SHIPRIDER NEGOTIATIONS WITH CANADA - ROUND ONE

UNCLAS OTTAWA 000436 SIPDIS SIPDIS SENSITIVE E.O. 12958: N/A TAGS: PBTS EWWT PINS SNAR KTIA KCRM CA SUBJECT: SHIPRIDER NEGOTIATIONS WITH CANADA - ROUND ONE Portions of this cable are sensitive but unclassified. Please protect accordingly. ¶1. (U) Summary. On March 20, U.S. and Canadian delegations met in Quebec City and completed a productive and successful first round of negotiations on a framework agreement on integrated cross-border maritime law enforcement operations (ICBMLEO). The delegations reached agreement on much of the text and have tentatively agreed to meet again on April 23 in Washington, DC to resolve remaining issues, including prosecution support, information sharing, and liability. The delegations agreed on guiding principles to resolve the remaining issues, which largely deal with risk management, and have established an intercessional work plan aimed at crafting appropriate text. The delegations hope to conclude negotiations during the next round. Given high-level ministerial attention in Canada, signature could follow shortly thereafter and entry into force could occur within a year, although Canada may require new legislation to implement the agreement. End Summary. -------------- BACKGROUND -------------- ¶2. (SBU) Between 2005 and 2007, Canada and the United States conducted three "shiprider" pilot projects under the auspices of the bi-national Cross-Border Crime Forum (CBCF) aimed at moving beyond information sharing to conducting joint intelligence-led patrol operations along the waters of the border. During these pilot projects, the Royal Canadian Mounted Police (RCMP) and the United States Coast Guard (USCG) developed a concept of operations under which officers from both countries ride together on the same patrol boats on shared waterways along the border, and are fully empowered by the laws of both Canada and the United States to enforce the laws of both countries. In August 2007, Prime Minister Harper and President Bush issued a joint statement at the North American Leaders Summit citing the shiprider pilot projects and asked ministers to pursue new, innovative, and interoperable law enforcement models that would promote seamless operations at the border better to protect citizens from criminal and ter rorist threats. ¶3. (SBU) In January 2008, Canada proposed negotiation of a permanent framework agreement on integrated cross-border maritime law enforcement operations. Canada delivered a draft text on March 11, and the U.S. provided an annotated and edited version of that text on March 18, which served as the basis for the first round of negotiations. At the 10th CBCF in Quebec City on March 19, Minister of Public Safety Stockwell Day commented in plenary that it was time to "get shiprider negotiations done" and strongly urged officials of both governments to do so. Substantive exchanges took place during the CBCF sessions March 17-19 in advance of formal negotiations. At a press conference following the CBCF, Minister Day and Justice Minister Rob Nicholson announced the commencement of negotiations. See: http://www.marketwire.com/mw/release.do?id=83 4426. -------------- -------------- A BAKER'S DOZEN - AGREEMENT ON 13 OUT OF 18 ARTICLES QA BAKER'S DOZEN - AGREEMENT ON 13 OUT OF 18 ARTICLES -------------- -------------- ¶4. (SBU) The Canadian and U.S. negotiating teams largely reached agreement on 13 of the 18 articles composing the draft text, including definitions (article 1),scope of operations (article 2),direction of operations (article 3), central authorities (article 4),designation (article 5), training (article 6),customs and immigration reporting (article 7),work permits (article 8),custody of persons, vessels, or things detained or seized, (article 9),firearms, ammunition, other standard law enforcement weapons (article 11),use of force (article 12),dispute resolution (article 15),and final clauses (article 17). ¶5. (SBU) The Agreement establishes a framework for "integrated cross-border maritime law enforcement operations" (ICBMLEO). Article 1 defines that term as "the deployment of a vessel crewed jointly by designated cross-border maritime law enforcement officers from Canada and the United States for law enforcement or related purposes in shared waterways." Article 1 further defines "shared waterways" as undisputed areas of the sea or internal waters along the international boundary between Canada and the United States. (NOTE: USDEL confirmed with CANDEL its understanding that the areas of disputed waters excluded by this definition are the Dixon Entrance, undelimited waters in the vicinity of Machias Seal Island and North Rock, the Beaufort Sea, and waters seaward of the entrance to the Strait of Juan de Fuca. The USDEL noted