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Cablegate: Colombian Counterproposal to U.S. Defense

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P 121605Z NOV 08
FM AMEMBASSY BOGOTA
TO RUEHC/SECSTATE WASHDC PRIORITY 5535
INFO RUEHBR/AMEMBASSY BRASILIA PRIORITY 8485
RUEHCV/AMEMBASSY CARACAS PRIORITY 1307
RUEHPE/AMEMBASSY LIMA PRIORITY 6724
RUEHZP/AMEMBASSY PANAMA PRIORITY 2629
RUEHQT/AMEMBASSY QUITO PRIORITY 7419
RUEKJCS/SECDEF WASHDC PRIORITY
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RHMFISS/CDR USSOUTHCOM MIAMI FL PRIORITY

C O N F I D E N T I A L BOGOTA 004083

SIPDIS

E.O. 12958: DECL: 11/12/2018
TAGS: PGOV PREL MARR PREF PTER MASS CO
SUBJECT: COLOMBIAN COUNTERPROPOSAL TO U.S. DEFENSE
COOPERATION AGREEMENT

Classified By: Ambassador William R. Brownfield
Reasons 1.4 (b and d)

1. (U) This is an Action Request. See paragraph 5.

SUMMARY
-------
2. (C) On October 23 the Ministry of Foreign Affairs of the
Government of Colombia (GOC) delivered its official response
to Embassy Bogota on the Defense Cooperation Agreement text
that we proposed on August 13. The GOC counterproposal is
generally consistent with prior GOC statements that any
agreement should: 1) avoid the use of the word "base;" 2)
place the agreement under the umbrella of existing bilateral
and multilateral accords to avoid the need for Colombian
congressional approval; and 3) provide U.S. security
assurances to the GOC as a "quid pro quo" for access rights.
Post has identified several problematic issues in the GOC
counterproposal, together with possible solutions that would
address our concerns while meeting GOC needs. Post requests
that the Department consider sending a technical negotiating
team to Bogota in the near future to begin formal
negotiations. An official translation of the GOC's
counterproposal is included in paragraph 6. End Summary.

DRAFT CONSISTENT WITH GOC COMMENTS
----------------------------------
3. (C) The GOC's October 23 counterproposal is generally
consistent with remarks made to the Ambassador and other
senior Embassy officials by President Uribe, Defense Minister
Santos, and Foreign Minister Bermudez. These senior GOC
officials have said the proposed agreement should avoid the
use of the word "base," should be linked to earlier bilateral
and multilateral agreements to avoid the need for Colombian
congressional approval, and should provide U.S. security
assurances to the GOC as a "quid pro quo" for access rights.
President Uribe has also said he would like to conclude an
agreement before the end of the year.

EMBASSY COMMENTS TO GOC DRAFT
-----------------------------
4. (C) Post believes it is important that in negotiating this
agreement with the GOC, we seek language that addresses our
concerns while being as responsive to the GOC's needs as
possible. In this context, Post has identified the following
issues with the GOC counterproposal--as well as possible
solutions--that will need to be addressed:

ISSUE ONE: The GOC has included within the agreement's
preamble references to numerous existing bilateral and
multilateral agreements. The title has also been changed
from "Defense Cooperation Agreement" to "Supplemental
Agreement for Cooperation and Technical Assistance," in order
to place it under the umbrella of existing bilateral accords.
These edits are consistent with the GOC's goal of avoiding
the need for Colombian congressional approval. The changes
would also make it easier for the GOC to sell the agreement
to the Colombian public and the region as simply an extension
of our existing cooperation, rather than as a major
escalation in U.S. engagement. COMMENT: Post believes that
tying the agreement to existing bilateral and multilateral
agreements does not impact U.S. interests and is important to
the GOC's capacity to conclude an accord. If we can get the
access and authorities we need by changing the title, we
recommend changing the title.

