On July 7 the OAS Inter-American Human Rights Commission issued a report about the weeks of social protest that began in Colombia on April 28. The report extensively documents the Colombian security forces’ harsh and abusive response.
That same day, Colombia’s Foreign Ministry—less than delighted with the Commission’s report—published its response. That document claims:
the Colombian State has a solid democratic, participatory and pluralistic institutional framework, with a balanced institutional architecture between public authorities and autonomous bodies, with specific control functions and with the capacity to deal with events related to protests.
The country’s human rights community certainly disputes this, since Colombia’s institutions have usually had a hard time bringing serious abusers to justice, even when prosecutors and investigators have made good-faith efforts. But if it’s true, then recent moves in the U.S. Congress should be of no concern to the Colombian government.
The House of Representatives’ version of the 2022 foreign aid appropriations bill, which goes before the full House this week, would freeze 30 percent of aid to Colombia’s police through the largest police aid account, until the State Department certifies that the force is punishing serious human rights abusers among its ranks. This is the first time Colombia-specific human rights conditions have applied to police aid in many years.
If what the Foreign Ministry says here is true, then Colombia’s government should have no problem with this. If the country’s well-functioning, autonomous “institutional framework” punishes those responsible for massive abuses committed during the 2021 Paro Nacional protests, then the U.S. conditions will be met. They should be a non-issue, and the Colombian government should have no complaints here in Washington.
Here’s a quick analysis of where things stand with U.S. aid to Mexico’s military and police, which I wrote with WOLA’s Mexico director, Stephanie Brewer. The Mexico Violence Resource Project, a new initiative affiliated with the University of California at San Diego’s Center for U.S.-Mexican Studies, published it today as part of a really good collection of pieces about the future of U.S.-Mexican security cooperation. (Which is going through a rough patch right now.)
Here’s an excerpt, but I just include it here in order to drive traffic over there.
Today, WOLA estimates that U.S. assistance to Mexico’s security forces totals a bit more than $100 million, of an overall annual package of perhaps $210 million. Of that, two aid accounts matter most.
* The State Department’s International Narcotics Control and Law Enforcement program, which can pay for military and police aid as well as judicial or other civilian aid, is channeling $100 million in appropriations into Mexico aid in 2021. About one-third to one-half of that is likely to assist Mexican police forces and the INM, with a small amount probably benefiting military units. (Mexico’s new National Guard has not been getting U.S. aid, though conversations are ongoing.)
* The other main account is the Defense Department’s authority to train and equip foreign security forces, known as “Section 333.” This very untransparent funding source provided $55.3 million in aid to Mexican military and police units in 2019,according to the Congressional Research Service. This is the main channel for assisting SEMAR and SEDENA.
$100 million is a much smaller package than Colombia’s military and police will get in 2021 (about $250 million) and a fraction of what Mexico’s forces got in 2010, at the outset of the Mérida Initiative (about $500 million). And it’s not clear even how much of 2021’s $100 million might get delivered, considering all of the bumps in the relationship between the Biden and López Obrador administrations.
Nonetheless, despite all the distrust, there will always be a bilateral security relationship between countries that share a 1,970-mile land border that’s the world’s most frequently crossed. Mexico is the United States’ number-two trading partner. Most undocumented migrants, and most of the illicit drugs on which more than 70,000 Americans per year overdose, pass through Mexico’s territory. The two countries are going to work together no matter what.
The question is whether they’ve been working together on the right things. A lesson of the Mérida Initiative years is that all four pillars are best fortified by civilian-to-civilian, not military-to-military, cooperation.
Guyana – Bell 412EPi and 429 Helicopters (Washington: Defense Security Cooperation Agency, October 30, 2020). The President must notify Congress of any pending Foreign Military Sale of defense articles or services exceeding $50 million, of design and construction services exceeding $200 million, or any major defense equipment exceeding $14 million.