a potential dispute in the Chukchi Sea, while the CANDEL noted a potential dispute in the Beaufort Sea. USDEL believes these are the same disputes characterized by nomenclature from different sides of the line, but promised to get back to CANDEL with confirmation. END NOTE.) ¶6. (SBU) The delegations agreed that ICBMLEO shall take place on shared waterways and may be continued ashore in exigent circumstances, which is a term defined in Article 2 and is intended to allow officers to act when death, bodily harm, or loss or destruction of evidence is imminent. The USDEL proposed a new Article 2bis to permit designated cross-border maritime law enforcement officers to pursue ashore persons liable to detention or arrest encountered on shared waterways as necessary to prevent the immediate and unlawful flight of such persons. The CANDEL was uniformly receptive to this proposal, but desired to consider it further intercessionally, particularly with respect to whether pursuit ashore should be subject to temporal or spatial limitations. ¶7. (SBU) The RCMP and USCG will be the designated Central Authorities for their respective countries. The delegations spent considerable time discussing their respective implementation plans, and CANDEL sought assurances from USDEL that RCMP would have "one-stop shopping" with the USCG. The USDEL explained that Department of Homeland Security (DHS) would most likely issue a Management Directive governing ICBMLEO and ensuring consistency and coordination among DHS components. Such a Management Directive would prescribe consistent policies and procedures for shiprider-related cross-designation of Canadian officers regardless of which DHS component was administering the cross-designation authority. The CANDEL accepted these assurances and the texts of Article 5.1.2 accordingly reflects that the USCG "may appoint or arrange for the appointment" of individuals as cross-designated officers. Additionally, the USDEL proposed adding a new sub-article 5(6),providing: "Each Party shall establish and promulgate a single document setting out the policies that apply to integrated cross-border maritime law enforcement operations and training for and in their respective territories." The CANDEL was uniformly receptive to this proposal, and the delegations agreed to finalize it during the next round. ¶8. (SBU) Article 6 establishes requirements for the Central Authorities jointly to develop, approve, and periodically review a joint program for cross-designated officers. This program is largely established as a result of the pilot projects and both sides expressed their intent to build on Qprojects and both sides expressed their intent to build on it. With Article 7, the delegations agreed to provide designated cross-border maritime law enforcement officers alternative mechanisms to meet customs and immigration reporting requirements between ports of entry. (NOTE: During the shiprider pilot projects, 8 CFR 235.2 was used to minimize the reporting requirement to once-a-shift. 8 CFR 235.2 provides Port Directors with discretion to defer the inspection of any vessel or aircraft, or of any alien, to another Service office or port-of-entry. Alternatively, the U.S. could establish by regulation a specific reporting exemption for shiprider projects analogous to 8 CFR 235.1(g), which governs U.S. citizens, lawful permanent residents of the United States, and other aliens, entering the United States along the northern border, other than at a port-of-entry. END NOTE.) Article 8 requires each Party to provide designated officers with exemptions from any required work permits. (NOTE: Cross-designated foreign officers are not "employed" for purposes of Federal immigration regulations. See 8 CFR 274a.12. END NOTE.) ¶9. (SBU) The delegations agreed on the text of Article 9, which establishes the three most important factors for determining the custody of persons, vessels, or things detained or seized in the course of ICBMLEO: location, location, location! Accordingly, the first paragraph of Article 9 provides that all seizures shall be dealt with in accordance with the laws of the country in which they are seized. As a corollary, the second paragraph of Article 9 provides that nothing seized in the host country shall be removed from it except in accordance with its lawful processes. Article 9 leaves one lacuna unfilled: what happens when a suspect or evidence is seized in the waters of one country but must be transported through the waters of the other country in order to deliver the suspect or evidence to authorities ashore? There may be several locations on the Great Lakes where shiprider programs might encounter this situation. Consequently, the delegations agreed to develop and consider a few concrete scenarios intercessionally