In what may be the first time the United States has turned one of its own diplomats over to a foreign government to face trial, a former counternarcotics official stationed in Bolivia is on trial for allegedly misappropriating US aid for the war on drugs.
David Duchow is accused of embezzling $123,000 worth of US-supplied fuel. But rather than prosecuting him in a US federal court, State Department and US Embassy officials decided to withdraw Mr. Duchow's diplomatic immunity and turn him over to Bolivian authorities.
If convicted, Duchow, a US citizen who denies any wrongdoing, faces as many as three years in a Bolivian prison populated by some of the same drug traffickers he helped convict.
Duchow's lawyers say such a prison arrangement could be a death sentence. "If he is convicted and goes to jail [in Bolivia], he is a dead man, because 80 percent of the people in jail are convicted narcotics traffickers," says Bruce Zagaris, a Washington lawyer hired by Duchow's father.
US officials downplay any potential danger to Duchow. And they say the Bolivian system of justice is more than adequate.
"We decided that while the Bolivian justice system had many flaws, they would not prevent Mr. Duchow from receiving a fair trial," says a State Department official, who asked that his name not be used.
The State Department's most recent human rights report on Bolivia isn't as optimistic. It says in part: "The judiciary is independent, but corruption and intimidation in the judicial system remain major problems. Poor pay and working conditions help make judges and prosecutors susceptible to bribes."
The State Department does not maintain statistics on how many US diplomats have been turned over to foreign governments to face criminal prosecution. But officials and experts say they are aware of none prior to the Duchow case. In virtually every other case where a US diplomat has been charged for criminal activity overseas, that diplomat has been returned to the US to stand trial, experts say.
The US Embassy fired Duchow in 1995 and filed a criminal complaint with Bolivian prosecutors. Evidence gathered by the Inspector General's Office of the State Department was turned over to the Bolivians, and the US Embassy hired a local lawyer to help overworked Bolivian prosecutors pursue the case.
What is it about the Duchow case that caused the US to take such unprecedented action to insist he be prosecuted in Bolivia?
'All a misunderstanding'
For his part, Duchow says it is all a misunderstanding. "I have nothing to hide on this," he says in a telephone interview from Bolivia. "I did not steal any fuel. There was no self-enrichment."
Duchow says sometimes it was necessary in his remote posting to trade fuel for spare parts or other services needed to conduct counternarcotics operations. "Occasionally the fuel was used for trading purposes, but it was never used for personal benefit," he says. "This is a drug war. When we need to do a mission, I have to look for a way to make the mission go."
He says he advised his supervisors about the trades, "but ... their answer was always: 'Do what you have to do to get the mission going, but don't tell us.' "
Duchow says he can account for every drop of fuel if US officials would allow him to participate in a joint audit. He is also willing to take a polygraph exam. US officials have refused to turn over any account documents to Duchow and his lawyers, as would be required in a US trial.
Price tag on justice?
Government officials say Duchow was turned over to the Bolivians for a simple reason: money. They say it would cost too much to try Duchow in the US. Officials also say the logistics of bringing in Bolivian witnesses made a US trial impractical.
Mr. Zagaris questions whether it is appropriate for the State Department to place a price tag on the due-process protections and constitutional safeguards that US citizens are supposed to be guaranteed.
By shifting the case to the Bolivians, the State Department and US Embassy, in effect, stripped Duchow of the protections afforded under the US Constitution. Duchow, a Marine veteran of Vietnam and major in the US Army Reserve, has been left to fend for himself in a judicial system completely foreign to him, his defenders say.
Zagaris says Duchow's plight has more to do with hardball tactics than any concern about the expense of US justice.
In April 1995, the embassy received a "tip" that Duchow was involved in illicit activities. Rather than asking him to explain any questionable dealings, US officials orchestrated an elaborate arrest scenario Duchow's lawyers say was calculated to terrify him into confessing to the suspected crimes.
Duchow says he was whisked away from an airport by armed Bolivian antinarcotics paramilitary troops who refused to tell him why he was being detained. He was taken to a military barracks and held without access to a lawyer. There, he was questioned by two investigators from the State Department's Inspector General's Office.
According to Duchow and his lawyers, he was ordered to give a complete confession immediately, otherwise he would be turned over to the Bolivians.
When Duchow asked to see a lawyer, one of the investigators became angry, broke off the interview, and told Duchow, in effect, that the matter was now in Bolivian hands. "The last thing the inspector general said to David when they left him in 1995 was, 'You want justice? We're going to see to it that you get Bolivian justice,' " says Reinhardt Duchow, David's father.
A spokeswoman for the Inspector General's Office in Washington says no one will comment on the Duchow case.
Zagaris says the agents were apparently trying to frighten Duchow into making incriminating statements. "I think they were very surprised when he didn't roll over," he says."They know if you get an American in a remote place where the legal system has all these fundamental flaws ... you can coerce Americans to do what you want."
In the past 3-1/2 years, Duchow and his father have spent more than $100,000 fighting the charges and won almost every legal battle so far. The most recent victory was an appeals court decision last October dismissing the charges and saying Duchow should stand trial in the US.
Bolivian prosecutors, at the urging of the US Embassy, have appealed that decision to the country's Supreme Court, where the issue is pending.