ISSUE TWO: The GOC-proposed Article III states that the
parties "agree to" undertake a number of measures to increase
cooperation and technical military cooperation in order to
"confront common threats to peace and stability." COMMENT:
To limit a possible open-ended U.S. security commitment under
this provision, Post suggests that we insert a less binding
verb such as "agree to study" or "agree to consider" in place
of "agree to."

ISSUE THREE: The GOC draft of the second paragraph of
Article IV provides that the U.S. "guarantee rapid and direct
access" to the GOC of "goods and services necessary to
address "threats to its national security." COMMENT: To
avoid U.S. material being used in a potential regional
conflict, Post suggests that this language be amended to

require that both the U.S. and Colombia need to agree on what
constitutes "threats to its national emergency," thus
effectively granting us a veto over the use of any U.S.
"goods or services" under this provision.

ISSUE FOUR: The GOC draft of the third paragraph of Article
IV provides that within two years of signing the agreement,
the U.S. shall install and make operational "comprehensive
aerial defense systems" in order to provide necessary
security on the "agreed facilities and others of strategic
value for purposes," which systems shall transfer "free of
charge" to the GOC at the conclusion of the agreement. This
provision is clearly aimed at external threats, particularly
Venezuela. COMMENT: Post believes the GOC does not
appreciate the cost and scope entailed in building an
integrated air defense system, which could cost billions of
dollars and take years to develop. Post recognizes that the
proposed GOC language is unacceptable, and suggests that we
try to remove the provision from the agreement and deal with
it in the context of other bilateral discussions. If the GOC
insists on its inclusion, we propose a two-track approach in
which the U.S. would "commit to assess the operational
requirement for comprehensive air defense systems for use and
operation by the GOC," coupled with language in which the
U.S. would "commit to provide for the protection of USG
aircraft and personnel" (but not installations) in the event
of a threat to these assets. The latter provision should be
drafted to allow for all possible responses to protect USG
assets, including the withdrawal of such assets from Colombia
if necessary. Finally, we should begin to consider quietly
whether we would be prepared to provide some air defense
equipment to Colombia should that be the price of a DCA.

ISSUE FIVE: The GOC has deleted the status of armed forces
(SOFA) language that we proposed. Instead, Article VI of the
GOC draft links privileges and immunities (P&I) to the 1974
agreement titled "Agreement Between the Government of the
United States of America and the Government of the Republic
of Colombia Concerning an Army Mission, a Naval Mission and
an Air Force Mission of the United States of America Armed
Forces in the Republic of Colombia" (commonly known as the
"1974 Agreement"). This again reflects the GOC's desire to
link to earlier agreements in an effort to avoid the need for
a Colombian congressional vote. COMMENT: The wording of
Article VI and the 1974 Agreement will need to be reviewed
carefully by technical experts, but Post believes that the
GOC approach represents an acceptable way forward. The
provisions in the 1974 Agreement--which also links to an
earlier 1962 bilateral accord--appear to provide technical
and administrative P&I to USG personnel, and as such would
meet the P&I needs provided for in our draft agreement.

ISSUE SIX: Post proposes insertion of a new clause in
Article XVII wherein the parties would commit to sign a
technical Memorandum of Understanding (MOU) within 60 days of
signing the underlying agreement. The MOU would address more
detailed operational issues, thereby facilitating rapid and
seamless implementation of the underlying agreement.

5. (C) Action Request. Post requests that the Department
consider sending a technical negotiating team to Bogota in
the near future to begin formal negotiations.

OFFICIAL TRANSLATION OF GOC TEXT
--------------------------------
6. (U) An official translation of the GOC counterproposal
follows, provided by U.S. Department of State, Office of
Language Services, Translating Division:

Republic of Colombia
Ministry of Foreign Relations

The Ministry of Foreign Relations presents its compliments to
the Embassy of the United States of America and refers to its
note verbale No. 2349 of August 13, 2008, which includes a
proposal for a defense cooperation agreement.

