Inaccuracies and response:
1) "Protesters arrived en masse from the neighboring city of El Alto, where the tragic October 2003 events occurred. The protesters quickly abandoned their peaceful intentions and began to strike police officers guarding the building with sticks, stones, fireworks, dynamite caps and anything else they could get their hands on. At one point a burning tire was hurled at the police unit's commander. And, soon thereafter, pepper gas was sprayed into the face of the police officers who responded with tear gas to disperse the crowd."
Response: Although some articles in the Bolivian press, which Mr. Gamarra seems to misquote and cite selectively, suggested that protestors planned to burn down the embassy, international journalists and other credible eyewitnesses consistently reject this assertion. First hand reports emphasize that a crowd of several thousand protestors were held back by the Bolivian police force, who quickly established a security blockade around the perimeter of the embassy.
The protestors were certainly loud, setting off firecrackers and yelling slogans, but were not confrontational. The eventual use of tear gas by the policy dispersed the protestors. The consistent characterization of angry Bolivian citizens as "an enraged mob," and the parallels here drawn to October 2003 do not reflect the reality of the protest at the embassy or the conflict in September and October of 2003.
2) "Ambassador Phillip Goldberg, who has been under extreme pressure since his arrival in Bolivia two years ago, failed in his mild-mannered attempt to explain that political asylum is granted not by the Bush administration but by the judiciary, an independent branch of government."
Response: According to Sanchez Berzaín's legal defense team, asylum was granted by the US State Department. According to the Motion to Dismiss by Sanchez de Lozada and Sanchez Berzaín's lawyers, "The State Department supported the Lozada government, before, during, and after the 2003 events. It also granted minister Berzaín's application for political asylum" (2). The motion also states, "Further, a finding by this Court against either defendant also would contradict the U.S. Executive's considered opinion in giving Minister Berzaín asylum" (16). And, "The U.S. Executive also found that, based on his application, he is a "refugee," i.e. one who is unable or unwilling to return to the country of removal "because of persecution or a well-founded fear of persecution on account of . . . political opinion."
Furthermore, the defense team's press release affirms that the U.S government directly supported the ex-president: " The recently released Motion to Dismiss contains “never before seen documents from the State Department that not only show the U.S. government's full support for the Sánchez de Lozada government in 2003, but also demonstrate the culpability of current President Evo Morales and his allies for the violence and casualties that lie at the heart of the action brought against the former president and defense minister." (It is interesting to note that WOLA and AIN wrote a critique of this “never before seen document” in 2004). The protestors were not, as Mr. Gamarra suggests, acting under false information, but were taking a stand against reports of the US government support for a man facing criminal charges in Bolivia.
3) 3) "This Miami resident is accused of leading the military against protesters during the October 2003 riots that culminated in the resignation of President Gonzalo Sánchez de Lozada and in the deaths of 56 people under circumstances that remain unclear."
Response: According to the Attorney General's office, after the death of others wounded in the conflict, the death toll has risen to 60 people, and over 500 seriously wounded. Eyewitnesses have affirmed in testimony that Sanchez Berzaín personally led the military mission in the Altiplano that led to the death of eight year old Marlene Rojas and 2 other Bolivians.
4) "The Evo Morales administration and an international coalition of regime-supporting NGOs have politicized the issue to such a degree that the possibility of an independent investigation into the October events inside Bolivia is impossible."
Response: It is unclear who Mr. Gamarra is characterizing as "regime-supporting" NGOs, Furthermore, it is unclear how NGOs can impede an independent investigation, and the current team of special prosecutors were assigned to the case in 2004, before MAS came to power. For example, the lead special prosecutor was initially hired in the La Paz district attorney's office in 2000 after passing a USAID competency exam and psychological test. Furthermore, since the late 1990’s, USAID Administration of Justice program has provided in-depth training for Bolivian prosecutors, including the team of career district attorneys assigned to this case. The acting Attorney General is also a career prosecutor, who only assumed the post after the previous Attorney General resigned. He was not selected by the Morales administration. He is from Sucre1 and has been critical of MAS since the November 2007 conflicts in his city.
5) "By the same token, it is equally likely that neither the former president nor Sánchez Berzaín would ever face an impartial judge in Bolivia."
Response: Although the Morales administration has emphasized the importance of this trial, largely as a result from pressure from constituents in El Alto, there is widespread support in Bolivia across the political spectrum for extradition. Ex-president and opposition leader Jorge Quiroga has repeatedly questioned denunciations of political persecution, and called on the accused to return to Bolivia to face charges. On September 10, 2007, in El Deber,2 Quiroga claimed that the safety of the accused could be guaranteed in Bolivia and that the Supreme Court would hold a clear and transparent trial. He stated, "We hope that the U.S. government will … proceed forward with the judicial notifications that emanated from the Supreme Court."
6) 6) "Morales has done his utmost to bring the judiciary under the control of his party, the Movimiento al Socialismo."
