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.

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 11^th 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]

By Dan Kovalik
Pittsburgh

In his new memoir, Sacred Oath, former US Defense Secretary, Mark Esper, who served under President Donald Trump at the time of the arrest of Alex Saab in Cape Verde, effectively admits that the White House was quite aware of the fact that Saab was a diplomat at the time of his capture.

As Esper writes, “At Maduro’s direction, Saab was reportedly on special assignment to negotiate a deal with Iran for Venezuela to receive more fuel, food, and medical supplies. Saab was Maduro’s long standing point man when it came to crafting the economic deals and other transactions that were keeping the regime afloat.” Esper’s recognition that Alex Saab was “on special assignment” and negotiated economic deals for Venezuela is a tacit recognition of Saab’s diplomatic status.  Moreover, it is highly unlikely that Esper was unaware of documentation from both Iranian and Venezuelan authorities that verifies Saab’s special envoy status at the time of his apprehension in Cape Verde.

The inconvenient fact is that Saab was a Venezuelan diplomat, and had been for some time, when his plane was forced to land in Cape Verde, as opposed to in Senegal or Morocco which the US prevailed upon not to allow Saab’s plane to land and refuel, and he was arrested by Cape Verde authorities.  Saab was therefore entitled to diplomatic immunity as provided for by the Vienna Convention on Diplomatic Relations of 1961, and his arrest and continued detention to this day, in spite of this immunity, was and continues to be illegal under international law.  So painfully aware of the illegality of their actions, and the dangers this of course may pose for Washington’s own diplomats if they were treated in the same fashion, that, as Esper makes clear, “the officials at State, Justice and the NSC [National Security Council] who were working on this case” were filled with trepidation (though Esper himself had no such qualms).

Still, the Trump Administration pushed on with the arrest, prosecution and extradition of Saab to the US (also despite the fact that there was no extradition treaty between the US and Cape Verde)  because, Esper explains, “access to him could really help explain how Maduro and his regime worked. It was important to get custody of him. This could provide a real roadmap for the US government to unravel the Venezuelan government’s illicit plans and bring them to justice.”  In other words, just as Saab and his many defenders have argued from the start, the arrest, detention and extradition has been politically motivated.  Even more to the point, the treatment of Saab has been motivated by the desire of the US to understand Saab’s very diplomatic functions for Venezuela – that is, how he went about helping obtain food and medicine for Venezuela despite illegal US sanctions — again underscoring the illegality of this treatment under the Vienna Convention.

Lawyers working on Alex Saab’s case, including myself, have just filed information requests under the Freedom of Information Act (FOIA) with the White House, State Department, Department of Justice (DOJ), and the Treasury Department to provide further confirmation of what Esper admits and what Saab has claimed all along: that his treatment is illegal under the Vienna Convention, that the US government knew this from the start, and that it nonetheless pursued the arrest of Saab for wrongful purposes.  We are hopeful, and indeed confident, that the information obtained will lead to the release of Alex Saab after two years of illegal detention.

Meanwhile, Mark Esper explains in his book that his dismissal  from the Trump Administration was directly related to the tactical decisions Trump wanted to deploy to try to pursue Saab.  Thus, Esper, who agreed with the decision to detain and extradite Saab,  relates that he was fired by the Trump Administration over his disagreement with Trump’s tactical decision to send the USS Jacinto, a warship, to the coast of Cabo Verde to ensure Saab’s continued detention on the island nation until it was possible to extradite him (or, more accurately, kidnap him) to the United States.   Esper, on the other hand, believed that DEA or other police action would be a more appropriate method of accomplishing the same end.

Trump ultimately went ahead with this decision, sending the warship to Cabo Verde in November of 2020, and anchoring it at a cost of over $50,000 a day.

It must be noted that Saab’s arrest, detention, and extradition have already been ruled illegal by a number of international bodies, including The Economic Community of West African States Court of Justice and the United Nations Human Rights Committee which actually issued an injunction requiring Saab’s release back in June of 2021.

It is long past time that the US government abide by international law and release Alex Saab after two years of tortuous and illegal detention.

Dan Kovalik teaches International Human Rights at the University of Pittsburgh School of Law, and is a COHA Senior Research Fellow

[Credit main photo: Fuser News]

By Dan Kovalik
From Pittsburg, PA

On October 16, Colombian businessman and Venezuelan Special Envoy Alex Saab was in practical terms kidnapped for the second time, first by Cabo Verde under pressure from Washington, and now by the U.S., in flagrant violation of international law.

