SPAIN AND US SIGN NCIS/OSI REGULATIONS

C O N F I D E N T I A L SECTION 01 OF 03 MADRID 000750 SIPDIS SIPDIS E.O. 12958: DECL: 04/25/2017 TAGS: PREL MARR SP SUBJECT: SPAIN AND US SIGN NCIS/OSI REGULATIONS REF: MADRID 66 Classified By: DCM Hugo Llorens for reasons 1.4 (b) & (d). ¶1. (U) SUMMARY: As required by the 2002 revision of the bilateral Agreement on Defense Cooperation (ADC),Spain and the US have signed regulations for the activities in Spain of the Naval Criminal Investigative Service (NCIS) and USAF Office of Special Investigations (OSI). Defense Minister Alonso announced on April 24 that the US and Spain have filled a "legal vacuum at the core of national sovereignty" by signing the regulations. MOD Secretary General for Policy Luis Cuesta called DCM on April 24 to confirm that he would immediately issue instructions to allow NCIS and OSI personnel to renew their work outside the Rota and Moron bases, to which they have been operationally confined for the past year during negotiations. The US-Spain Permanent Committee is already implementing procedures for the information transfer and review that the regulations require. This resolves a long-festering sore in US-Spain military relations. END SUMMARY. ¶2. (C) The 2002 revision of the bilateral ADC allows NCIS and OSI to "maintain personnel in Spain to act jointly with their counterparts of the Spanish State Security and Intelligence Services on matters of mutual interest, and to conduct criminal investigations involving US personnel or property. The competent authorities of both countries shall establish regulations for such activities." Difficult rounds of negotiations over the regulations occurred sporadically between 2002 and 2005 within the US-Spain Permanent Committee, which implements the ADC. Since 2005, negotiations took place at the MOD-to-OSD level. On March 1, 2006, MOD ordered NCIS and OSI to cease off-base operations until it reached an agreement with OSD. Particularly after May 2006 negotiations ended in an impasse when the GOS offered a dense text and refused to compromise on any of its basic premises, the issue became a major irritant in our defense relations. ¶3. (C) In January 2007, MOD took an "Anglo-Saxon" approach by proposing a new, much shorter draft agreement that provided a framework for coordination and decision-making at the Permanent Committee, rather than trying to create a detailed listing of all possible activities and whether they would or would not be permitted (reftel). This draft became the basis for the final agreement (see below),which DASD Dan Fata signed in Washington for OSD. MOD DG for Policy Benito Raggio signed in Madrid for MOD on April 24. (COMMENT: Post attributes the GOS turnabout to several factors. First, the clear direction set by DefMin Alonso, who has proven himself a pragmatic leader supportive of strong US-Spain defense relations. The GOS tough stance originated with Alonso's predecessor Jose Bono and his team. Second, the replacement of Admiral Francisco Torrente, the chief enforcer of the previous GOS tough line, as number three in the Defense Ministry by a candidate selected by Alonso from his personal staff. Torrente's replacement, Luis Cuesta, is an MFA officer seconded to MOD. Finally, new leadership on the Spain side of the Permanent Committee has shown itself to be more favorable to improving ties with the US. END COMMENT.) ¶4. (U) The agreement requires NCIS and OSI to identify their agents to the GOS, inform MOD of planned activities, and work jointly with Spanish security services. The Permanent Committee is the mechanism for transfer of information and coordination with other Spanish agencies. Defense Minister Alonso announced that the GOS has created a "Security Affairs Group" that includes MOD, MFA, the Ministries of Justice and Interior, and the Spanish intelligence service CNI to ensure efficient review of proposed NCIS and OSI activities. ¶5. (C) While MOD has withdrawn its restrictions on the off-base activities of NCIS and OSI, the new regulations require several steps before such activities can start. Per the regulations, the initial steps required before NCIS and OSI investigators can resume their off-base activities are (1) MOD recognition of the investigators' presence in Spain, (2) USG identification of proposed NCIS/OSI activities, and (3) MOD identification of local law enforcement points of contact for each proposed activity. On April 24, the Spanish Section of the Permanent Committee credentialed the NCIS and OSI agents who are already in Spain. The US Section of the Permanent Committee has submitted initial NCIS and OSI proposals for activities that would reestablish NCIS and OSI's relations with their local counterparts in the towns that surround the Rota and Moron military bases where