn't about the
substance of the non-case, because there is no evidence and
there is no charges, it's about bail.
And I said, you know, ``When you say things like that, it
strains credulity about where are you getting your
information.'' So, you might want to speak to that in a moment.
You did say, Mr. Moore, that there's egregious inaction on
the part of the government. And, again, where is the President?
As I said in my opening comments, it is in law, U.S. Code 22
Section 1732 that ``the President must demand the release of
any citizen who has been unjustly deprived of his liberty by or
under the authority of any foreign government, and to undertake
appropriate means to obtain the release of such citizen.''
Has it gotten to the point? And, again, I wanted State to
be here so we could ask that question. You know, it wasn't
until this subcommittee, I think, began to raise the questions
that it even went up to an Assistant Secretary level, and that
was when we did the letter, my colleagues and I, because a OAS
meeting was being held, and we asked that it be raised by that
official who was on her way there. And then that conversation
we're told was simply this, ``Raise Jacob's case.'' The person
on the Bolivian side said, ``That's not my jurisdiction, but
I'll pass on your concerns.''
We need to take it to a much higher level. You might want
to speak to that, Mr. Moore. I do think if the President were
to get on the phone, he is meeting with people--he doesn't even
have to meet with them. Just get on the phone and call Evo
Morales and say, ``Jacob must be free.'' Because if he, as you
said in the beginning about the--he is a dying man. I saw it
myself. His health has deteriorated. From a purely humanitarian
point of view, why wouldn't the Bolivian Government want to--
from a purely humanitarian point of view--put him on a plane
and send him back to his family?
So, if you want to speak to any of those issues, the two
counsel, about the delays were sought by Jacob for his bail. He
didn't want to get out of jail, he wanted to stay in jail. It's
ludicrous.
Mr. Justiniano. Yes, Mr. Chair. As you were saying, it
defies belief and is contradictory that a person who is seeking
their freedom would, in fact, request a continuance or ask for
a suspension of the hearings. And there have been more than 20
hearings that have been suspended.
It is the case in many of the cases that go before the
Bolivian justice system that defendants try to slow down the
process; however, that is not the case of Jacob Ostreicher.
We, the attorneys, can state that, in fact, again and again
when a case has been continued we protest that and ask for the
case to be heard. So, we can state that when they say that it
is we, his attorneys and Mr. Jacob Ostreicher, who have been
requesting the continuances, that is completely false.
Mr. Montano. Mr. Chairman, this is yet another one of the
lies that the government will use to cover its crime. It's
another lie which only a person who is, in fact, trying to
cover their own crimes would use when we're talking about a
person who has been detained illegally, who is innocent, for
the last 15 months. They will use that and a million other
excuses in order to cover their own crimes.
Mr. Smith. Ann Marie Buerkle, I know you have to leave for
another appointment.
Ms. Buerkle. Thank you, Mr. Chairman.
I guess--first of all, again thank you all for being here,
and for your courage, and for your willingness to sit here and
tell us what is going on.
What is the possible motivation of the government to do
this to an American? What--if you know, other than the
corrupt--you're saying there's corruption, but what is the
motivation?
Mr. Justiniano. We are unable to say exactly why the
Ministry of Government is interfering in this particular case.
But what we can say for sure is that it is interfering.
Just to give you a fact, the Wall Street Journal today
reported that Attorney Fernando Rivera is a prosecutor in the
case. He is not a prosecutor, he works for the government. And
he is directly interfering in the process, and we don't know
why. There is no concrete evidence as to why. What we do know
for sure is that he is interfering.
Ms. Buerkle. Other than the obvious that we talked about
and that the chairman so eloquently talked about the President
and the State Department, what else can we do to--maybe, Mr.
Moore, you can speak to this, or any of the panelists. What
else can we do in this body?
Mr. Moore. I think this legislation is a fabulous start.
All the pieces really are in place right now. There are
international laws that say you can't treat Jacob the way he is
being treated. There are Bolivian laws that say that you can't
treat him the way he's being treated. There are Federal laws
that say that the State Department cannot ignore this, nor can
the President ignore this. The pieces are all there. Everybody
is turning their heads. Everybody is ignoring it.
Legislation such as Mr. Smith is proposing is the kind of
thing that would take it out of the discretionary area. It is
like anything else that people don't want to do, sometimes you
have to have a stick that makes those who don't want to comply,
comply. And I think this is essential because, frankly, what
Mr. Smith's legislation is doing so well is it is forcing State
to do nothing other than what their charter already tells them
they must do, but it is holding them responsible for doing it.
