Unbecoming Conduct By Steve Weinberg
Trials, but Mostly Tribulations By Wade Chow
Delusions of Grand Juries By Niki Kuckes
Ramsey Clark's Prosecution Complex By Josh Saunders
The Diplomat's Dance By Romesh Ratnesar
The Diplomat's Dance
As a prosecutor, Pierre-Richard Prosper took on gangs in Los Angeles and genocide in Rwanda. Now that he's at the State Department, have his priorities changed?
PIERRE-RICHARD PROSPER, THE U.S. AMBASSADOR-AT-LARGE for war crimes issues, was taking the day off on June 4 when he received an urgent call from a colleague at the State Department. Charles Taylor, the then-president of Liberia and one of the world's most reviled dictators, had arrived that morning in Ghana for peace talks aimed at bringing an end to Liberia's 13-year civil war. Unbeknownst to Taylor, hanging over his head was a secret indictment from the U.N.-backed war crimes tribunal in Sierra Leone, which had charged him three months earlier with supporting militants who'd killed and maimed hundreds of thousands during Sierra Leone's civil war. The tribunal's chief prosecutor, David Crane, seized the moment to unseal the charges against Taylor. Crane knew he didn't have much time: Once Taylor returned to Liberia and the protection of his army, it would be impossible to arrest him. As locals in the Sierra Leone capital of Freetown poured onto the streets to celebrate the indictment, members of Crane's staff phoned the State Department's African Bureau, asking the United States to pressure Ghanaian officials. They "wanted help in getting Taylor arrested," recalled Prosper, in one of several conversations we had over the course of the summer.
Told of Crane's request, Prosper hurried to his office at the State Department. Crane's staff had reason to be encouraged: Prosper had been the Bush Administration's most vocal proponent of the establishment of the Sierra Leone court. Prosper began consulting with his colleagues. "We spent the next several hours trying to figure out what to do," Prosper told me. "But by the time we got to the point where we were solidifying our approach, it was midday and Taylor was on a plane back to Liberia."
In other words, it was too late. Taylor reneged on his pledge to step down. In response, rebel forces renewed their offensive against his troops, precipitating fighting that killed hundreds of Liberians and eventually forced the U.S. to deploy troops to support an African peacekeeping force. In early August, Taylor agreed to hand over power, accepting exile in Nigeria. Lost on the morning of June 4 was perhaps the only chance the prosecutors in Sierra Leone would have to bring their most wanted suspect to justice. "We needed the State Department that day," a source close to the special court said. "We had a 10-hour window when the Ghanaians could have detained Taylor. That was the critical moment when the Bush Administration could have made a minimal effort to get Taylor. But their silence and indecision allowed him to escape."
When I asked Prosper about his failure to push for Taylor's arrest, he insisted that the U.S. did not receive "sufficient notice" about the indictment to arrange for Taylor's detention. But it's doubtful that the Administration would have acted differently had it been given more time. Throughout the summer it had called on Taylor to leave office without demanding his arrest out of fear that he would never give up power if he believed he would subsequently stand trial. Since no one, least of all Washington, had any intention of removing Taylor by force, getting him to accept exileeven if it meant allowing him to escape prosecutionwas viewed by U.S. officials as the practical way to end the fighting. "Justice is intertwined with international politics," Prosper told me. "We can wait for justice, but we can't wait for peace."
Coming from Prosper, that kind of calculusan elevation of strategic interests over moral imperativesrepresents a philosophical shift that has left many of his friends outside government bewildered. At 42, Prosper is among the youngest ambassadors in the diplomatic corps and one of the State Department's few prominent African-Americans. When President Bush appointed him two years ago, he was viewed by many human rights lawyers as an ally in an otherwise unfriendly administration. Prosper was one of them: He'd made his name as a 32-year-old prosecutor at the U.N.'s war crimes tribunal for Rwanda.
But in dealing with crucial Bush Administration policies of the past two yearsfrom detaining "enemy combatants" in Guantanamo Bay to opposing the International Criminal Court at The Hague to deciding how to punish Baathists in IraqProsper has been forced to act less as a prosecutor than as a diplomat. In some cases he has defended policies that critics say are at odds with human rights concerns and international law. A number of Prosper's former fans wonder whether he has sold out the principles that catapulted him to prominence. "I'm disappointed," said Nina Bang-Jensen, executive director of the Coalition for International Justice, which has pushed for the establishment of international war crimes tribunals. "One wishes he was more willing to take bureaucratic and professional risks on behalf of these nascent institutions. But perhaps he's too young and ambitious for the job."
Others credit Prosper with working behind the scenes to soften the Administration's hardline positions against international legal institutions, however unsuccessfully. "He's battling from a position of weakness," said a former State Department colleague. "He wants to do the right thing but, unfortunately, he's shut down."
