[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ADVOCATING FOR AMERICAN JACOB
OSTREICHER'S FREEDOM AFTER TWO YEARS
IN BOLIVIAN DETENTION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON AFRICA, GLOBAL HEALTH,
GLOBAL HUMAN RIGHTS, AND
INTERNATIONAL ORGANIZATIONS
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MAY 20, 2013
__________
Serial No. 113-67
__________
Printed for the use of the Committee on Foreign Affairs
Available via the World Wide Web: http://www.foreignaffairs.house.gov/
or
http://www.gpo.gov/fdsys/
----------
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COMMITTEE ON FOREIGN AFFAIRS
EDWARD R. ROYCE, California, Chairman
CHRISTOPHER H. SMITH, New Jersey ELIOT L. ENGEL, New York
ILEANA ROS-LEHTINEN, Florida ENI F.H. FALEOMAVAEGA, American
DANA ROHRABACHER, California Samoa
STEVE CHABOT, Ohio BRAD SHERMAN, California
JOE WILSON, South Carolina GREGORY W. MEEKS, New York
MICHAEL T. McCAUL, Texas ALBIO SIRES, New Jersey
TED POE, Texas GERALD E. CONNOLLY, Virginia
MATT SALMON, Arizona THEODORE E. DEUTCH, Florida
TOM MARINO, Pennsylvania BRIAN HIGGINS, New York
JEFF DUNCAN, South Carolina KAREN BASS, California
ADAM KINZINGER, Illinois WILLIAM KEATING, Massachusetts
MO BROOKS, Alabama DAVID CICILLINE, Rhode Island
TOM COTTON, Arkansas ALAN GRAYSON, Florida
PAUL COOK, California JUAN VARGAS, California
GEORGE HOLDING, North Carolina BRADLEY S. SCHNEIDER, Illinois
RANDY K. WEBER SR., Texas JOSEPH P. KENNEDY III,
SCOTT PERRY, Pennsylvania Massachusetts
STEVE STOCKMAN, Texas AMI BERA, California
RON DeSANTIS, Florida ALAN S. LOWENTHAL, California
TREY RADEL, Florida GRACE MENG, New York
DOUG COLLINS, Georgia LOIS FRANKEL, Florida
MARK MEADOWS, North Carolina TULSI GABBARD, Hawaii
TED S. YOHO, Florida JOAQUIN CASTRO, Texas
LUKE MESSER, Indiana
Amy Porter, Chief of Staff Thomas Sheehy, Staff Director
Jason Steinbaum, Democratic Staff Director
------
Subcommittee on Africa, Global Health, Global Human Rights, and
International Organizations
CHRISTOPHER H. SMITH, New Jersey, Chairman
TOM MARINO, Pennsylvania KAREN BASS, California
RANDY K. WEBER SR., Texas DAVID CICILLINE, Rhode Island
STEVE STOCKMAN, Texas AMI BERA, California
MARK MEADOWS, North Carolina
C O N T E N T S
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Page
WITNESS
Mr. Sean Penn, founder and chief executive officer, J/P Haitian
Relief Organization............................................ 8
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Mr. Sean Penn: Prepared statement................................ 14
APPENDIX
Hearing notice................................................... 32
Hearing minutes.................................................. 33
The Honorable Christopher H. Smith, a Representative in Congress
from the State of New Jersey, and chairman, Subcommittee on
Africa, Global Health, Global Human Rights, and International
Organizations: Material submitted for the record............... 34
The Honorable Eliot L. Engel, a Representative in Congress from
the State of New York: Material submitted for the record....... 35
ADVOCATING FOR AMERICAN JACOB
OSTREICHER'S FREEDOM AFTER TWO
YEARS IN BOLIVIAN DETENTION
----------
MONDAY, MAY 20, 2013
House of Representatives,
Subcommittee on Africa, Global Health,
Global Human Rights, and International Organizations,
Committee on Foreign Affairs,
Washington, DC.
The subcommittee met, pursuant to notice, at 3:05 p.m., in
room 2172, Rayburn House Office Building, Hon. Christopher H.
Smith (chairman of the subcommittee) presiding.
Mr. Smith. The committee will come to order, and thank you
all for coming to this very important hearing to press for the
immediate freedom and repatriation of Mr. Jacob Ostreicher, a
U.S. citizen from Brooklyn, New York who has been detained in
Bolivia for 718 days. I especially want to thank and welcome to
our committee our distinguished witness, Mr. Sean Penn, for
taking time out of a very busy schedule to testify before the
subcommittee today. Thank you for being here and for your
leadership.
This human rights panel, in the 112th Congress, held two
congressional hearings on Mr. Ostreicher's case, one in June
and the second in August 2012. The witnesses included Mr.
Ostreicher's wife Miriam Ungar, his daughter Chaya Weinberger,
Steve Moore, a retired FBI agent who investigated Mr.
Ostreicher's case on a pro bono basis, all three of whom are in
the audience today, and Mr. Ostreicher's two Bolivian attorneys
Mr. Yimy Montano and Mr. Jerjes Justiniano, who are not only
ordinarily effective and competent defense lawyers, but very
brave as well.
The record, including their testimonies, established that
Mr. Ostreicher is innocent, and is the victim of an elaborate,
high level government extortion ring that has fleeced
approximately $27 million of assets from the rice operation
that he had been managing.
It is time that Jacob came home to his wife and his family
and his friends. Basic justice and humanitarianism--Jacob is
after all very ill--adds to the urgency that he be free.
In one sense, a lot has happened since the hearing last
August. Tragically Mr. Ostreicher has developed the symptoms of
Parkinson's disease, likely due to the sustained severe stress
to which he has been subjected.
Immediately following a meeting that I had with Bolivian
officials in La Paz last June, including Carlos Romero, the
Minister of Government, Bolivia started to investigate whether
Mr. Ostreicher was the victim of extortion. A total of 27
prosecutors, judges, and officials responsible for confiscated
goods who were involved in Mr. Ostreicher's case have now had
charges made against them. Currently 13 of them are in
Palmasola prison, nine are under house arrest, and five are
fugitives.
One of those in prison, Fernando Rivera, is a Ministry of
Government adviser who I personally witnessed threaten the
judge presiding at one Mr. Ostreicher's hearings in a Santa
Cruz courtroom. Mr. Rivera recently apologized to Mr.
Ostreicher during a bail hearing, claiming that he was only
following the orders of then Minister of Government Llorenti.
In one of the many bizarre twists of this story, Mr. Llorenti
is now the Bolivian representative to the United Nations,
living in New York just a few miles away from Mr. Ostreicher's
home.
I traveled for a second time to Bolivia in early December,
this time with Congresswoman Nydia Velazquez, to visit Mr.
Ostreicher and again press Bolivian officials to either produce
the evidence that he had committed a crime or free him. High
level officials assured us that Mr. Ostreicher's case would
proceed fairly and expeditiously now that the extortion network
had been exposed. Some officials even admitted to us privately
that they believed Mr. Ostreicher was innocent.
Mr. Penn became involved in the case in October and was
instrumental in obtaining desperately needed medical care for
Mr. Ostreicher and for helping to secure his release from the
infamous Palmasola prison to house arrest which occurred on
December 18th. With Mr. Penn's personal intervention with
President Morales and with Mr. Penn in the courtroom, all of us
had hoped that Jacob would at long last be released and
vindicated at a hearing in December. Inexplicably, that didn't
happen.
The State Department references Mr. Ostreicher's case in
its 2012 Country Report on Human Rights and Practices for
Bolivia, and notes the arrest of government officials and the
stolen assets as part of its section on arbitrary arrests or
detention.
In another sense, the most important aspects of the case
have not changed. Mr. Ostreicher is still in the custody of the
Government of Bolivia. On June 4th, it will be 2 years since he
was first imprisoned. Bolivian officials are employing delay
tactics and giving excuses for his continued detention, and we
have heard those before. No evidence whatsoever has been
presented to indicate that Mr. Ostreicher is guilty of any
crime, and there is no sign of the $27 million of assets from
his rice operation that were confiscated. Perhaps this last
fact is the real reason why Mr. Ostreicher is still not home
with his family in the United States.
