VZCZCXYZ0000
OO RUEHWEB

DE RUEHBO #0434/01 0422018
ZNR UUUUU ZZH
O 112018Z FEB 09
FM AMEMBASSY BOGOTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6963
INFO RUEHBR/AMEMBASSY BRASILIA 8638
RUEHCV/AMEMBASSY CARACAS 1632
RUEHLP/AMEMBASSY LA PAZ FEB PANAMA 2990
RUEHQT/AMEMBASSY QUITO 7682
RUEHGL/AMCONSUL GUAYAQUIL 4815
RUEKJCS/SECDEF WASHDC
RUEKJCS/JOINT STAFF WASHINGTON DC
RHEHNSC/NSC WASHDC
RUEAWJC/DEPT OF JUSTICE WASHDC
RHMFISS/HQ USSOUTHCOM MIAMI FL
RUEAIIA/CIA WASHDC

UNCLAS BOGOTA 000434 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV PTER SNAR KJUS CO
SUBJECT: SUPREME COURT RULES AGAINST KIDNAPPING EXTRADITION 
OF FARC'S "ENRIQUE GAFAS" 
 
SUMMARY 
------- 
 
¶1.  (SBU)  The Colombian Supreme Court ruled on February 5 
against the extradition of FARC member Alexander Farfan, 
("Enrique Gafas") for the kidnapping of three Americans. 
This is the Court's seventh denial of U.S. extradition 
requests related to hostages or terrorism since August.  In a 
confusing development, the Court approved four 
terrorism-related extradition cases in the same time frame. 
In its unfavorable decisions, the Court ruled that Colombia's 
Constitution limits extraditable offenses to acts that take 
place outside of Colombian territory -- deviating from its 
previous standard that extraterritorial effects were 
sufficient to trigger extradition.  Still, Colombia 
extradited 209 suspects to the United States in 2008, with 
twenty more extradited in January, 2009.  End Summary. 
 
HOSTAGE-TAKING AND TERROR NOW UNEXTRADITABLE? 
--------------------------------------------- 
 
¶2.  (U)  The Colombian Supreme Court ruled on February 5 
against the U.S. request to extradite FARC member Alexander 
Farfan ("Enrique Gafas") on hostage taking, conspiracy to 
provide material support to a 'foreign terrorist 
organization' (FTO), and material support to an FTO charges. 
In the Gafas case, the Court continued to deviate from its 
prior holdings that extradition is allowed if a criminal act 
has "extraterritorial effects."  Instead, the Court held that 
Gafas' extradition would be inconsistent with Colombia's 
Constitution, since his crimes were committed solely in 
Colombian territory.  Gafas was the jailor of three American 
military contractors, Ingrid Betancourt, and numerous other 
hostages held by the FARC. 
 
¶3.  (SBU)  In the past six months, the Colombian Supreme 
Court has denied seven U.S. requests to extradite FARC and 
ELN members on either hostage taking or terrorism charges 
using the "territorial" test.  In addition to the Enrique 
Gafas case, the Court ruled against the extradition of three 
FARC co-defendants -- in an indictment involving nine FARC 
members -- on terrorism charges (the Court did rule in favor 
of extradition for one of these individuals who was 
separately indicted for narcotrafficking).  The Court also 
ruled against the extradition of three ELN members who were 
indicted for hostage taking. 
 
¶4.  (SBU)  Still, in a confusing development, the Court 
approved the extradition of two other FARC co-defendants in 
the group of nine, all of whom were indicted on the same 
terrorism charges.  The Court has yet to rule on the 
remaining four FARC co-defendants in that indictment.  In a 
separate case, the Court approved the extradition of two FARC 
co-defendants charged with terrorism offenses.  In its 
favorable rulings, the Court continued to apply its 
traditional "extraterritorial effects" standard. 
 
¶5.  (SBU)  The  differing results in similar cases may 
reflect the Court's practice of assigning responsibility for 
drafting Court decision to individual judges -- some of whom 
have competing views on what is the constitutional standard. 
We understand the Court is split, with two magistrates 
favoring the "extraterritorial effects" standard and seven 
the "territorial" approach. 
 
PROSECUTORIAL AND GOC 
OFFICIALS DISAGREE WITH COURT'S STANCE 
-------------------------------------- 
 
¶6.  (SBU)  Prosecutor General (Fiscal General) Mario Iguaran 
-- who has no role in the Court's decision process -- has 
argued publicly that while Gafas' crimes took place solely in 
Colombia, their commission harmed judicial rights of American 
citizens.  Hence, the extraditions of all of the FARC 
defendants sought on terrorism charges could be considered 
constitutional.  In its opinion on the ELN kidnapping cases, 
the Inspector General's Office (Procuraduria) argued the same 
-- that the effects of kidnapping went beyond Colombia's 
borders and that the U.S. claim to extraterritoriality was 
 
legitimate.  GOC officials also disagree with the Court's 
decision in the Gafas and other FARC case, but have no way to 
challenge the Court's rulings. 
 
EXTRADITIONS AT RECORD LEVELS 
----------------------------- 
 
¶7.  (SBU)  The Court continues to approve narcotrafficking 
extraditions without difficulty.  The GOC also remains 
supportive of extraditions.  In 2008, Colombia extradited a 
record number of 209 suspects to the United States.  At the 
end of 2008, the Uribe administration had extradited 790 
individuals to the United States -- representing 91 percent 
of all Colombian extraditions to the United States since 
¶1991.  Twenty suspects were extradited in January, 2009 
alone. 
 
BROWNFIELD