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Last Updated:7/15/04
Relevant text of the 2004 Foreign Operations Appropriations Act (H.R. 2800 and S. 1426; Division D of omnibus bill H.R. 2673; Public Law 108-199) (with annotations)

(Excerpt text only, without annotations)

ANDEAN COUNTERDRUG INITIATIVE

For necessary expenses to carry out section 481 of the Foreign Assistance Act of 1961 to support counterdrug activities in the Andean region of South America,
1. Overall amount: The figure of $700 million for the entire Andean region is equivalent to the Bush Administration's original request of $731 million.
$731,000,000, to remain available until September 30, 2006: Provided, That
2. Mission expansion: The bill repeats legislative language that first appeared in the 2002 emergency anti-terrorism supplemental (H.R. 4775), which allows past and present counter-drug aid to be used in counter-insurgent (or "counter-terror") operations.
in fiscal year 2004, funds available to the Department of State for assistance to the Government of Colombia shall be available to support a unified campaign against narcotics trafficking, against activities by organizations designated as terrorist organizations such as the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army (ELN), and the United Self-Defense Forces of Colombia (AUC), and to take actions to protect human health and welfare in emergency circumstances, including undertaking rescue operations: Provided further, That this authority shall cease to be effective if the Secretary of State has credible evidence that the Colombian Armed Forces are not conducting vigorous operations to restore government authority and respect for human rights in areas under the effective control of paramilitary and guerrilla organizations: Provided further,

3. Helicopter end-use: This provision has been included in aid legislation every year since the 2000-2001 "Plan Colombia" aid package.

Provided further, That this authority shall cease to be effective if the Secretary of State has credible evidence that the Colombian Armed Forces are not conducting vigorous operations to restore government authority and respect for human rights in areas under the effective control of paramilitary and guerrilla organizations: Provided further, That the President shall ensure that if any helicopter procured with funds under this heading is used to aid or abet the operations of any illegal self-defense group or illegal security cooperative, such helicopter shall be immediately returned to the United States:

4. Shootdown policy: The U.S. strategy of passing intelligence about suspected drug-smuggling flights to the Peruvian Air Force has been suspended since the accidental shooting down of a planeload of U.S. missionaries over Peru in April 2001. (The program was re-started in Colombia in August 2003 after a two-year freeze. Now, this section calling for assurances of program improvements -which also appeared in the 2002 and 2003 aid bills - applies only to Peru).

Provided further, That none of the funds appropriated by this Act may be made available to support a Peruvian air interdiction program until the Secretary of State and Director of Central Intelligence certify to the Congress, 30 days before any resumption of United States involvement in a Peruvian air interdiction program, that an air interdiction program that permits the ability of the Peruvian Air Force to shoot down aircraft will include enhanced safeguards and procedures to prevent the occurrence of any incident similar to the April 20, 2001 incident: Provided further,

5. Report: Congress is asking for a thorough report on how money will be spent in each country.

That the Secretary of State, in consultation with the Administrator of the United States Agency for International Development, shall provide to the Committees on Appropriations not later than 45 days after the date of the enactment of this Act and prior to the initial obligation of funds appropriated under this heading, a report on the proposed uses of all funds under this heading on a country-by-country basis for each proposed program, project, or activity: Provided further,
6. Straight to AID: This provision, $7 million higher than similar language in the 2003 bill, guarantees that (a) over one-third of the region-wide package must be social and economic aid, and (b) much funds for social and economic programs will be appropriated directly to the U.S. Agency for International Development (USAID) instead of first passing through the State Department's anti-narcotics bureau.
That of the funds appropriated under this heading, not less than $257,000,000 shall be made available for alternative development/institution building, of which $229,200,000 shall be apportioned directly to the United States Agency for International Development: Provided further,
7. Justice, rule of law and human rights programs: Earmarks a minimum of $25 million for justice programs in Colombia and $13 million for human rights protection.
That of the funds appropriated under this heading, not less than $25,000,000 should be made available for justice and rule of law programs in Colombia: Provided further, That of the funds appropriated under this heading, in addition to funds made available pursuant to the previous proviso, not less than $13,000,000 should be made available for organizations and programs to protect human rights: Provided further,

8. Fumigation certification: Weakened somewhat from a similar provision in the 2002 law, this rather self-explanatory language cuts off 80 percent of money for new herbicides until the State Department and EPA can certify that several conditions exist.