Recently, there have been reports from credible sources
that there is another security threat to Mr. Ostreicher's
safety. These followed the sudden removal of Bolivian security
officers from the perimeter of Mr. Ostreicher's residence the
day after Mr. Rivera implicated the current Bolivian
representative to the U.N. in the extortion case. As long as
Mr. Ostreicher is forced to remain in Bolivia the government is
responsible for and must take all necessary measures to ensure
his safety.
As a result of the continued injustice in Mr. Ostreicher's
case and also in response to the growing number of cases of
Americans living detained abroad in violation of their human
and due process rights, I, together with Representative
Velazquez have reintroduced the Justice for Imprisoned
Americans Overseas Act, or Jacob's Law. H.R. 1778 would deny
visas to foreign government officials responsible for violating
the human rights or due process rights of an American in their
custody. The travel ban would also apply to the officials'
immediate family members.
It is wrong for our Government to give foreign officials
and their families the privilege--and it is a privilege, not a
right--to visit and study in the United States while those same
officials are wrongfully detaining an American abroad. I would
note parenthetically that I wrote a law in 2004 for the Belarus
Democracy Act, which does the exact same thing toward the
Lukashenka regime in Minsk.
While this bill works its way through the legislative
process, our committee will continue to pursue every means
possible to secure Mr. Ostreicher's safe return to his wife,
children and 11 grandchildren. And that is why we are holding
this hearing today.
President Morales is flying, as we all know, to Atlanta
today for a meeting with former President Jimmy Carter to ask
for his assistance in negotiating land access through Chile to
the Pacific Ocean. We have been assured that the President,
former President of the United States will raise the issue. I
contacted the Carter Center earlier today and I was told that
it was on the agenda. And I am very, very encouraged by that.
It is a very high privilege though to have Mr. Penn with us
here today, not only because of his fame that he has rightly
earned and garnered through his Academy Award winning acting,
and not only because of his highly commendable assistance he is
bringing to the suffering people in Haiti through the relief
organization that he founded, but also because of the
extraordinary assistance that he has provided to Mr.
Ostreicher, who he had never met until he met him in Bolivia.
That assistance now includes joining us today, but it is part
of a long series of interventions that Mr. Penn has expended on
behalf of Jacob Ostreicher.
I would like to now yield to my friend and colleague, Ms.
Bass, for any opening comments.
Ms. Bass. Thank you very much. Chairman Smith, I want to
thank you for your leadership of this committee, and you
continued efforts to elevate human issues that require greater
attention by Congress and our Government. This hearing
certainly fits the bill regarding the incarceration of Jacob
Ostreicher, a U.S. citizen who for over 2 years has endured a
nightmare that is both unfair and unjust. And I am sorry to say
that we are here having this hearing again over so much time.
A year ago this committee learned of Mr. Ostreicher's case
and held a hearing to elevate the deplorable injustice that he
continues to endure in Bolivia. His wife, daughter, and members
of his community sat in this very room and earnestly pleaded
for justice and his safe and immediate release. His return to
the United States would put an end to the traumatic events that
have consumed him and his family for far too long. His return
would also bring some sense of normalcy in their lives. This is
not too much to ask or demand.
I want to thank Mr. Penn for his willingness to travel here
and to take action on this issue. I watched the press
conference with you and Mr. Ostreicher, and your message was
clear. Jacob's human rights have been grossly violated, those
within the Bolivia justice system and those on the fringe have
been deeply involved in repeated cycles of abuse, justice,
human rights violation, the infringement of one's civil
liberties, all of which have gravely impacted him, his family
and, I would argue, the Bolivian people themselves.
We define justice as the pursuit of fairness and a sense of
reason. This situation boasts neither fairness or any basic
understanding of reason. I urge the Bolivian Government to
either put forward unequivocal evidence of any crime that he
has committed or immediately release him to the U.S. and his
family.
As far as I am aware his assets have been stolen, his
business lies in ruin, and he now shows the symptoms of
Parkinson's disease, which was visible on the video that I saw
when you had the press conference with him. How much more can
one person or family endure?
I am please that my colleagues, Representative Nadler and
Representative Velazquez, are here to show their support and
strong commitment. Senators Schumer and Gillibrand have also
shown their unwavering commitment to getting him home. They
should be commended. There is clear bipartisan and bicameral
support for Jacob's release. As I said in my testimony a year
ago, Jacob is not forgotten in the U.S. Congress and we
continue to seek an immediate and final end to this terrible
situation.
Thank you, and I look forward to today's hearing.
Mr. Smith. Thank you, Ms. Bass.
Ms. Velazquez.
Ms. Velazquez. Thank you, Chairman Smith, Ranking Member
Bass, and members of subcommittee, for holding this important
hearing and allowing me to participate.
As many of you know, Jacob Ostreicher is an American
citizen from Brooklyn, New York. He is currently being held by
the Bolivian Government for alleged money laundering and ties
to criminal organizations. As a congressional Representative
for many of his family members in New York's Seventh District
and a fellow Brooklynite, I am extremely concerned about the
Bolivian Government's failure to provide adequate due process
and human rights protection for this man.
In fact, I visited Bolivia with Chairman Smith in December
to meet with Mr. Ostreicher and discuss his detention directly
with high level Bolivian Government officials. While he has
been released from prison since our trip, he remains under
house arrest with no foreseeable end to his ordeal.
This man has already been detained without due process for
the maximum 18 months allowed under Bolivian law; he should
have been allowed to return to the U.S. in December.
Yet the government has kept him in the country for an
additional 5 months while conducting further investigations,
despite the fact the prosecution has produced no evidence
whatsoever to support such allegations. The Bolivian
Government's failure to follow its own law is unacceptable and
he should be released straight away.
In order to protect the due process and human rights of
Americans in foreign custody like Mr. Ostreicher, I am an
original cosponsor of Chairman Smith's bill, H.R. 1778, the
Justice for Imprisoned Americans Overseas Act, or ``Jacob's
Law.'' This important legislation would require the State
Department to take action when a U.S. citizen's human or due
process rights are being violated while in custody of a foreign
government. Moreover, the bill prohibits the provision of U.S.
assistance to any foreign government that is responsible for
the denial of due process and human rights of U.S. citizens in
their custody. I look forward to this proposal coming to the
House floor and having the opportunity to vote for it.
However, due process and human rights are not the only
entitlements we need to safeguard; we must also ensure our
citizens have access to necessary medical services. That is why
I am extremely concerned about the reports of Mr. Ostreicher's
deteriorating health and recent Parkinson's disease diagnosis.
Bolivia should release him immediately so that he may return to
the U.S. to obtain a comprehensive medical evaluation with his
own doctors and, of course, be with his family.
While I ultimately hope for his swift homecoming, I am
still grateful for the small improvements in his situation. He
is no longer incarcerated under the harsh conditions at
Palmasola prison and is receiving some medical treatment in the
interim.
I would like to take this opportunity to commend Mr. Penn
for the measures that he took last December to help him access
desperately needed health services and secure bail. Mr. Penn,
your presence there meant so much to him and, for that, I am
really grateful.
Due process is not only an important element of a
transparent legal system, it is a human right. It is incumbent
upon the U.S. Government to protect this right for all American
citizens, whether at home or abroad. We must ensure that the
Bolivian Government upholds its due process laws and return Mr.
Ostreicher to the U.S. immediately.
And I also would like to add, Mr. Chairman, how grateful I
am for the role that the Bolivian press has played in covering
this case, giving it the high profile that was much needed with
the Bolivian society.
And with that, I yield back, Mr. Chairman.
Mr. Smith. Ms. Velazquez, thank you very much.
Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I want to begin by
thanking you and Ranking Member Bass for holding this hearing
and for giving me the opportunity to participate although I am
not a member of the committee. I also would like to thank Sean
Penn for his advocacy on behalf of Mr. Ostreicher, which is
helping bringing international attention to this issue in a way
that we couldn't otherwise.
I am here today because my constituent Jacob Ostreicher
remains in unlawful detention in Bolivia. Along with Mr.
Ostreicher's family, friends, and his community in Brooklyn, I
am very concerned about his continued confinement and his
welfare.