Yet that assessment may underestimate how much the world has changed since Prosper became war crimes ambassador, and how much the job has changed Prosper. In our conversations, he came off not as an embattled bureaucrat but as a foreign-policy realista diplomat who believes in the value of international institutions devoted to prosecuting war criminals only as long as they don't impinge on the prerogatives of American power. "I've gone through an evolution in thinking," Prosper told me more than once.
Raised in Saratoga County, N.Y., Prosper was the son of two doctors who emigrated from Haiti in 1959. When Pierre was 2, the family briefly moved back to Haiti, and he spent every summer there until the end of high school. At the time Haiti was suffering under the rule of the strongman Jean-Claude "Baby Doc" Duvalier, and Prosper got an early education in the costs of tyranny. "I would sometimes make critical comments about the president," Prosper says. "And my cousins would have this shocked look and tell me, 'You can't say that!' " That exposure made Prosper a believer in the limits of government, a view shared by his parents, both longtime Republicans. "My outlook was shaped in part by seeing the negative side of government," he said.
Prosper graduated with a degree in Romance languages from Boston College. He moved to Los Angeles to enroll at Pepperdine Law School, a religiously conservative institution that was a good match for him as a practicing Catholic. He entered with the vague ambition of becoming a corporate lawyer. While in school he applied for a clerkship in the L.A. County district attorney's office; he was one of 10 students chosen from 1,000 applicants. After graduation he chose to join the D.A.'s office, though he'd also been offered a job as a public defender.
Prosper was a relentless prosecutor. Working for the D.A.'s gang division in tough neighborhoods like Compton and Inglewood, he secured life sentences against more than a dozen murderers. At one point in the early 1990s, he worked on 22 different homicides or double-homicides. "This was warfare," he said, referring to the gang combat. Prosper's last case in L.A. involved a dispute between rival gangs that ended with more than 100 rounds of semiautomatic gunfire spraying a house full of teenage partygoers, killing one of them and injuring another. "That began to prepare me for what I would face in Rwanda," he said.
In 1994, Prosper went on a six-week trip to Rwanda after a colleague returned from there and showed him photographs documenting some of the atrocities. The inability of the local courts to prosecute the leaders of Rwanda's genocide prodded Prosper into making a mid-career jump: In 1996, he joined the staff of the new U.N. tribunal in Arusha, Tanzania, responsible for trying the major perpetrators of the 1994 genocide. Though Prosper says he took the job for selfless reasons, he was too ambitious not to contemplate its impact on his career. "I remember sitting with friends and asking, 'Where does this lead me?'" Prosper said.
Prosper says he arrived at the tribunal's ramshackle chambers in Arusha (in office space initially shared with hairdressers and flower sellers) expecting to work in the back rooms, telling himself he'd be happy merely to call a witness. But in late 1996, Louise Arbour, at the time the chief prosecutor for both the Rwanda and Yugoslav tribunals, dismissed the two lawyers heading up the prosecution of the court's first case out of concern that they would fail to secure a conviction. Prosper was thrust into the role of lead prosecutor. The defendant, Jean-Paul Akayesu, had been the mayor of Taba, where hundreds of Tutsis had been raped and slaughtered. As Samantha Power recounts in her book A Problem From Hell: America and the Age of Genocide, Prosper set out to prove that the mass rape of Tutsi women ordered by Akayesu was a form of genocide. Systematic sexual violence, Prosper argued, fit the legal definition of genocide because it constituted the "debilitation" of a specific ethnic group; though Akayesu did not exterminate his victims, he effectively stripped them of their humanity. After a 14-month trial, a three-judge panel declared Akayesu guilty. It was the first time in the short, halting history of international war crimes tribunals that any defendant had been convicted of genocideand the first time an international court had treated mass rape as a war crime.
Prosper moved to Washington after the 1998 trial and quickly rose through the political firmament. Soon after joining the Justice Department's Criminal Division, he caught the eye of the State Department. Embarrassed by the Clinton Administration's record in the Balkans as well as Rwanda, Secretary of State Madeleine Albright created a new office in 1997 devoted to investigating and publicizing evidence of war crimes and devising U.S. policy toward the international tribunals. In 1999, the head of the office, David Scheffer, hired Prosper as his special counsel and policy adviser.
At the time, the notion of using American power to prevent ethnic cleansing was gaining favor with Clinton's foreign-policy team. Prosper helped gather evidence of Serbian atrocities against Kosovar Albanians, which the Administration used to build support for ousting the Yugoslav leader Slobodan Milosevic. After the war, the war crimes office pushed for Milosevic's extradition to The Hague and oversaw the creation of U.N.-sponsored tribunals in East Timor and Cambodia. Prosper traveled to East Timor, as well as to Sierra Leone, to offer expertise to the new courts.