That not more than 20 percent of the funds appropriated by this Act that are used for the procurement of chemicals for aerial coca and poppy fumigation programs may be made available for such programs unless the Secretary of State, after consultation with the Administrator of the Environmental Protection Agency (EPA), certifies to the Committees on Appropriations that: (1) the herbicide mixture is being used in accordance with EPA label requirements for comparable use in the United States and any additional controls recommended by the EPA for this program, and with the Colombian Environmental Management Plan for aerial fumigation; and (2) the herbicide mixture, in the manner it is being used, does not pose unreasonable risks or adverse effects to humans or the environment: Provided further, That such funds may not be made available unless the Secretary of State certifies to the Committees on Appropriations that complaints of harm to health or licit crops caused by such fumigation are evaluated and fair compensation is being paid for meritorious claims: Provided further, That such funds may not be made available for such purposes unless programs are being implemented by the United States Agency for International Development, the Government of Colombia, or other organizations, in consultation with local communities, to provide alternative sources of income in areas where security permits for small-acreage growers whose illicit crops are targeted for fumigation: Provided further,
9. Colombian National Park Service: Earmarks $2.5 million to protect Colombian parks - $1 million less than in the 2003 law.
That of the funds appropriated under this heading, not less than $2,500,000 should be made available for continued training, equipment, and other assistance for the Colombian National Park Service: Provided further, That

10. Fumigation in national parks: Slipped in at the last minute, this provision allows parks to be sprayed if the Colombian government approves. A March 2004 Colombian government decree has so far halted this practice.

funds appropriated by this Act may be used for aerial fumigation in Colombia's national parks or reserves if the Secretary of State determines that it is in accordance with Colombian laws and that there are no effective alternatives to reduce drug cultivation in these areas: Provided further, That section 482(b) of the Foreign Assistance Act of 1961 shall not apply to funds appropriated under this heading: Provided further, That assistance provided with funds appropriated under this heading that is

12. Section 482(b): This provision waives section 482(b) of the Foreign Assistance Act, which normally prohibits the use of counter-narcotics funds for weapons or ammunition (unless they are to be used for the defensive arming of anti-drug aircraft or for defensive purposes by State Department employees or contract personnel engaged in counternarcotics activities).

When aid is subject to "normal notification procedures," the leaders of both houses' appropriations committees must be notified in advance when new aid is to be obligated; chairmen and ranking minority-party members of these committees occasionally freeze such aid until certain conditions are met or negotiated.

made available notwithstanding section 482(b) of the Foreign Assistance Act of 1961, as amended, shall be made available subject to the regular notification procedures of the Committees on Appropriations: Provided further,

13. The "cap" on troops and contractors: The presence of U.S. military personnel and private contractors in Colombia is again held to a maximum of 400 each.

That the provisions of section 3204(b) through (d) of Public Law 106-246, as amended by Public Law 107-115, shall be applicable to funds appropriated for fiscal year 2004: Provided further, That no United States Armed Forces personnel or United States civilian contractor employed by the United States will participate in any combat operation in connection with assistance made available by this Act for Colombia: Provided further, That

14. Human rights conditions for Bolivia: This provision appears for the first time on the 2004 bill.

funds appropriated under this heading that are available for assistance for the Bolivian military and police should be made available for such purposes subject to a determination by the Secretary of State, and a report to the Committees on Appropriations, that the Bolivian military and police are respecting human rights and cooperating with investigations and prosecutions of alleged violations of human rights: Provided further, That of the funds appropriated under this heading, not more than $16,285,000 may be available for administrative expenses of the Department of State, and not more than $4,500,000 may be available, in addition to amounts otherwise available for such purposes, for administrative expenses of the United States Agency for International Development.

...

