U.S. Agencies Can’t Mesh, So Murder Suspect Walks

WASHINGTON —  When Dany Toussaint arrived at Miami International Airport on an American Airlines flight from Haiti on Jan. 22, alarm bells secretly went off all over the U.S. government.

Toussaint, a confidant of former Haitian President Jean-Bertrand Aristide, had once been the Clinton administration’s stalwart ally in its efforts to bring democracy and stability to Haiti. But he fell from grace when, as chief of the Haitian police force in 1995, he was suspected of playing a key role in a series of assassinations of Aristide’s right-wing political opponents.

Last August, the State Department asked the Immigration and Naturalization Service to place Toussaint on a “lookout” list of suspected terrorists and requested that the INS detain him if he tried to enter the country.

When Toussaint was detained in January, however, bewildered INS officials in Miami found that their requests for evidence against him were met by silence from the State Department, according to internal INS e-mail and other documents obtained by The Times.

Finally, word filtered back to senior immigration officials that the evidence was not held by the State Department, but by an unidentified “third agency”--apparently the CIA. Frustrated INS officials were forced to release Toussaint after two days and allow him to enter the United States. He returned to Haiti in April.

“I’m still not exactly sure what happened, to tell you the truth,” said one senior INS official. “I still haven’t seen the evidence against Toussaint.”

The Toussaint incident provides a rare glimpse into how America’s spies still find it difficult to cooperate with American law enforcement--even when that cooperation is needed to keep a suspected killer out of the country.

The Toussaint case is also one of several controversial Haiti-related incidents to become tinged by partisan politics. Republicans have charged that President Clinton has played down evidence of human rights violations by pro-Aristide forces in Haiti--including by officials of the U.S.-backed Haitian government--for fear of tarnishing what the White House sees as a foreign policy success.

Administration policy on Haiti is all about “keeping this thing in the win column,” complained a Republican congressional aide.

Administration officials, denying the charges, point out that FBI agents investigated the 1995 killing of Mireille Durocher Bertin, a Haitian attorney who was an outspoken Aristide critic. But Republicans note that Clinton and other administration officials spoke out more forcefully against the human rights violations committed by the military junta that was kicked out of power when U.S. troops entered Haiti in September 1994.

Nonpartisan human rights observers now agree that the administration has not done enough to help improve the Haitian security forces’ human rights record since the U.S. military occupation.

While government-sponsored killings have been sharply reduced since the military junta was deposed, “Haiti’s transition to a civilian-controlled police has been marred by serious human rights violations,” Human Rights Watch/Americas wrote in a critical report in January.

“The U.S. played a prominent role in reviewing and screening new officers for the Haitian National Police,” noted Sarah DeCosse, who wrote the report. “But U.S. officials didn’t do a good job of weeding out potential human rights abusers.”

There is no disagreement between the administration and Congress that Toussaint is among the abusers--a complete reversal of the reputation he enjoyed in the United States as recently as 1994.

Born weeks after his father was murdered by the Francois Duvalier regime in 1957, Toussaint became an army officer but refused to go along with the military coup that deposed Aristide in 1991. He narrowly escaped death during a shootout at the height of the coup, when he was credited with saving Aristide’s life and helping him get out of the country.

“Dany was part of a small group of Haitian military officers who risked their lives to support democracy in Haiti,” said Ira Kurzban, Toussaint’s Miami attorney, who also serves as general counsel of the current Haitian government of President Rene Preval.

After exile in Florida, Toussaint returned in triumph with Aristide in October 1994 and was named to head the interim national police force created by Aristide under U.S. sponsorship.

But in 1995, as Aristide cemented his power, high-profile killings of his right-wing opponents, such as Bertin, began to raise suspicions about whether hit squads were operating out of the interim police force run by Toussaint.

FBI agents in Haiti complained that they were met by Haitian government stonewalling in their probe of the Bertin killing. When they sought to interview one officer of Toussaint’s interim police force in June 1995, several armed Haitian police stood threateningly outside the interview room in a clear attempt to intimidate the FBI agents.

Frustrated, the FBI eventually pulled its agents out of Haiti, and no one has ever been tried or convicted in either the Bertin murder or subsequent political killings.

Toussaint has denied any involvement in the Bertin killing and accused the FBI of sullying his name.

“I think Dany Toussaint’s only crime is his support for democracy in Haiti, and particularly his support for Jean-Bertrand Aristide,” Kurzban said. “I think there are forces that really don’t want to see people like Dany in Haiti who are organized, who have military training and who are on the side of democracy.”

