Adam Isacson

On Wednesday, appearing before reporters in Washington after meeting with U.S. Attorney General Merrick Garland, Colombia’s chief prosecutor Francisco Barbosa strongly criticized President Gustavo Petro’s intention to lift arrest warrants for organized crime leaders entering into demobilization negotiations. Barbosa, who heads a separate branch of government and is close to Petro’s conservative predecessor Iván Duque, said that Petro’s planned talks with criminal groups were tantamount to declaring a ceasefire with Pablo Escobar.

At the Colombian daily El Espectador, journalist Cecilia Orozco asked me several questions about the episode. The interview text appears in today’s edition.

Here is an English translation.

“Prosecutor Barbosa’s statement was bombastic and political”: Adam Isacson

The Director for Defense Oversight of the influential organization WOLA (Washington Office on Latin America) analyzes the impact and “political” direction of Francisco Barbosa’s strong statements against Petro’s “total peace” strategy, during his recent visit to U.S. government officials. He believes that they caused serious damage and that the attorney general “did not think about the consequences of his position.”

Cecilia Orozco Tascón

Q: The statements made by prosecutor Francisco Barbosa in the United States evidence his drastic change of behavior: from being criticized for his closeness to the Duque government, whose president nominated him for the position, to being confrontational, in a high volume, with the Petro government. How do you analyze this situation, which confronts the president of the Republic with the head of the investigative body?

A: One thing I admire about the Colombian political system is that it made the attorney general a separate branch of the government. That is usually a good thing. In the United States, the prosecutor is part of the executive branch and answers to the President. Donald Trump seems to have broken the law on many occasions, but he had very little to fear of his hand-picked prosecutors, Jeff Sessions—whom he fired—and William Barr, investigating. The only thing that prevents a U.S. president from using prosecutors as instruments to attack his political adversaries, in reality, are norms and customs, not the Constitution.

Q: In the Colombian case, the method of electing the prosecutor (by the Supreme Court, but from a shortlist chosen by the president) vitiates his independence, as has been demonstrated when their terms coincide. Not as in the current case, when the nominating president leaves and a different one arrives….

A: As I said, having an attorney general truly independent of the president is good, because it is a check on presidential power. But it can be bad for governance: the more power is divided, the greater the likelihood of gridlock and paralysis. That seems to be happening in an issue central to the security of Colombians: the government’s peace negotiations. When Juan Manuel Santos started the talks with the FARC, he had already appointed a prosecutor, Eduardo Montealegre, favorable to the Peace Agreement. It seems that Gustavo Petro will not have, for the time being, one that supports him in this crucial matter.

Q: Upon exiting his visits to the Justice Department and the U.S. Attorney, Barbosa told the media one of the most aggressive phrases ever made by a prosecutor with respect to the incumbent government: “Never before has a bilateral ceasefire been made with drug trafficking organizations. It is like making a bilateral ceasefire with Pablo Escobar or the Cali cartel”. What do you think of this statement?

A: Barbosa’s statement is concerning, because it is the clearest indication we have seen that he intends to use the Attorney General’s Office to oppose the government’s peace strategy. It seems to leave no room for negotiation. He also seems to have said it for media purposes, perhaps without thinking about the consequences of his position. I do not know if President Petro and the prosecutor have talked about the legal aspects of the peace policy. My perception is that they have not had a substantive discussion. So I also don’t know, for sure, whether Barbosa is expressing frustration after difficult talks or shooting arrows in public before those talks get underway.

Q: The two are supposed to meet tomorrow, Monday; but it is not unlikely that the overtly unfriendly tone and content of the prosecutor’s statement may prevent the appointment from taking place.

A: In addition to that consequence (should it happen), Barbosa’s statement is inaccurate: Cesar Gaviria’s government made a deal with Pablo Escobar that gave him a luxurious “house arrest”, in the so-called Catedral one-man prison. There, he was “guarded” by his own people and lived under his own rules. That really looked like a form of bilateral ceasefire.

Q: Do the Attorney General’s inflammatory statements impact the Colombian Government’s relations with the U.S. Government?

A: Absolutely. They have a big impact on U.S.-Colombia relations. The Biden administration generally supports the idea of negotiating peace with armed groups, but that support is not unconditional. One of the most skeptical agencies in Washington is the Justice Department, where prosecutors fear losing the ability to extradite major criminals. With his public statement, Barbosa has just fueled that skepticism in a big way.

Q: I suppose the impact will be greater because his statements were made in the framework of an official visit to Prosecutor Garland and the Justice Department. Is that so?

