Wednesday, August 18, 2010

Colombian court strikes down U.S. defense agreement

Late Tuesday, Colombia’s Constitutional Court, part of its Supreme Court, decided by a 6-3 vote to strike down a defense cooperation agreement that Colombia’s government had signed with the United States in October 2009.

This accord, which gave U.S. military personnel the right to use seven Colombian bases for the next ten years, is suspended until Colombia’s Congress votes to approve it. Article 173 of Colombia’s Constitution requires that the country’s Senate be empowered to “permit the transit of foreign troops through the territory of the Republic.”

Politically, the court’s decision is a blow to both governments because it gives the impression – deserved or no – that the Obama and Uribe administrations sought to do something that violated Colombia’s Constitution. Operationally, however, the defense accord’s suspension will not affect the U.S. presence in Colombia. Not a single U.S. soldier or contractor will have to leave Colombia or alter what he is doing as a result of the Constitutional Court’s decision.

Though the Defense Cooperation Agreement (or DCA) was signed last October 30, the implementing agreements needed to make it operational have yet to be signed. This means that, as of yesterday, the new DCA had still not gone into effect. U.S. military and contractor personnel were still acting under the authorities laid out in a series of old accords (1952, 1962, 1974, 2004, 2007), whose validity the Colombian court did not challenge.

Under these old accords, U.S. personnel have already been frequently present at the seven bases listed in the DCA, as well as several others. The difference is that today, there is no “free entry”: each U.S. deployment is subject to a series of Colombian government approvals that would be unnecessary under the DCA. It also means that construction of new facilities at the Palanquero airbase in Puerto Salgar, Cundinamarca – for which Congress appropriated $46 million in 2010 – cannot yet begin.

Note as of 16:00 PM: We've confirmed that U.S. military aircraft may still land at Palanquero as before, but such landings still require case-by-case Colombian government approval. For a list of planned construction to be funded by the $46 million, see the section beginning with page 217 of this PDF file from the U.S. Air Force.

The court’s decision means that implementation of the DCA may be delayed, and U.S. personnel in Colombia will continue to operate under the “old” agreements, for as much as a year. Even though Colombian President Juan Manuel Santos strongly favors the DCA, and even though roughly 80 percent of Colombia’s Congress is pro-Santos and likely to approve the DCA, the legislative process could take months. Opposition legislators will have a chance, for the first time in an official forum, to air their arguments against the agreement.

Once the Congress approves the agreement, it must then go back to the Constitutional Court for final approval. A leading opposition senator, Jorge Enrique Robledo of the leftist Polo Democrático, told the Colombian daily El Espectador that the court’s final approval is far from assured: “There is no article in the Constitution allowing foreign troops to be stationed in [as opposed to transiting through] national territory.”

In the United States, meanwhile, nothing changes. As a defense cooperation agreement and not a treaty, signing the Colombia accord is viewed as within the President’s powers as commander-in-chief of the armed forces. Congressional committees were notified about the accord, but were not required to approve it.

Update as of 16:00 PM: Gen. Freddy Padilla, the chief of Colombia's armed forces until August 7, made headlines in Colombia today by claiming that the Colombian court decision would force the U.S. Congress to consider the defense cooperation agreement as well. We have consulted with a responsible Defense Department official and confirmed that this is not accurate.