Whatever Happened to Lori Berenson, President Toledo’s Trophy Prisoner?

June 7, 2004July 26, 2006 COHA

The Inter-American Court of Human Rights’ (CIDH) impending decision could be Berenson’s last chance for freedom.
Peru’s legal system faces international scrutiny at the highest judicial level of the OAS.
Egregious injustices facilitated by Fujimori’s anti-terrorist decree-laws serve as a haunting reminder of judicial transgressions in post-9/11 Peru.
Berenson’s case and the international notoriety it has received should be a starting point from where the wrongs committed during the fight against global terrorism are nullified.
U.S. Code specifies that President Bush must use every national power within his jurisdiction, short of war, to rescue a U.S. citizen being unlawfully detained.
Peru’s ambassador to the White House reveals himself to be one more smarmy Fujimori servitor, but this time appointed by the self-professed reformer, President Alejandro Toledo.
Peru’s President Toledo is tough on Lori Berenson, but weak on everything else, as his Presidency scrapes bottom in the polls at a record low of six percent.

Lori Berenson, a 34 year-old New York native, has spent eight-and-a-half years incarcerated in Peru without the benefit of a fair and impartial trial ─ until now. Berenson’s most recent trial was heard on May 7, 2004 in San Jose, Costa Rica before the Inter-American Court of Human Rights, the OAS’ highest judicial body for the regional organization’s member states. The CIDH exerts jurisdiction over OAS members who have ratified the American Convention on Human Rights, which Peru has endorsed. It is of note that this Court does not adjudicate the innocence or guilt of a defendant, but rather evaluates a state’s compliance to the tenets of the Convention. The Court consented to hear Berenson’s case upon the request of the Inter-American Commission on Human Rights (IACHR), after the Peruvian government failed to comply with the Commission’s 2002 recommendations calling for the restoration of Berenson’s rights, monetary compensation for damages incurred while in prison and a general overhaul of the anti-terrorism laws that have condemned hundreds if not thousands of Peruvian nationals under the Alberto Fujimori regime (1990-2000), to a parody of properly administered justice.

If Berenson were to be exonerated of her alleged offense, the Peruvian government would be obliged to comply with the Court’s judgment, based on Article 68 of the American Convention on Human Rights; this clause asserts that, “The States party to the Convention undertake to comply with the judgment of the Court in any case to which they are parties.” Former U.S. Attorney General Ramsey Clark represented Berenson throughout the Court proceedings and was assisted by noted criminal and international lawyer Thomas H. Nooter as well as Peruvian lawyer Jose Luis Sandoval Quesada. The Court’s ruling will likely be handed down later this year.

Toledo’s Peru: Where High Quality Justice and Governance is Exceedingly Rare
In December of 1994, Berenson allegedly arrived in Peru as a journalist to work for two small American publications, Modern Times and Third World Viewpoint. On Nov. 30, 1995, the Peruvian police arrested her aboard a public bus on charges of “treason against the fatherland.” After being illegally interrogated by the police without the benefit of a defense counsel, Berenson appeared before a “faceless” military court that had a 97 percent conviction rate. In a grossly contrived trial before a hooded military judge who most likely hadn’t attended a day of law school, this court sentenced her to life in prison for her suspected leadership position in the Tupac Amaru Revolutionary Movement (MRTA) and for the role she purportedly played in plotting a foiled attempt to abduct members of Peru’s Congress. However, after years of outraged international protest over her patently inequitable trial, she continues to serve a 20-year sentence, after a civilian court overturned the ’96 supreme military court’s decision on the basis of newly obtained evidence that proved she was not a leader of the MRTA. She was then convicted on a lesser offense of abetting a terrorist organization. The civilian court acquitted Berenson of both membership in and militancy with a subversive organization.

Toledo’s Shaky Match with Peru
Toledo, Peru’s first elected president of indigenous background, has seen his approval rating fall from 60 percent at the beginning of his term in 2000 to today’s abysmal six percent level, the lowest figure for any Latin American president. Almost three years into a five-year term, Toledo, like never before, is hearing ghosts calling for his resignation. Personal scandal has also compounded his already disgraced presidency. His repeated denials near the beginning of his presidency that he had fathered a child out of wedlock 14 years ago continued until late last year, despite the existence of blood tests indicating a 97 percent positive confirmation of his paternity. In his defense, Toledo weakly claimed that, “No president has been as scrutinized as I have,” and that his presidency has been a “learning experience,” but with many Peruvians feeling that they have had to bear their president’s expensive tuition payments. This is quite a lengthy educational process for a man who already possesses postgraduate degrees in education and economics and had held high posts at both the United Nations and the World Bank.