And, at the same time, it is not a blanket punishment of the
Bolivian people, such as a funding cut or something that would
be a humanitarian issue. This is making the people who are
responsible for this, responsible for their actions.
So, I think that's important. And, frankly, I would very
strongly advocate that there be a strong look at whether there
needs to be a department within State that is tasked with
following the plight of Americans overseas who are wrongly
convicted, or who are wrongly held.
Again, there needs to be some discretion so that you can
say you know what, this is valid. But even a person who is
caught with some drugs in their possession doesn't deserve to
be in Palmasola. There needs to be some type of redress of
conditions, and for the innocent there needs to be aggressive
action in their behalf. And that is the one thing State is not
doing.
State is, in a macro sense, operating in the greater good
of America, but they are willing to sacrifice individual
Americans on the way to their goals. That is not okay.
Ms. Buerkle. Thank you, Mr. Chairman. I yield back.
Mr. Smith. Mr. Turner.
Mr. Turner. Thank you, Mr. Chairman, and thank all the
witnesses.
While we're trying to bring some light on this matter here,
what are the conditions in Bolivia? Is the free press seizing
this? Is it a well known case? Is there any popular movement on
the part of Bolivians to rectify this injustice if, indeed,
they see it that way?
Mr. Justiniano. If I may, Representative, the case is
slowly becoming more public and reaching more publicity. And
now, unfortunately, it is being spoken about in these terms
which is it's the case of the gringo who's been arrested for
nothing. Because it's quite clear that, in fact, there is no
legal grounds for his detention.
Mr. Turner. Mr. Montano, do you see it the same way? Do
people see this as an injustice, or is there any newspaper or
public figure involved?
Mr. Montano. For the 7 months that I have been working with
Jacob, what truly motivates me is that any person who
approaches me, any person who has any contact with me asks me
about Jacob. The media has started to approach me and they have
started to look for me and to ask me about Jacob. I have
embraced the media, and I have spoken as much as possible to
talk about these injustices.
Mr. Representative, yours truly is possibly the person who
is closest to Jacob right now. He has suffered a loss of
family, and I am the one who is always going to visit him in
the jail, in the prison. And I will continue to see him and to
follow through with this, and I will continue fighting for him
even though, as Congressman Smith has already recognized, we
are facing difficulties.
However, I will always be able to go whether it's before
your subcommittee or anywhere else I need to, to say that Jacob
is innocent. Even if they want to prosecute or even persecute
us, and if they say anything other than Jacob is innocent, we
will continue to fight for his freedom.
Upon our return to Bolivia, Mr. Jerjes and myself will be
open to discussing exactly what we stated here. And something
else, even those who are unofficially after Jacob have admitted
that he's innocent. Thank you.
Mr. Turner. I have another--Mr. Moore, you've been on this
more than anyone. We had a question before on motive. It's both
political and economic, but there is a large amount of
inventory, equipment, and money that is not only missing, will
probably never be recovered. Could you tell us a bit?
Mr. Moore. Yes, Mr. Turner. It is true that the land, the
crop, millions of dollars of combines, harvesters, I mean, very
high ticket equipment is simply missing. It's gone. And after
confiscating tens of millions of pounds of bagged high-quality
rice, the Bolivian Government claims, number one, not to know
where the rice went. And, at the same time, declared a rice
surplus in the country for the first time in years.
Evo Morales is almost obsessively attempting to embarrass
capitalism as a concept in kind of a retro Castro-esque type of
political agenda. He has recently announced that he will throw
Coca-Cola out of the country, and is proud that only two other
countries have ever thrown Coca-Cola out of their country, and
that's North Korea and Cuba. He ran an airline--ran the state
airline, Aerosur, out of business because it was a capitalist-
based company, and their president, by the way, is now in
hiding, I believe in Spain. I'm not going to give his address
but he's in Spain, and he has been charged with the exact same
charges as Jacob.
Evo Morales despises capitalism, is trying to make a stand
against capitalism. The government is corrupt, they are
stealing and then trying to stamp out the capitalist system.
And, frankly, Jacob's business endeavor was so successful that
it would have completely laid the lie to Evo Morales'
particular brand of socialism.
Mr. Turner. I have one quick final question. What is the
title of your book, and can I get it down on Kindle?
Mr. Moore. Yes, sir, thank you. It is called, ``Special
Agent Man.''It's kind of tongue in cheek.
Mr. Turner. Okay.