In this regard, the Government of Colombia attaches hereto
its counterproposal entitled "Supplemental Agreement for
Cooperation and Technical Assistance between the Governments
of the Republic of Colombia and of the United States of

America."

(Complimentary close)
Bogota, D.C., October 21, 2008

Embassy of the United States of America, Bogota. LS No.
10-2009-0340-B.

SUPPLEMENTAL AGREEMENT FOR COOPERATION AND TECHNICAL
ASSISTANCE BETWEEN THE GOVERNMENTS OF THE REPUBLIC OF
COLOMBIA AND OF THE UNITED STATES OF AMERICA

The Government of the Republic of Colombia ("Colombia") and
the Government of the United States of America ("the United
States"), hereinafter referred to collectively as "the
Parties" and singularly as "the Party":

In the framework of the General Agreement for Economic,
Technical, and Related Assistance between the Government of
the United States and the Government of the Republic of
Colombia, signed in 1962 ("the 1962 Agreement"); the
Agreement between the Government of the Republic of Colombia
and the Government of the United States of America concerning
an Army Mission, a Naval Mission, and an Air Force Mission of
the United States of America Armed Forces, signed in 1974;
the United Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances (1988); the United
Nations Convention against Transnational Organized Crime
(2000); the conventions on the fight against terrorist
activities signed within the framework of the United Nations
and the Organization of American States, to wit: the
Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, Including Diplomatic
Agents, adopted by the United Nations General Assembly on
December 14, 1973; the International Convention against the
Taking of Hostages, adopted by the UN General Assembly on
December 17, 1979; the International Convention on the
Suppression of Terrorist Bombings, adopted by the UN General
Assembly on December 15, 1997; the International Convention
for the Suppression of the Financing of Terrorism of December
9, 1999; the Convention to Prevent and Punish Acts of
Terrorism Taking the Form of Crimes against Persons and
Related Extortion that are of International Significance
(1971); the Protocol on the Suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation,
supplementary to the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation of
September 23, 1971, signed at Montreal on February 24, 1988;
the Convention on Offences and Certain Other Acts Committed
on Board Aircraft, signed at Tokyo on September 14, 1963; the
Convention for the Suppression of Unlawful Seizure of
Aircraft, signed at the Hague on December 16, 1970; the
Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation, signed at Montreal on September 23,
1971; and the Inter-American Convention against Terrorism,
adopted at Bridgetown, Barbados, on June 3, 2002, to which
both States are party, and United Nations Security Council
Resolution No. 1373 of 2001;

Observing that the Annex to the General Agreement for
Economic, Technical, and Related Assistance between the
Government of the United States of America and the Government
of the Republic of Colombia, signed in 2004, establishes a
bilateral narcotics control program, including a
comprehensive program to counter drug trafficking, terrorist
activities, and other threats to the national security of the
Republic of Colombia;

Noting the Memorandum of Understanding for a Strategic
Security Relationship to Promote Cooperation between the
Governments of the Republic of Colombia and of the United
States of America of March 14, 2007;

Noting the record of bilateral cooperation to counteract
persistent threats to peace and stability, such as terrorism,
the global drug problem, organized transnational crime, and
the proliferation of small and light weapons;

Recognizing the importance of strengthening the
interoperability of the Armed Forces of Colombia by
increasing their capacity to cooperate with foreign and

multinational military forces in the areas of communications,
technology, logistics, procedures, and military doctrine;

Noting the work carried out by the Colombia-United States
Defense Bilateral Working Group and its Steering Committee
over the past several years;

Recognizing the need to strengthen the strategic security
relationship between the two States, foster closer bilateral
defense and security cooperation, and address common threats
to peace, stability, freedom, and democracy;

Affirming that this strategic relationship of security and
technical cooperation is based upon full respect for the
sovereignty of each Party and the purposes and principles of
the United Nations Charter;

HAVE AGREED AS FOLLOWS:

Article I
Definitions
For purposes of this Agreement:
(a) "Civilian personnel" means civilian employees of or
persons formally assigned to the United States Department of
Defense who are in Colombia to carry out activities under
this Agreement and civilian employees of other United States
Government departments and agencies who are present in
Colombia in direct support of a United States Department of
Defense mission in connection with activities under this
Agreement.
(b) "Military personnel" means members of the United States
Armed Forces who are in Colombia to carry out activities
under this Agreement.
(c) "United States personnel" means United States military
and civilian personnel who are in Colombia to carry out
activities under this Agreement.
(d) "United States contractors" means a natural person or
legal entity that has entered into a contract with the United
States Department of Defense to provide goods and services
for activities carried out under this Agreement.
(e) "United States contractor employees" means individuals
who are employed by a United States contractor for activities
under this Agreement.
(f) "Aircraft riders" means representatives of the Republic
of Colombia or third-party States who, once authorized by the
Government of Colombia and by invitation from the Government
of the United States of America, participate as observers in
aerial missions in connection with this Agreement.
(g) "Agreed facilities" means those sites, facilities,
structures, and locations to which the United States
Government is authorized access and use by the Government of
Colombia in connection with activities under this Agreement.
(h) "Executive Agents" means the Ministry of Defense for
Colombia and the Department of Defense for the United States.
(i) "Dependents" means spouses, children, and relatives
forming part of the household of United States personnel and
who are present in the territory of Colombia in connection
with activities under this Agreement.

Article II
Bilateral Defense Consultations
The Parties agree to continue bilateral defense consultations
through the Colombia-United States Defense Bilateral Working
Group (BWG) to further the strategic relationship between the
two States.

Article III
Goal of Cooperation
The Parties, in accordance with their bilateral and
multilateral agreements currently in force, and subject to
the legal system of each, agree to increase cooperation and
technical-military assistance with a view to increasing
interoperability; improving joint procedures; strengthening
logistical assistance; expanding the scope of training and
instruction; scaling up exchanges of intelligence, equipment,
experiences, and knowledge; conducting joint military
exercises; and carrying out all necessary activities to
comply with the provisions of the aforementioned agreements,
in order to address common threats to peace and stability,
within the framework of international law.

All technical military assistance and activities within
Colombian territory shall be subject to authorization and
oversight by the appropriate Colombian Government
authorities, not to exceed the provisions established in
bilateral and multilateral cooperation agreements and
treaties signed by the Parties, or Colombian regulations.

Specifically, no provision of this Agreement shall modify the
provisions set forth in the Maritime Interdiction Agreement
or in the Agreement (between the Government of the United
States of America and the Government of the Republic of
Colombia) concerning the Program for the Suppression of
Illicit Aerial Traffic in Narcotic Drugs and Psychotropic
Substances (Air Bridge Denial).

The Parties shall comply with their obligations under this
Agreement in a manner consistent with the principles of
sovereign equality, territorial integrity, and
non-intervention in the internal affairs of other States.

One Party shall not exercise in the territory of the other,
any responsibility or task reserved exclusively for its own
authorities in accordance with its domestic law.

Article IV
Access to and Use of Agreed Facilities
For the purposes established in Article III hereof, the
Government of Colombia, subject to its domestic law, agrees
to grant the United States access to and use of its
facilities at German Olano Moreno Air Base, Palanquero; the
Alberto Pawells Rodrguez Air Base, Malambo; the Capitan Luis
Fernando Gmez Nino Air Base, Apiay; and other official
facilities as agreed upon by the Parties.

The Government of the United States shall guarantee the
Government of Colombia rapid and direct access to any goods
and services necessary to confront threats to its national
security, by means of logistical and storage systems agreed
upon by the Executive Agents.

Moreover, the Government of the United States agrees to
install and make operational comprehensive aerial defense
systems for use and operation by Colombian authorities,
within a period of no more than two years from the date of
signature of this Agreement, so as to provide the necessary
security to the agreed facilities and others of strategic
value for purposes of ensuring national security, and to
transfer these systems to the Government of Colombia free of
charge upon termination of this Agreement.

