Hostage Nation (29 page)

U.S. federal prosecutor Ken Kohl, who tried Simón Trinidad in 2006 and 2007. The trials resulted in a conviction for conspiracy to commit hostage taking and a sixty-year sentence. Photo: Ken Kohl
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While Trinidad remained in solitary confinement in the D.C. Jail, Kohl spent countless hours investigating the Colombian conflict. The barbarity of it amazed him. “I've talked to many FARC deserters who were directly involved with hostage takings, who participated in chaining people. I really don't know how any human being does that. You join the FARC for a lot of different reasons. But once you're into that situation, how do you, each day, attach those chains, knowing that they've got children, wives, mothers, fathers at home? It's just so inhumane.”

Kohl could understand the reason that poor young Colombians joined the FARC, and he even had some compassion for their plight. But for Trinidad, Kohl felt only disgust. “I think it's even more unforgivable for a guy like Simón Trinidad, who had the education, all of the benefits in life. He left all of that and very deliberately embraced what the FARC was doing.” And although Kohl knew that Trinidad had never met the hostages and had not taken part in the kidnapping, he says that “Trinidad's job was to make sure that none of the Americans were released until the FARC got what they wanted. I don't think it's really an option for the U.S. to just say, ‘Oh well, let's not prosecute him because we hope that the FARC will just, out of the goodness of its heart, let the hostages go.' Under the law he's a gangster. So there was no hesitation on my part to prosecute him as a senior member of this organization.”

There were five counts in the indictment: three counts of hostage taking (one for each American hostage), one count of conspiracy to commit hostage taking, and one count of providing material support to a terrorist organization. In a completely separate indictment, Trinidad was charged with narco-trafficking. The drug trial would be separate and was set to follow the trial for hostage taking. In a brief written two weeks before the trial in October 2006, Paul Wolf, a human rights lawyer in Washington, D.C., accused the government of pushing the limits of U.S. conspiracy law by accusing Trinidad—as a known member of a designated “terrorist” organization—of being responsible for crimes committed by other members of the organization. “Since
Trinidad is not alleged to have had any involvement in the actual events, it would appear difficult to convict him as a principal in the crime,” Wolf wrote.

In the weeks that followed, Wolf would attend much of the trial and produce a series of articles and daily synopses. The e-mail blasts became heavily relied upon by journalists covering the complicated case. The reports also found their way onto the FARC's official Web site in Spanish translation. Wolf, who had initially invited anyone to use and post his comments on their sites, made clear that he did not know how the postings got to the FARC site and that in no way did he support the FARC organization. Learning the details of the trial and how the American system of justice worked was extremely important to the top commanders because each one of them—forty-eight of the FARC's top leaders—was under indictment by the United States Department of Justice. While the FARC was on the U.S. list of foreign terrorist organizations, its members listed on the indictment were not accused of terrorist acts but of narco-trafficking. Each of the guerrilla commanders listed in the indictment knew that, if captured, any one of them could be sitting in that same cramped American jail cell, waiting for a trial that they believed would play out just like the trial of Simón Trinidad.

As Trinidad went to trial in 2006, it was becoming obvious that America's drug war in Colombia would not be separated from the war on terror. The U.S. State Department's congressional budget justification of $600 million for FY 2007 stated, “Colombia's position as the supplier of over 90 percent of the cocaine and almost 50 percent of the heroin entering the United States makes the aggressive disruption of the illicit drug trade a top USG priority. Colombia is home to three Foreign Terrorist Organizations (FTOs). These groups finance a large part of their operations with proceeds from the drug trade and are a threat to the security of the hemisphere.” After paying little attention to western hemispheric security issues in the early 2000s while fighting its war on terror in the East against radical Islam, the Bush administration began to recognize a threat closer to home in menacing Venezuelan president Hugo Chávez. Chávez seemed to be champing at the bit to start a conflict with the United States and neighboring Colombia. Chávez was also believed to be aiding and abetting massive arms shipments
to the guerrillas across his porous border with Colombia. Some accused him of being involved in actually arming the FARC. The governments of Brazil, Bolivia, Ecuador, and Argentina had also turned decidedly lukewarm to the United States, and therefore it became ever more important to keep Colombia as a staunch ally. “With U.S. support, Colombia is transforming into a secure, democratic, and economically prosperous country capable of undertaking a greater role in the problematic Andean region,” the FY 2007 budget report said.

