TAKING ANOTHER LOOK AT THE UAE DCA

S E C R E T SECTION 01 OF 03 ABU DHABI 000316

SIPDIS

NOFORN

FOR NEA A/S WELCH AND PM A/S HILLEN

E.O. 12958: DECL: 01/30/2016
TAGS: MARR MASS PREL AE
SUBJECT: TAKING ANOTHER LOOK AT THE UAE DCA

REF: A. 04 ABU DHABI 3615

B. 04 ABU DHABI 4062

C. 05 ABU DHABI 72

D. 05 ABU DHABI 406

E. 04 ABU DHABI 4335

Classified By: CLASSIFIED BY AMBASSADOR MICHELE J. SISON, REASONS 1.4 (
B) AND (D).


1. (S/NF) Summary: Embassy wishes to raise with the
Department a proposed way forward to address longstanding
concerns over the UAE Defense Cooperation Agreement (DCA)
(refs A-D). We recommend reviving regular meetings of the
U.S.-UAE Joint Committee on the DCA. That committee has not
convened since May 2001, but under terms of the DCA, the
Joint Committee is supposed to meet frequently to resolve
differences. If that does not work, we recommend that the
Department explore with DoD the possibility/advisability of
reviewing C-175 negotiating authority for a DCA, although we
know that could be a difficult and lengthy process.



2. (S/NF) The UAE maintains the DCA cannot be implemented
because it was never ratified by each of the seven emirates.
There is also disagreement on jurisdiction over DoD
personnel, as well as which U.S. personnel are covered under
the DCA. Several incidents involving DoD personnel in recent
years have underscored the need to resolve these differences.
While we have relied to date on ad hoc in-country diplomatic
intervention to ensure that DoD personnel were not subjected
to UAE legal jurisdiction, thousands of DoD personnel are
potentially at risk. More recently, our hosts also have
indicated that they are unwilling to proceed with CENTAF and
NAVCENT,s crucial expansion efforts at key UAE installations
without a formal basing agreement governing our activities.
In the past, basing discussions have crossed U.S. DCA
red-lines (specifically, criminal jurisdiction of U.S.
military personnel). These unresolved issues could have
negative ramifications for CENTCOM's future plans in the UAE
under the proposed Integrated Global Posture and Basing
Strategy.


3. (S/NF) Summary continued: Embassy has been in periodic
contact with CENTCOM and OSD on this matter; it has been a
"watch out for" on many scenesetters we have sent senior
military visitors. CENTCOM and OSD/Policy staffs are also
considering options; a possible Joint Military Commission
meeting in Washington in May (date not yet confirmed by OSD)
may provide the next opportunity to address this issue with
the UAE. Our political-military relationship with the UAE
remains one of the Embassy's highest priorities. The UAE has
continued its excellent support of the war on terror and it
has cooperated with us in OIF, as well as providing active
combatants in Afghanistan for OEF. The UAE continues to
provide basing and overflight for U.S. reconnaissance and
refueling assets, and naval logistical support. The
steady-state number of DoD personnel in the UAE remains at
approximately 1500, with as many as an additional 70,000
transients (mostly US Navy personnel on liberty) per year.
However, for the cooperation to expand and stabilize, we need
a functioning DCA. End Summary.

Background:
--------------


4. (S/NF) The DCA was signed by both parties on July 23,

1994. Article IX of the DCA establishes that the agreement
entered into force upon signature, has an initial period of
12 years (until July 2006),and thereafter remains in force
in perpetuity, unless terminated by either party on one
year's notice. The UAE, however, has refused to recognize
that the DCA is in effect.


5. (S/NF) Over the years, the UAE has posited several reasons
for its position. Most recently, the UAE has stated that the
DCA will not be in force until ratified by all seven
emirates. The UAE has taken no efforts to ratify the DCA.
The current language of the DCA states that the U.S. retains
criminal jurisdiction over all DoD personnel and that U.S.
personnel on temporary assignment to the UAE may enter the
country, with notification, on an ID card and orders. This
language is consistent with other U.S.-Gulf country
agreements. The UAE seeks criminal jurisdiction over DoD
personnel in the UAE and, more recently, has stated all DoD
personnel entering the UAE are required to possess a valid
passport and visa. In a January 2001 DCA review meeting, the
UAE requested renegotiation of the criminal jurisdiction
provisions as a precondition to ratification.


6. (S/NF) We have been told by OSD/General Counsel that
surrendering criminal jurisdiction of U.S. personnel to the
UAE is not acceptable. Such a move would likely impact other
regional bilateral agreements. More importantly, UAE law
does not meet U.S. standards of fairness and due process:

-- there is no legal requirement that Miranda-type warnings
be provided to a suspect, nor to provide counsel to suspects
at early stages of proceedings, such as during the taking of
statements.

-- there is no clear constitutional or penal code provision
addressing the burden of proof in criminal trials.

-- criminal cases involving non-Muslims may be referred to
Sharia courts.

-- there is no jury system in the UAE.

Incidents Highlight Need for Functioning DCA
--------------


7. (S/NF) With the large number of U.S. personnel in UAE, we
are at risk of a serious incident where a U.S. service member
may be subjected to local law, Emirati due process, and, in
some cases, Sharia law. There have been incidents involving
U.S. military personnel that emphasize the risk posed by
Emirati denial of the signed DCA. The issues of legal status
and jurisdiction remain the sticking points. The following
incidents highlight the need for a functioning DCA:

-- In April 1996, a traffic accident involving a U.S. sailor
resulted in the death of an Emirati child and injury to four
other UAE residents. The American was jailed without formal
charges. The U.S. claimed jurisdiction, but the UAE
maintained custody until a court found him guilty of wrongful
death. After extensive interventions by the Embassy,
involvement of a special OSD negotiating team, and the
dispatch of the senior U.S. Navy international lawyer and
ultimately the Judge Advocate himself, the American's prison
sentence was suspended and he was released into U.S. custody
in June.