A: Yes. Barbosa and Merrick Garland have already met several times and have developed a cooperative relationship. The Colombian prosecutor may be taking advantage of that relationship to scare the Biden administration about a Petro government policy that is still in formation. While it is true that the Prosecutor’s Office is an autonomous entity, this does not mean that it can carry out a separate foreign policy. Barbosa can certainly express his concerns to his counterparts, particularly on how to advance a line of cooperation if some extraditions are put on hold. But airing differences over some aspects of domestic foreign policy, using vague and deliberately provocative words, suggests that Colombia has two contradictory foreign policies.

Q: Should the Colombian government counter the damage done by Barbosa now or wait for the waters to calm down before sending its Minister of Justice, Minister of Foreign Affairs or activating its ambassador to give its own version?

A: It would be better for the government to respond, quickly, by sending its own messages and officials to Washington to counter the prosecutor’s narrative before it grows stronger.

Q: On the other hand, since Barbosa’s statements were delivered immediately after his appointment with Garland, could it be inferred that the Colombian official is repeating the opinion of the U.S. Attorney and the Justice Department regarding Petro’s total peace policy?

A: It is likely that Barbosa has heard Justice Department officials, including perhaps Garland, express strong objections to the suspension of extraditions of organized crime members. But I doubt very much that Merrick Garland, who is known for his restraint and moderation, would encourage Barbosa to express those concerns using the provocative language he did.

Q: Barbosa also stated that the decrees issued after the approval of the total peace law should be reviewed, but he says this after Congress approved, two months ago, a law authorizing the president to “carry out all acts tending to engage in rapprochement with organized armed criminal structures.” However, when the law was debated, the prosecutor was not present. It seems an inconsistency.

A: I do not know why the attorney general did not play a more active role at the time the law was being discussed. In this case, however, he can probably defend himself by saying that he and Petro disagree in their interpretations of that law and the powers that it grants to the president.

Q: The strongest controversy arises over the government’s request to suspend, temporarily, arrest warrants for members of criminal gangs. It makes sense, but the Congress also approved a paragraph which reads that “once a dialogue process is initiated (…) the corresponding judicial authorities will suspend the arrest warrants (…) against the members (…) of the armed structures that show willingness.” According to your experience, is this legislative decision unacceptable abroad?

A: A temporary suspension of arrest warrants is not synonymous with impunity. It is a practical and logistical measure to allow negotiations to take place. It is clear that these negotiations must not lead to an agreement that grants impunity for war crimes or crimes against humanity, or that dishonors these individuals’ countless victims. They have an obligation to confess their role in fostering criminality through drug trafficking, the undermining of institutions and the rule of law, the damage they have done to the environment, and their violation of the rights of Indigenous communities, women, and other historically marginalized groups. But, I repeat, a temporary suspension of detentions should not be interpreted as an impunity agreement. And extradition to the United States, which only punishes their drug trafficking activity, delays accountability to their victims in Colombia.

Q: Precisely, and referring to the extradition issue, some of those who have been announced as spokesmen for the criminal groups are requested for extradition. Does the simultaneous request for suspension of arrest and extradition disturb the U.S. government?

A: This is a transcendental issue for the U.S. government. Its prosecutors and diplomats place great importance on the extradition agreement with Colombia. Alvaro Uribe and former prosecutor Mario Iguarán received many messages of serious concern from their counterparts in the United States during the Justice and Peace negotiations with paramilitary groups. And Uribe ended up extraditing many of the AUC leaders. Juan Manuel Santos was also made aware of U.S. concerns when negotiating with the FARC, as demonstrated by the 2018 Jesús Santrich episode. Concern about suspending extradition is probably the biggest obstacle to the U.S. government’s more decisive support for peace negotiations. Moreover, if prosecutors, military and police representing the security sector in Colombia do not agree with full peace, they themselves will communicate their displeasure to their counterparts in the United States. That will raise red flags in Washington. But this phenomenon is not new.

Q: In your analysis of the Colombian situation, were the prosecutor’s statements made in a legal sense or, rather, in a political context, taking into account that his term ends this year and that he is a close friend of Duque, a pro-Uribe enemy of both the Santos Peace Accord and this government?

A: Being so vague, bombastic and based on the interpretation of a strategy that is still under discussion, Barbosa’s statement was a political act. It was not a technical legal analysis, but a statement of opposition to the Petro government’s negotiation framework and an alignment with its political opponents. Incidentally, Barbosa, Duque and other conservative Colombians have an advantage over the Petro government in Washington: many of them studied or worked in the United States and maintain old relationships with local elites. They maintain much easier and more fluid communication with U.S. leaders. When they want to make a political statement here, they will be heard, as just happened with Barbosa.

Q: So it would be pragmatic for the Petro government to move by sending more officials well connected to the Biden administration. Or is it not strategic to do so at this time in light of the blow that Barbosa dealt him?

