INDONESIA TRANSMITS ITS FIRST MUTUAL LEGAL ASSISTANCE

UNCLAS JAKARTA 000690

DEPT FOR EAP, EAP/MTS, INR/EAP, INL FOR CARLON,
DOJ FOR DAAG SWARTZ, OPDAT FOR BERMAN/ALEXANDRE/JOHNSON, OIA FOR
ROBINSON/WERNER
NCTC

SIPDIS
SENSITIVE

E.O. 12958: N/A
TAGS: PGOV KCRM KJUS SNAR ID
SUBJECT: INDONESIA TRANSMITS ITS FIRST MUTUAL LEGAL ASSISTANCE
REQUEST TO THE U.S.


1. (SBU) SUMMARY: On April 13, 2009, Indonesia transmitted its first
competent mutual legal assistance request to the U.S. for computer
evidence relating to a corruption investigation. This request was a
breakthrough because until now the formal Indonesian mutual legal
assistance request regime has proven largely dysfunctional. This
success was a result of the relationship built through providing
direct, hands on assistance to the Ministry of Law and Human Rights.
End summary.


2. (SBU) The formal mutual legal assistance (MLA) system in
Indonesia has never worked. Informal law enforcement requests, by
contrast, have worked fairly well. Part of the problem is
structural -- the 2006 Mutual Legal Assistance law placed the
"Central Authority" for sending and receiving requests within the
Ministry of Law and Human Rights, which has no operational capacity
and lacks the authority to compel government agencies and private
parties to satisfy requests. Therefore, the Ministry must convene
an interagency meeting to consider each request. In addition,
Indonesia's small Central Authority receives only a few dozen
requests each year, and therefore lacks the necessary systems for
routinely processing of MLA requests. By contrast, the US Central
Authority, DOJ's Office of International Affairs (OIA),processes
approximately 6000 incoming and outgoing foreign requests annually.
As a result, despite the best of intentions and numerous
donor-supported MLA conferences and training programs, MLA requests
from the US and elsewhere disappear into a black hole, and Indonesia
rarely issues its own. This lack of capacity hinders Indonesia's
effort to cooperate in transnational criminal cases and forfeitures
and has been an issue in our stalled ongoing Mutual Legal Assistance
Treaty negotiations between the US and Indonesia.


3. (SBU) By contrast, the Indonesian National Police have been
highly cooperative with U.S. law enforcement in exchanging
information through informal assistance requests. However, these
assistance requests have significant limitations. Where U.S. law
enforcement must use court-ordered compulsion to obtain evidence
requested by Indonesia, however, such as for bank records, computer
records, witness depositions, or search warrants, the formal MLA
process must be used under US law.


4. (SBU) In August 2008, the DOJ/OPDAT Resident Legal Advisor
brought OIA's Regional Justice Attache, Robert Courtney, to Jakarta
to embed himself within the Ministry of Law for four days to allow
him to discuss issues with the both senior and junior members at the
Central Authority on an informal basis. The Ministry provided him
full access, even to their active MLA requests received from other
countries, which allowed him to identify directly the legal,
interagency, and internal managerial obstacles within the Indonesian
MLA process. Based on this approach, Courtney prepared a detailed
written report for the head of the Central Authority that identified
potential solutions to management and interagency issues as well as
propose legal amendments to the 2006 MLA law. It also allowed DOJ
to build a personal relationship with the members of department to
facilitate future MLA requests.


5. (SBU) The benefits of this more hands on approach have resulted
in the Ministry of Law's first success in sending a competent MLA
request for US evidence. In January, the Corruption Eradication
Commission (KPK) asked FBI Legatt, OIA and the RLA for assistance in
obtaining certain electronic evidence from a United States Internet
Service Provider (ISP) to aid a corruption investigation into a
multi-million dollar government procurement fraud. Because this
type of evidence requires a court order in the U.S., informal
cooperation was not an option. When DOJ explained that the request
had to originate from Indonesia's designated Central Authority in
order for the US to satisfy it, the KPK initially protested,
expressing their concern that the Ministry of Law could competently
handle processing their request and that its confidentiality would
not be maintained. In the ensuing weeks, however, OIA worked to
rewrite the request into an internationally accepted format and
helped move it through the laborious process within the Ministry of
Law, before it was finally transmitted to DOJ on April 13, 2009.


6. (SBU) While the internal Indonesian process for this initial
request was cumbersome and took months longer than should have been
necessary, the KPK and Ministry of Law now have developed an
acceptable template for future MLA requests. Without much needed
additional legal authority and practical experience, it will still
take several years before Indonesia can routinely make and satisfy
MLA requests, but the transmission of this first request is a step
forward.

HUME