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Controversy over leak of ABA's observer preliminary report re Sumate

By Aleksander Boyd

London 30.07.05 | The leak of the American Bar Association's (ABA) observer report is causing a bit of a controversy between myself, the ABA and the author of the report Mr. Douglas Cassel. Therefore I would like to state publicly my reasons for not removing the report from the public domain, in the belief, perhaps na´ve, that interested parties will, firstly, understand my motivations and secondly agree with my stance.

Mr. Robert D. Evans sent me an email, dated 28.07, requesting the removal of the report. Mr. Evans' verbattim:

Please remove from your website the "Preliminary Report of American Bar Association Observer of Prosecution of Sumate Leaders in Venezuela" dated July 25,2005. This is a draft document and has not yet been approved for release by the American Bar Association. Thank you. Robert D. Evans, Director of Governmental Affairs, American Bar Association.

My response to Mr. Evans:

Many thanks for your message. The report was forwarded by a source yesterday and I considered of paramount importance to post it for it represents a rare opportunity to understand, in its full depth, the nature of the political prosecution that the Sumate directors are subject to from a strictly legal point of view. I saw fit to post it also given the aggressive smear campaign that the government of Venezuela has utilised against citizens of my country. Nowhere in the report did I read that the material was copyrighted or forbidden for publication. I sincerely hope you understand the relevance of the document and my motivation to post it.

Mr. Evans, I assume acting on behalf of the ABA, reacted to my message by sending the following disclaimer, which I added immediately:

I do understand your motivation for posting it; I would expect you would also understand that the American Bar Association does not want reports written by individuals and which have not been approved as ABA work products to be published in a manner which may suggest they have been. If you will not honor our request to remove the publication from your site, I would ask that you at least identify it in the following manner: "The attached report was prepared by Professor Douglas Cassel for the American Bar Association following his observation of preliminary proceedings in the Sumate case. It has not been approved for release by the American Bar Association and therefore does not represent the views of the Association or any of its entities but only the personal views of Professor Cassel."

Then the author of the report Mr. Douglas Cassel sent this message:

Your interest, as I understand it, is to assist the cause of justice in Venezuela. That is of course a laudable goal. May I suggest to you that it would be better served by allowing the ABA to consider my report and to decide what action the organization wishes to take, before having it posted on the internet. The considered views of the ABA will of course carry far more weight than the views of any one individual, which are all that are reflected in the July 25 document. If it remains on your web site, there is a risk that what the ABA will regard as a leak might lead to controversy in the ABA that could put at risk further constructive ABA action in the matter discussed in the report. So in the interest of justice, I respectfully ask that you reconsider and remove the document from your web site.

My reply to Mr. Cassel:

Many thanks for your message. You are correct in your perception that my interest is to assist the cause of justice in Venezuela and on that basis I thought pertinent to post your report. What I don't understand is the official position of the ABA of holding back this information. As we speak there are very many individuals who have been singled out by the regime of Hugo Chavez and are subject to political prosecution. Only yesterday the regime tried to plant unsuccessfully a handgun on Tulio Alvarez's luggage, one of the foremost attorneys of Venezuela and author of the damning report on the electoral fraud perpetrated prior and during the recall referendum. Unfortunately not all of the accused have got friends in the US and most certainly not all cases will be observed by the ABA.

The importance of the report lays precisely upon the fact that Sumate's is not an isolated event and its findings can easily be extrapolated to other instances. I hope you will agree that those who stand accused of political crimes in Venezuela can not afford the luxury of waiting for the ABA's deliberation on whether or not to make this report public. Such being the case I will not remove this, most important report, from the site, in the belief that you will understand my motivation and share my deep preoccupation.

Commenting now upon the content of the report, I believe that the coup, as you have called it, must have been referred to as a "vacuum of power" as determined by the plenary of the country's Supreme Court. You also failed to mention that the highest military ranking officer of the country announced, in unequivocal terms, that Chavez was asked for his resignation which he accepted. As a law professor and legal professional you Mr. Cassel, more than anyone, should be particularly careful in utilizing appropriate terms to speak about events based on incontrovertible and irrefutable evidence as both, the sentence and the announcement of General Lucas Rincon Romero, are.

Mr. Cassel in turn replied thusly:

It would not be appropriate for me to address the substance of the preliminary report at this stage. I welcome your views, and will take them into account in due course, as I do those of all other persons who are knowledgeable about events in Venezuela.

I do wish to comment on your suggestion that the ABA is "holding back" on the report. It is not; in fact the ABA has not even seen the report, let alone deliberated on it. The report is dated July 25. In the three days since then, so far as I am aware, it has been circulated to only a relatively few committee chairs and staff within the ABA, out of respect for their prerogative to circulate it to the members of their committees. It is expected to be discussed at the annual meeting of the ABA, in particular in meetings on August 5. Most of the people who will discuss it then have not yet even received it from their committee chairs, much less read it. And no one in the ABA has yet had the benefit of a collective discussion in which various points of view, including some which will likely differ from mine, can be heard and evaluated.

I do not question that your posting of the report is well-intended. In my judgment, however, the effect will be to create a side issue, increasing the risk that when the report is indeed read and discussed, there will be a distracting controversy that might damage the chances that the ABA will act on the report.

I write not to argue with you, but in the sincere belief that the cause of justice will be better served if the ABA's internal democratic procedures are followed, so that ultimately it becomes the ABA rather than a single individual who speaks.

You will of course follow your own best judgment. As one who is somewhat familiar with the internal dynamics of the ABA, I merely wish to give you mine.

Yet another reply from me to Mr. Cassel:

I appreciate your message and explanation about the internal procedures followed by the ABA. Furthermore it could well be the case that an official announcement from the ABA would, almost certainly, carry more weight than that of your persona. However given the political tendencies of some of the members of the association it is not a given that the original document will come out unscathed from deliberations, as you have rightly suggested. Ergo, as it is, it's worthy of all the attention it can get.

I must express my sincerest gratitude, as a concerned Venezuelan citizen, for your undertaking in this respect and trust that my position, however unorthodox, will be understood.

A summary of my reasons not to remove the report

1. It may well be the case that the ABA, after August 5th deliberations, publishes a watered down version of the report.

2. Political tendencies of ABA members, read widespread belief among liberals that appeasement is the way forward to deal with criminals, could play, as usual, into Chavez hands.

3. Weak as the report is in certain aspects such as the 'coup' account -obviating the sentence of the plenary of the Supreme Court- and the implied suggestion that General Lucas Rincon Romero announcement is a product of our imagination despite incontrovertible evidence to the contrary, Mr. Cassel does a great service to the cause of justice by stating in clear terms the very many violations to due process, the rule of law and international agreements signed by Venezuela.

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