Mr. Moore. And it is available on Kindle, and I'll even
sign your Kindle.
Mr. Turner. Thank you. I yield back.
Mr. Moore. Thank you, sir.
Mr. Smith. Thank you very much. Let me ask the two
distinguished attorneys, one thing I learned from the trip from
you was that the presumption of innocence is guaranteed both in
the criminal procedure code, as well as in the Constitution;
and, yet, early on in Jacob's case he was presumed in papers
that were lodged to be guilty until proven innocent.
Could you expand upon that? Is that frequently done, or was
that an aberration?
Mr. Justiniano. It seems that when the prosecutor filed the
case, by filing a complaint against Jacob, the statement was
that he had not proven that his finances were legal.
Later, the judge for the case stated that that particular
crime did not have the presumption of innocence as other crimes
did. He alleged that this particular crime did not fall under
that category, and that is completely false according to the
Constitution, and according to the Code of Criminal Procedure.
It is out of the ordinary for a judge to say something like
that, especially when addressing the crime, or rather the
alleged crime of money laundering, as Jacob is being accused.
That's why we affirm without a doubt that he is being illegally
detained and illegally prosecuted.
Mr. Montano. Mr. Chair, I took on the task of looking over
other similar cases to see if, in fact, I could find a similar
judgment. And believe me when I tell you that I found none
because this is illegal, and the victim of this illegality is
your citizen. Thank you.
Mr. Smith. So, when the U.N. human rights representative
says, as you all have noted in your testimonies, that this is
common to Bolivians, as well, this mistreatment, that is false,
at least as it pertains to a presumption of innocence standard?
Mr. Justiniano. The situation in Bolivia, unfortunately, it
is common that there are violations of human rights. However,
Mr. Chairman, you have seen the Palmasola Prison. That is a
true violation of human rights. And although it is true that a
prison should not be the best place for a person to be, it
should also not be the worst place in the world.
In Mr. Ostreicher's case, if we can say that there are
rational levels of the violation of human rights, these levels
have been exceeded and he has had his human rights violated
even more.
Mr. Montano. Mr. Chair, it is common in Bolivia and it has
happened with the human rights representative who has not had
the guts to be able to face the music and talk the truth. And
why should that which is commonplace go above and beyond what
the law is? That is not something that an international
organization should accept.
I am sure that the person who wrote that report has this
lying heavily on his conscience if he himself is still free.
Thank you.
Mr. Smith. When I yielded to Ann Marie Buerkle you had not,
Mr. Moore, had an opportunity to speak to the egregious
inaction, and the fact that, if you'd like to, or Miriam, or
Ms. Weinberger, to this apparent inability on the part of the
President of the United States to pick up the phone and make
that call. It is about equities, and very often human rights
are at the back of the bus, especially with this
administration.
I was late coming to this hearing because I had a meeting
with a man named Chen Guangcheng, and he is the blind activist
Chinese lawyer that on two occasions, I've been working on his
case since 2005, the U.S. Department of State was going to give
him back to the Chinese until he himself said, ``Wait a minute.
I need to leave here. My family and I are not safe here.'' And
twice here we reached him in his hospital in Beijing and he
made an impassioned plea to come to the United States. I
believe that was a game changer, his plea to a Congressional
hearing.
This administration and others that preceded it don't take
human rights seriously. It's a talking point. It's an asterisk
somewhere. I wrote the Trafficking Victims Protection Act of
2000, and I can tell you we had serious opposition to it from
the Clinton administration, serious. Thankfully, it was a
bipartisan bill and it got passed, and we had veto override
strength, huge, that was huge.
I don't understand why this President, a Nobel Peace Prize
winner, can't protect or won't protect Americans unjustly
incarcerated, and it goes the same for Secretary of State
Hillary Clinton.
Every single day, as has been so amply demonstrated by your
testimonies and by the evidence from Jacob himself, his health
is deteriorating. As Yimy said, he is a dying man. How could we
stand idly by and go campaigning somewhere, important as this
is with an election around the corner, when a man is in such
peril?
So, I again would ask you, I mean, egregious inaction is a
very serious charge, and as you very diplomatically put it, the
administration has other interests, but aren't American lives
preeminent? Aren't they priority number one? Human rights, in
general, ought to be priority number one. Here we're talking
about an American.
And I would say before you answer, too, to my friends from
Bolivia, I had the privilege while I was in both Santa Cruz and
La Paz to meet with the prosecutors that are working on anti-
human trafficking, both sex trafficking and labor trafficking
issues. They were wonderful prosecutors. I mean, people who
want to put people who sell and reduce women, especially, to
commodities, behind bars, and confiscate their assets, and
provide assistance to the victims.