Response: The Bolivian legal system has a history of inefficiency and corruption and, unfortunately, to date the Morales administration has done little to promote positive reforms within the courts. The current judicial system is indeed a remnant from previous governments. However, any bias in the current system would likely favor of the traditional political and economic elite, and not the Morales government. Though justices resigned when all government employee salaries were cut, there is no evidence to suggest that any judge was fired by the Morales administration.
Sánchez de Lozada supporters frequently hold up investigations against former Bolivian presidents as evidence of a supposed Morales political vendetta. No charges have been filed in those cases to date and a two-thirds majority of votes in the Bolivian Congress is needed to initiate a formal trial. MAS does not have sufficient representatives in Congress to unilaterally approve these proceedings. Furthermore, demands for trials of responsibilities affect all political actors. For example, President Morales is also being investigated in connection to "Black October" and two other cases. Some MAS officials are under investigation for different alleged crimes. There have been no credible reports of government meddling to thwart these ongoing legal proceedings. However, there is direct testimony from a legal investigator in the Sánchez de Lozada case that prosecutors had received threats and pressure to drop the case.
The Bolivian Congress authorized the case against former president long before the election of Morales. In Sánchez de Lozada's case, 2/3 congressional approval occurred when his ex-vice president and successor, Carlos Mesa, was president, when the majority of Congress belonged to Lozada’s party or allied parties. The decision to proceed with the trial came from his own political coalition – not with the MAS party, which had about 20 percent of the congressional seats at the time. No member of the Supreme Court is a member of, or linked to MAS. Furthermore, the Bolivian congress elected seven of the eleven magistrates before MAS came into government. Two-thirds of the Supreme Court would have to rule in favor of a conviction.3 In contrast to the Supreme Court, many of the members of the Constitutional Tribunal have resigned and have no current replacements. This gap may have caused serious legal difficulties in Bolivia, but does not directly affect the Sánchez de Lozada case.4
7) "The government's reaction, however, is suspect. The decision to grant asylum to Sánchez Berzaín was well known in and out of Bolivia for at least six months. So why stage the riot this past week?"
Response: The first indication of asylum for Sánchez Berzaín appeared in a press release distributed by his defense team on June 3, 2008. Sanchez Berzaín also made the announcement that same week on a Bolivian radio station. Neither the Bolivian embassy nor the Attorney General's office knew that he had been granted asylum before that time.
8) "The march itself appears to have been egged on, if not staged, by the Morales government."
Response: Although there are some social movements that support the Morales government, the administration is also subject to demands and pressure from these movements, and in no way has the ability to organize them to "stage" a march. It is important to note that the public outrage around the revelation of Sánchez Berzaín's political asylum included harsh criticism of Morales's ambassador in Washington, as well as the administration as a whole, for not moving the case forward. (The extradition request has now been in the hands of the Bolivian chancellery for over a month). Furthermore, October 2003 victims and their relatives renewed demands for legislation to provide them with economic compensation.
There is no indication that the Morales administration was involved in the organization of the protest. Subsequent statements by Government Minister Alfredo Rada, inappropriately condemning the police for excessive use of force sent the wrong message. International observers highlighted that police appropriately secured the area, keeping loud, but largely peaceful protestors far from the building. His subsequent firing of the La Paz police chief, mostly a political move to put a handpicked appointee in the post, furthered this unfortunate message.
9) "The violence launched against the police officers was reminiscent of the violence that many of these very same protesters used in October 2003."
Response: According to Human Rights Watch, ""Given the high ratio of civilian to military and police casualties, Human Rights Watch is deeply concerned that the security forces may have failed to exercise proper care in responding to the protests." The HRW letter also stated that only three of the deaths were soldiers and that a "prosecutor investigating the incidents told us that high caliber munitions used exclusively by the armed forces claimed the lives of most of the civilian victims." (Human Rights Watch, Bolivia: Letter to President Carlos Mesa Gisbert, December 22, 2003). Forensic studies carried out by the Attorney General’s office prove that 95% of the deaths were caused by military-issue rifles.
10) It is especially important that members of Congress observe the situation not only through the eyes of groups who have cast Morales as the Bolivian Mandela and the mobs who carry out community justice as ''social movements'' seeking to redress historical grievances.
Response: Mr. Gamarra attempts to goad members of the US congress into actively taking sides in the Bolivian conflict and pushing the executive to implement the overt, invasive, and misguided policies that supported political leaders implicated in human rights violations in Bolivia that provoked violations of national sovereignty bilateral frictions in the past.
*The input of Coletta Youngers, Linda Farthing and Emma Banks for this critique was much appreciated.
1. .The constitution stipulates that the Sucre District Attorney will act as Attorney General until another is elected by Congress.
2.El Deber is a politically conservative daily newspaper published in Santa Cruz
3. In fact, the justices from the sala penal cannot vote because they were involved in a previous ruling related to the case, so the way the numbers work out, opposition from just one justice would be sufficient to prevent a conviction in this case.
4. A decision in a "trial of responsibilities" cannot be appealed, so there would be no recourse beyond the Supreme Court in this case.