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Source: Council on Hemispheric Affairs – Analysis-Reportage

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Daniel Kovalik
Miami

On December 12 to 13, 2022, an evidentiary hearing in the case of The United States v. Alex Saab was heard before Judge Robert Scola in the U.S. District Court for the Southern District of Florida.  The only issue in the hearing was the question of whether Mr. Saab is entitled to diplomatic immunity, a question which, if resolved in his favor, would lead to his release from custody.  I had the opportunity to be in the courtroom to witness this hearing, and it was both fascinating and revealing.

A diplomat in chains

Alex Saab, who is accused of money laundering and of no violent offense, was brought into the court literally in chains.  He was handcuffed and the handcuffs were themselves connected by chains to leg cuffs.  Saab wore a jumpsuit the color of brown mustard.  He looked remarkably healthy given his now two and half years of incarceration. His hair was long and tied up in a bun in the back.  Saab sat at the defense table with his lawyers from Baker Hostetler.  The two rows behind the defense table were kept empty by the court bailiffs, presumably to prevent any contact between Saab and any visitors in the courtroom – a move which again seemed unnecessary given that he is not even accused of being a violent offender.  Upon the request of his counsel, the judge did allow Saab to be released from his handcuffs so that he could take notes, write suggestions to his counsel, and otherwise assist in his own defense.

On the prosecution side, there were two attorneys and two agents from the Drug Enforcement Agency (DEA), again seemingly strange given that Saab is not and has never been accused of any drug-related offenses.  The two bald and bulky DEA agents, both attired in dark suits, looked almost identical and resembled the mysterious twins in Breaking Bad who pursued their targets for violence with quiet precision and relentlessness.  For the past several years, the target of these DEA agents has been Alex Saab, his real “crime” being his success in getting around illegal U.S. sanctions to get food, medicine, fuel, and building materials to the people of Venezuela. And now, strangely, the DEA claims that Saab was actually an informant for the DEA – a claim that Saab denies, but which is intended to discredit Saab in the eyes of people in Venezuela and in the Western left.

The prosecution clashes with the reality of Saab’s diplomatic status

The argument of the defense team was simple.  Saab was a diplomat, specifically a Special Envoy, of Venezuela, when he was captured in Cabo Verde, a country off the coast of West Africa in which Saab’s plane stopped to refuel on the way to Iran.  Saab, the defense contends, was and is therefore entitled to diplomatic immunity.  And, this is so, the defense argues, because he met three critical criteria:  (1) he was on an official mission of the Venezuelan government to Iran where he was to negotiate a deal for food and medicine, just as he had done on at least two prior occasions; (2) Iran had accepted him as an envoy for said mission; and (3) he was on his way to fulfill this diplomatic mission at the time of his detention.

In reality, there should be little to no dispute about these key facts and therefore about Saab’s diplomatic status.  Therefore, the prosecution has set out to aggressively deny reality before the court, arguing that all of the evidence of Saab’s diplomatic mission and work were fabricated after the fact to get him off the hook.  For example, the prosecution claimed that diplomatic letters — originally sealed in diplomatic pouches and given to Saab before his flight to Iran – most notably from Venezuelan President Nicolás Maduro to Iran’s Supreme leader Ali Khameni and from Venezuelan Vice-President Delcy Rodríguez to Iran’s agricultural minister, were created after Saab was captured to try to prove he was a diplomat when he really was not.  Much to the prosecution’s chagrin, reality asserted itself in the hearing.

The author, Dan Kovalik, in front of the U.S. District Court for the Southern District of Florida, next to journalists, lawyers and activists from the U.S., Colombia, Argentina and Tunisia (photo credit: Dan Kovalik)

To prove the key elements of Saab’s diplomatic status, the defense put on Saab’s security guard, Juan Carlos Arrieche, as a witness.  Arrieche testified from Venezuela via Zoom and through an interpreter.  And, he testified to the fact that he accompanied Mr. Saab to a meeting with President Nicolás Maduro before his fateful flight to Iran through Cabo Verde; that Saab was given the diplomatic pouches described above; and that he witnessed Saab with these pouches just before he boarded his flight.  While this seemed like pretty solid evidence, this was not enough for the prosecution to relent on this issue.