June S. Beittel, Colombia: Background and U.S. Relations (Washington: Congressional Research Service, October 26, 2020). A detailed overview of past and current U.S. assistance to Colombia, as well as Colombia’s current political outlook.
The Senate Appropriations Committee released a draft of its version of the 2021 aid bill yesterday morning. And two weeks ago, a Congressional Research Service report revealed new data about Defense Department assistance.
The 2021 aid bill hasn’t become law yet, and might not until the next presidential administration. This table depicts the White House’s February request and the House and Senate versions of the bill. The two chambers’ amounts don’t differ widely.
Both the House and Senate packages would dedicate less than half of 2021 aid to Colombia’s military and police. This is a big contrast from the peak years of Plan Colombia between 2000 and 2015, when military and police aid in some years exceeded 80 percent of the total.
2020 transfer of aid from Central America: we’ve heard it from legislative staff, but the only document we can cite right now is coverage of an October 2019 announcement by Secretary of State Mike Pompeo in Colombia’s El Tiempo.
Not reflected here is assistance to Colombia to manage flows of Venezuelan refugees.
The House of Representatives’ Appropriations Committee finished work on the 2021 State Department and Foreign Operations bill on July 9. In addition to offering some language very supportive of peace accord implementation, the narrative report accompanying the bill provides a table explaining how the House appropriators (or at least, their strong Democratic Party majority) would require that this money be spent.
The table above shows how the House would spend the 2021 aid money, and how it fits in with what the Trump White House requested, and what aid has looked like since 2016, the year before before the outgoing Obama administration’s “Peace Colombia” aid package went into effect.
If the House were to get its way, less than $200 million of the $458 million in 2021 U.S. aid to Colombia would go to the country’s police and military forces. However, the bill must still go through the Republican-majority Senate, whose bill may reflect somewhat more “drug war” priorities. A final bill is unlikely to pass both houses of Congress until after Election Day.
2020 transfer of aid from Central America: we’ve heard it from legislative staff, but the only document we can cite right now is coverage of an October 2019 announcement by Secretary of State Mike Pompeo in Colombia’s El Tiempo.
Not reflected here is assistance to Colombia to manage flows of Venezuelan refugees.
It’s not every day you get to record a podcast with a member of Congress. I enjoyed sitting down virtually this morning with Rep. Jim McGovern (D-Massachusetts), a longtime advocate of human rights in Colombia. He was fired up about the outrageous recent scandal involving U.S.-aided army intelligence units spying on Colombian reporters, human rights defenders, politicians, and others.
He calls here for a suspension of U.S. military aid and a much clearer U.S. commitment to implementing Colombia’s 2016 peace accords and protecting its threatened social leaders.
Rep. Jim McGovern (D-Massachusetts), the co-chair of the Tom Lantos Human Rights Commission in the U.S. Congress, is a longtime advocate of human rights, worldwide and in Latin America.
McGovern joins WOLA in this episode for a conversation about Colombia, a country to which he has traveled several times, and where he was one of the House of Representatives’ leading advocates for the negotiations that ended with a peace accord in 2016.
We’re talking weeks after new revelations that U.S.-aided Colombian military intelligence units had been spying on human rights defenders, journalists, judges, politicians, and even fellow officers. The Congressman calls for a suspension of U.S. military assistance to Colombia while the U.S. government undertakes a top-to-bottom, “penny by penny” review of the aid program. “If there’s not a consequence, there’s no incentive to change,” he explains.
He calls for the Colombian government and the international community to do far more to protect the country’s beleaguered human rights defenders, to change course on an unsuccessful drug policy, and to fulfill the peace accords’ commitments. Human rights, Rep. McGovern concludes, should be at the center of the U.S.-Colombia bilateral relationship.
Latest edition of a regular CRS overview of Mexican politics and economics, U.S.-Mexican relations, and assistance. Good U.S. aid numbers. Clare Ribando Seelke, Mexico: Background and U.S. Relations (Washington: Congressional Research Service, April 29, 2020) https://crsreports.congress.gov/product/pdf/R/R42917.