A: Given the impact that the United States can have on the development of the overall peace policy, it would be important for the Petro administration to be present in Washington and engage in early dialogue with U.S. officials who have an impact on Colombia policy. At the moment there is, in my opinion, an asymmetry of information in the United States between the messages of Petro’s opponents and those of his government.

Q: In another part of his statements, Barbosa pointed out that “there is a concern about the cessation of hostilities with drug traffickers because it is an unprecedented figure”. President Lopez Obrador desisted from pursuing the shadowy Sinaloa cartel for not facing dangers for the civilian population of the city of Culiacán, he said. Did the U.S. veto Mexico for that?

A: U.S. officials did communicate their displeasure, forcefully and privately, to the Mexican government. But, with respect to the point you make, there is a better parallel in the informal contacts that U.S. agents have with organized crime figures about the terms of their eventual surrender: it is not uncommon for offers of reduced sentences to be made in exchange for providing useful information. Plea bargaining can begin before an arrest is made. The difference is that it is less formal and without suspension of arrest warrants.

Q: You have been a student of the Colombian conflict for several years. So, how do you analyze the situation of political tension felt in the country since the left-wing opposition won the elections and became the incumbent government?

A: It is not new to see a Latin American democracy, in a historically unequal country, elect a leftist political movement after generations of control by conservative elites, and then see other conservative state powers seeking to block that leftist leader. Sometimes (as happened with Salvador Allende) the conservatives win the contest with tragic results. Sometimes (Hugo Chavez’s case) the leftist movement succeeds in eliminating all checks on its power, which also brings bad results. But at other times (Lula, Bachelet, Mujica), the leftist movement manages to govern in spite of its conservative opponents while strengthening democratic institutions. Colombia is in the first months of a similar dynamic. Gustavo Petro and Francia Márquez seem to realize that they have to act quickly to make a noticeable change in people’s lives, otherwise Colombian voters will go back to supporting right-wing candidates in 2026.

Q: True: people are impatient and critics are very insistent…

A: The government often seems overwhelmed by all the items on its agenda. Some policies, such as “total peace,” seem improvised: there is not enough communication about the content of the plan, too much seems to be done through tweets, and official agencies are still hiring key personnel.

Q: From your point of view as a foreign analyst, what is the greatest success and the greatest failure of the “total peace” project?

A: We still don’t really know, as I said, what total peace is; at least not in detail. I can only speculate about its successes and failures: the greatest success, so far, is to have created the hope that Colombia’s historic cycles of violence can be broken without needing to do so on the battlefield. If the Petro government manages to demobilize most of the country’s armed groups without firing a shot, through persuasion, compromise, and negotiation, it would be transformative. The biggest failure, for the moment, is the lack of clarity about what would happen afterwards, if total peace were to succeed. If the vacuum of state presence in the territories continues as it did with Santos, the effort will not be worth it. Why eliminate a group of armed group leaders from the scene so that new ones can replace them because the state did not arrive?

[Sidebar:] Legal opinion of former Justice Minister Yesid Reyes on arrest warrants:

“In my opinion, Prosecutor Barbosa is wrong when he says that there is no legal framework that allows lifting the arrest warrants that exist against members of organized armed structures of high impact crime. Law 2272 of 2022 expressly establishes that possibility, on a temporary basis, referring only to the authorized spokespersons of such organizations and only to bring them to justice. On the other hand, I find legitimate his concern about the decrees that ordered the cessation of hostilities against these criminal structures to install, with them, dialogue tables aimed at seeking their submission: this cessation of hostilities prohibits offensive military operations and police operations against these groups, which means that their members can only be captured if the authorities encounter them by chance. In practice, this leads to a de facto suspension of the arrest warrants against all their members, not just their authorized spokespersons, and not only for the 15 days requested by the Government, but until June 30, 2023. And with the vague purpose of setting up dialogue tables”.

Q: Do you think it is possible that the current right-wing opposition in Colombia, which has been quite active and rude, will try to move from legitimate criticism of the Petro government, to conspiracies and revolts as happened in Peru?

A: There will always be a desire to limit Petro’s ability to govern, if not to remove him. When he was mayor of Bogota, one remembers what the Internal Affairs Chief Alejandro Ordonez intended to do. But, for now, I don’t think it is likely that they will try to topple the President. Petro has been more strategic than Pedro Castillo, who was hapless, unpopular, and disorganized. Setting aside the corruption allegations against him, Castillo was chaotic, passing through dozens of ministers; and he seemed unable to communicate a vision while the opposition dominated Congress. In contrast, Petro began by building a working majority in Congress and reached out to opponents, including Alvaro Uribe. He is also a much better communicator—despite some unfortunate uses of Twitter—and his approval rating remains close to 50 percent. As long as these trends continue, Petro need not worry about conspiracies.