Scheffer resigned shortly after Bush's inauguration. The president's foreign-policy team had derided their predecessors' international entanglements, and there was speculation that Powell intended to close the war crimes office. But in early 2001, incoming Secretary Powell invited Prosper to participate in a briefing on Africa policy by the State Department's Africa Bureau. Drawn together by their shared West Indian backgrounds and interest in Africa, Prosper and Powell developed a close working relationship that enabled Prosper to convince Powell to keep the office open. Bush announced Prosper's nomination as the new ambassador-at-large for war crimes in March 2001. At his Senate confirmation hearing, Prosper expounded a vision of international justice steeped in prosecutorialand liberalrhetoric. "Militias and paramilitaries continue to systematically kill and terrorize civilian populations for political and personal gain. And governments participate or willingly turn a blind eye to such atrocities," he said. "The United States is called upon to stand by her principles and to be a leader in the effort to prevent and punish these abuses."
Prosper's nail-the-bad-guys instincts are still on display in his office on the seventh floor of the State Department's headquarters in Foggy Bottom. "Most Wanted" posters dot the walls, including one that reproduces the Pentagon's "deck of cards" for the 55 most wanted members of Saddam Hussein's regime. When I met Prosper the day after Uday and Qusay Hussein had been killed in a firefight in Northern Iraq, he had already drawn diagonal lines through the aces of hearts and clubs. I asked him whether he thought it would have been better to capture the brothers alive and bring them to trial. "It's difficult to say that an actual trial would be better for the Iraqi people," he said. "What's important is closure of the matter."
It was a jarring answer from a lawyer who has spent his career trying criminals, at home and abroad. But there has been a change in Prosper's thinking, and he no longer has faith in tribunals like the ones in Arusha and The Hague. "International tribunals may satisfy the consciences of the international community, the people who are detached from the horror," Prosper says. "But these courts don't sit in the countries where the violence occurred, they don't have homegrown participants involved, and they use rules and formalities that are foreign to the country that is being adjudicated." As a result, he says, they fail his "farmer on the hill" test: The courts' work has little impact on ordinary people who suffered the crimes the courts are designed to punish.
The tribunals in The Hague and Arusha have been plagued by inefficiency. The courts' pace of prosecution is lumbering: Since opening almost a decade ago, they have secured 44 convictions (and six acquittals) for close to 200 indicted subjects. In March 2002, shortly after Milosevic's trial began, Prosper told the House International Relations Committee that the Bush Administration wanted both The Hague and Arusha tribunals "to aggressively focus on the endgame and finish their work by 2007-2008." The remarks were denounced by European governments and human rights groups, who say Prosper's stance has shaken the courts' authority. "His impatience to get the work of these courts over with may be born of a good-faith sentiment that the political support won't last forever," said Bang-Jensen of the Coalition for International Justice. "But it's still disappointing and more damaging than I think he realizes." In the view of Bang-Jensen and other critics, the Administration's insistence on a deadline has heartened the opponents of the tribunals in the former Yugoslavia and Rwanda and eased the pressure on those governments to deliver indicted criminals.
Prosper disputes the perception that he has undermined the tribunals. He says the Bush Administration has pushed hard for the arrest of high-ranking suspects, including Milosevic. Prosper often points out that in the two years since he took the job, 55 new suspects have been delivered to The Hague, double the number that were apprehended during the last two years of the Clinton Administration. More important, in his mind, domestic courts in both Rwanda and the Balkans have begun prosecuting minor war criminals on their own.
Convincing national governments to take more responsibility for prosecuting war atrocities has become the Bush Administration's preferred course. The model is the tribunal in Sierra Leone, a "hybrid court" with domestic and international lawyers and judges that is based in the affected country. Budgeted at $60 million over three years, that tribunal costs one-fifth as much as its counterparts in Arusha and The Hague, and it had a built-in end date of 2006. The Administration hopes to replicate the model in Iraq, where it has no interest in setting up U.N. tribunals. "We're looking to the Iraqis to make the fundamental decision about how to bring about accountability," Prosper said. "We haven't filled in all the blanks yet. You may have a process that is unique to Iraq but has substantial international participation, in terms of having international lawyers and judges. But it won't be a process that the Security Council controls."
THE ADMINISTRATION'S POSITION MAY MAKE SENSE, given the lassitude and expense of the U.N.-run tribunals. But to critics, the resistance to setting up a U.N. tribunal in Iraq reflects a broad and unrealistic retreat from the architecture of international politics. "This is a country that has no workable system of justice, and for some reason they want the Iraqis to handle these issues," said a senior aide to Vermont senator Patrick Leahy, one of Congress's fiercest advocates of war crimes tribunals. "It's ludicrous. But it reflects a general antipathy and hostility to international agreements and organizations and international justice."