For nearly a year and a half, Saab had been imprisoned on the island nation of Cabo Verde, 400 miles off the northwestern coast of Africa in the Atlantic. As a Bloomberg article explains, “Saab was detained June 12 [2020] when the private plane he was traveling on from Venezuela to Iran made a fuel stop on the Cape Verdean island of Sal.”^[1]  What Bloomberg does not mention is that Saab’s plane was forced to land in Cabo Verde because two other nearby nations in mainland Africa, apparently under pressure from the US, refused to let him land.^[2]

There is no extradition treaty and there was no Interpol order

The capture of Saab was made without any proper legal basis. While Washington prevailed upon Cabo Verde to seize Saab based upon the pretext that the U.S. wanted to extradite him for alleged crimes, the United States has no extradition treaty with Cabo Verde.^[3] Moreover, while Cabo Verde authorities claimed that Saab was detained pursuant to a valid Interpol notice, a regional court in Nigeria found that the detention took place before the Interpol notice was issued, raising huge concerns about the legal validity of Saab’s detention and imprisonment.^[4]

The U.N. also demanded the extradition to be suspended

Indeed, this regional court, The Economic Community of West African States Court of Justice (ECOWAS), explicitly “ruled that Saab should be freed because he was detained before the Red Notice was issued.”^[5]  As Reuters explains, “decisions by that court are final and binding under a 1991 protocol.”

And then, on June 8, 2021, the United Nations Human Rights Committee issued a decision for preliminary measures demanding that the extradition of Saab be suspended and that Saab, who is suffering from cancer, be given the necessary medical attention which he has been denied in Cabo Verde.^[6]

On September 28, 2021, the African Bar Association issued a statement demanding “the immediate and unconditional release of Ambassador Alex Saab, respect for the ECOWAS Court and the Rule of Law in Africa by Cape Verde and all Governments and Institutions in Africa as the African Bar Association will continue to demand for the respect of treaty obligations and the independence of Judiciary in Africa.”^[7]

In spite of the foregoing and the overwhelming opposition to Saab’s extradition amongst the citizenry of Cabo Verde, the Constitutional Court of Cabo Verde approved the extradition of Saab to the U.S. in September of this year.^[8]  To put it simply, Saab was kidnapped in Cabo Verde nearly a year and a half ago, and there he was detained, until his “extradition” to the U.S. on October 16th, despite the lack of any valid extradition treaty and any valid arrest warrant at the time of capture.

While the allegations against him are hotly disputed, what is not in doubt is that Washington is behind his persecution. And it is also clear that the U.S. is interested in Saab, not because of any alleged crimes but because he may hold the key to Venezuela’s ability to circumnavigate Washington’s deadly illegal unilateral sanctions. First and foremost, the allegations against Saab involve alleged embezzlement from food and housing programs in Venezuela. Given that the U.S. is sanctioning Venezuela in an attempt, inter alia, to undermine the ability of Venezuela to maintain such programs, it is patently obvious that Washington has no real, bona fide concerns about someone allegedly taking kickbacks from such programs. And moreover, under established U.S. judicial doctrines of comity and forum non conveniens, it is Venezuela which, in the first instance, has the right to try to prosecute such crimes committed within its own domestic jurisdiction.

Sanctions against Iran: U.S. real reasons to harass Ambassador Saab

Bloomberg explains that Alex Saab was on his way to Iran to negotiate the exchange of Venezuelan gold for much needed gasoline supplies.^[9]  Due to U.S. sanctions, the oil-rich nation of Venezuela is unable to obtain the necessary chemicals and supplies to refine its oil into gasoline which is needed to generate electricity and to transport goods throughout the country.  In addition to gasoline, Saab was also attempting to negotiate the purchase of food, medicines and other critical supplies which have also been made scarce in Venezuela due to U.S. sanctions.^[10]

As explained by Alena Douma, U.N. Special Rapporteur on the unilateral use of coercive measures on the enjoyment of human rights:

The hardening of sanctions faced by the country since 2015 undermines . . . the state’s capacity to maintain infrastructure and implement social projects. Today, Venezuela faces a lack of necessary machinery, spare parts, electricity, water, fuel, gas, food and medicine. Venezuelan assets frozen in United States, United Kingdom and Portuguese banks amount to US $6 bln. The purchase of goods and payments by public companies are reportedly blocked or frozen. . .

