UPR Cluster Report on Political Prisoners: Leonard Peltier

United Nations Universal Periodic Review: Official Submission for the Cluster Report on “U.S. Political Prisoners and Domestic Repression”. 15 March 2010

The United States claims to be a government of law, promoting within its integral processes guarantees of fairness and justice. Through the U.S. Constitution, the Bill of Rights and the structure of its judicial system, the United States asserts that all persons within its borders shall be protected against arbitrary arrest and ensured a fair trial by an independent and impartial tribunal. These guarantees have been recognized as fundamental—not only in the United States, but also by the signatory nations of the Universal Declaration of Human Rights. In the United States, however, this basic protection has been and continues to be thwarted by security and intelligence agencies that use the judicial system as a tool of political repression against those who raise fundamental criticism against the domestic and foreign policies of the United States.

In 1981, Amnesty International (AI) issued a Proposal for a Commission of Inquiry into the Effect of Domestic Intelligence Activities on Criminal Trials in the United States of America (ISBN: 0 86210 038 0), citing the case of Leonard Peltier, a member and leader of the American Indian Movement (AIM), a civil rights organization which promoted the sovereignty of Indigenous Nations, as a graphic example of the growing menace to freedom and justice within the American judicial system. The AI proposal pointed to the use by the United States of coerced and now admittedly false eyewitness affidavits used to extradite Mr. Peltier from Canada to the United States for prosecution. Agents of the Federal Bureau of Investigation (FBI) terrified a young Indian woman named Myrtle Poor Bear into signing affidavits that she had seen Mr. Peltier kill two FBI agents on the Pine Ridge Indian Reservation during a firefight between AIM members and the FBI on June 26, 1975. Although the Court of Appeals referred to the use of the affidavits as a “clear abuse of the investigative process by the FBI,” the Court did nothing to correct this gross breach of international law and the extradition treaty between the United States and Canada.

Some four years after the 1977 conviction of Leonard Peltier by the United States, his attorneys determined under U.S. law (“Freedom of Information Act”) that some 18,000 pages of FBI files existed on the investigation of the firefight and prosecution of Leonard Peltier and his codefendants, rather than the 3,500 pages the government reported to the trial court. It is now known that the United States still suppresses over 140,000 pages (in their entirety or in part), largely claiming “national security” concerns as a reason therefore. Documents released, to date, have revealed that (contrary to published government accounts that the deceased agents were engaged in regular criminal investigations on the Pine Ridge Reservation in 1975) the FBI had planned a few weeks before the firefight to engage in a paramilitary operation against the men, women and children of AIM who lived in the very area where the firefight took place. One of the two agents killed in the firefight, trained in counterintelligence, was a Special Weapons and Tactics team member on special assignment to the reservation expressly for this purpose. The investigation of the deaths of the agents also was immediately transferred from the General Crimes Division of the FBI to the Intelligence Division—specifically under the direction of Richard Held, the then head of the Domestic Security Section of the FBI.

The FBI documents also revealed that the government targeted Peltier for criminal prosecution as being the man who actually killed the agents, although the evidence at most pointed to him as being one of 26 to 40 adult AIM members who engaged in the firefight with the FBI. According to one document, dated some two weeks after the firefight, the FBI decided to “lock Peltier into the case.” Later dated documents disclosed that the FBI not only fabricated the aforementioned affidavits, but also the only evidence the government claimed at trial linked Mr. Peltier to the killing of the agents. The documents revealed (counter to the trial testimony of a FBI “expert”) that the weapon attributed to Peltier could not have fired the bullets that killed the agents. Also, contrary to the government’s evidence at trial, the deceased agents did not chase a van containing Peltier onto the Jumping Bull property where the agents were later killed, but rather a red pickup with occupants unknown that is known to have left the scene within moments of the agents’ death.

The U.S. Court of Appeals, presented with this previously suppressed evidence, ruled in September 1986 that the government suppressed evidence and that the evidence tended to show the government’s chief witness lied about the most important evidence in the case, casting “a strong doubt on the government’s case”. However, had this evidence been available to the defense, the Court said, Leonard Peltier possibly (but not probably) would have been acquitted. The Court therefore affirmed the lower court’s denial of a motion for a new trial.

Since the 1980s, the U.S. Courts of Appeal have repeatedly acknowledged investigatory and prosecutorial misconduct in the Peltier case. As late as November 2003, the 10th Circuit Court of Appeals stated, "…Much of the government’s behavior at the Pine Ridge Reservation and its prosecution of Leonard Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed." The Courts have refused to take corrective action and the United States Supreme Court has refused to hear any appeal brought on Leonard Peltier’s behalf.

A model prisoner, Peltier was denied parole (early release under supervision of the criminal justice system) in 1994 and again in 2009, largely due to Peltier’s refusal to admit to a crime he did not commit. On 24 February 2010, parole authorities acknowledged Peltier’s advancing age, deteriorating health, significant release plan, and good prison record, but stated that these elements do not warrant his release. Peltier will not be considered for parole again until 2024. Further, in his final days as president, George W. Bush denied Peltier’s application for a grant of Executive Clemency. The application had been active since 1992.

AI has investigated this case for many years and called on the U.S. government to institute an executive review of the case (AI Index: AMR 51/160/1999, 15 July 1999). “Amnesty International considers Leonard Peltier to be a political prisoner... [and] believes that Leonard Peltier should be immediately and unconditionally released.” (AI representative Carlos Salinas, U.S. congressional briefing, 2000). Also, in briefings to the United Nations since 1992, AI has actively pursued Leonard Peltier's freedom, most recently submitting a briefing in February 2006 (updated in early July 2006). Following Peltier’s 2009 parole denial, senior deputy director of Amnesty International-USA, Curt Goering, responded: “Given that the case against Peltier unraveled years ago, his continued imprisonment is only protracting a grave miscarriage of justice... When you consider the concerns that plague the case... it is unconscionable that Leonard Peltier should continue to suffer behind bars.”

Despite the U.S. government’s admission in 1985 and again in 1992 that it does not know who killed the agents, “did not and can not prove” Peltier’s guilt, and does not know what part Peltier “may have played” in the deaths of the agents—also despite a recent admission by codefendant Robert Robideau (now deceased), who had been acquitted on grounds of self defense, that he alone shot the agents—Leonard Peltier continues to serve two consecutive life sentences in a maximum security prison. This case, which is not an isolated one, exemplifies how the U.S. government is willing to use its judicial system as an instrument of revenge, as well as to quash dissent in the United States. Even when a prisoner is able to prove this has occurred, he/she is provided with a limited forum for relief—and one lacking in substance.