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Bout Trial To Open Amid Legal, Diplomatic Controversy – Analysis

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The long-awaited trial of Viktor Anatol’evich Bout, more popularly known as the ‘Merchant of Death’, is set to open tomorrow in Manhattan. But the outcome is anything but certain and tensions are high – both inside the courtroom and on the world stage.

By John CK Daly

If what is being leaked about the trial is reliable, the case is anything but a simple victory for the US government – and unless issues of ‘national security’ are invoked, the trial is certain to embarrass the CIA and Pentagon, both of which used Bout’s services.

Viktor Bout in the custody of DEA agents on November 16, 2010 after being extradited to the United States
Viktor Bout in the custody of DEA agents on November 16, 2010 after being extradited to the United States

Additionally, the trial has the potential to significantly impact US-Russian relations, with the Russian government vociferously protesting the proceedings. The Russian government maintains that Bout is a simple businessman entrapped by overzealous US federal agents. Of course, the Kremlin is loath to have Bout discuss what he knows about the illicit arms trade in the post-Soviet space.

While Moscow has not yet made explicit how it would react to a Bout conviction, the administration of Prime Minister Vladimir Putin could apply pressure on Washington in many ways – perhaps most notably through the Northern Distribution Network, the logistical supply route for US and NATO forces in Afghanistan that snakes through the Russian Federation and Central Asia.

The charges

The US government indictment charges the 44-year-old Russian citizen with conspiracy to kill US nationals, conspiracy to kill US officers or employees, conspiracy to acquire and use an anti-aircraft missile and conspiracy to provide material support or resources to a designated foreign terrorist organization. In essence, Bout is being accused of aiding and abetting the Revolutionary Armed Forces of Colombia (FARC), the left-wing guerilla movement that has been battling the Colombian government for more than 40 years. Court documents state that between November 2007 and February 2008 Bout and his co-defendant Andrei Smulian agreed to sell FARC rebels millions of dollars worth of weapons. Bout and Smulian were charged with conspiracy to provide material support to a designated foreign terrorist organization.

In addition, Bout’s years spent running arms across Africa will undoubtedly also surface during the trial.

If convicted on all counts, Bout faces a mandatory minimum of 25 years in prison and a maximum sentence of life in prison.

A long, politicized path to trial

US Drug Enforcement Administration (DEA) personnel arrested Bout in Bangkok on 5 March 2008, and Thai law was bent to keep Bout in prison for an extended period. While the law originally provided for him to be held for 12 days, a period that could be extended seven times to a total of 84 days, Bout was in fact detained for more than two years in Bangkok’s Klong Prem maximum-security prison. While the US was requesting the extradition of Bout and Smulian, a report of 10 March 2008 noted that Smulian had already appeared and been charged in a Magistrates’ court in Manhattan. Bout claims that Smulian set him up, saying in a prison interview, “I am in jail because of Andrew Smulian.”

The case entered the political arena in February 2009 when 22 members of the US Congress sent a letter to US Attorney General Eric Holder and Secretary of State Hillary Clinton, urging them to make the Bout case a priority, writing, “Reports suggesting that the Russian government is attempting to negatively influence this process only heightens our concern.”

After more than two years of legal wrangling, Bout was extradited from Thailand to the US on 17 November 2010.

Bout believes that the Thai government reached a quid pro quo with Washington, agreeing to turn him over in return for a US’ decision to mute criticism of the Thai government’s repression of demonstrators. According to documents released by WikiLeaks, a cable dated 13 August 2009 reports that US President Barack Obama reportedly called Thailand’s Prime Minister Abhisit Vejjajiva about Bout.

Writing a prison diary while in US custody that he later turned over to the Russian newspaper Novaia Gazeta, Bout wrote:

“On 23 May 2010, Bangkok was aflame in the wake of the dispersal of a rally (when the Army killed 89 people), 36 buildings had been set on fire, and everything was shut down for 10 days. It was a real civil war […] The US administration criticized the Abhisit Vejjajiva’s government for using force, threatening it with sanctions. And then it all suddenly stopped, as if by magic. That happened exactly on May 23. Perhaps, Abhisit was using my sentence as a trump card: the US would stop twisting Bangkok’s arms, and Thailand would extradite Bout in return […]”

Building toward a conviction?

Bout’s extradition to the US was initially greeted with elation. US Attorney General Eric Holder said at the time, “Viktor Bout has been indicted in the United States, but his alleged arms trafficking activity and support of armed conflicts in Africa has been a cause of concern around the world. His extradition is a victory for the rule of law worldwide.”

The US government has long had Bout in its crosshairs. In 2004, after monitoring his weapons trafficking activities in Liberia, the Treasury Department’s Office of Foreign Assets Control placed Bout on the Specially Designated Nationals list, which prohibited transactions between him and any US nationals and froze his US assets, a largely empty gesture since Bout had no significant assets in America.

But Bout has long had important supporters – chief among them the Russian government.

And the foundation of the US case is running into problems.

On 17 June Federal Judge Shira A Scheindlin called the government’s case against Bout “thin”. On 24 August Scheindlin granted Bout’s request to exclude the comments he made to DEA agents after his arrest in Bangkok, saying that the agents ignored his request for more time to decide whether to talk. Scheindlin wrote in her ruling that Bout said he was told that if he didn’t speak immediately, he’d be left in a Thai jail to face “heat, hunger, disease and rape,” adding, “When coupled with the agents’ deceptive suggestion that if Bout ‘cooperated’ he could come back to the United States with them, I find that this credible threat of violence also materially induced Bout to make statements.”

Scheindlin added that the “Google effect” could be “a major problem” in making certain that Bout’s jury trial is fair, telling defense lawyers at a pretrial hearing, “I’m concerned too. This is an easy case to Google. All you have to do is get the spelling right.”

In a follow up on 6 October, Scheindlin announced that she will require jurors not to research the case on the Internet – a first-of-its-kind decision that sets a remarkable precedent on the eve of the trial.

The stakes are clearly high for this long-awaited, high profile trial – the outcome of which is anything but certain.

Dr John CK Daly is a non-resident Fellow at Johns Hopkins Central Asia-Caucasus Institute in Washington, DC. He holds a PhD in Russian and Middle Eastern studies from the University of London. Published by International Relations and Security Network (ISN)

ISN Security Watch

The ISN is one of the world's leading open access information and knowledge hubs on IR and security issues, based at ETH Zürich, Switzerland.

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