Rafael Rey, a congressman from the National Union Party, offered a dissenting opinion about Toledo: “Peru’s problem has a name and a last name, and the No. 1 problem is Alejandro Toledo.” Carlos Basombrio, Toledo’s former vice interior minister who resigned in January, 2003 expressed similar sentiments: “Sadly, everything points in one direction: This is about the President.”

Peru’s Legal System on Trial
Democratically-elected President Toledo has taken an unbudgeable stand that Berenson must serve out her prison term, one of the rare instances in his presidency where he has taken such decisive action. In fact, under his administration, the Peruvian justice system has been as hard-line as possible when it comes to Berenson, even though the Peruvian leader, while campaigning for the presidency, attacked the judicial system for its corruption and its lack of fealty to the law. Critics of Peru’s legal establishment claim that Toledo has not only let Berenson down, but the Peruvian nation as well, and in response, he has recorded some of the lowest poll ratings in Peruvian political history. Leverage for his adamant stand rests on his continued insistence that Peru’s cooperation with the U.S. in its anti-drug law is inseparable from giving Berenson her due.

A series of findings on Peru’s widely condemned and tainted court system provides compelling evidence to conclude that justice was systematically disregarded in both of the trials in which the American defendant figured, during a period when Fujimori was carrying on a crusade against the country’s two leftist revolutionary guerrilla movements and was engrossed in a campaign to reinvigorate a sense of patriotism and national support for what was fundamentally a corrupt and murderous regime that routinely tortured its own citizens. Currently, an analogous campaign is being carried on by his successor, Alejandro Toledo.

As the CIDH’s ruling on Berenson is almost certain to be her final opportunity for justice, Toledo’s personal psychological state regarding this matter is all-important. Peruvians must consider amending the country’s penal system as well as the judiciary’s gutter-like reputation within the international community. As former U.S. Attorney General Ramsey Clark stated, “The integrity of the Peruvian judicial system is at stake [in the Court’s proceedings], as well as the question of freedom and justice for all.” Whether Berenson was involved with the MRTA is now almost irrelevant from an international perspective, for it is Peru’s legal system which far more convincingly now stands on trial.

Established under former Peruvian President Alberto Fujimori in 1992, the anti-terrorist decree-laws sought to rid the country of political dissidents. In doing so, they encouraged human rights abuses by condoning summary executions, torture, illegal arrests and unlawful detentions as part of a decade of major military operations against the citizenry. In an atmosphere that dates back to 1980, about 70,000 Peruvians died as a result of political violence. The vast majority of these deaths were at the hands of the military under the direction of Fujimori’s Security Chief, Vladamir Montesinos. Under the authorization of these laws, the Peruvian criminal justice system prosecuted and physically abused thousands of individuals in the country by violating their due process rights that are guaranteed by the American Convention on Human Rights, in trials before “faceless” courts that were neither impartial nor independent. These Kafkaesque military tribunals that presided over civilian terrorist trials encouraged illegality by institutionalizing the anonymity of judges and prosecutors, precluding the independence and impartiality of the courts, thereby depriving defendants of their basic guarantees of justice.

Consequently, the aforementioned practice prevented defendants from holding the officials civilly accountable to the rule of law. Courts accepted unreliable and fraudulent testimonies that were often obtained under coercion or by bribery, and imposed sentences that were routinely disproportional to the alleged crime. In May of 2001, Peru’s Congress shed light on the relationship between Eduardo Ferrero Costa, who now serves as Peru’s ambassador to the U.S., with the markedly corrupt Montesinos. Like the Enron officials who were caught on tape discussing how to drive up the price of electricity to the average Californian consumer, the heavily compromised Peruvian diplomat was captured on tape conspiring with Montesinos in order to obstruct justice concerning the Berenson case. Dated as Jan. 23, 1998, Costa stated, “I think that it’s a good plan. I’m just going to waste some time, but I understand the plan very clearly and I think that it’s a good way out. But I’m not sure who we should consult.” Montesinos responded with the following, “No, no. That’s what military justice depends on; we don’t need to consult anyone, just ourselves and our perspective.” The dialogue between these two appalling reprobates raises serious questions over Toledo’s malfeasance in office for appointing an established amoralist like Ferrero Costa to Peru’s highest diplomatic post abroad.

Clearly, Berenson, like many other Peruvian political prisoners now living out their immiserated lives in the country’s prisons, was used as a political pawn by Fujimori and subsequently by Toledo. Systematic abuse resulted in the imprisonment of several thousand individuals under the anti-terrorist decree-laws, which have since been condemned by the OAS and other international and regional groups, and are subject to Peru’s mandatory compliance with the terms of the American Convention on Human Rights.