As you know, on June 20, 2011, Mr. Ostreicher was arrested
in Bolivia on allegations of money laundering and associating
with criminal organizations. He was held in a notoriously
dangerous Palmasola prison for 18 months, and though he was
released from prison on bail in December of last year, he
remains under house arrest. Now nearly 2 years after he was
originally detained, formal charges have yet to be filed
against him and Mr. Ostreicher continues to maintain his
innocence.
In addition, more than a dozen Bolivian officials,
including prosecutors, judges and the chief legal counsel to
the Bolivian Interior Ministry, have since been arrested in
connection with corruption in this case, in effect for
attempting to frame Mr. Ostreicher. This amounts to nothing
less than a horrible injustice for Mr. Ostreicher, who is in
poor health and has been forced to stay in Bolivia separated
from his wife, five children and 11 grandchildren.
This is a man whose life has been unfairly put on hold
while justice is denied to him day after day. Especially after
the people instrumental in accusing him have been accused of
corruption by the Bolivian Government, it is unfathomable that
he continues to be held. The Bolivian authorities must be made
immediately aware that this now absurd miscarriage of justice
is unacceptable and conveys a negative message about their
country to the United States and to the world.
In fact, earlier this year the United Nations High
Commissioner of Human Rights issued a report specifically
citing Mr. Ostreicher's case as evidence of endemic corruption
within the Bolivian justice system, indicating that Mr.
Ostreicher's treatment constitutes a serious human rights
abuse. Specifically in reference to Mr. Ostreicher's case, the
U.N. report states, ``The existence of an extortion ring within
the judiciary constitutes a serious threat to the credibility
of the administration of justice.''
The Bolivian Government must take immediate action to grant
Jacob Ostreicher the due process he deserves and show to the
world that this sort of injustice will not continue.
Since he was first imprisoned I have been in frequent
contact with the State Department about the status of Mr.
Ostreicher's case and his condition. I want to thank the State
Department for its work thus far in communicating with the
Bolivian Government regarding Mr. Ostreicher's situation and to
express his frustration and that of our entire Government
regarding his treatment. That work must continue until we see
positive results.
In December of last year, after meeting with Mr.
Ostreicher's wife, Miriam, I wrote a letter to Secretary of
State Clinton asking for help communicating to the Bolivian
Government the necessity of giving Mr. Ostreicher reasonable
access to a swift trial. I also wrote a letter along with my
colleagues in the House and Senate to the Bolivian Government
making the same request. I understand that Bolivian law has its
own standards that allow a prisoner to be held for 18 months on
preliminary charges in the pretrial phase if there is a
reasonable basis to believe that he or she committed a crime.
That 18 months has long passed and they have shown no
reasonable basis for believing that a crime was committed by
Mr. Ostreicher. While I am glad that a Bolivian judge allowed
Mr. Ostreicher to be detained at home rather than in prison, at
home in Bolivia that is, holding someone for 2 years without a
trial violates basic standards of fairness and human rights.
Mr. Ostreicher is entitled to a fair trial like anyone else, to
see the evidence against him, to have the opportunity to
present evidence in his own behalf and to have that case heard
promptly and impartially. If prosecutors do not have the
necessary evidence already at hand, they should dismiss the
case immediately and let him return to his family in New York.
Our job will not be done until Mr. Ostreicher has been
afforded a full measure of the simple justice to which everyone
is entitled. We need everyone, Members of Congress, officials
in the executive branch and other interested parties, to keep
up the pressure on the Bolivian Government. It is important for
everyone to remember our goal, to make sure Mr. Ostreicher is
provided fair treatment and basic due process.
The Bolivians must be made to understand that we will not
stand idly by and simply accept the treatment that he has
received to date. Pressure must continue to be applied to the
Bolivian Government and its justice system to get Mr.
Ostreicher and his family out of the terrible limbo they are
in, either by finally giving him the trial he deserves or by
dropping the charges and releasing him forthwith.
I hope this hearing will serve to do just that, to keep the
pressure on the Bolivian Government and to demonstrate how
important Mr. Ostreicher and his situation are. It is important
to U.S. Government officials and to the United States
Government as a whole.
With that, I thank you again, Mr. Chairman, and I yield
back.
Mr. Smith. Mr. Nadler, thank you very much.
It is now an honor and privilege to welcome to the
committee and introduce to the committee Sean Penn.
In January 2010, after a 7.0 magnitude earthquake struck
the nation of Haiti, Mr. Sean Penn established the J/P Haitian
Relief Organization. Today, Mr. Penn directs a predominantly
Haitian staff of nearly 400 development professionals to
support the residents of the camps of J/P HRO and surrounding
areas as they transition from life left homeless by the
earthquake to durable, sustainable, and prosperous communities.
This is done through foreign integrated programs, medical camp
and relocation management, engineering and construction, and
community development. J/P HRO is dedicated to saving lives and
bringing sustainable programs to the Haitian people quickly and
effectively. I know Mr. Penn will be traveling to Haiti from
here. He is joined today by Ben Krause, Chief of Staff for the
organization. Welcome, Ben, as well, to the committee.
For his efforts, Mr. Penn has received numerous awards and
honors. He was named Ambassador-at-Large for Haiti and
presented with this honor by the President at a ceremony in
Port-au-Prince in 2012. More recently, Mr. Penn was presented
with the 2012 Peace Summit Award at the 12th World Summit of
Noble Peace Laureates, a tribute for extraordinary solidarity
by the Haitian Parliament in a combined meeting of the National
Assembly. There is a long list of impressive awards and
recognitions from the U.S. Army, international humanitarian
organizations, and others that have flowed to him for his work.
In addition to humanitarian work Mr. Penn, as we all know,
has become an American film icon in a career spanning nearly
three decades. Mr. Penn has received two Academy Awards and
five Academy Award nominations for Best Actor. He is also a
successful screenwriter, director, producer, journalist and, as
we all are very grateful, a great friend of Jacob Ostreicher.
Mr. Penn.
STATEMENT OF MR. SEAN PENN, FOUNDER AND CHIEF EXECUTIVE
OFFICER, J/P HAITIAN RELIEF ORGANIZATION
Mr. Penn. Chairman Smith, distinguished members of the
committee, I sincerely appreciate your efforts and support of
U.S. citizen Jacob Ostreicher and his family, and thank you for
allowing me the opportunity to come before you and share my
experience regarding Mr. Ostreicher and the increasing urgency
of his situation.
In 2012, I traveled three times to Bolivia, first in
February on behalf of the Republic of Haiti in my role as
Ambassador-at-Large. There I met with President Morales and I
found him a man sincerely dedicated to his people and their
economic and social development. It may be instructive to
anecdotally recall for you the topics that dominated his part
of our conversation.
Number one, the issue of Bolivia's sea rights over
ancestral Bolivian lands commandeered by a past Chilean
Government 150 years ago.
Number two, despite a standing extradition treaty with the
United States, the U.S. has steadfastly refused to recognize
the treaty as it might require the return of Bolivia's former
President, Gonzalo Sanchez de Lozada, who is charged with
genocide and currently in asylum in the United States, as well
as Bolivia's former drug czar, General Rene Sanabria, who is
currently held in the United States.
I believe this second point is key to understanding
Bolivian skepticism toward any outreach for respect of rule of
law or human rights in the case of American Jacob Ostreicher.
Number three, and perhaps the most instructive, the
Bolivian campaign to educate those outside the region on the
cultural and economic value of their dominant coca crop.
I will not sit here today as an advocate for any of these
three primary concerns though, I will briefly quote from a blog
piece I published shortly after that trip:
``While indeed coca leaf is the base material for the
production of cocaine, it resembles cocaine only so
much as does the fertilizer so accessible and
profitable in the United States, so necessary for our
own farming community and its regrettable relativity as
the base material for explosives.''
Bolivia's campaign seeking markets for export for the
multiple benign uses of coca leaf reads, ``Coca no es
cocaina.'' The economic impact on Bolivia of this largely
puritanical misconception is tremendous and translates to human
hardship that is palpable in that country. Further, it inflames
the uninformed perceptions that connect Bolivia's leadership
with the criminal narcotrafficking that Bolivia itself is so
dedicated it to abate.