It has been reported that electricity lines are able to work at less than 20 per cent of their capacity today. . . .

An estimated 90% of households are connected to the national water distribution system. Numerous households, however, report frequent cuts because of electricity outages affecting water pumps and the maintenance of infrastructure, and because of the shortage of qualified maintenance staff. ^[11]

It appears that Alex Saab’s very adeptness in helping Venezuela to get around these sanctions – sanctions which Alena Douma notes are illegal under international law — is the real reason for Washington’s interest in having him detained and extradited.^[12]

As the New York Times explains, while the U.S. has brought vague “money-laundering” charges against Saab, “hard-liners at the Justice and State Departments, including Elliot Abrams, the State Department’s special envoy for Iran and Venezuela,” want to ensure Saab’s continued detention in Cabo Verde lest they “lose an opportunity to punish Mr. [Nicolás] Maduro.”  As the Times continues, the “months long detention of Mr. Saab has stripped Mr. Maduro of an important ally and a major financial fixer at a time when fewer countries are willing or able to come to Venezuela’s aid.  If Mr. Saab cooperates with American officials, he could help untangle Mr. Maduro’s economic web of support and assist the authorities in bringing charges against other allies of the Venezuelan government.”^[13]

And how did the U.S. ensure Cabo Verde’s compliance in all this?  It has used a carrot and a stick approach. The carrot is significant: U.S. economic development assistance to the island nation. In September of 2020, the U.S. embassy in Cabo Verde announced “the U.S. government would invest $1.5 million in Cabo Verde to support the country’s efforts to mitigate the economic crisis caused by the COVID-19 pandemic.”^[14] And in June, 2021, the embassy announced a plan to build a new U.S. embassy adjacent to the government palace:

This year, July 4 will mark a new chapter in Cabo Verde-U.S. history as representatives of both countries dedicate 4.5-hectares of land adjacent to the Government Palace in Praia as the site for a new U.S. embassy.  This exciting, long-anticipated project represents a more than $400 million investment by the U.S. government in the bilateral relationship, with fully $100 million of that total going directly into Cabo Verde’s economy, benefitting local businesses and contractors and creating scores of construction jobs.^[15]

The stick is the deployment of old-fashioned “gun-boat diplomacy” — a term coined by President Teddy Roosevelt.  Thus, as the New York Times explains, the U.S. has anchored the Navy Cruiser San Jacinto off the coast of Cabo Verde to make sure that Saab did not escape somehow.  While U.S. officials claimed that they were doing this in response to “threats” by Venezuela to take all measures to protect Saab’s human rights, the presence of the gun ship appeared calculated as much to ensure no second thoughts by the government of  Cabo Verde as it was to prevent some rescue attempt by Venezuela or its ally Iran. ^[16]

Saab’s extradition case is currently before the U.S. Court of Appeals for the 11^th Circuit which is to decide whether the U.S. has proper cause to extradite Mr. Saab under U.S. and international law. Quite tellingly, the U.S. prosecution has twice postponed the initial hearing in which it was to present evidence and arguments in favor of extradition. And, it has asked for a third postponement.^[17]

The U.S. extracted Saab from Cabo Verde without court sanction

And, so, U.S. authorities, on October 16th, instead of waiting for the 11^th Circuit to decide the merits of the case – a case which they will surely lose — have kidnapped Saab a second time, flying him out of Cabo Verde to the U.S. without court sanction.  It is no coincidence that this kidnapping took place, moreover, the day before Presidential elections in Cabo Verde which brought to power a new leader opposed to Washington’s mistreatment of Saab.

Alex Saab is now sitting in a federal prison in Miami. This is a flagrant violation of both international and U.S. domestic law. In addition, this has already had huge international repercussions, with the government of Venezuela suspending scheduled talks with the opposition in response.

The actions of the U.S. and Cabo Verde against Alex Saab have dealt a serious blow to international law and the security of diplomats worldwide. It sets the dangerous precedent that an individual, and especially a foreign diplomat, can be captured and detained without warrant and then “extradited” to the US without a valid extradition treaty and without an U.S. court authorization. This type of action undermines the rule of law, and indeed establishes “the rule of the jungle” wherein powerful countries like the US can simply ignore rights of individuals to due process and to freedom from arbitrary detention to bully developing countries such as Venezuela.

Dan Kovalik teaches International Human Rights at the University of Pittsburgh School of Law, and he is one of COHA’s Senior Research Fellows

COHA Senior Analyst William Camacaro provided research and editorial assistance for this article.