They, too, some of them indicated that they feared being
prosecuted by rogue government people who don't like if they go
across a certain line. But I was deeply impressed, they gave me
great hope. And I think that all of us think that Bolivia has a
great future because there are people like the two lawyers that
are here today, and people the likes of which I met.
I also pointed out, and I take your point, Yimy, to heart
when you said that you're embracing the media. I had a press
conference with the Bolivian media at U.S. Embassy La Paz and
found them to be very responsive and empathetic, maybe not all
but very many. I pointed out to them that I had been to two
shelters where Bolivian girls, some as young as 12, 13, and 14
who had been sold into modern day slavery, sex trafficking.
They had been abused, are now being helped by the government
and by the nuns that run one of those shelters, that my law
actually was being used to help them. Some of the money came
from the U.S. Government, because we care about Bolivians too.
You know, Bolivia deserves better than rogue prosecutors
that are trying to intimidate as they are in the case of Jacob,
and all these judges, a passing parade of judges who have to
recuse themselves. But, Mr. Moore, if you could speak to that.
And, again, I do think the more the Bolivian media learns about
this unjust incarceration it ought to provide a pathway for
reform for everyone, including Bolivians. No one should be
mistreated like this. Everyone is entitled to universally
recognized human rights. And your presence here, again, brave
and courageous as it is, speaks volumes of the respect that I
and others have for Bolivia. You are Bolivia. You care for the
rule of law, and I would hope that the government would sit up
and take notice and follow your lead.
Mr. Moore. I worked on the Amanda Knox case in Italy, and
what I repeatedly said is that every country in the world will
make a mistake judicially. It is not the judge--it is not the
measure of a nation whether they will make a judicial mistake.
It is the measure of a country, what they will do about it.
I think Bolivia is a country that has a strong desire to do
the right thing. It's just that their government does not. I
found out recently that my mother-in-law and one of my wife's
aunts go to Bolivia every year and work in a medical clinic
there to provide free medical care for people who can't afford
it, some in the city of Santa Cruz near Jacob. I didn't know
this until after I had testified. Their question was can they
still go, or have I ruined their ability to go?
As far as the State Department's overarching
responsibilities for American foreign policy as opposed to
individual innocent Americans in prison, I can't help but go
back to the analogy of primitive society who every year before
planting and before harvest would sacrifice--would make a human
sacrifice so that it would benefit the rest. We now see that as
barbarianism.
If we are still sacrificing individual Americans by
allowing them to languish in prison so that our foreign policy
advances, so that we can get bases in appropriate countries, so
that we can try to reestablish relationships with countries,
then are we not somewhat barbaric?
There is, and I understand this. I empathize with the State
Department's dilemma. They are responsible for overarching
responsibility for our foreign policy, but I remember the
argument after 9/11 when people who disagreed with the Patriot
Act said are we giving up everything we're trying to achieve if
we go over the line in giving up personal freedoms? And I had
to answer those questions a lot.
I would put it to the State Department that if we allow
Americans to languish in prisons, innocent Americans to
languish in prison, aren't we giving away just the thing we're
trying to gain? I think something has to be done. Hopefully,
this legislation will be the first strong step in that
direction which will force the State Department, and the good
people in the State Department, I don't dislike them, to
seriously consider that one American is an American. One
American is America. You can't just say that for these people
we'll sacrifice him. That's barbaric.
Mr. Smith. Miriam.
Ms. Ungar. Thank you. Firstly, I would tip my hat to you
for this. I would like to thank you for Jacob's Law. I want to
thank you for Jacob's Law. It's the first two good words I've
heard in 15 months. I would like to give you an applause from
my whole family for that. You were the first person to actually
be proactive in this case, and I don't know how to thank you
for that, really. It means a lot to me to have you in our
corner. And I also want to thank the two lawyers for their
bravery, and their bravery should be commended. Thank you.
Mr. Smith. Just a couple of questions and then we'll
conclude. Mr. Turner, do you have anything you want to add?
Whoever would want to answer this, one of the questions I asked
Minister of Government Romero was ``What do you do when there's
a rogue prosecutor or rogue prosecutors who may themselves be
benefitting from money, a shakedown?'' I think that, Mr. Moore,
you talked about it being a shakedown, even our Embassy people
have talked about this being a shakedown. Who tracks Jacob's
assets?
Mr. Moore. Extortion.