Since this indigenous President assumed office in 2006 and
while the United Nations General Assembly designated President
Morales World Hero of Mother Earth in 2010, internal Bolivian
opposition media, political, and economic powers have
continuously exploited our own internal propaganda, leveraging
the false perception of drug lordship and totalitarianism
against this elected leader of this democratic socialist
country.
As a result, the U.S. media has ignored the rest of the
story in Bolivia, including the tremendous reforms that have
been enacted under President Morales' leadership, including a
new Constitution embracing human rights at its core.
Furthermore, even the case of Mr. Ostreicher garners a
paucity of attention. An article just last week on CNN.com
listing Americans unjustly held overseas failed to make mention
of Mr. Ostreicher's case in spite of this subcommittee's
repeated efforts to bring the injustice to national attention
and peaceful resolution.
My second trip to Bolivia in October 2012 resulted from a
call from a colleague who had been contacted on behalf of the
imprisoned American, Jacob Ostreicher. Based on my brief
history with President Morales, I was asked to review the
Ostreicher case, and having done so to my absolute satisfaction
in his innocence, bring the case to President Morales.
I began by reviewing the report of former FBI investigator
Steve Moore, consulting with Mr. Ostreicher's Bolivian
attorneys as well as his Washington based law firm representing
he and his family pro bono, and discussing the matter with Mr.
Ostreicher's wife, Miriam Ungar. All of these people have
provided testimonies to this subcommittee before, and I would
strongly encourage all of the new members to review the
testimonies provided on June 6th and on August 1, 2012, so as
to better inform yourselves to the injustice of Mr.
Ostreicher's situation.
I continued my investigation discussing the matters with
members of the United States' State Department and made
inquiries to my Venezuelan and Bolivian colleagues.
Finally, I thoroughly reviewed the situation on the ground
myself in Bolivia. Following all of this, I was not only
personally and thoroughly convinced of Mr. Ostreicher's
innocence, but particularly alarmed by a consensus both among
Bolivian officials as well as international sources that the
unevidenced prosecution of Jacob Ostreicher was SOP, standard
operating procedure, in the fundamentally corrupt Bolivian
judiciary.
At that point I requested a second meeting with President
Morales. In that meeting in La Paz I was able to share with the
President the materials that had been provided me as well as
additional information I had garnered from multiple sources.
I will subject my intuition to your judgment. I was
convinced then and I remain convinced today that these findings
were received by the President with tremendous personal and
human grief, that the President had indeed inherited a
judiciary that at once was populated by brave and ethical
servants of the Bolivian people and the rule of law but that
within it a mafia-proportioned criminal network referred to as
``la Red'' in Bolivia maintains a devastating grip on power,
extortion, narcotrafficking, and human cruelty.
I was not educating a President, but I was witnessing one
who like any President faces the multifaceted challenges of
governance. This President was being asked by an American
friend to put laser attention on a single case, but one that he
knew, and that I would come to know, reflected the challenge
and gravitas of the situation at large for the Bolivian
Government and its people in respect to their judiciary.
President Morales in my presence immediately called his
Minister of Government, who without hesitation referred to the
case of Mr. Ostreicher, and I quote, as ``A bad case.''
Following that meeting, the Bolivian Government ordered by
President Morales gave new empowerment to the investigatory
body, the judiciary, which resulted in the arrests and
imprisonments of over 20 Bolivian officials, including Fernando
Rivera, a primary representative of the Ministry of Government
in the prosecution of Mr. Ostreicher.
What had been exposed was an unprecedented ring of
extortion.
Indeed, Mr. Ostreicher's only ``crime'' was to have brought
a successful rice concession and well-paying jobs to poor
Bolivians.
Upon the criminal actions of the judiciary, the rice and
heavy equipment was commandeered and sold for personal profit
and jobs for poor Bolivians evaporated.
While the principle investor in Mr. Ostreicher's business
venture, Swiss businessman Andre Zolty, was determined to be
conducting legitimate and transparent business practices
through an investigation by Interpol, and while Mr. Ostreicher
had been able to account for every penny, demonstrate that all
funds had legally and with full transparency been channeled
through the Bolivian Central Bank, and that all funds had
subsequently been invested legally and with the same
transparency, it was Mr. Ostreicher who was carted off to a
prison in Santa Cruz called Palmasola.
Palmasola prison is described as a ``modern day Dante's
Inferno.'' It has 4,500 inmates and they themselves run it. The
corrections officers are limited to perimeter patrol and roll
checks. It is a prison that receives the delivery of body bags
to the front gate on a weekly basis and feeds its prisoners 18
cents worth of mulchy broth twice daily through a trough.
Disease, violence, and humiliation.
In this prison Mr. Ostreicher lost 55 pounds, a full third
of his body weight, and suffered the onset of Parkinson's
disease and was subject to tremendous physical violence by
guards and fellow inmates.
In addition to enabling the arrests of ``la Red'' extortion
network, President Morales also ordered an emergency medical
examination for Mr. Ostreicher. I flew to Santa Cruz where I
met with Minister of Government Carlos Romero and his Vice
Minister Jorge Peres. With the support of President Morales and
the assistance of Mr. Ostreicher's Bolivian attorneys, Minister
Romero and Vice Minister Peres were able to expedite the
doctor's examination.
We went to Palmasola at 1 o'clock a.m. that same night and
stood witness as the Bolivian state appointed doctor made the
determination that Mr. Ostreicher was at life risk and signed
the papers ordering that he be transported to a private medical
clinic for immediate and continuing treatment.
On my third visit to La Paz in December 2012 I was
scheduled to meet with President Morales and Vice President
Linera in advance of Jacob's hearing the following day. At the
diplomatic home of Venezuelan Ambassador to Bolivia, Cris
Gonzalez, we were informed that the meeting would no longer be
necessary as Mr. Ostreicher's hearing in Santa Cruz the
following morning was assumed to be that which would secure his
release and exoneration.
We were flown by military transport that evening to Santa
Cruz. The following morning at the courthouse we were brought
to a waiting room where despite our optimism Mr. Ostreicher,
who was then in a minimally improved physical state, wearing
the required body armor that acknowledged the Bolivian state's
own concern for his safety in light of the criminal elements
within their own judiciary, constrained by his own disability
to a wheelchair, with hands shaking from Parkinson's disease,
nonetheless had clarity of mind that our optimism had stolen
from us.
As we prepared for the arrival of the judge and the hearing
to take place, I imparted to him based on what I had been told
in La Paz that he would very soon be seeing his wife, his five
children and his 11 grandchildren, from whom he had been
significantly parted for 2 years. He said to me, ``It won't
happen, Sean, these, expletives, want to kill me. I am too
dangerous to them as a witness.''
At that point we were notified that the judge would soon
enter the court, and I assisted Mr. Ostreicher in his
wheelchair into the courtroom.
As an actor I have been in good movies and I have been in
bad movies. I have never seen a worse movie or more arch
villainy on such a caricature-ish and humanly diabolical level
as I witnessed in that courtroom.
Despite the clear and unequivocal arguments of innocence
and, more importantly, evidence of innocence brought by Mr.
Ostreicher's Bolivian defense team, the judge, under the clear
intimidation of a panel of snickering, arrogant and hateful
prosecutors, would have none of either logic or law.
With Mr. Ostreicher still too frail to be touched without
tremendous pain through his bones, contact with his then-paper-
thin skin and the Parkinson's, mixed with a heightened stress
anxiety creating intense shaking, the prosecution dared even to
challenge the Bolivian state doctor's medical diagnosis and
claimed that Mr. Ostreicher was perfectly healthy and pushed
for him to be returned to the death-factory of Palmasola
prison.
What followed was a very challenging negotiation to keep
Mr. Ostreicher in the clinic so as to keep him from being
returned to Palmasola prison and where we stand today through
the diligent work of both his Bolivian and American attorneys
and the dedicated support of this committee, and of Governor
Bill Richardson, and indeed the cautious support of President
Morales and his Venezuelan counterparts, Mr. Ostreicher is
remanded to house arrest. While his weight and mobility have
returned to something close to normal, the Parkinson's, quite
likely triggered by the stress in his time in Palmasola prison,
remains a debilitating concern, and he is in daily fear for his
life, further exacerbating his Parkinson's.