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Sources

^[1] “Maduro Financier Faces Extradition to U.S. After New Ruling.” Bloomberg. Mar 17, 2021. https://www.bnnbloomberg.ca/maduro-financier-faces-extradition-to-u-s-after-new-ruling-1.1578420 Accessed October 17, 2021.file:///C:UsersOwnerDocuments3953-2021-c-adocx.pdf

^[2] “Deal Maker for Venezuela’s Maduro Can Be Extradited to U.S., Court Rules.” Wall Street Journal. Jan 25, 2021. https://www.wsj.com/articles/dealmaker-for-venezuelas-maduro-can-be-extradited-to-u-s-court-rules-11609861512 Accessed October 17, 2021.

^[3] “U.S.-Indicted Dealmaker For Venezuela’s Maduro Detained On Way To Iran.” June 14, 2020. https://www.rferl.org/a/maduro-venezuela-money-laundering-iran-/30669592.html Accessed October 17, 2021.

^[4] “Maduro Financier Faces Extradition to U.S. After New Ruling.” Bloomberg. Mar 17, 2021. https://www.bnnbloomberg.ca/maduro-financier-faces-extradition-to-u-s-after-new-ruling-1.1578420 Accessed October 17, 2021.

^[5] Ibid.

^[6] “UN Committee Rules on Detention of Venezuelan Diplomat Saab.” June 8, 2021.

https://www.telesurenglish.net/news/UN-Committee-Ruled-on-Detention-of-Venezuelan-Diplomat-Saab-20210608-0015.html Accessed October 17, 2021

^[7] “African Bar Association Statement on Venezuelan Diplomat Alex Saab.” Oct 22, 2021.

https://orinocotribune.com/african-bar-association-statement-on-venezuelan-diplomat-alex-saab/ Accessed October 17, 2021.

^[8] “Cape Verde Poll Shows Alex Saab Extradition Case will Harm Government in October Elections.” AllAfrica Info Wire. Sep. 20, 2021. https://allafrica.com/stories/202109201156.html Accessed October 17, 2021.

^[9] “Maduro Financier Faces Extradition to U.S. After New Ruling.” Bloomberg. Mar 17, 2021. https://www.bnnbloomberg.ca/maduro-financier-faces-extradition-to-u-s-after-new-ruling-1.1578420 Accessed October 17, 2021.

^[10] Griffith, B. “Extradition of Alex Saab: US takes effort to starve Venezuelans to new lows.” People’s Dispatch. July 7, 2021. https://peoplesdispatch.org/2021/07/07/extradition-of-alex-saab-us-takes-effort-to-starve-venezuelans-to-new-lows/ Accessed October 17, 2021.

^[11] Preliminary findings of the visit to the Bolivarian Republic of Venezuela by the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights. Feb. 12, 2021. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26747&LangID=E Accessed October 17, 2021.

^[12] Ibid.

^[13] Schmitt, E., and Turkewitz, J. New York Times. “Navy Warship’s Secret Mission Off West Africa Aims to Help Punish Venezuela.” Dec 22, 2020.

https://www.nytimes.com/2020/12/22/us/politics/navy-cape-verde-venezuela.html Accessed October 17, 2021.

^[14] “The United States Provides Over $1.5 million to Help Cabo Verde Respond to COVID-19.” Press Release – September 3, 2020. US Embassy, Cabo Verde. https://cv.usembassy.gov/the-united-states-provides-over-1-5-million-to-help-cabo-verde-respond-to-covid-19/ Accessed October 17, 2021.

^[15] “Article by U.S. Ambassador to Cabo Verde, Jeff Daigle – Land Dedication.” June 30, 2021. US Embassy, Cabo Verde. https://cv.usembassy.gov/article-by-u-s-ambassador-to-cabo-verde-jeff-daigle-land-dedication/ Accessed October 17, 2021.

^[16] Schmitt, E. and Turkewitz, J. “Navy Warship’s Secret Mission Off West Africa Aims to Help Punish Venezuela.” New York Times. https://www.nytimes.com/2020/12/22/us/politics/navy-cape-verde-venezuela.html Accessed October 17, 2021.

^[17] “Defense of Alex Saab Rejects Request for New Extension by US.” Oct 6, 2021.

https://www.telesurenglish.net/news/Defense-of-Alex-Saab-Rejects-Request-for-New-Extension-by-US-20211006-0023.html Accessed October 17, 2021.