Latest edition of a regular CRS overview of Honduran politics and bilateral relations with the United States. Peter J. Meyer, Honduras: Background and U.S. Relations (Washington: Congressional Research Service, April 27, 2020) https://crsreports.congress.gov/product/pdf/RL/RL34027.
The Government Accountability Office found that Customs and Border Protection wildly overspent on a tent facility to house apprehended migrants during late 2019. U.S. Customs and Border Protection’s Management of a Temporary Facility in Texas Raised Concerns about Resources Used (Washington: U.S. Government Accountability Office, April 9, 2020) https://www.gao.gov/products/GAO-20-321R.
I’ve been reading Lars Schoultz’s scholarship on U.S.-Latin America relations since I was in college, and I was delighted that he would record a podcast.
The longtime professor at the University of North Carolina at Chapel Hill published an award-winning book in 2018, In Their Own Best Interest. In it, he takes to task U.S. policymakers and advocates who seek to “uplift” or “improve” Latin American nations, viewing them as part of a very long tradition going back to imperialists of the gunboat diplomacy era. He notes that some countries are hardly better off after a century of U.S. “uplifting,” and worries about how our grandchildren will view the policies that we advocate for today.
Is WOLA guilty of this? While I frankly don’t see much of myself in Schoultz’s characterization of our work, I really enjoyed engaging him in this lively and very thought-provoking discussion. I think you’ll like this one a lot.
The State Department’s annual report on other countries’ counter-drug efforts, with some information about U.S. aid. 2020 International Narcotics Control Strategy Report (Washington: Bureau of International Narcotics and Law Enforcement Affairs, March 2, 2020) <PDF from https://www.state.gov/2020-international-narcotics-control-strategy-report/>.
Intricately detailed tables of the status of aid to Central America between 2013 and 2018, from a GAO performance audit. U.S. Assistance to Central America: Status of Funding (Washington: U.S. Government Accountability Office, March 4, 2020) <PDF at https://www.gao.gov/products/GAO-20-163R>.
Two GAO reports about the Homeland Security Department’s processing—and cruel separating—of apprehended migrant families. Southwest Border: Actions Needed to Address Fragmentation in DHS’s Processes for Apprehended Family Members (Washington: U.S. Government Accountability Office, March 18, 2020) <PDF at https://www.gao.gov/products/GAO-20-274>. Southwest Border: Actions Needed to Improve DHS Processing of Families and Coordination between DHS and HHS (Washington: U.S. Government Accountability Office, March 18, 2020) <PDF at https://www.gao.gov/products/GAO-20-245>.
At the bottom of each are shortened links to the documents from which we drew the information. The current collection of infographics covers the demobilized FARC population, U.S. aid, registered victims, U.S. cocaine prices, coca cultivation and eradication, cocaine seizures, homicides, kidnappings, and forced displacement.
The State Department’s 2021 foreign aid request to Congress, with much 2019 aid numbers. Congressional Budget Justification Department of State, Foreign Operations, and Related Programs Fiscal Year 2021 (Washington: U.S. Department of State, February 11, 2020) <PDF from https://www.state.gov/fy-2021-international-affairs-budget/>.
The annual report to Congress from the Western Hemisphere Institute for Security Cooperation (the successor to the old U.S. Army School of the Americas). WHINSEC Fiscal Year 2019 Report (Fort Benning: Western Hemisphere Institute for Security Cooperation, January 29, 2020) <PDF at https://fliphtml5.com/vdwkj/eyga/basic>.
Customs and Border Protection’s annual data dump of the previous year’s statistics on migrant apprehensions, staffing, migrant deaths, and a few other items. Fiscal Year 2019 Stats and Summaries (Washington: U.S. Customs and Border Protection, February 11, 2020) <Combined PDF file I assembled from documents at https://www.cbp.gov/newsroom/media-resources/stats>.