Mr. Smith. Extortion, better word. And then the next
question--if you could speak to that issue first. And, I
thought of it, one of the questions I asked the Minister of
Justice was ``Where's the accounting for all of the stolen
property?'' I mean, first, second, third, fourth, and fifth is
get Jacob back, but it is a concern that a huge theft has
occurred. And I was told that there are very serious
accountings of where that is. Is it there, I mean, or is it in
somebody's pocket? Rogue prosecutors, especially, that's a
concern.
Mr. Justiniano. Yes, thank you. One of the rights that has
been affected, that has been violated of Mr. Ostreicher, in
fact, does have to do with his patrimony. We speak about the
right to his freedom, and to his health, but it is, in fact,
the right to his patrimony and belongings. And one of the
ironies of the case is that one of the prosecutors has, in
fact, been named to the Ministry of Justice. It's worse than
that, that his patrimony is in the hands of the Ministry of the
Government.
And since it is the Ministry of Government which is
responsible for the property, for his machinery, for the rice
itself, it has been practically stolen from him, and it is in
the hands of the Ministry of Government.
Curiously enough, the Ministry of Government is not named
in this trial, this prosecution in which the rice has been
stolen even when the party responsible for that rice is the
Ministry of Government itself.
Unfortunately, somebody will have to answer for this, for
the machinery, the land, and particularly the investment that
Mr. Ostreicher has made in Bolivia. I think practically it
might one or two prosecutors who would be asked to respond to
these damages, but really it's the Bolivian State.
Mr. Smith. One final question, and it's more of a technical
question. When did the clock begin on the 18 months? There was
some disagreement. Is there disagreement? I mean, does this go
until December or when does it go to, please?
Mr. Justiniano. As you say, this is actually a difficult
question to ask. It's a very tricky procedural and technical
legal question. But what has to happen is we have to make a
distinction between the initiation of the criminal prosecution
and the investigation part of the prosecution.
This prosecution was initiated on December 28, 2010.
However, the investigative phase of the prosecution began on
May 4, 2011. Therefore, the 18 months allowed would expire in
November 2012. However, to date from when he was formally
arrested, Mr. Jacob Ostreicher on June 3, 2011, almost 14
months have gone by from that date.
Mr. Smith. Mr. Moore, I understand you have to catch a
plane. Thank you.
Mr. Moore. Yes, sir. Thank you.
Mr. Smith. Thank you for coming. We do appreciate it.
Mr. Moore. Thank you.
Mr. Smith. And thank you for, again, breaking off your
schedule to come here at this hearing.
Since I've returned I have spoken about Jacob to many of my
colleagues on both sides of the aisle, and there is an
interest, a growing interest among Members of Congress to
travel to Bolivia to speak out on behalf of Jacob's freedom.
Does that help?
Mr. Justiniano. One of Mr. Moore's arguments was
specifically that, that he had never before seen such a lack of
activity on the part of the Secretary of State.
In the 14 months that Jacob Ostreicher has been detained in
pretrial detention, we have only seen the concern demonstrated
by yourself and this subcommittee. However, we do believe that
any action, any intervention whatsoever from people of your
level would benefit Mr. Ostreicher's case.
Mr. Smith. Thank you. I would just note for the record that
when any of us in government speak out on behalf of an innocent
man and promote human rights, we have a duty to protect, a
moral duty. We're not doing Jacob a favor by intervening, we're
doing what is right and honorable. And, again, I can't say
enough how much I respect all of you, but to our two
distinguished counselors who have come here, you are the future
of Bolivia. And I want you to know on behalf of my colleagues
in the U.S. Congress how much respect we have for you. And that
we stand in solidarity with the Bolivian people who deserve
better themselves. They deserve freedom and democracy, and a
due process and respect for the rule of law that you represent.
And I just want you to know how extraordinarily respectful I am
of your efforts and who you are. So, thank you so very much.
And to Miriam and to Ms. Weinberger, thank you again. Your
love is what's driving this, and your concern for your husband,
and for your father. If you have anything you would like to say
as I close the hearing, you're welcome to do it.
Well, thank you, and we will accelerate our efforts. We
hope tomorrow to introduce Jacob's Law. We will start building
the cosponsors for it and look for a markup of the legislation.
And I can assure you, I can absolutely assure you from my point
of view, and on behalf of many of my colleagues, we will not
quit until Jacob is free.
The hearing is adjourned.
[Whereupon, at 4:50 p.m., the subcommittee was adjourned.]
A P P E N D I X
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