The same could be said of the Administration's strident opposition to the new International Criminal Court, which has the support of 130 countries and was established as a permanent vehicle for trying war crimes. Prosper's attitude toward the ICC is in keeping with the shift in his job description, from a prosecutor intent on trying criminals to a diplomat occupied with guarding national interests. "There are people who want to use the court to come after the U.S., and we need to shield ourselves against it," he said. "We respect the right of other countries to be part of this court. What we don't appreciate is when those who signed the treaty say we're bound by their signature, because we're not."
Prosper's rejection of U.S. involvement in the ICC disappoints human rights lawyers. Worse, from their point of view, has been his forceful support for the Bush Administration's policy of classifying detained al-Qaeda suspects as "unlawful combatants." Three months after the September 11 attacks, Prosper was sent to Capitol Hill to articulate this policy, which the Administration invokes to deny the suspects procedural protections like the right to counsel. In testimony before the Senate Judiciary Committee, Prosper argued that military commissions should be considered for trying members of al-Qaeda. Bush authorized that approach for six detainees this summer, provoking outrage from human rights groups, who say that in bypassing the federal courts, the Bush policy will deprive defendants of rights afforded suspects brought before special terror courts in other countries.
In the eyes of some of his former allies, Prosper's defense of a Pentagon policy widely reviled by civil libertarians represented a calculated capitulation to the Administration's hardliners. "He made a conscious decision to get involved in this because it was the hot game in town," a former State Department official said. "It undermined his credibility." The cynical view may not be fair, since Prosper, as much as anyone in the Administration, has come to see the effort to halt terrorism as an armed battle against war criminals, whoaccording to the Geneva Conventionsare subject to detention for the duration of hostilities without access to a lawyer. When he makes the case for stripping terror suspects of their procedural rights, often to skeptical audiences at home and abroad, Prosper likes to rattle off a list of al-Qaeda attacks over the last two years and the number of peopleabout 4,000they have killed. "When we think of how to deal with these people, we're looking at it through the lens of war," Prosper said. "If you look at it that way, everything we're doing is appropriate."
Yet in deeming the nation's customary courts inadequate to the task of punishing major terrorists, Prosper is drifting ever further from his prosecutorial roots. One of the more profound shifts in U.S. foreign policy caused by the shock of September 11 has been the usurpation of the role of law enforcement by military forces. The American response to previous terrorist attacks, like the 1993 bombing of the World Trade Center, employed the tools of traditional criminal justicegathering evidence, issuing indictments against perpetrators, and trying them in federal court. The trouble was that the larger threat only grew. With September 11, the Bush Administration and much of the American public decided that the generals needed to take over from the lawyers. And the most aggressive hawks believe that the military can work effectively only if the U.S. is unfettered by global agreements and restraining institutions like the International Criminal Court.
Human rights advocates deplore that stance as isolationist and imperialist, a justification for unlawful, preemptive U.S. intervention anywhere in the world. They argue that terrorism is best punished not on the battlefield but in the cool sobriety of the courtroom, where threats to common morality like Akayesu and Milosevic can be taken care of without resort to bloody, costly wars that breed more terrorists.
But the human rights camp often downplays the military might that must underpin any successful effort to hold thugs and tyrants accountable for their atrocities. As recent history in the Balkans, Afghanistan, and Iraq has proved, the most potent force against crimes against humanity is not international law, but the U.S. military. That doesn't mean, though, that international justice has no role in a world where U.S. power is preeminent. The central mistake of the Bush Administration in this regard has been its failure to recognize when the international legal system can be employed to serve American interests. In Liberia, more resolute U.S. action to enforce the indictment of Charles Taylor would have sped his removal from power, saved hundreds of lives, and perhaps eliminated the need for any U.S. military intervention. "In most cases," Prosper said, in response to criticism about the Administration's handling of Taylor's arrest, "peace has to come before justice." But in some cases, as it could have been in this one, justice can be the best instrument of peace.
On one of the walls of Prosper's office is a framed black-and-white photograph of Jean-Paul Akayesu seated in the courtroom in Arusha just before the genocide verdict against him was read. When I asked Prosper why he displays this photograph so prominently, he took it down from the wall, stared at it hard, and shrugged. "I guess it's because he's the face of evil as I came to know it," he said. In the same frame as Akayesu's photograph is a shot of Prosper taken earlier in the trial. He is dressed in the black robe and white cravat of an international prosecutor, confronting the face of evil in a court of law.