It is high time Mr. Ostreicher elderly parents, wife,
children, and grandchildren receive him back in the United
States to move on with their lives.
This tragic scenario is not Bolivia. It is not the Bolivian
people. It is not the Bolivian President. What it is, is an
example of the continuing of the Bolivia's 100 years of
struggle and its fight for human rights and its revolution for
freedom. In that revolution, Bolivians have demonstrated an
extraordinary courage and will for sacrifice. It is on that
basis and in solidarity with President Morales and the Bolivian
people that I offer the following: Last week registration
opened for the Dakar Rally. As the off-road driving enthusiasts
among us know, the Dakar Rally is one of the premier rally raid
cross-country driving competitions in the world. Started more
than 30 years ago as a race from Paris, France, along the
Sahara to the desert in Dakar, Senegal, together hundreds of
competitors in the motorcycle, car, and truck classes to
compete in a 2-week race covering thousands of miles of the
world's roughest terrain. For host countries the Dakar rally
brings hundreds of thousands of dollars in charitable
donations, millions of spectators and tourists, hundreds of
millions of dollars in economic activity, and billions of
viewers from 190 countries through global broadcasting. While
the net impact of the rally is at times controversial, many
have shared sentiments like the Government of Peru, which
declared the rally ``a national interest,'' and the Argentine
Minister of Tourism, who called the rally ``the biggest
promotional tool for tourism in Argentina's history.''
For the past 4 years the Dakar Rally has been racing
through South America and in January 2014, for the first time
ever, part of the race is scheduled to traverse southern
Bolivia, making Bolivia the 28th host country in the rally's
history. In fact, just last month rally organizers competed in
a dress rehearsal across Bolivia's famous salt flats. The Dakar
Rally, one of the world's most prominent displays of freedom
and tenacity of the human spirit, will be parading through
Bolivia even as thousands of prisoners like Mr. Ostreicher sit
in feces filled cells, forgotten, behind locked walls, and
surrounded by the sort of inhuman savagery we only dream is
possible in existential nightmares. The Dakar Rally is
scheduled to celebrate the triumphs of the human spirit and
innovation on the same soil where the Bolivian justice system
festers and loots the same from its innocent and uncharged
victims.
The Economist has reported that ``at least two-thirds of
the prison population in Bolivia is on remand awaiting trial.''
Awaiting trial.
So I ask you, the distinguished members of this committee,
join me in calling on the sponsors of the Dakar Rally to bring
their influence to bear for the thousands of innocent victims
of the Bolivian justice system and especially for Jacob
Ostreicher.
Starting with the official partner of the Dakar Rally, the
petrochemical giant Total, and then moving to each of the
official partners: Michelin, Honda, Mitsubishi Motors, Red
Bull, EDOX, Karcher, Aggreko, and even the official race
photographer Maindru Photo, I ask that you use your influence
to call on these sponsors to insist that their support for the
Dakar Rally will either require Mr. Ostreicher is finally freed
to return to the United States and, as Mr. Nadler mentioned,
the 18 months allowed by the Bolivian Constitution to be held
without charge has already passed and so there should be no
discussion that could give opening to too late offers of an
expedited trial, freed as a first sign of goodwill and the
intention on the part of the Bolivian Government and the
ethical within its judicial institutions as they continue the
long and difficult process of justice and reform or the Dakar
Rally with not enter Bolivia.
I am confident the good people in these companies do not
want to support the perpetual imprisonment of innocents and
will recognize the necessity of principled withdrawal should
the Government of Bolivia fail to act. But they should do this
for practical reasons, too. Imagine the tragedy of one of their
own people or one of the tourists following the rally while it
passes through Bolivia were to become victims like Jacob and
land behind bars without charges, without evidence against them
and without rights.
As 2014 will be the first time that the rally ventures into
Bolivia, this first test run will only consist of one stage of
the motorcycle class venturing across the Bolivian salt flats.
This is to say that if the Bolivian justice system continues to
deny Mr. Ostreicher the freedom that they themselves have
indicated he is due, since they have not brought any legitimate
charges against him, it is still possible for the Dakar Rally
to exclude Bolivia.
The international pressure could very well be precisely
what the President of Bolivia needs to be able to finally expel
the malignant cancer of corruption that is killing both of the
Bolivian justice system and the thousands of innocent people
like Mr. Ostreicher. Putting a clear cost for the continued
abuse of the justice system on the economic elites of the
country may well give President Morales and the people of
Bolivia the leverage needed to advance their heroic fight for
freedom and justice in Bolovia to the next level.
So again, I ask that you all join me in calling on the
sponsors of the Dakar Rally, Total, Michelin, Honda, Mitsubishi
Motors, Red Bull, EDOX, Karcher, Aggreko and Maindru Photo, to
demand Jacob's freedom as a condition of their support for the
Dakar Rally in Bolivia.
A last thought came from a telephone call that I had with a
friend, a friend of high rank in the United States military.
After spending most of his military career in South America and
the Caribbean, he was later deployed to a post in South Asia,
and after several months of deployment we spoke. He said that
he had always considered the challenges of Caribbean and Latin
America nearly insurmountable until experiencing his new
position focused on South Asia and the Middle East. His
realization of how much commonality the United States, Latin
America and the Caribbean share he said, ``Should make this
butter.'' It is my hope that Bolivia and the United States will
take the lead in a new era of diplomacy and human rights for
that which is our shared human interest, that Cuba will follow
with the release of Alan Gross, and that the United States will
refocus its diplomatic consideration on the Cuban Five without
regard for fundamentalist opposition within political
constituencies. Bolivia has a rare opportunity to trigger the
movement of a new day where the discussion of human rights is a
discussion without borders.
Thank you.
[The prepared statement of Mr. Penn follows:]
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----------
Mr. Smith. Mr. Penn, thank you very much for that
extraordinarily eloquent but also very bold statement. Not only
did you lay out all the very real and tangible efforts that you
have made and others have made encouraging, asking,
petitioning, but now I believe you have given a means to a very
positive outcome with the Dakar Rally recommendation. I can
tell you that we will circulate a letter, pursuant to your
recommendation, to the sponsors and ask that they again not
allow this very important rally, this great economic boom, to
occur in Bolivia until Jacob is freed. So I think this could be
a game changer, it ought to be. Persuasion has, for almost 2
years, not worked. So I think you bring to the table an
enormous next step, and for that I believe all of us are very
grateful for that recommendation.
Mr. Penn. Thank you, Mr. Chairman.
Mr. Smith. It does underscore another issue; how any non-
Bolivian, and even a Bolivian business investor could have any
confidence that doing business in Bolivia might not make them
the next Jacob Ostreicher. It is a very real threat to them,
and so I think you have laid out a course of action that we
will follow up on and I do thank you for that. Without
leverage, you know, jaw boning and recommendations, even
friendships only go so far, so thank you for that. If you
wanted to elaborate any further on the idea, but we will
circulate a letter. It will be bipartisan, I know that. And I
think that will be very effective to at least get us on record.
Mr. Penn. Thank you.
Mr. Smith. Let me just ask you, you talk about the judicial
system and I am glad you bring a very, very sharp focus there.
In my first press conference with the Bolivian press last June,
I had known of so many other cases that were just like Jacob's
but non-American, and said that look at Jacob as a means to an
end of getting the judicial system up to world class standards,
international standards of fundamental human rights, due
process rights, and as you said, la Red, this nefarious
organization, this network continues to not only hurt Jacob but
it hurts Bolivian people, and one of the points I made to the
Bolivian press is that we stand in solidarity with the press in
Bolivia just as we did with Jacob. And so join us in trying to
push for reform, and I think your point was very well taken on
that as well.
No one should be behind bars ever anywhere who is innocent.
We are not having any hearings about Americans who are
committing crimes. We are having hearings and promoting
innocent Americans, or anyone else for that matter, who are
being prosecuted unjustly. So I take your point on that one as
well.
Just one question and any comment that you might want to
make. We have tried to the get the United Nations to do more,
along with other organizations. We know that Denis Racicot is
there. I have met with him, Nydia Velazquez and I have met with
him. But we know the U.N. itself is under pressure and runs a
risk and has a certain fear that its own personnel might be
retaliated against. But it seems to me that in New York the
Human Rights Council ought to be taking up Jacob's case and the
U.S. should be promoting that as well. Because when other
levers don't work international organizations certainly provide
a potential remedy.