the US has troops. ¶6. (U) BEGIN TEXT OF AGREEMENT. MADRID 00000750 002 OF 003 Article 17.6 of the Agreement on Defense Cooperation between the UNITED States of America and the KINGDOM of Spain of December 1, 1988, amended by the Protocol of Amendment April 10, 2002, (hereafter referred to as the ADC) envisages that the U.S. Naval Criminal Investigative Service (NCIS) and the U.S. Air Force Office of Special Investigations (AFOSI) may maintain personnel in Spain to act jointly with their counterparts of the Spanish State Security and Intelligence Services on matters of mutual interest, and to conduct criminal investigations involving U.S. personnel or property. It also establishes that the competent authorities of both countries shall establish regulations for such activities. Therefore, the competent authorities of both countries establish the following regulations: REGULATIONS GOVERNING U.S. ACTIVITIES IN SPAIN OF THE U.S. NAVAL CRIMINAL INVESTIGATIVE SERVICE (NCIS) AND U.S. AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI). In accordance with article 17.6 of the Agreement on Defense Cooperation between the UNITED States of America and the Kingdom of Spain, the NCIS and AFOSI will act in Spain according to the following regulations: - The U.S. Section of the Permanent Committee (PCUSS) will inform with sufficient time the Spanish Section (PCSPS) of the name, position and unit of assignment of those NCIS and AFOSI members that both permanently or temporarily may carry out or plan to carry out activities in Spain. These personnel will not be able to carry out any activities without the required identification granted by the PCSPS. - While conducting their activities in Spanish territory, NCIS and AFOSI personnel should previously show their identification either to the Spanish Authority with which they are working or to its agents. - The activities in Spanish territory of NCIS and AFOSI personnel will be carried out jointly with Spanish counterparts as stated in the ADC. The PCSPS will facilitate, as needed, coordination with the Spanish Authorities, Public Organizations, or Registries, through the relevant points of contact. - Prior to starting any specific activity, NCIS and AFOSI personnel will inform the Spanish Section of the Permanent Committee, through the U.S. Section, of contemplated investigative activities. The Spanish Section of the Permanent Committee may request that the UNITED States refrain from conducting a particular activity. The UNITED States will accommodate such requests. - In order to carry out the criminal investigations foreseen in the Agreement, NCIS and AFOSI personnel will inform the Spanish Section, through the U.S. Section, of the nature of the facts they intend to clarify, the people involved, and expected locations of investigatory action. - If as a result of such criminal investigations evidence indicates that a crime has been committed, the Spanish authorities will inform the Spanish Judicial Authority and then wait for directions to continue with their investigations. U.S. investigators also should inform the PCSPS through the PCUSS. According to article 39 of the Agreement on Defense Cooperation, Spain may waive its right of jurisdiction. - Every three months, and whenever required, the PCUSS will forward to the PCSPS a report outlining the activities conducted, the Spanish authorities and organizations contacted by the NCIS or AFOSI, as well as the status of any ongoing investigations and, when appropriate, the estimated date of conclusion of ongoing investigations. - These regulations will have effect on the date of the last signature, for a one year period, and will be extended automatically, unless one of the signatories communicates its intention to review or modify any of its terms. For the U.S. Department of Defense Daniel P. Fata Deputy Assistant Secretary of Defense for European and NATO Policy For the Ministerio de Defensa Benito Federico Raggio Cachinero General de Division del FT Director General de Politica de Defensa MADRID 00000750 003 OF 003 END TEXT. ¶7. (C) COMMENT. Signature of these regulations removes what had become a high-level irritant that Defense Minister Alonso discussed with Secretaries Rumsfeld and Gates in recent meetings. MOD interlocutors have said that they needed the document for political cover, given the on-going CIA flights issue and previous negative press coverage of NCIS/OSI activities, but don't intend for the regulations to make any real change to the way that NCIS and OSI have traditionally operated. We won't be able to judge their true intentions until we have implemented the regulations for a few months and have passed the initial flurry of NCIS and OSI activities as they reestablish contacts and renew expired port security surveys. Aguirre