Broken Chains, Spanning a Continent

Colombia’s Supreme Court ruled that evidence collected during the 2008 “Operation Phoenix” is inadmissible in the nation’s courts. As with so much regarding the internal conflict, it comes as a surprise only to the Colombian government.

“Phoenix” was a cross-border bombing raid into the jungles of Ecuador in March 2008. The strike’s target was a FARC encampment, home to “Raúl Reyes” (real name: Luís Devia Silva; spokesperson for the guerrilla movement and member of the group’s Central High Command) and his not-so-merry men.

The raid touched off a diplomatic firestorm between Colombia’s completely unapologetic then-President Uribe and his Venezuelan and Ecuadorean counterparts. It turns out that Ecuadoreans were quite upset about having their airspace and sovereignty violated, their soil and even citizens bombed, and their territory invaded by foreign troops. That kind of conduct is generally considered in international relations circles to be, at best, horribly rude and at worst an act of war.

In the aftermath, Colombian military personal recovered evidence from the ruins of the guerrilla bivouac, including USB flash drives and laptop computers. The files found on the recovered equipment were used in criminal proceedings against politicians and even a Chilean national currently on trial in his native country and awaiting extradition to Colombia for his involvement with the FARC.

Until recently, that is.

The Chilean Supreme Court suspended the proceedings against Manuel Olate, and numerous criminal proceedings have come to a screeching halt due to the Colombian high court’s ruling.

It all comes down to the concept of “chain of custody.” In practical terms, it means that evidence can only be used in a criminal process when it’s been collected, stored, transported and transferred in accordance with a jurisdiction’s laws. Any disruption in the chain of custody creates the possibility for interference that could adulterate, alter or destroy the evidence in question, which in turn could affect the outcome of a trial. It’s why evidence lockers are so tightly controlled and why the police don’t give tours of active crime scenes.

To make a long story short, the Colombian Armed Forces stomped all over due process during Operation Phoenix. The evidence was collected:

• By military personal who lacked law enforcement powers and authorization to do so,
• In an area where Colombia has no jurisdiction of any kind,
• Without a warrant,
• And without the knowledge, consent or participation of the Ecuadorean government or the relevant law enforcement authorities.

To be fair, the Colombian government turned over the data to Interpol for independent verification, and that entity declared that it had found no traces of manipulation.

From a chain-of-custody/due-process perspective, though, there are two problems with this:

1. Interpol found no signs of tampering. That could mean that no one had fiddled with the bits, or it could mean that the transgressor(s) hid their tracks very, very well.
2. Interpol is not a Colombian national institution.

The Supreme Court made the right call: Even if the Raul Reyes laptops hadn’t been manipulated and had been certified as such, they would still be fruit of the poisonous tree; that is, the result of an illegal search. And it wouldn’t be beyond the realm of possibility for a cynic that the Colombian military—rarely an organization to get caught up in existential ethical conundrums over rights personal, civil or human—would contemplate or carry out evidence tampering.

Due to a broken chain of custody, the veracity of the evidence can be neither confirmed nor trusted. Without chain of custody, there can be no proof—and without it, no justice.