So if you wanted to speak to that.
Mr. Penn. Well, I think that there are several institutions
and government organizations who may be able to contribute
their good offices and influence there. Bolivia is a very poor
country, as we know, and it does demand an enormous amount of
economic support in various sectors. So I think that there is
that. At the same time I came to this hearing today a little
ambivalent simply because there is such a perspective shift
culturally that when they are challenged, especially by either
citizens or government officials in the United States, there is
an inclination towards, let's say, to this level of self-
destructive defiance in the kind of populism that is typical of
the region. Leaderships often have to appeal on the basis of
that defiance toward the United States. And I think that again,
you know, that in looking forward on these kinds of
negotiations in the future this is really a time as we become
increasingly global I think it makes a lot of sense for us to
adjust our view related to our own human rights abuses in this
country, and also within any kind of the black and white hold-
ons that maintain small, small groups dictating the policy at
large that affects the perception of the United States
worldwide.
There are compromises to be made. I brought up the Cuban
Five. Clearly there are some in the Cuban Five who are
seemingly guilty of higher offenses than others. But these are
the kinds of diplomatic things that we really need to start
working toward a fresh start with, so that we don't have a
defiant leadership in these countries the next time something
happens.
And that would I think further empower the State Department
to take a more active role. At this point I think it is fair to
say that despite criticism the State Department has had, even
in the case of Mr. Ostreicher, my experience there is that they
have been very diligent and yet very cautious and rightly so
because their public position taken against this government is
that which quickly can inflame the situation rather than
diffuse it.
Mr. Smith. Ms. Bass. Thank you.
Ms. Bass. Once again, Mr. Penn, thank you very much for
your testimony. I particularly appreciated your testimony
providing a context and especially a historical context in
terms of our relationship with Bolivia, the sensitivity of
that, the new leadership in the country, and also the
precarious position that the President finds himself in. So I
wanted to ask you a couple of questions along those lines.
One, in terms of if you believe the U.S.-Bolivian
relationship partially contributed to Mr. Ostreicher's
imprisonment?
And then your call for us to do a letter, I was speaking
with Chairman Smith and said I am more then willing to sign on
to a letter, and maybe that letter actually calls for the
companies you talked about to withdraw their involvement unless
he is released. On the other hand, the flip side of that is
what were you just talking about. I am happy to do that if you
think it would be helpful. On the other hand I would just be a
little concerned that that could inflame things or even perhaps
compromise President Morales. You described him as being
genuinely concerned about the situation, and so that begs the
question of why couldn't he just order the release. And so is
the reason because he is in part receiving the pressure from la
Red, is that what you referred to them as?
Mr. Penn. Yes. Well, this would be the--you are referring
to the criminal network within the judiciary, yes.
Ms. Bass. Right. So I guess I am asking if you do think
that's a good idea to ask for it to be that strong, to withdraw
their involvement, which could certainly compromise the
economic benefit to the country. Would that be helpful or would
that be a contributing factor to inflaming?
Mr. Penn. I think as with anything there is a threshold,
and it is my opinion that the threshold has been crossed in
terms of the incarceration of Jacob Ostreicher. Not only to the
deficit of Mr. Ostreicher but to the Bolivian people and to the
future of the institution of judicial process. I think that
what I was insinuating was not so much that President Morales
was cautious related to the reaction or the influence of la
Red, but in particular that in the same way that leadership
throughout the world are vulnerable to opposition media, the
media is a rabid dog there, and they are largely run by
opposition forces and influenced by opposition forces to this
democratically elected leader of his people.
So I by no means am suggesting a lack of courage; in fact,
quite the contrary, but in terms of political strategy, he is
caught between a rock and a hard place, is my perception of
this. And also those ministers, those good ministers within the
judiciary, in that as soon as they stand up and say, you know,
they believe that Jacob Ostreicher should be released or he is
innocent of these charges or, in fact, as is the case there is
no evidence whatsoever against Mr. Ostreicher, it starts to be
rumored that they are representatives of narcotrafficking.
So it is that internal struggle that is never going to be
broken until the strategy is based on principle. And the simple
principle here is that if there is going to be an enormous
amount of money generated in a country that is doing this, a
country where human rights is the low-hanging fruit of the
yearning of the actual leadership and the people, well, then,
in fact, they are inviting such solidarity, as I read it. That
these companies do just that, and make the decision with the
very clear thought that it is simply wrong to continue to
support it.
Ms. Bass. Sure. Because there are different questions,
degrees. We call on them to speak out or we can call on them--
--
Mr. Penn. Yes. And we are not asking that they suddenly
revolutionize the judiciary. We have a difficult time doing
that here----
Ms. Bass. Thank you.
Mr. Penn [continuing]. Or our school systems. We know that
it is difficult. Governance is difficult. What we are saying is
show the first step. Here is the easiest case you have. The man
is clearly innocent. Even your officials within the judiciary
acknowledge that. As I said, this is ``a bad case.'' That is
what he meant: ``We have no case. We are just holding him.''
Release him now.
Ms. Bass. You know, I also wanted to ask you, while you
were in Bolivia, did you have any interaction with our Embassy
and its staff? And also the fact that we don't have an
Ambassador in place. I don't know what level of involvement or
participation they had in your visits.
Mr. Penn. Well, as you know, President Morales recently
ousted USAID. And I think that is further representation of the
kind of concerns, one, that starts with what has been a history
of intervention, often, I think, very negligent intervention on
the part of United States, both in Bolivia and other countries
in South America. This is embedded in the spirit of the people
and of their leaders. I think in struggling for a new day,
certainly we need Ambassadors. We need them there, we need them
in Venezuela. But, yes, I had some limited interaction with
what again had appeared to be a very supportive Charge
d'Affaires at the Embassy in Bolivia. But as my particular
interest at the time was in communicating separate from that
because I didn't want to mix the issues too much, I spent most
of the time with Bolivian officials.
Ms. Bass. Last question, slightly different topic, thought.
In terms of what the President did a couple of weeks ago, I
think it was a couple of weeks ago, when he expelled USAID, how
did you read that? Did you read that as President Morales doing
that because he needed to take a stand against the U.S.? Or did
you ever hear of particular concerns? You know, was there some
legitimacy to that? People were upset about something USAID had
done?
Mr. Penn. I think, you know, as it goes region to region
that the investment of USAID or the commitments of USAID there
were not on such a level that it couldn't be used politically.
At the same time, I am more inclined to take the President at
his word. And I think he is fed up with what would be
considered hegemony.
Ms. Bass. Thank you. Thank you very much.
Mr. Smith. Chair recognizes the ranking member of the full
committee, Mr. Engel.
Mr. Engel. Thank you, Mr. Chairman. And let me once again
thank you for your really hard work and determination in this
particular case. You have been doing so much of this for so
long that everyone really should know it.
And, Mr. Penn, I want to thank you for adding star power to
this. It is really very, very important. It is frustrating for
us. You know, we try to get people to focus on it. But everyone
is going a million different directions. And as the ranking
member on the full committee, I want to just thank you for
coming here. It is very, very, very good of you.
The case obviously is heartbreaking. The injustice on Jacob
Ostreicher and his family is difficult to fully grasp. And when
he was detained under murky circumstances in Bolivia in 2011,
no one could have imagined that to this day he would be
prevented from going home to New York. It is now clear, as was
said here, that Jacob was the victim of a sordid extortion
ring. And multiple arrests have been made in the case. And we
fully expected these arrests would be followed by his release.
But, unfortunately, he is in a legal spiral. And even though
the prosecution has never presented evidence against him, he
has now been held in Bolivia for 718 days.
I have met with Evo Morales on different occasions, once
right here in this building in my office, once in Bolivia. I
would certainly be willing to meet with him again. What is
happening here is reflecting very poorly on Bolivia, its legal
system and its government. And I had said to President Morales,
he threw out our Ambassador--this was several years ago--and
kicked out our drug agents, and seemed to feel that things
could go on as usual, normal as usual. It really cannot be the
case. And it is difficult for our governments to have relations
as usual as long as Jacob Ostreicher is there.