In addition to the legal complexities of the case against Trinidad, Kohl had another concern: “I didn't want something we did in the prosecution of Simón Trinidad to end up either harming Marc, Keith, or Tom or prolonging their captivity,” says Kohl. His justification for moving forward anyway was hard for some trial watchers to digest. “As prosecutors on the case, we felt that the best thing for Marc, Keith, and Tom would be to make their hostage taking as costly as possible for the FARC, so that the FARC would recognize that kidnapping Americans is counterproductive. Not only did they get nothing in exchange for Marc, Keith, and Tom, it brought attention to their brutal and barbaric behavior.” Kohl said he was also hopeful that the strategy would help pressure the FARC to release the men, but he did not elaborate on why that would be so.

The prosecution of Trinidad would turn out to be extremely difficult. Aside from the very real concern that the trial could have a negative effect on the hostage situation, there were grave safety concerns for the Colombians who would be called upon to testify. “It's not that easy to persuade people, former FARC members, even Colombian National Police officers, to come to the U.S. to testify and then go back to their posts in Colombia where the FARC had such a presence.” Kohl knew that they had a reason to be concerned. Each day of the trial would be front-page news in Colombia, and every witness and each testimony was sure to be openly dissected by the media. Although Kohl was able to secure several Colombians to testify about Trinidad's involvement in the FARC, the biggest challenge for the prosecutor was that for the actual kidnapping of Howes, Stansell, and Gonsalves there were no witnesses. Kohl would have to rely on journalist Jorge Enrique Botero's video footage of the hostages as evidence and let the Americans tell the
story of their kidnapping in their own words. Evidentiary rules mandated that to use the video in the trial, Kohl would have to supply an expert witness to validate the video's authenticity. And the only person who could do that was Jorge Enrique Botero.

When first asked to testify as a witness for the prosecution of Trinidad, Botero was concerned. “A Colombian prosecutor and an FBI agent told me that the only thing they would ask at the trial is that I certify that the video of the three Americans was authentic and that I recorded it. I asked if Trinidad's lawyer would also be able to ask me questions. After assuring me that he would, I agreed to testify at the trial.” With his first visa to travel to the United States in fifteen years and a round-trip ticket from Bogotá to Washington, D.C., in hand, Botero became very nervous. “I was worried that some in the Colombian government or the paramilitaries would think that I was working for the defense of Trinidad, and the death threats would come again. I was also worried that the FARC would think that my testimony could do damage to Simón and I would lose access to my contacts and sources.” But there was one thing that couldn't keep him from the trial no matter the risk: his curiosity as a journalist. After quickly landing a book deal to write a biography of Trinidad, he headed to the United States, content that he had the good fortune to be traveling on the U.S. government's dime.

Because Botero was a witness, he was not allowed to attend the trial on the days prior to his testimony. So he was not in the courtroom on October 1
6
, 2006, when, after almost two years of solitary confinement in the D.C. Jail, Simón Trinidad emerged to stand trial in U.S. federal court. The guerrilla commander had looked haggard and unkempt in his orange cotton jumpsuit in the days prior to his trial. But by the day of opening arguments, he had transformed. In a stunning wood-paneled courtroom on the fourth floor of the courthouse, the defendant resembled a composed university professor. Had his mother been able to see him, she might have been very proud of how dignified he looked as he entered the courtroom and sat at the table along with his counsel, public defender Robert Tucker. Trinidad was pale from two years without any sunlight. His skin had almost a gray tint, and he was very thin. For many years, it had been reported that he suffered from cancer, and
from the look of him, some thought it could be true. Trinidad wore a well-fitted navy blue suit and tie. He was clean-shaven, but short stubble sprouted from his balding head.