and then resolve the matter at the next round. ¶10. (SBU) The delegations agreed on the text of Article 10(1),which provides that while engaging in ICBMLEO, officers shall be subject to the domestic laws of the Party in whose territory any criminal misconduct is alleged to have occurred and be subject to the jurisdiction of the courts of that Party subject to the rights and privileges that a law enforcement officer from the host country would have in the same situation. They likewise agreed on the text of Article 10(4),which provides that the law enforcement agency that employs a designated cross-border maritime law enforcement officer shall be solely responsible for the professional review of and discipline procedures for its participating officers. Articles 10(2) and 10(3) will be the subject of intercessional work groups. See paragraph 13. ¶11. (SBU) Article 11 establishes the basis for cross-border carriage of firearms during ICBMLEO. For the U.S., the underlying authority is a combination of status as a Customs Officer (excepted) (19 USC 1589(a)) and a pre-existing exemption for import and export of service firearms & ammunition for any foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business (18 U.S.C. 922 (y)(2)(D) as implemented in 27 CFR 478.115). For Canada, the underlying authority is a combination of status as a peace officer pursuant to section 117.07 of the Criminal Code and securing a permit granted under the Export and Import Permits Act. Canada intends to seek a more efficient legislative solution to this issue. Article 12 briefly sets forth the shared guiding principles for the use of force: all use of force shall be in accordance with the laws of the host country and only force that is reasonably necessary under the circumstances shall be used. ¶12. (SBU) Article 15, upon which the delegations agreed, establishes that the Central Authorities will seek to resolve disputes through consultations, and that the respective Governments will consult if the Central Authorities cannot resolve the matter. Article 17 sets forward the standard provisions for entry into force, amendments, and termination. The USDEL advised the CANDEL that this would be a executive agreement for the United States and would not therefore Qagreement for the United States and would not therefore require advice and consent (a point which the CANDEL fully welcomed and appreciated). The CANDEL advised the USDEL that, under recently announced procedures, the Canadian government would need to lay the agreement before Parliament for 21 days before bringing it into force. A Justice Canada official noted that the Agreement would likely also require new legislation prior to entry into force and that it might take one year or more for Parliament to enact such legislation. However, the Canadian Head of Delegation suggested that, given the commitment at Montebello and other public expressions of Ministerial support, Canada might be in a position to bring the Agreement into force relatively quickly. The USDEL inquired whether Canada could provisionally apply the Agreement, and CANDEL replied that it could not. CANDEL did, however, note that shiprider operations could, if necessary, be conducted in the interim under the non-binding framework established for the pilot projects. -------------- REMAINS OF THE DAY: RISK MANAGEMENT ISSUES -------------- ¶13. (U) Most of the issues remaining for negotiation may be categorized as risk management issues. Article 10(2) is intended to address civil liability of a visiting officer arising from ICBMLEO in the host country. Canada's original proposal was that the Parties shall be responsible for paying any damages if their respective officers are found liable. The USDEL explained that it could not commit to such a framework and offered an alternative formulation that the Party employing the officer would make best efforts in accordance with its domestic laws to facilitate and enforce any judgment issues in the host country. Similarly, Article 10 (3) is intended to ensure that cross-designated officers appear, cooperate, and provide evidence in internal or civilian oversight investigations; however, both delegations appreciated the need fully to understand and compare the scope of privileges and immunities available to officers on each side, and how any differences between them might adversely affect the officers in their parallel or subsequent proceedings in their home countries. The delegations established small work groups to engage the respective subject matter experts in each country and develop options and text in advance of the next round of talks. ¶14. (SBU) The delegations established an intersessional work group to deal with Articles 13 and 14, which are inter-related. Article 13 is intended