Mr. Penn, you have visited Mr. Ostreicher in Bolivia. You
have appeared by his side in some very difficult moments. And I
think your humanity is something that we all really admire. I
see Miriam here, Jacob's wife. And it is good to see you. And I
hope that next time we will see each other and celebrate in New
York after he has been released.
Jimmy Carter, former President, is meeting with Morales
today. And I hope he--I wish him luck in advocating for Jacob.
Mr. Penn, I wanted to ask you, we have very few cards to
play, the United States has very few cards to play. It is
frustration because very few cards. But what should we be doing
that we haven't done? I know we have all tried. Certainly, the
chairman has gone there and made it a cause celebre of his. And
we have tried to focus attention on it. In a situation like
this, we are not so sure if we make noise about it if it is
good for Jacob or if we are quiet about it it is good to Jacob.
You don't really know what to do. You don't want to be quiet
and then nothing happens; you don't want to make noise and then
Morales or whomever gets offended, you have to try to find the
right mix. In your opinion, because you have been doing this
and you have been out in front of this, what should we be doing
here in the Congress that we haven't done? Or in the government
that we haven't done?
Mr. Penn. I think this returns to the question from Ms.
Bass. Because I would agree, it is treacherous territory when
going public in any way on these things. There is--and I say
this with nothing but regard--a great humility in the culture
that is exemplified by someone, for example, like President
Morales. And when statements are made that seem to be
continuations of the ideologies and the entitlements and what
fairly could be called the arrogances of misguided policies,
historically or currently, we always have to be very cautious.
When talking about, for example, a letter on the Dakar
Rally. I think you should know, if I am speaking as fairly as I
can, that my opinion on that is based on the belief, and I do
not think that in any way this is over dramatizing or
exaggerating the situation, I believe Jacob's life is in danger
as we sit here today. The people whose own freedom is at risk,
both those at large and currently in prison and facing charges,
are people who have played very serious ``baseball.'' It is
very hard for us sitting in the United States to understand
just how fast a .37 bullet can fly. I think that we are at a
point now, we don't want to look back and say, ``We shoulda.''
So what is our option? I think, for example, to recognize
it and to do it as I recommended, which is in solidarity with
what the government itself claims to be in pursuit of. There is
that.
I also can tell you, simply based on the kind of chatter
conversations one has traveling in these regions, I think that
it would be a very, very powerful step for the United States to
look to negotiating the release of one or more of the Cuban
Five.
I think that we always have to look at the result. And the
result, both for someone like Jacob Ostreicher as well as for
Alan Gross in Cuba, of the United States being the one to step
up.
By no means am I suggesting that Bolivia be given a pause
while that is considered. But I think we really have to add
some perspective. We know that our country has about 28 percent
of its citizens total with passports at all. And we can all
fall into what becomes an inherently limited-perspective
analysis of the world.
We could do better. We could do better this way.
Mr. Engel. Would you think that--in your opinion, would it
be possibly helpful if we made it clear, if our Government made
it clear that the release of Mr. Ostreicher would lead to a
rapprochement with Bolivia? You know, we have had, as I have
said, very strained relations since our Ambassadors have been
out, and drug agents, harming cooperation that we had with
Bolivia for many, many years. Evo Morales made a point when we
met with him, because I also took a delegation down there, that
he is used to being the President of a coca farmers' union. And
made a big point of how he is for the rights of the
downtrodden. You know, I can't think of anyone more downtrodden
right now than Jacob Ostreicher.
Shouldn't it be indicated to him--I know a lot of this is
obviously done behind the scenes and not done in hearings--but
that his release would allow for a rapprochement, that we have
a lot of things that we could offer Bolivia, and this might be
a step in the right direction; that it takes two to tango and
we could probably tango together.
Mr. Penn. Yes. And it is my feeling that that could be done
in a very genuine way. Because in all of the conversations that
I have had, and I am talking bipartisan groups related to this
within government--within the United States Government, there
is an enormous will to embrace the selected indigenous
President of that country. A tremendous will. But as long as
Bolivia and its judiciary, or the President, in effect takes
cover behind an institution that has an internal revolution
going on within it of corruption, we won't be able to--I
wouldn't expect that our Government officials would get very
far with their constituencies. I think that he has to make this
first move. I hope he does for Bolivia's sake. I hope he does
for his sake and his leadership's sake.
Mr. Engel. Well, I think that is very well put. And I would
certainly concur with what you said.
The final thing I want to say, very much in the past
several years the policies of Bolivia have been wrapped around
the policies of Venezuela. And the two governments have been
working in tandem. Obviously, there is in Venezuela, with a
longstanding leader passing away, I would hope that this case
could lead, perhaps, to Evo Morales standing up on his own and
breaking out on his own and showing that he is nobody's number
2 person, he is branching out and going to be number 1 in terms
of dealing with the United States. I would say that I hope to
do everything that might be done to help facilitate that. I
just hope that he would understand that I think there is a very
big chance now with Hugo Chavez being gone that the United
States and Bolivia could perhaps reach out again in cooperation
and what better way to start than by releasing Jacob
Ostreicher.
Mr. Penn. I would only, if I may, I would only caution that
the pursuit of that from the United States' side must be very
sensitive to the understanding that it is not because it wasn't
available due to President Chavez, this is always going to be
two-sided, it is not going to be that they are going to be
necessarily more in-line ideologically with what we as the
United States want them to be, but in fact that there has been
an existing potential diplomatic relationship far exceeding
that which either side has been successful in accomplishing for
reasons of stigma and propaganda, and because we suffered--I
think one of the great enemies of Jacob Ostreicher today has
been one of the greatest challenges we face throughout the
world, which is the media perversion of the circumstances. When
the media perverts the circumstances, then our own politicians
are also influenced as we are talking about President Morales
being.
I can tell you of a circumstance, you know, we were
involved, President Chavez helped very directly with the three
U.S. hikers who were in Iran. And it was then-Minister of
Foreign Affairs Maduro and his then-Deputy, Temir Porras, with
whom I met and who directly went to Iran to negotiate with the
Supreme Leader following failed negotiations with President
Ahmadinejad. So here was the Venezuelans meeting me at the
airport in New York City on behalf of three Americans who were
arrested in Iran.
It just takes a little respect to get a long way,
particularly in these regions that I would concur with my
military friend, who I was quoting before, with whom we have so
much more in common than we do in difference.
Mr. Engel. Thank you very much, Mr. Penn. I have always
been a fan of yours for other reasons, but now I am really a
fan of yours. Thank you very much.
Mr. Penn. Thank you, sir.
Mr. Smith. Thank you, Mr. Engel.
Ms. Velazquez.
Ms. Velazquez. Thank you, Mr. Chairman.
Mr. Penn, thank you so much for bringing a unique
perspective that sometimes is lacking when we are dealing with
issues concerning Latin America. You know, here we are,
sometimes we don't like--we support and encourage democratic
processes throughout the world but when those democratic
processes produce results that we don't like then it brings a
different dynamic. And sometimes cases, like Mr. Ostreicher,
are linked to those dynamics whether we like it or not. I hope
that from this moment forward we seize the opportunity as a
government to improve our relationships with Latin America and
deal as equals. Because that is important.
So, as a private citizen, Mr. Penn, you have a unique
access to this case. My question to you is, given what you
know, given all the meetings that you have held with officials
in the past and the present, now they are saying that he is
going to be held under house arrest for 5 more months. Do you
see any light at the end of the tunnel in terms of a resolution
that gets him home within those 5 months? Or do you foresee
that it might take longer?
Mr. Penn. As long as the leadership maintains that this is
under the authority of the judiciary and claims a position that
they have no legal recourse outside of that, my experience with
and witness of that judiciary is I would have absolutely no
faith on Earth that he will ever leave Bolivia if it is left to
that.
Ms. Velazquez. You have worked in so many worthy causes,
from victims in Haiti after the earthquake in 2010 to Hurricane
Katrina in 2005. Could you take a moment and tell us what
compelled you to advocate for Jacob Ostreicher?
Mr. Penn. A colleague, the actor Mark Wahlberg, had called
me. I think that--my understanding is that he had had some
philanthropic activities with some of the rabbis from Mr.