FOREIGN MILITARY FINANCING PROGRAM

(including transfer of funds)

For expenses necessary for grants to enable the President to carry out the provisions of section 23 of the Arms Export Control Act, $4,294,000,000: Provided, That of the funds appropriated under this heading, not less than $2,160,000,000 shall be available for grants only for Israel, and not less than $1,300,000,000 shall be made available for grants only for Egypt: Provided further, That the funds appropriated by this paragraph for Israel shall be disbursed within 30 days of the enactment of this Act: Provided further, That to the extent that the Government of Israel requests that funds be used for such purposes, grants made available for Israel by this paragraph shall, as agreed by Israel and the United States, be available for advanced weapons systems, of which not less than $568,000,000 shall be available for the procurement in Israel of defense articles and defense services, including research and development: Provided further, That of the funds appropriated by this paragraph, $206,000,000 should be made available for assistance for Jordan: Provided further, That

15. Police aid: Of the estimated $110 million in FMF going to Colombia in 2004, $17 million are earmarked for Colombian police aircraft support.

of the funds appropriated by this paragraph, $17,000,000 may be transferred to and merged with funds appropriated under the heading `Andean Counterdrug Initiative' and made available for aircraft and related assistance for the Colombian National Police: Provided further, That funds appropriated by this paragraph shall be nonrepayable notwithstanding any requirement in section 23 of the Arms Export Control Act: Provided further, That funds made available under this paragraph shall be obligated upon apportionment in accordance with paragraph (5)(C) of section 1501(a) of title 31, United States Code.

...

 

COLOMBIA

17. Human rights conditions: Language conditioning military aid to Colombia on human rights performance -- which was included in the bill's Senate version -- is similar to that found in past legislation, though it again applies to only 25 percent of aid.

SEC. 563. (a) DETERMINATION AND CERTIFICATION REQUIRED- Notwithstanding any other provision of law, funds appropriated by this Act that are available for assistance for the Colombian Armed Forces, may be made available as follows:

(1) Up to 75 percent of such funds may be obligated prior to a determination and certification by the Secretary of State pursuant to paragraph (2).

(2) Up to 12.5 percent of such funds may be obligated only after the Secretary of State certifies and reports to the appropriate congressional committees that:

(A) The Commander General of the Colombian Armed Forces is suspending from the Armed Forces those members, of whatever rank who, according to the Minister of Defense or the Procuraduria General de la Nacion, have been credibly alleged to have committed gross violations of human rights, including extra-judicial killings, or to have aided or abetted paramilitary organizations.

(B) The Colombian Government is vigorously investigating and prosecuting those members of the Colombian Armed Forces, of whatever rank, who have been credibly alleged to have committed gross violations of human rights, including extra-judicial killings, or to have aided or abetted paramilitary organizations, and is promptly punishing those members of the Colombian Armed Forces found to have committed such violations of human rights or to have aided or abetted paramilitary organizations.

(C) The Colombian Armed Forces have made substantial progress in cooperating with civilian prosecutors and judicial authorities in such cases (including providing requested information, such as the identity of persons suspended from the Armed Forces and the nature and cause of the suspension, and access to witnesses, relevant military documents, and other requested information).

(D) The Colombian Armed Forces have made substantial progress in severing links (including denying access to military intelligence, vehicles, and other equipment or supplies, and ceasing other forms of active or tacit cooperation) at the command, battalion, and brigade levels, with paramilitary organizations, especially in regions where these organizations have a significant presence.

(E) The Colombian Armed Forces are dismantling paramilitary leadership and financial networks by arresting commanders and financial backers, especially in regions where these networks have a significant presence.

(3) The balance of such funds may be obligated after July 31, 2004, if the Secretary of State certifies and reports to the appropriate congressional committees, after such date, that the Colombian Armed Forces are continuing to meet the conditions contained in paragraph (2) and are conducting vigorous operations to restore government authority and respect for human rights in areas under the effective control of paramilitary and guerrilla organizations.

(b) CONGRESSIONAL NOTIFICATION- Funds made available by this Act for the Colombian Armed Forces shall be subject to the regular notification procedures of the Committees on Appropriations.

(c) CONSULTATIVE PROCESS- Not later than 60 days after the date of enactment of this Act, and every 90 days thereafter until September 30, 2005, the Secretary of State shall consult with internationally recognized human rights organizations regarding progress in meeting the conditions contained in that subsection.