Manipulation of evidence

The defense then called a young lawyer from Cabo Verde who flew in person to the hearing to testify.  In what would become the most dramatic testimony of the hearing, the young lawyer was meticulously questioned about how he came to meet Mr. Saab in prison in Cabo Verde and to come in possession of the property of Mr. Saab which was being held by Cabo Verde prison officials.  As he described, he went to meet Saab after he learned of his plight and learned that he was not, as per Cabo Verde prison policy, given the opportunity to designate someone to receive the property he had in his possession at the time he was seized.  He encouraged Saab to sign a letter designating himself as the person to receive this material, and Saab did so.  After a short while, the young lawyer was given two suitcases belonging to Saab along with a detailed list of the contents.  However, as he soon discovered, not all of the contents had been listed.  Thus, when he brought the suitcases home and opened them to see what was within, he discovered the diplomatic pouches, these pouches not being listed in the property description.

Curiously, the young lawyer found that all of the diplomatic pouches had been unsealed and opened, revealing the letters from President Maduro and Vice President Delcy Rodríguez within.   Therefore, not only did these diplomatic pouches exist, at least per the lawyer’s testimony, but the Cabo Verde officials were clearly aware of their existence and therefore of Saab’s diplomatic status.  And, it appears that U.S. authorities or their agents had also been made aware of this at the time.  Thus, the defense asked the young lawyer about markings at the top of the letters which showed a date (June 20, 2020) as well as a “jpg” designation, meaning that the letters had been scanned.  The lawyer testified that those markings were not on the letters that he had seen at the time.  However, copies in evidence, which were produced by the prosecution to the defense did have those markings, strongly suggesting the following – that while the prosecution is trying to claim that these documents were created after the fact, copies of them had actually been scanned and sent to U.S. officials way back in June of 2020.

To put a finer point on it, the U.S. also knew of Saab’s diplomatic status back then and it is the prosecution which is now lying about this to try to make its case against Saab.

The judge got exasperated with the prosecutors

After this dramatic presentation, the lead prosecution attorney then stood up to cross-examine the young lawyer from Cabo Verde.  However, the prosecution attorney started peppering the young lawyer with questions completely unrelated to his discovery of the relevant documents.  The defense therefore objected to the line of questioning on the basis that it went beyond the scope of direct and was otherwise irrelevant.  Judge Scola, who came across as a fair and no-nonsense judge, seemed to have had enough.  He looked at the prosecution attorney and asked him if he really intended to challenge the fact that the young attorney had discovered the diplomatic letters as he claimed.  The prosecution attorney, a bit taken aback, was forced to answer in the negative.  Judge Scola, exasperated, then asked the natural next question of why the prosecution was then continuing with his line of questioning.  With no good answer to this query, the prosecution attorney sat down, and court was adjourned for the day.

Given the above, Mr. Saab’s case for diplomatic immunity should be a slam dunk, especially since the precedent in the 11th Circuit in which his case is being heard is very favorable on this issue.  However, my optimism is tempered by the fact that the U.S. government has been so relentless in its pursuit of Saab, and its treatment of Saab so unfair, that justice in this case seems quite elusive.  One can only hope that justice ultimately prevails.

Oral arguments based on the evidence submitted in the hearing described above are scheduled for December 20.  The Judge has promised to rule on the diplomatic immunity issue by the end of this year.

Daniel Kovalik is a Senior Research Fellow at COHA. He teaches International Human Rights at the University of Pittsburgh School of Law.

[Main photo: Mobilization in Caracas, December 16, 2022, to Free Alex Saab. Credit: VTV]

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