Ostreicher's synagogue. And asked--I think initially he had
asked if I might bring the case to President Chavez. And at
that point, I informed him that I might be able to bring it
directly to President Morales, which is what I did.
And as I said, it was--you know I can give you a very
simple answer, it timed at a point when I could pay attention
to it. And in paying attention to it, I couldn't stop paying
attention to it.
Ms. Velazquez. Thank you.
Thank you, Mr. Chairman.
Mr. Smith. Mr. Nadler.
Mr. Nadler. Thank you. And thank you, Mr. Chairman.
Let me again start by thanking you, Mr. Penn, for your
activism in this and a few other things. Let me ask you a few
questions.
You said the President is--President Morales is fed up with
what he considers hegemony. Are you referring to the hegemony
of the United States or the judiciary?
Mr. Penn. Of the United States.
Mr. Nadler. Of the United States. And in light of that, you
suggested that American companies could put pressure on the
government by threatening to pull out of the Dakar Rally. Do
you think that would--there is a real risk that that would be
viewed as more hegemony and might backfire, or is that
something we ought to try?
Mr. Penn. Well, the companies themselves are not only U.S.
companies. I think that, you know, that this can come in a
variety of ways. I would like to consider, and I think that
myself in consultation with other supporters of Mr. Ostreicher
will send out a request for citizens on an international level
to support this and to make these reach-outs to these
companies. I would like to talk directly and attempt to talk
directly to these companies and people on the boards of these
companies.
But again, it goes back to the threshold consideration and
that there has been quite a concerted effort on behalf of Mr.
Ostreicher in a situation where virtually nothing else has
worked or made sense. I mean, I think in talking to anyone that
has been in proximity to this case, it really makes no sense.
And aside from Mr. Ostreicher and his family, the damage it is
doing is so particularly to the leadership in Bolivia and to
the people. This is, I believe, a wake-up call because it goes
very much to--the beneficiaries of that investment are going to
start with those who are in the opposition.
Mr. Nadler. Thank you. Do you think the President realizes
how much this is damaging Bolivia?
Mr. Penn. No. I don't think so. I think that the
President's area of expertise is very, very rich, and his areas
of deference to the expertise of others is fairly weighted as
well, and I have minimal faith in many of the others who
surround the President.
Mr. Nadler. Okay. Now, you either said or implied before
that you thought the President, President Morales, thought that
Mr. Ostreicher's treatment had been unfair but that he has
deferred to the judiciary. Now, I don't know what the situation
is in Bolivia, maybe you do, that is why I am going to ask the
question. In this country and in many countries, the
prosecutions, the prosecutors are agents of the executive
branch, not of the judiciary. Is that the case in Bolivia? I
mean, could the President simply tell the prosecutors to drop
the case?
Mr. Penn. Say that again, I am sorry.
Mr. Nadler. Could the President simply tell the prosecutors
to drop the case? Are they agents--are the prosecutors part of
the judiciary or are they agents of the executive branch in
Bolivia?
Mr. Penn. It is my understanding that once the 18 months
passed that this could come down from the executive branch.
Mr. Nadler. So we have to convince the President that he
could do it on his own without taking on the judiciary.
Mr. Penn. Yes.
Mr. Nadler. Let me ask you one other--okay. So your
judgment is that we should pursue this Dakar Rally despite some
risk of blow-back.
Mr. Penn. There is no question there is risk of blow-back.
Mr. Nadler. But the odds are that they should pursue it?
Mr. Penn. That is my feeling.
Mr. Nadler. Okay. Let me ask you another thing. Did you, in
talking to people in Bolivia, to the President, did you get any
blow-back in a different way: Who the heck are you Americans to
be talking about someone held for 2 years without a trial when
you have held hundreds of people in Guantanamo for 10 years
without a trial? Is this affecting this?
Mr. Penn. Yes. These things affect us, and it is part of
the daily conversation. In fact, in my own personal
circumstances, after the would-be-joke-were-it-not-so-tragic
hearing that I described in my initial statement, there was a
collection of those who had been involved: The lawyers, Embassy
staff, U.S. Embassy staff, Venezuelan Embassy staff, and
Bolivian Government there, it was at that time that Mr.
Ostreicher had decided that the only way to approach this--and
it is from him I take most of my guidance in answering your
questions--though I have not discussed the Dakar Rally with
him. I was concerned about discussing it prior to coming and
giving you the testimony--but I had discussed and had at his
request participated in going public, it is his general feeling
that it is----
Mr. Nadler. ``His'' meaning Mr. Ostreicher's?
Mr. Penn. Yes. And it was he that requested that we do a
press conference the day following that mockery of a hearing.
When we did so, I can tell you that after passing my prepared
statements that I had written that night before by the Minister
of Communications for the Bolivian Government as well as
several authorities within the judiciary, as well as those
representing the other governments who were participating in
support, even after getting all of my statements signed off on,
because I was looking to be very careful about how I did it,
the blow-back which started with the media response and the
media manipulation of the things that I had said and the way
that it was being used to misinform a challenged-literacy
population, worked very much against the President. And the
President was very upset by the statement I made and no doubt
will be upset by the statements I have made today.
I want to go on record saying I have enormous respect for
President Morales and great affection for the man, but I just
feel that my responsibility as a human being is with Jacob
Ostreicher on this issue. And I do think that President Morales
can only benefit from all of us speaking out at this point
because I think that he is like many world leaders, challenged
by a bubble and by corrupt forces within his own
administration.
Mr. Nadler. Well, we have to hope that you are right. And
we will pursue that, obviously.
And, again, thank you for your efforts on this and so many
other things.
I yield back.
Mr. Penn. Thank you.
Mr. Smith. Thank you very much, Mr. Nadler.
And thank you, Mr. Penn, for your, I think, extraordinary
testimony. I think your point, you know, ``challenged by a
bubble,'' what a way to put it, is excellent. He needs to know
what is going on, doesn't necessarily get the kind of
information that would make a difference. I really believe and
I hope the press takes note. You come here as a friend to Evo
Morales. Much of his politics, it wouldn't be something I would
agree with, but this is not about any of that, it is all about
Jacob Ostreicher, a man whose life is at grave risk. Justice
demands it, humanitarianism demands it. And I do think for Evo
Morales and the government to step up and release him now is
enlightened self-interest. It is harming the reputation of the
Bolivian Government.
I would disagree with you about the opposition. I do
believe oppositions, no matter where they are, play, whether it
be the United States or anywhere else, a constructive role. You
know, I never think of my Democratic friends as the enemy. We
are the loyal opposition, and vice versa. And I do think they
play a very good role. I know there are certain members of the
opposition who are facing charges themselves, Senator Pinto,
for example, and many others. It ought to be all about an
absolutely unassailable judiciary that just looks at
lawbreakers and then prosecutes them.
Mr. Penn. Yes, if I mistakenly generalized that, certainly,
I didn't mean it in a blanket sort of way.
Mr. Smith. Thank you. We do have a list, I will make it
part of the record, of all of the, so far, 27 individuals--and
I do hope the press and my colleagues will take a good, long
look at it starting with Fernando Rivera, lawyer of the
Ministry of Government. And as you go down it, we are talking
about very high-level people in the prosecution service who
themselves now are in Palmasola prison or under house arrest,
and five of them are fugitives. So, you know, this--the facade
of legitimacy has been ripped off. Jacob, sadly, has been the
cause, or the proximate cause, as to why that happened. But on
behalf of his family, we all just want him back. And you have
done, I think, a huge service to justice, democracy, human
rights, and to Jacob Ostreicher.
If you have anything you would like to say in conclusion,
or we will just conclude the hearing.
Mr. Penn. I would just thank you all, and I'm very honored
and grateful to have been able to share the comments.
Mr. Smith. Thank you, Mr. Penn, and we look forward to
working with you in the future. We appreciate it.
Mr. Penn. Thank you.
[Whereupon, at 4:30 p.m., the subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
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Material submitted for the record by the Honorable Christopher H.
Smith, a Representative in Congress from the State of New Jersey, and
chairman, Subcommittee on Africa, Global Health, Global Human Rights,
and International Organizations
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Material submitted for the record by the Honorable Eliot L. Engel, a
Representative in Congress from the State of New York
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