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Cablegate: For Release: Dip Note On Access to Colombian Extraditees

VZCZCXYZ0001
RR RUEHWEB

DE RUEHC #7191 3451939
ZNR UUUUU ZZH
R 111931Z DEC 09
FM SECSTATE WASHDC
TO RUEHBO/AMEMBASSY BOGOTA 0000
INFO RHMFIUU/DEPT OF JUSTICE WASHINGTON DC
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC

UNCLAS STATE 127191

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PREL KJUS SNAR CO
SUBJECT: FOR RELEASE: Dip Note on Access to Colombian Extraditees

1. (SBU) Washington requests Embassy Bogota deliver the below
diplomatic note, at para 3, to an appropriate level of the Foreign
Ministry.
Please encourage the MFA to share the diplomatic note with relevant
parts of the GOC and other governmental branches, sub-divisions and
levels, as well as individual officials, at GOC discretion.
Embassy is also authorized to share unofficially some or all of the
note with the same.
2. (U) The below diplomatic note outlines those procedures which
shall be followed by Colombian officials -- consular, criminal
justice, and other -- who want access to Colombian citizens
incarcerated in the United States. The note responds to GOC
requests for clarification and establishes consistent procedures
for all Colombian officials, depending on the purpose of their
access request.
3. (U) BEGIN TEXT:

[Complimentary opening] and makes reference to the efforts of the
last several months by various Colombian government officials and
individuals to seek access to Colombian citizens incarcerated in
the United States, either awaiting or following prosecution, who
are also accused of or have knowledge of serious crimes being
investigated and prosecuted in Colombia. These visits have been
made, or attempted, by Colombian officials from the judiciary, the
executive, and the legislature. The United States takes this
opportunity to reiterate and clarify the procedures that such
officials should follow in requesting and arranging such visits to
ensure that they occur without unnecessary difficulty and in
accordance with applicable international conventions, U.S. domestic
law, detention facility regulations, and previous agreements
between the United States and the Government of Colombia.

Visits by Consular Officials: The United States is committed to
meeting its obligations under relevant consular conventions and
will continue to facilitate, within the bounds of its international
legal obligations, the access of Colombian consular officials to
these individuals. Most consular visits made in accordance with
the Vienna Convention on Consular Relations of 1963 (Vienna
Convention) require no advance approval by the United States and
can be arranged by consular officials directly with the detention
center. The United States has no objection to consular visits by
accredited consular officers to detained Colombian nationals who
consent to such visits, provided the purpose of the visit is to
perform a traditional consular function aimed at safeguarding the
detained nationals own personal interests. These include the
functions expressly set forth in Article 36: conversing and
corresponding with the detainee and arranging for his legal
representation. Another permissible consular function is the
delivery of correspondence addressed to the detainee, subject to
applicable regulations of the detention facility. This
correspondence could include a notification
informing the detainee that judicial proceedings have been opened
against him in a Colombian court. It would then be within the
scope of the consular officers duties to assist the detainee in
transmitting messages to the Colombian court or to his Colombian
counsel, provided any such assistance accords with applicable
regulations of the detention facility.

The United States has become aware, however, that recently there
have been instances in which non-consular officials have
represented themselves to be consular officers and obtained
entrance into U.S.
detention facilities. We respectfully request that the Government
of Colombia advise its officials and consular officers that it is
not appropriate for non-consular officials to make such
representations.
Colombian officials who are not duly accredited consular officers
can follow other protocols, described below, to arrange official
visits with Colombian citizens detained in the United States.
Improperly identifying themselves as consular officials can result
in delay or denial of their own visits and can make it more
difficult for accredited consular officials to conduct routine
consular visits. The United States wishes to reiterate that all
visits, including visits by consular officers, must be undertaken
in accordance with the security rules of the facility at which the
individual in question is incarcerated. Such visits may also be
governed by other applicable regulations of the facility. Finally,
consular visits will be facilitated if Colombian consular officers
ascertain from officials of the detention facility in advance
whether the incarcerated individual consents to the visit. In most
cases, consular visits to an unconsenting individual subsequent to
the initial visit will be inappropriate.

It has also come to our attention that some consular visits are
being undertaken in an attempt to conduct law enforcement
activities, including obtaining interviews, testimony, and/or
indagatorias from Colombian defendants who are incarcerated in
U.S. facilities, and may
have pending charges in the United States. In addition, some of
these
Colombian defendants are the subjects of assistance requests from
the Colombian Supreme Court, Fiscalia, or lower courts in Colombia.
Several of these visits have been attempted by consular officers
without prior consultation with the United States Central
Authority, the Department of Justices Office of International
Affairs (OIA), designated in accordance with Article 3 of the
Inter-American Convention on Mutual Assistance in Criminal Matters
(OAS Convention). As you are aware, the Vienna Convention, to
which both the United States and Colombia are parties, provides in
Article 5 that one of the consular functions is the transmittal of
judicial and extrajudicial documents, or executing letters rogatory
or commissions to take evidence for the courts of the sending
State. However, taking of evidence must be done in accordance with
international agreements in force or, in the absence of such
agreements, in any other manner compatible with the laws and
regulations of the receiving State. Similarly, as noted above,
while the Vienna Convention provides in Article 36 that consular
officers shall have the right to visit a detained national,
converse and correspond with him, and arrange for his legal
representation, the purpose of those visits is to safeguard the
interests of the detainee, rather than to engage in law enforcement
activities. These attempted consular visits have complicated the
United States facilitation of access to Colombian defendants by
Colombian judicial officials because most of the consular officers
efforts appear to be duplicative of judicial assistance requests
the United States has received from the Fiscalia regarding many of
the same defendants. In this regard, the September 5, 2008, letter
from Ambassador William Brownfield to then-Minister of Interior and
Justice Carlos Holguin Sardi, referred to in more detail below,
reiterated our two countries agreement for Colombian officials to
make their requests regarding law-enforcement matters, especially
regarding the extradited former paramilitary leaders, in conformity
with the applicable international conventions and through their
respective central authorities to OIA.

