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