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