(d) DEFINITIONS- In this section:

(1) AIDED OR ABETTED- The term `aided or abetted' means to provide any support to paramilitary groups, including taking actions which allow, facilitate, or otherwise foster the activities of such groups.

(2) PARAMILITARY GROUPS- The term `paramilitary groups' means illegal self-defense groups and illegal security cooperatives.

18. Visa denial: A provision appearing for the third straight year, this requirement applies to suspected supporters -- and not just members -- of all three Colombian groups on the State Department's list of Foreign Terrorist Organizations.

ILLEGAL ARMED GROUPS

SEC. 564. (a) DENIAL OF VISAS TO SUPPORTERS OF COLOMBIAN ILLEGAL ARMED GROUPS- Subject to subsection (b), the Secretary of State shall not issue a visa to any alien who the Secretary determines, based on credible evidence--

(1) has willfully provided any support to the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army (ELN), or the United Self-Defense Forces of Colombia (AUC), including taking actions or failing to take actions which allow, facilitate, or otherwise foster the activities of such groups; or

(2) has committed, ordered, incited, assisted, or otherwise participated in the commission of gross violations of human rights, including extra-judicial killings, in Colombia.

(b) WAIVER- Subsection (a) shall not apply if the Secretary of State determines and certifies to the appropriate congressional committees, on a case-by-case basis, that the issuance of a visa to the alien is necessary to support the peace process in Colombia or for urgent humanitarian reasons.

...

19. Report language: The bill comes with a report clarifying the Conference Committee's intent and expectations for the law, as well as other concerns and the occasional request for information.

[Non-binding report language:]

ANDEAN COUNTERDRUG INITIATIVE

The conference agreement appropriates $731,000,000 for the Andean Counterdrug Initiative as proposed by the House instead of $660,000,000 as proposed by the Senate. The managers emphasize that there are other funds for Andean nations in this Act.

The conference agreement provides that not less than $257,000,000 shall be made available for alternative development and institution building activities by USAID, the Department of Justice, and the Department of State and that $229,500,000 shall be directly apportioned to USAID. The managers note that funds for the Bureau of Population, Refugee, and Migration are included in the $257,000,000 earmark and expect the entire amount requested be provided for programs to assist refugees and displaced persons.

Again in fiscal year 2004, the managers have extended the availability of funds provided for assistance for Colombia to support a unified campaign against narcotics trafficking, against activities by organizations designated as terrorist organizations, and to take actions to protect health and human welfare. This provision is identical to that in the House bill and Senate amendment.

20. Mission expansion: The committee makes clear that it expects counter-narcotics to remain the primary U.S. mission in Colombia despite the "unified campaign" language in the law.

The managers are supportive of the Colombian Government in its attempts to provide security for the Colombian people and have continued these expanded authorities in recognition that the narcotics industry is linked to the terrorist groups, including the paramilitary organizations, in Colombia. The managers expect counternarcotics, alternative development, and judicial reform to remain the principal focus of United States policy in Colombia. The managers reiterate that the expanded authority is not a signal from the managers for the United States to become more deeply involved in assisting the Colombian Armed Forces in fighting the terrorist groups, especially not at the expense of the counternarcotics programs, but to provide the means for more effective intelligence gathering and fusion, and to provide the flexibility to the Department of State when the distinction between counternarcotics and counterterrorism are not clear cut.

21. Human rights protection institutions: The committee offers a non-binding breakdown of how the earmarked $13 million in aid for human rights protection should be spent.

The conference report does not include certain earmarks for organizations and programs that protect human rights in Colombia, as proposed by the Senate. However, the conference agreement provides that not less than $13,000,000 should be made available for such organizations and programs. The managers intend these funds to be allocated as follows: not less than $2,500,000 for protecting human rights defenders in Colombia; not less than $2,500,000 for the United Nations Office of the High Commissioner for Human Rights in Colombia; not less than $6,500,000 for the Colombian Attorney General's Human Rights Unit; and not less than $1,500,000 for the human rights unit of the Colombian Procuraduria.

22. Cost of helicopter maintenance: The committee makes clear that it expects Colombia to start paying more of this cost, which is now approximately $200 million per year.