The access described in the first paragraph of this Article
shall be granted to United States contractors, United States
contractor employees, and official aircraft riders, ships,
aircraft, and vehicles upon compliance with the security
protocols established by the Executive Agents for such
purpose.

Article V
Respect for Domestic Law
United States personnel, their dependents, contractors,
contractor employees, and aerial riders shall respect
Colombian law and shall abstain from any activity
incompatible with such law and this Agreement.

Article VI
Privileges and Immunities
1. United States personnel present in Colombia by virtue of
this Agreement shall be part of the diplomatic mission of the
Government of the United States of America in Colombia and
shall enjoy the privileges and immunities established in the
(General) Agreement for Economic, Technical, and Related
Assistance between the Government of the United States of
America and the Government of the Republic of Colombia of
1962; and the Agreement between the Government of the
Republic of Colombia and the Government of the United States
of America concerning an Army Mission, a Naval Mission, and
an Air Force Mission of the United States of America Armed
Forces, signed in 1974, for personnel of equal rank.
2. The appropriate United States authorities shall give
favorable consideration to any request to renounce immunity
in cases considered to be of special importance by Colombian

authorities.
3. Colombian authorities agree to assist with immigration
procedures to facilitate the entry into and exit from
Colombia of United States personnel, their dependents,
contractors, contract employees, and aircraft riders who
enter and exit Colombia to carry out activities under this
Agreement.
4. Pursuant to Article IV of the 1962 Agreement, any goods
used under this Agreement by the Government of the United
States or by United States contractors shall be exempted from
the payment of property and use taxes and any other duty,
including taxes, tariffs, customs duties, or similar charges
associated with the import, export, purchase, use, or
disposition of such goods.
5. Pursuant to Article IV of the 1962 Agreement, United
States personnel, with the exception of Colombian citizens or
other permanent residents of Colombia, shall be exempt from
the payment of income and social security taxes under
Colombian law; and from taxes on sales, property, use, or
disposition of personal property, including automobiles for
personal use. Such personnel and their family members shall
receive the same treatment concerning the payment of customs
duties, and those levied on the import or export of personal
goods, including automobiles imported into Colombia for
personal use, as that granted by the Government of Colombia
to diplomatic personnel of the United States Embassy in
Colombia.
6. The Government of Colombia shall accord the import regime
it considers most expeditious to goods imported under this
Agreement.

Article VII
Land Ownership and Use
1. The authorities of Colombia shall, without charging
rental or similar costs, allow access to the agreed
facilities in accordance with the provisions of Article IV
hereof, as well as to easements and rights of way owned by
Colombia that are necessary to facilitate the activities
under this Agreement, including agreed construction. The
United States shall cover all necessary operations and
maintenance expenses associated with the use of agreed
facilities.
2. Colombia shall retain the right of ownership of, and
title to, agreed facilities, including buildings,
non-relocatable structures, and assemblies connected to the
soil. Permanent buildings, non-relocatable structures, and
assemblies constructed by the United States shall be for the
use of the United States unless otherwise agreed by the
Executive Agents. The Parties shall have access, pursuant to
the security protocols established by the Executive Agents,
to the agreed facilities, and to the permanent buildings,
non-relocatable structures, and assemblies constructed by the
United States.
3. At the termination of use of any agreed facility or
portion thereof, including those constructed, improved,
modified, or repaired in connection with this Agreement, the
United States shall, after due consultation between the
Parties, transfer such facilities to Colombia in "as is"
condition. The United States shall incur no expense for such
return. The United States shall not be obliged to remove any
facilities, buildings, or improvements thereto that have been
constructed with its own funds, unless such an obligation was
stipulated by Colombia at the time of construction.

Article VIII
Construction
New construction, improvements, or modifications to the
agreed facilities under this Agreement shall require the
authorization of the Executive Agent of Colombia.
The Executive Agent of the Government of Colombia shall be
responsible for facilitating the permits and/or licenses
required by the appropriate authorities of the Republic of
Colombia. The costs of local licenses, permits, or taxes
associated with the facilities shall be paid pursuant to
agreement reached among the Executive Agents for each case.