The CIDH and the IACHR have previously analyzed Peru’s anti-terrorist decree-laws of 1992 and have published unanimous decisions holding that the laws violate the canon of the Convention. In the Loayza Tamayo case, which was decided in 1998, the Court ruled that reparations be paid by the Peruvian government to the defendant who had acquired severe physical and psychological disorders by way of sub-standard prison conditions and general maltreatment. Subsequently, in 1999, the Court condemned military tribunals in favor of civil courts by calling for a retrial of the Chilean defendants accused of terrorist activity in the Castillo Petruzzi case. Given the outcome of these previous rulings that challenged the constitutionality of the Peruvian anti-terrorist laws, it is likely that the Court will rule in favor of Berenson. Her case should be used as a vehicle by which the Court can reiterate that Fujimori’s decree laws violated the central tenets of the Convention. Unless there is immediate compliance with the Court’s decision, Peruvian relations with the Inter-American community will likely suffer in light of these infractions, with Toledo continuing to be seen as one of the hemisphere’s most controversial leaders.

Relations with the U.S. will in all probability remain unaffected as Washington has not been overly zealous in its concern for Berenson’s fate, and continues to give precedent to good relations with Peru in order to combat the production and exportation of narcotics over the welfare of one of its citizens. This attitude may be violative of U.S. legislation. Under the terms of Section 1732, Title 22, Chapter 23 of the U.S. Code of Law, the White House is obliged to take action on Berenson’s behalf; “Whenever it is made known to the President that any citizen of the U.S. has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship the President shall forthwith demand the release of such citizens, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war and not otherwise prohibited by law, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress.” If the Bush administration continues on its apathetic course in the tradition of former President Clinton, the U.S. government could potentially face lawsuits from either the Berenson family or other interested parties for not honoring this piece of legislation.

Justice Denied
In January 2003, the Constitutional Court of Peru made a feeble attempt to amend the 1992 anti-terrorist laws by recognizing the unconstitutionality of one of the four decree-laws that concerns treason, which is defined as an aggravated form of terrorism. This revision occurred four years after the Inter-American Court ruled that this specific decree-law violated the American Convention on Human Rights. By ratifying and upholding the remaining three decree-laws of ’92, the Constitutional Court of Peru stood directly in opposition to the decisions of the Inter-American Court. The Peruvian state, now under President Toledo, has made it clear that it will attempt to obstruct any effort made by the Court to release those prisoners deemed terrorists. Toledo’s personal indiscretions, such as lying to the nation and his glaring incompetence, have discredited him with his own people. He has been unflinching in his virtually sadistic insistence that Berenson remain behind bars. Nevertheless, his government has pledged to comply with the Court’s decision in the Berenson case; unfortunately, Peru remains resolute in its position to continue imprisoning individuals under laws that have been found to violate the American Convention on Human Rights. Consequently, the international community remains pessimistic about the impact the Berenson case may eventually have on the reformation of Peru’s deeply flawed criminal justice system, where the size of one’s purse often has a more clamorous effect on judges than the intrinsic justice of one’s case.

Critics argue that the Peruvian judicial system must be held accountable to the international standards to which it is committed. Ideally, Peru should acknowledge that its counter-terrorism laws continue to be in serious violation of the American Convention on Human Rights, as the Inter-American Court has previously held in its judgment of the Loayza Tamayo and Castillo Petruzzi cases. If the ruling of the Berenson case, in addition to the Court’s previous rulings, proves unable to sway the Constitutional Court of Peru, the international community should echo the sentiments put forth in the Amicus Curiae brief filed on Berenson’s behalf in May 2004 on the part of human rights advocates, among them Nobel Laureates Adolfo Pérez Esquivel and Rigoberta Menchú; the Court must examine the status of each prisoner convicted under the ’92 anti-terrorist laws issued by the Fujimori administration, in order to establish whether their sentences should be commuted, as their continued imprisonment clearly violates the American Convention on Human Rights.

Today, the excesses under the guise of governments waging war on terrorism function as one of the prime risks to even minimal human rights observance. Anti-terrorist laws jeopardize individual freedoms, democratic institutions and the rule of law as is clearly illustrated in the Peruvian precedent. As the U.S. holds Muslims in Guantanamo Bay, Cuba under the aegis of the country’s anti-terror legislation, the reader must acknowledge that the violation of the tenets put forth in the American Convention on Human Rights is not unique to Peru; it is a problem endemic throughout the world. A timely decision regarding the Berenson case, however, could very well serve as a powerful reminder that human rights must be defended as governments endeavor to prevent and control terrorism ─ even their own, when it comes to dealing with their nationals and those of other countries.