Toussaint was finally forced out of power, clearly under U.S. pressure. After Preval took over as Aristide’s successor in 1996, Toussaint became a security advisor to Aristide’s political party and started a business selling police security equipment.

Last year, Joseph Sullivan, director of the State Department’s Haiti working group, sent a letter to the INS asking that Toussaint be detained and that the INS begin legal proceedings to exclude him from the country if he tried to return to the United States.

The State Department asked the INS to place Toussaint in its terrorist “lookout” system last August. In its request to the INS, the State Department reported that “U.S. law enforcement and other information indicates that Toussaint has participated in extrajudicial killings, suggesting that Toussaint is excludable from the United States for having engaged in terrorist activities,” according to INS documents obtained by The Times.

The FBI also told the INS that it wanted Toussaint arrested. “The FBI has advised that the pick-up/arrest is . . . because the alien committed several murders, etc. while working as police chief in Haiti,” Daniel Vara, an INS attorney in Miami, wrote in internal INS e-mail last Aug. 13. In a prescient warning, Vara added that “excludability is based on evidence . . . that HAS NOT YET BEEN DISCLOSED TO INS.”

In a separate e-mail, Michael Cronin, an official at INS headquarters in Washington, wrote that “the . . . stuff on him is held by the FBI and the CIA, who would rather not reveal anything.”

When Toussaint finally showed up in Miami on Jan. 22, he was detained, interviewed by INS officials and held at the nearby Krome Detention Center. An FBI agent was sent to interrogate Toussaint, who refused to talk.

“Dany Toussaint is a Haitian national who was placed on lookout by the State Department for killing-squad terroristic activity in Haiti,” wrote Linda Osberg-Braun, an INS official in Miami, in internal e-mail to her colleagues on Jan. 24. “He is in our custody at Krome as of 1/22/97 and has HQ’s interest.”

But Osberg-Braun added that “unless and until the State Department provides us with the evidence, we will most likely parole him this afternoon.”

The State Department, although clearly eager to try to help the INS, was limited by intelligence community restrictions. “The State Department provided all of the information it had to INS, but State can’t give out classified information it receives from other agencies,” said an administration official.

That soon became clear to INS officials working the Toussaint case. ‘Spoke to DOS [John Rath/Haiti Working Group] regarding Dany Toussaint,” wrote INS official Gilbert Jacobs on Jan. 24 in internal e-mail to another INS staffer. “[State] indeed would like Toussaint excluded and does have additional information on the subject. Information comes from an intelligence source who in all likelihood will not provide information in an adversarial open court proceeding.”

If closed proceedings could be arranged, however, the State Department told Jacobs, “the intelligence source may be willing to cooperate.”

State Department officials, looking for a way around the use of the classified evidence against Toussaint, suggested that the INS try to exclude him by charging that he abandoned his U.S. residency status by returning to live in Haiti once Aristide returned to power.

Through a special program that is widely considered to be rife with fraud, Toussaint held a green card given to people who had worked as sugar cane workers or done other seasonal agricultural labor in the United States for at least 90 days between May 1985 and May 1986. Toussaint claimed he worked on a farm during that time, although he told INS officials he couldn’t remember which farm or where it was.

But INS officials knew better than their State Department counterparts just how tough it would be to make technical immigration charges stick. There was no specific time limit on how long individuals could be out of the United States before a green card expired; challenges to permanent-resident status were done on a case-by-case basis.

So the INS made it clear to the State Department that it would hold Toussaint only if it was given the classified evidence to support the more serious charges against him.

On Jan. 24, the State Department came back with its answer. “John Rath of the [State] Haiti Working Group just advised that they will not provide INS with any evidence of alleged wrongdoing by Mr. Toussaint,” Mary Jane Candaux, an official at INS headquarters in Washington, wrote in internal e-mail.

When the State Department declined, the INS released Toussaint, although it kept his green card and issued him a temporary travel document that allowed him to return to the United States.

While still considering launching exclusion proceedings against him, the INS has yet to do so. “His green card is being held in abeyance until further review,” said the senior INS official.

For Toussaint, the episode only seems to have enhanced his image in Haiti.

When he finally returned home to Port au Prince, he was met by cheering supporters chanting his name. As he left the airport, he explained to reporters: “They asked me questions which I couldn’t answer about the deaths of some people.”