With his hands folded, the defendant sat at a long table, along with Tucker and two other members of the defense team. Although Trinidad seemed comfortable with his public defender, Tucker could understand only a few words of Spanish, and Trinidad spoke almost no English. Over the past two years, Tucker had spent many Sunday mornings visiting Trinidad at the D.C. Jail. On those visits, Trinidad, shackled and handcuffed, was led to a small room to meet with his lawyer. Occasionally, the guards would remove one handcuff so that Trinidad could write. On some of those visits, Lara Quint, an assistant federal public defender, would accompany Tucker and translate for the men.

Tucker liked Trinidad and would call him “a really nice guy” and “a total gentleman.” And although the two couldn't communicate well, Tucker says, “we somehow managed to get along.” Tucker had been assigned to Trinidad's case because several years earlier he'd defended another extradited Colombian, Nelson Vargas. Vargas had been accused of being a top FARC leader whose nickname was “El Marrano” (“the Pig”) and part of a group responsible for the 1999 kidnapping and killing of three Americans who were working with Colombian indigenous populations. Having met and defended many accused terrorists from all over the world, Tucker was not accustomed to wondering whether his clients were guilty of their crimes. “Most of the time these guys are caught coming off the airplane with a machine gun,” he says. But with Vargas, “something didn't ring right,” according to Tucker. To him, Vargas hardly seemed the portrait of a murderous terrorist. The simple Colombian, whose leg had been amputated after he'd been shot while in a Colombian jail, expressed no bravado or revolutionary fervor. “After talking to him for about an hour, I asked him how he got into this mess.” Vargas looked at his gringo lawyer earnestly and replied with what would become one of Tucker's favorite lines in any of his cases: “It all started with a woman.”

Vargas had been discovered having an affair with a married woman by the woman's husband. The scorned spouse went directly to authorities and said, “I know who El Marrano is. He is Nelson Vargas.”
Because of the high-profile murder of the three Americans, El Marrano was one of the most wanted criminals in Colombia. The husband then told the police where to find Vargas. The hapless Vargas was captured and convicted of rebellion in a Colombian court with the help of two witnesses who were former FARC members allegedly on the payroll of the government. Then with a lot of fanfare, Álvaro Uribe signed the extradition order for what everyone said was the first FARC guerrilla to be sent to the United States. Vargas was shipped off to Washington to stand trial for the murders. Tucker, who knew nothing about Colombia or the FARC when he met Vargas, made four trips to research the case. His plan was to present Vargas as what Tucker knew he was, an innocent man, and to paint the FARC as an evil terrorist organization that Vargas certainly wouldn't have belonged to. But Tucker never had to make the argument. Colombian prosecutors could no longer find the witness who could put Vargas at the scene of the crime. The case was dismissed before it went to trial, and Vargas was sent back to Colombia, where he was also exonerated of the murders and of being a member of the FARC. For Simón Trinidad's trial two years later in Washington, D.C., Tucker would twist his argument about the FARC 180 degrees from the defense he'd planned for Vargas.

As the trial began, the defense team spoke quietly as Trinidad slid on his translation headset and eyed the members of the jury, who were settling into their box. John Crabb, the assistant prosecutor working with Kohl, gave the opening arguments. The young, handsome, and very polished attorney looked straight out of a Hollywood movie as he argued that Trinidad was a terrorist, responsible for kidnapping the three Americans. He was responsible for their kidnapping because he was part of the FARC, a known terrorist organization that used kidnapping to further its terrorist agenda. “The FARC is led by a small group of men,” Crabb told the jury in a well-rehearsed speech. “One of their leaders, in fact one of the FARC's most important leaders is here today.” Crabb pointed to the defendant. “It's that man, Simón Trinidad. Now Simón Trinidad didn't order that Marc, Keith and Tom be taken hostage. But this is what he did do. Once they were taken hostage by the FARC he tried to exploit the situation for the FARC's benefit.… 
Ladies and gentlemen, Simón Trinidad tried to use Tom Howes, Keith Stansell and Marc Gonsalves as get-out-of-jail free cards for FARC criminals that are in Colombian jails. That's why we're here today, ladies and gentlemen. My name is John Crabb, along with my colleague, Ken Kohl. We'll present the evidence of this crime to you.”