The managers remain concerned about the annual cost to the United States of operating and maintaining the fleet of helicopters used by the Colombian military for counternarcotics and counterterrorism purposes. While these helicopters are a key tool in the fight against coca and poppy, the managers believe the Department of State should begin to turn over the maintenance costs to the Colombian government. In fiscal year 2004, over one-quarter of all assistance to Colombia is devoted to these costs, and the managers believe that other important programs in Colombia need to be prioritized through the allocation of United States assistance. Therefore, the managers expect to see the start of this transition reflected in the fiscal year 2005 budget request, and if it is not, the managers expect this matter to be addressed in the fiscal year 2005 appropriations process.

The conference agreement continues current caps on the number of United States military personnel and United States civilian contractors in Colombia, as well as the current prohibition on participation by such persons in combat operations in connection with assistance made available by this Act.

The conference agreement again includes existing conditions on the aerial spraying of herbicide, similar to the Senate amendment, to ensure that any use of such chemicals is consistent with the Colombian Environmental Management Plan, with Environmental Protection Agency regulations, and to ensure that chemicals used in the aerial fumigation of coca do not pose unreasonable health or safety risks to humans or the environment. Additionally, not more than 20 percent of funds made available for the purchase of chemicals used in aerial spraying are available for obligation until the Secretary of State, in consultation with the Administrator of the Environmental Protection Agency, certifies to the Committees on Appropriations that a number of conditions and concerns regarding the safety of spraying are addressed. This is similar to current law and the Senate amendment. The House did not address this matter.

23. Fumigation in parks.

The conference agreement does not include a Senate prohibition on aerial fumigation in Colombia's national parks. The managers are concerned with reports that coca growers are moving into Colombia's national parks and reserves, cutting trees and causing other environmental damage. The managers support efforts to address this problem, but agree that aerial fumigation in the parks and reserves should be used as a last resort. Other alternatives should be pursued, including manual eradication, training and equipping police to protect the parks, and relocating families that have moved into these areas. Accordingly, the conference agreement includes language that before aerial fumigation is conducted, the Secretary of State must determine that it is in accordance with Colombian law and that there are no practicable alternatives to reduce drug cultivation in these areas. The managers request to be consulted prior to any such determination.

The conference agreement provides that not less than $2,500,000 should be made available for continued assistance for the Colombian National Park Service. This language is identical to the provision in the Senate amendment. The House did not address this matter.

24. The House Appropriations Committee's report (108-122) had included the following non-binding language:

The Committee recommends $1,000,000 for the Naval Post Graduate School (NPS) from new and prior year funds for programs to strengthen public engagement and democratic control of national security in Colombia.

...

The Committee directs that not later than 60 days after enactment of this Act the State Department shall provide to the Committees on Appropriations a report that describes detailed plans and programs by the Departments of State and Defense to train Colombian nationals for the purpose of assuming responsibilities for programs funded in this Act currently being executed by United States contractors. The report shall outline the program activities, estimates of funding levels, location of training, and expected length of length of time in which the training of Colombian nationals will be completed. This report is available on this site (Adobe Acrobat [.pdf] format)

The managers endorse the House report language on the Naval Postgraduate School and United States contractors in Colombia.

The conference agreement includes the House language prohibiting funds for the resumption of flights in support of a Peruvian air interdiction program until a system of enhanced safeguards are in place. The Senate did not address this matter.

The conference agreement includes language similar to a Senate provision, which provides that assistance should be made available to the Bolivian military and police subject to a determination and report by the Secretary of State that the Bolivian military and police are respecting human rights and cooperating with investigations and prosecutions of alleged violations of human rights. The managers note that despite repeated assurances by successive Bolivian governments that human rights cases would be properly investigated and the individuals responsible appropriately punished, little has been done and impunity remains the norm for members of Bolivian security forces who commit violations. The managers urge the Secretary to give higher priority to these justice issues.

The conference report includes changes to two reports for Plan Colombia from the fiscal year 2000 emergency supplemental. This issue is addressed in the general provisions.

The conference agreement makes available $16,285,000 for administrative expenses of the Department of State as proposed by the Senate instead of $15,680,000 as proposed by the House.

As of July 15, 2004, this document was also available online at http://thomas.loc.gov/cgi-bin/cpquery/R?cp108:FLD010:@1(hr401):

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