-- In September 2004, four USAF airmen were involved in a
single-vehicle accident in Abu Dhabi. Two of them were
injured and manacled to their hospital beds, pending
investigation of liability for the accident. It took six
days for the UAE military and Abu Dhabi police to agree on
jurisdiction and return the Americans to U.S. custody.

-- In June 2005, a Filipino national reported to the U.S.
Navy and Naval Criminal Investigative Service that she had
been raped by a U.S. sailor. She declined to report the
incident to the Fujairah police or seek local medical
attention out of fear that she would be arrested and
deported. Had this incident been reported to local
authorities, the sailor would have been placed in custody by
local authorities and required to stay in country until his
trial. The sailor was administratively transferred to the
Naval Support Activity in Bahrain and is now awaiting
courts-martial in Norfolk, Virginia.

-- With nearly 600 ship visits per year to the UAE, we
periodically have had to request Dubai authorities release
U.S. personnel to the Navy, following their detention by the
local authorities for minor infractions.


8. (S/NF) In the more serious cases in which U.S. personnel
were taken into custody by Emirati authorities, we have
obtained their release after extensive interventions by the
USG (except for the 1996 case, all cases were handled
in-country). Our ad hoc arrangements have worked for the
most part. But they are labor intensive and they may not
suffice in the future if there is a serious accident or crime
against UAE citizens. On this count, our Emirati
interlocutors have been most clear: in cases of the rape or
murder (including vehicular wrongful death determinations, as
above) of an Emirati citizen, U.S. servicemembers will not be
remanded to U.S. custody, but will be tried and punished
under the UAE justice system. The individual emirates have
recently instituted a policy where magistrates are physically
located at each police station, thereby making the criminal
arraignment process swifter. Our ability to perform any ad
hoc diplomacy and settle issues financially before the
servicemember is placed in custody is greatly lessened.

Raising DCA with the UAE
--------------


9. (S/NF) The Embassy's preferred approach would be to revive
the DCA Joint Committee that has not convened since May 2001.
Members from the U.S. include the U.S. Embassy, United
States Liaison Office, and U.S. Central Command, and
appropriate representation from the UAE. Under the terms of
the DCA, the Joint Committee is supposed to hold regular
meetings in the UAE (the text says monthly, or more
frequently if required). This way forward does not require
C-175 negotiating authority, which a renegotiation of the DCA
would. In the past, OSD has not been amenable to
renegotiation of the DCA, but we understand that they are
currently exploring options.


10. (S/NF) In addition, there may be several other
opportunities in the coming months for the USG to raise the
DCA with the UAEG:

-- We understand from CENTCOM that the second JMC may be
scheduled for early May 2006 in Washington. As we approach
that meeting, we will try to ascertain their position. At
the first JMC in January 2005, UAE Armed Forces Chief of
Staff, Lt. Gen. Hamad Thani, asked us to place DCA on the
agenda, only to inform A/S Rodman during the meeting that he
was not prepared to discuss it (refs C,D). Instead, he said
he would follow up with a letter to the Embassy. We have yet
to receive any correspondence from GHQ regarding DCA.

-- Abu Dhabi Crown Prince Sheikh Mohammed bin Zayed (MbZ) is
planning a visit to Washington in May 2006 (not related to
the JMC). He has already expressed his government's
commitment to hosting U.S. forces on UAE soil. However,
during a November 2004 meeting with General Abizaid, Sheikh
Mohammed stated that the U.S. and the UAE need to negotiate a
basing agreement. General Abizaid responded that the
U.S.-UAE relationship, built on mutual trust and respect, was
one of the most important relationships in his AOR. He
undertook to follow up on the basing issue with Defense
Secretary Rumsfeld (ref E).

SIPDIS

-- We would welcome a visit from senior Department
representatives to Abu Dhabi during which time they could
discuss DCA and other military cooperation issues with MbZ
and others.

Effect on Cooperation
--------------


11. (S/NF) The UAE has continued its excellent support of the
war on terror and it has cooperated with us in OIF and OEF.
The UAE continues to accommodate our military presence on
their soil, provide overflight for U.S. reconnaissance and
refueling aircraft, and provide naval logistical support.
However, the UAE's insistence on negotiating a
government-to-government agreement formalizing our joint use
of UAE military bases, infrastructure, and associated
services, is having an effect on CENTAF and NAVCENT's crucial
expansion plans at key UAE installations. Al-Dhafra Air Base
is a key component of our relationship with the UAE, and
plays a role in the ability of CENTCOM and CENTAF to project
combat power in the AOR. Al-Dhafra is home to the 380th Air
Expeditionary Wing, with more than 1400 CENTAF personnel,
operating 14 KC-135 and four KC-10 air refueling tankers, as
well as five U-2 surveillance aircraft and two Global Hawk
remotely piloted vehicle. Al-Dhafra also hosts the UAE Air
Warfare Center. The ports at Jebel Ali on the Arabian Gulf,
and Fujairah on the Gulf of Oman, are also crucial to CENTCOM
access and power projection in the region. Over 600 U.S. Navy
ships visit the ports annually. State and DoD agree that
continued access to UAE military facilities is vital to our
strategic objectives in the region.

Comment:
--------------


12. (C) Embassy welcomes the Department's thoughts on a
possible way forward with the DCA. Perhaps there are
comparable situations elsewhere in the region that could be
instructive. The first step is to revive the Joint
Committee. If that does not work, we recommend that the
Department explore with DoD the possibility/advisability of
reviewing C-175 negotiating authority for a DCA, although we
know that could be a difficult and lengthy process.
SISON