Article IX
Utilities
The United States and United States contractors may use
water, electricity, and other public utilities and services
for construction, improvement, and use of the agreed

facilities in connection with activities under this
Agreement. The United States and United States contractors
shall pay the legally established rates for utilities
requested and received.

Article X
Administrative Facilitation
The United States, United States personnel, United States
contractors, and United States contractor employees, acting
in connection with activities directly related to this
Agreement, shall receive from Colombian authorities all
necessary cooperation with regard to the prompt processing of
all administrative procedures.

Article XI
Uniforms and Weapons
The use of uniforms for United States military personnel is
governed by Article 8 of the Agreement between the Government
of the Republic of Colombia and the Government of the United
States of America concerning an Army Mission, a Naval
Mission, and an Air Force Mission of the United States of
America Armed Forces, signed in 1974.
In the facilities agreed upon by the Parties, United States
military personnel are authorized to wear uniforms and to
carry United States government weapons while on duty, in
accordance with Colombian regulations.

Article XII
Security
Colombian authorities are responsible for the oversight and
physical security of the agreed facilities. The authorities
of Colombia and the United States shall consult each other
and take such steps as may be necessary to ensure the
security of United States personnel, dependents, United
States contractors, United States contractor employees, and
United States property.

Article XIII
Insurance Policies and Claims
Without prejudice to any legal action or the obligation of
the Government of the United States to secure insurance
policies that guarantee compensation for any damages that may
be caused by United States personnel, claims filed for
damages, injury, or loss caused by such personnel may be
filed, evaluated, and, where appropriate, resolved in favor
of the complainant by the Government of the United States, in
accordance with its laws and regulations, and with
international law. With respect to the foregoing, the
Government of Colombia does not waive any rights it may have
under international law to file claims against the Government
of the United States through diplomatic channels.

Article XIV
Environment, Health, and Safety
The Parties agree to implement this Agreement in a manner
consistent with the protection of the natural environment and
human health. The United States confirms its commitment to
respect relevant Colombian environmental and health laws,
regulations, and standards in the implementation of this
Agreement.

Article XV
Facilitation of Aircraft Riders
Upon securing authorization from Colombian authorities, the
United States shall facilitate the stay of third-country
aircraft riders at the agreed facilities.

Article XVI
Resolution of Disagreements
Any disagreement that may arise from the interpretation of
this Agreement, or its implementing arrangements, shall be
settled through consultation between the Parties, including,
as necessary, through diplomatic channels, and shall not be
referred to any national or international arbitration court
or tribunal, or similar body, nor to any third party for
settlement. No provision of this Agreement may be
interpreted in a manner that contradicts Colombian law.

Article XVII
Implementation and Amendment
1. The Executive Agents shall enter into the implementing

arrangements as necessary to carry out the provisions of this
Agreement.
2. In a spirit of close cooperation, the Executive Agents
shall consult each other regularly with a view to ensuring
satisfactory implementation of and compliance with the
provisions of this Agreement. When reviewing activities
under this Agreement, the Parties shall evaluate such
activities in terms of, inter alia, shared benefits and
responsibilities.
3. Either Party may request consultations with a view to
amending the present Agreement. Any amendment to the present
Agreement shall be made in writing.
4. This Agreement shall enter into force upon signature.
5. This Agreement shall remain in force for a period of ten
years. In order to extend this Agreement, the Parties shall
determine the conditions for its extension one year prior to
its expiration date.
6. Either of the Parties may terminate this Agreement by
means of written notification through diplomatic channels
with one year of advance notice.

IN WITNESS WHEREOF, the undersigned have signed this
Agreement in the English and Spanish languages, both texts
being equally authentic.
DONE at , on this day of , 20 .

End of official translation.
BROWNFIELD

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