NEW INTELLIGENCE LAW CREATES UNIFIED FRAMEWORK AND

C O N F I D E N T I A L BOGOTA 001252 SIPDIS E.O. 12958: DECL: 04/14/2019 TAGS: PINR PREL PTER PHUM KJUS CO SUBJECT: NEW INTELLIGENCE LAW CREATES UNIFIED FRAMEWORK AND CONGRESSIONAL OVERSIGHT REF: 09 BOGOTA 569 Classified By: Political Counselor John Creamer Reasons 1.4 (b and d) SUMMARY -------------- ¶1. (C) The Colombian Congress recently passed Law 1288 which sets up a unified legal framework for domestic intelligence gathering, establishes a Joint Intelligence Council to facilitate intelligence sharing, and creates a congressional intelligence oversight committee. GOC officials say the law better protects citizens' constitutional rights and should prevent the types of illegal intelligence activities that have embarrassed the GOC in recent years. Human rights groups recognized that the law was an important first step in regulating intelligence activities, but said it leaves too much power in the hands of the executive, does not adequately protect individual constitutional rights, and could impede future human rights investigations. End Summary NEW FRAMEWORK UNIFIES COLLECTION -------------- ¶2. (C) Defense Ministry Legal advisor Juanita Goebertus told us Law 1288, which was passed by the Colombian Congress on March 5, sets up Colombia's first unified legal framework for domestic intelligence gathering. Under the law, all electronic monitoring will still require a judicial warrant. When seeking a warrant, the requesting agency will now need to produce operational orders that specify: a) where the monitoring fits into the overall operation, and b) how the monitoring balances the intrusion on the subject's constitutional rights with operational needs and the severity of the alleged crime. Goebertus said these requirements create a clear chain of command, as well as paper trail, for specific operations, making it easier to hold officials accountable in the event of abuse. All agencies will have to follow the same procedures for intelligence gathering. SHOULD REDUCE SCANDALS -------------- ¶3. (C) Goebertus said Law 1288 was not a specific response to the latest revelations of illegal wiretapping by the Department of Administrative Security (DAS). The law had been in the works since 2006, and was introduced in Congress in November, 2007. Still, she said MOD officials believe that the law's establishment of a common legal standard and more detailed reporting requirements will help deter abuses. Moreover, the law makes it more likely that violators will serve prison time if convicted. Goebertus noted that the law will require the scandal-plagued DAS to completely rewrite its training and operational manuals to meet the new standard. NEW EMPHASIS ON INTEL COORDINATION AND OVERSIGHT -------------- --- ¶4. (C) Goebertus said the key to the unified legal framework is the creation of the Joint Intelligence Council (Junta de Inteligencia Conjunta--JIC). Under the law, the JIC is headed by the Defense Minister and includes the intelligence directors of the General Command of the Colombian Armed Forces, the individual service branches (Army, Navy, Air Force, and the Colombian National Police),the DAS, and the GOC's Financial Intelligence Unit (UIAF). The JIC's main function is intelligence coordination by means of intelligence sharing. Goebertus said the JIC existed before Law 1288, but very little intelligence sharing occurred due to fears that sharing would generate leaks and would break classification laws. Bureaucratic rivalries were also a major obstacle. The new law mandates such sharing and sets up an analysis branch that is required to produce monthly intelligence briefings based on raw intelligence. ¶5. (C) The law also creates a six-person congressional oversight committee, comprised of three members each from the House and Senate chambers. The committee has vague monitoring powers and does not appear to have any operational authority. Its access to classified information is also unclear. Under Article 13, the committee can verify the efficient use of resources by intelligence agencies, ensure that citizens' constitutional rights are being respected, and check that the intelligence services are complying with the law's principles. The committee is also charged with producing an annual report on agencies' compliance with law ¶1288. Goebertus conceded that the oversight provisions are somewhat weak, but argued that it was an important advance in establishing the principle of congressional oversight. DOES THE LAW GO FAR ENOUGH? -------------- ¶6. (C) Mauricio Albarracin of the Colombian Commission of Jurists (CCJ),a respected human rights group, told us that his group was pleased over the codification of the unified framework and the nascent congressional oversight. Still, he told us he feared the law does not go far enough to protect citizens from the state. The group's first concern was the law's enactment as an ordinary, not a statutory law. Under Colombian jurisprudence, laws that deal with fundamental rights should be passed as statutory laws, which require special majorities and Constitutional Court review before they take effect. Albarracin contended that this meant the law did not face sufficient scrutiny and would be easier to overturn. ¶7. (C) Albarracin also stated that the relatively weak congressional oversight left too much power in the hands of the executive. He found the executive branch's power to reject any member of congress over background or "suitability" problems worrying, noting this was ripe for politicization (the MOD's Goebertus also acknowledged this problem in the law). In addition, under Article 16, the President can restrict the committee's access to classified information "temporarily" if he believes sharing the information would negatively affect operations or national security. These problems added up to essentially toothless oversight, he said. ¶8. (C) Albarracin also identified two other problems. First, although monitoring requires a judicial warrant, under Article 31 all telecommunications companies must share calling records with any police agency. This information, said the CCJ, should be as protected as is the content of calls--but is not. Second, the law creates a requirement that all documents and information collected remain classified for 40 years, regardless of how sensitive, or mundane, they may be. Albarracin argued this could impede victims' rights to access information that could be critical in proving crimes committed by the state. BROWNFIELD