If the Colombian government wishes to specially designate its
consular officers to take testimony for the purpose of a Colombian
criminal proceeding, a judicial assistance request should be
submitted in advance to OIA in accordance with the procedures
described above and previously agreed by our two governments. That
request should contain the name of the specially designated
consular officer or officers, as well as the following information,
as agreed at the meeting held on November 17, 2009, in Washington,
D.C., between representatives of the Embassy of Colombia, the
Ministry of Foreign Affairs, and the Departments of State and
Justice: (1) the name of the requesting authority, case name, and
case number; (2) a brief description of the Colombian criminal
investigation or proceeding for which the assistance is requested;
(3) a brief description of the assistance requested and how it will
advance the investigation or proceeding; and (4) a description of
the procedures which the United States is requested to follow in
providing the assistance. Upon receipt of the request, OIA will
review it and take appropriate action.

Visits by Criminal Justice Officials: Visits by Colombian
prosecutors or criminal justice officials for purposes of
conducting interviews and taking testimony with respect to
Colombian criminal investigations and prosecutions must be
requested through a judicial assistance request and authorized in
advance by appropriate United States officials, specifically the
Department of Justices OIA, which is the central authority for
receipt, review, and execution of all judicial assistance requests
from Colombia. Recently, however, the Department of Justice has
learned of unauthorized interviews of incarcerated Colombian
citizens by Colombian prosecutors and other criminal justice
officials in regards to that individuals participation in the
Justice and Peace process. Judicial assistance requests relating
to any Colombian citizen incarcerated in the United States should
be made through Colombias designated central authorities to the
Central Authority of the United States. With respect to the former
paramilitary leaders incarcerated in U.S. jails, the Department of
Justice has committed that it will take reasonable steps to
facilitate access to those individuals by Colombian prosecutors,
judges, and other criminal justice officials, consistent with the
applicable international conventions and practices and the
interests of the criminal prosecutions in the United States.

To further simplify the transmission of judicial assistance
requests regarding those former paramilitaries, in the September 5,
2008, letter from Ambassador William Brownfield to then-Minister of
Interior and Justice Carlos Holguin Sardi, the United States
Embassy in Bogot agreed to receive and forward to OIA all judicial
assistance requests related to the former paramilitary leaders
extradited to the United States in May 2008 and thereafter. These
procedures have worked extremely well.
Pursuant to Colombian judicial assistance requests made under the
OAS Convention regarding the former paramilitary leaders, the
United States Department of Justice has facilitated more than
thirty days of video depositions in Colombian criminal cases
pending before the Supreme Court of Justice and investigations
under the Justice and Peace Law (Law 975 of 2005). These
proceedings, many of which were transmitted to victims throughout
Colombia, have advanced numerous prosecutions and investigations of
individuals in Colombia, as well as the identification and
forfeiture of substantial assets, which can be used for victim
reparations. We request that Colombian prosecutors and criminal
justice officials not participate in any unauthorized visits and
continue to use these established procedures regarding interviews
and taking of testimony in criminal matters from all Colombian
citizens incarcerated in the United States, including the former
paramilitary leaders.

Visits by Other Colombian Officials: The United States notes that
over the last several months other Colombian officials who are not
accredited consular officers, prosecutors, or criminal justice
officials have also visited several former paramilitary leaders.
These officials have included members of the Colombian legislature,
who have stated their intention and desire to advance the Justice
and Peace process by seeking the former paramilitary leaders
continued cooperation in providing information about their human
rights violations and providing restitution to victims and their
survivors. Provided the competent authorities of the detention
facility in question do not object to such visits by other
Colombian officials, the United States, in general, has no
objection to visits by other Colombian officials and wishes to
ensure that they occur smoothly. We also wish to ensure that
visiting Colombian officials are, consistent with the applicable
prison requirements, not unduly inconvenienced. Prior notification
to the Department of State of these visits will enhance the ability
of the United States to meet these objectives. While, unlike
visits sought pursuant to a judicial assistance request, the
Department of Justice cannot facilitate visits by other Colombian
officials, it can ascertain in advance from appropriate agencies
whether the visits can be accomplished, and whether they can occur
conveniently and smoothly at the time desired. We note that many
of the incarcerated Colombians to which officials have sought
access have been accused or convicted of serious crimes of
violence. Prior coordination of visits will facilitate any
additional safety and security measures as may prove necessary to
ensure the safety and security of the visiting Colombian officials
and others.

The Department of State believes that this necessary prior
coordination of visits can be accomplished through a
straightforward procedure.
First, the Colombian officials who are not accredited consular
officers or criminal justice officials should make their requests
for access to any Colombian citizen incarcerated in the United
States, including the former paramilitary leaders, through the
diplomatic channel, i.e., the Colombian Foreign Ministry or the
Colombian Embassy in Washington, D.C.
The Foreign Ministry or Embassy should contact the Department of
State at least twenty-one days before the proposed visit, so the
Department can complete necessary coordination with other involved
U.S. government agencies, including the Department of Justice, as
well as the authorities of the detention facility in question.
Once the United States has determined whether the visits can be
conducted as requested, it will notify the Colombian Embassy so the
visitors can be advised and can make final arrangements with the
detention facility.

The U.S. Embassy informs the Foreign Ministry of its urgent desire
to see such procedures put in place and requests assistance in
their rapid and effective implementation. [Complimentary closing]

END TEXT.
CLINTON

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