to address information sharing and Article 14 is intended to address prosecution support. The delegations appear well aligned on their desired outcomes for both articles. The Agreement needs to recognize and account for the operational and procedural distinctions between the tactical sharing of information by officers working together aboard the same vessel, and the subsequent sharing of investigative and prosecution support information. The final version of Article 13 will therefore likely recognize certain limitations in distribution or disclosures of information obtained by a Party (or its officers) in the course of ICBMLEO, as well as establish a consultative process in the event of unforeseen requirements. ¶15. (SBU) In considering Article 14 intercessionally, the work group will first need to determine whether any or all of the provisions of the existing Mutual Legal Assistance Treaty (MLAT) between Canada and the United States should be incorporated by reference into this Agreement, or whether ICBMLEO requires separate handling. It may be the case that the level of integration envisioned by ICBMLEO will require direct liaison between cross-designated officers and their servicing prosecution authorities on both sides of the border, possibly with a reporting requirement to the respective Justice Departments. The delegations will also need to agree upon a framework for costs associated with prosecution support, including whether to make use of the existing MLAT framework (requesting Parties bear all costs of their requests). ¶16. (SBU) Both Articles 13 and 14 will likely require some limitations on the obligation to provide assistance when compliance with a request is likely to be detrimental to the national sovereignty or security, public policy, or other important interests of the requested country. Such an Qimportant interests of the requested country. Such an exemption would likely permit a Party to decline to provide its assistance in whole or in part, or allow a Party to stipulate that its provision of assistance shall be dependent upon the fulfillment of certain conditions or requirements. There are pre-existing models in the existing MLAT and Customs Mutual Assistance Agreement from which the delegations may draw. ¶17. (SBU) The CANDEL intends to review Articles 16 and 16bis, the latter proposed by the USDEL in the leap up to this round. Article 16 is simply an Anti-Deficiency Act clause and is not expected to be controversial. Article 16bis is largely a standard preservation of rights and privileges clause, but it contains an additional proviso offered by the USDEL at the table in response to RCMP concerns to ensure that nothing in this Agreement shall in any way limit the rights and authority of designated cross-border maritime law enforcement officers while operating in their country. -------------- NEXT STEPS -------------- ¶18. (SBU) The heads of delegation concurred that nothing is finally agreed until everything is agreed (and, accordingly, have left final negotiation of the preamble for last). That said, the delegations have agreed to most of the text, and will begin work intercessionally on the few remaining provisions. The delegations have three teams working together intersessionally on Articles 10(2),10(3),13, and ¶14. The delegations also have small groups developing scenarios to explore the geographic inhibitor issues that emerged during the discussion of Article 9, and preparing short overview papers on: 1) comparative authorities of cross-designated officers; 2) respective privileges & immunities; and, 3) differences in authorities between Canadian Peace Officers, RCMP Members, and any other relevant positions. ¶19. (U) The next round of negotiations is tentatively slated for April 23 in Washington DC. Heads of delegation will confirm dates by the end of March. -------------- DELEGATIONS -------------- ¶20. (U) U.S. Delegation: Brad Kieserman, USCG (Head of Delegation) Wayne Raabe, DOJ Keith Mines, DOS/Embassy Ottawa Wendy Fontela, DHS Lawrence Belotti, CBP Carollyn Jackson, CBP Ron Appel, ICE Anne Beck, ICE Thomas Blanchard, ICE/Embassy Ottawa Dan Huelsman, USCG Jim Larkin, USCG/Embassy Ottawa Sloan Tyler, USCG ¶21. Canadian delegation: Alan Kessel, DFAIT (Head of Delegation) Kathleen McLaurin, DFAIT Marie-Josee Gingras, DFAIT Michael Zigayer, Justice Don Beardall, Public Prosecution Service Sophie Beecher, Public Safety Anita Dagenais, Public Safety Tim Mowrey, Public Safety Marc Taschereau, Public Safety Warren Coons, RCMP Joe Oliver, RCMP Nicole Robichaud, RCMP Patricia Johnston, CBSA David Quartermain, CBSA Ravi Sall, CBSA ¶22. (U) This cable was prepared and cleared by the USDEL. Visit Canada,s Economy and Environment Forum at http://www.intelink.gov/communities/state/can ada BREESE