The Defense Department’s explanation of how it will move $3.8 billion out of its budget to pay for border-wall building because Trump declared an “emergency” last year. Support for DHS Counter-Drug Activity Reprogramming Action (Washington: U.S. Department of Defense Comptroller, February 13, 2020) <PDF at https://comptroller.defense.gov/Portals/45/Documents/execution/reprogramming/fy2020/reprogramming_action/20-01_RA_Support_for_DHS_Counter_Drug_Activity.pdf>.
Customs and Border Protection’s 2021 budget request to Congress. U.S. Customs and Border Protection Budget Overview Fiscal Year 2021 Congressional Justification (Washington: U.S. Department of Homeland Security, February 11, 2020) <PDF at https://www.dhs.gov/sites/default/files/publications/6_u.s._customs_and_border_protection.pdf>. See also the Acting Commissioner’s February 27 testimony to House appropriators.
Immigration and Customs Enforcement’s 2021 budget request to Congress. U.S. Immigration and Customs Enforcement Budget Overview Fiscal Year 2021 Congressional Justification (Washington: Department of Homeland Security, February 11, 2020) <PDF at https://www.dhs.gov/sites/default/files/publications/7_u.s._immigration_and_customs_enforcement.pdf>.
The Defense Department’s modestly useful, but mostly indecipherable, presentation of its overseas security assistance programs. Fiscal Year (FY) 2021 President’s Budget Justification for Security Cooperation Program and Activity Funding (Washington: U.S. Department of Defense, February 4, 2020) <PDF at https://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2021/fy2021_Security_Cooperation_Book_FINAL.pdf>.
The White House’s vague, brief “Southwest Border Counternarcotics Strategy.” National Drug Control Strategy Southwest Border Counternarcotics Strategy 2020 (Washington: Office of National Drug Control Policy, February 20, 2020) <PDF at https://www.whitehouse.gov/wp-content/uploads/2020/02/2020-Southwest-Border-Counternarcotics-Strategy.pdf>.
The White House’s vague, brief “National Interdiction Command and Control Plan.” National Interdiction Command and Control Plan (Washington: Office of National Drug Control Policy, February 20, 2020) <PDF at https://www.whitehouse.gov/wp-content/uploads/2020/02/2020-National-Interdiction-Command-and-Control-Plan.pdf>.
Here’s a short analysis posted to WOLA’s website (Español). It jumps off from last Friday’s Washington Post finding that dozens of CBP and ICE officers may be sent to Guatemala to work as “advisors” at the country’s border with Mexico.
The piece is built around a listing of Homeland Security and Defense Department deployments to Guatemala in recent years, collected from my database. Those have had names like “Operation Citadel,” “Operation Regional Shield,” “Operation Hornet,” “Operation Together Forward,” and several others.
The point is that even if the past deployments brought some results, they made no difference in migrant and drug-smuggling out of Guatemala. And nor will any new 80-person mission.
They failed because Guatemala’s 600-mile border with Mexico is easily crossed at dozens of formal and informal sites. They failed because Guatemala—unlike, say, East Germany—doesn’t prevent citizens from leaving its territory. They failed because migrants fleeing violence and poverty, and the smugglers who charge them thousands for the journey, are adept at avoiding capture. They failed because seeking asylum, as tens of thousands of Guatemalan children and parents are doing each month, is not an illegal act.
They failed, too, because unpunished corruption within Guatemalan and Mexican security and immigration forces works to smugglers’ advantage, undermining the efforts of Homeland Security agents and their counterparts. And in Guatemala, where the government is slamming the door on the CICIG, a much-admired international investigative body, the corruption problem is only getting worse—just as more U.S. agents arrive.
There is no reason to believe that 80 agents, carrying out a similar mission on a somewhat larger scale, might make much of a dent. They will assuredly capture lower-ranking smugglers and block some unfortunate families from leaving. But migrants’ desperation and higher-tier smugglers’ sophistication will remain unchanged. And corruption will continue to erase gains as long as there is no accountability for those on the take.
On March 10, Colombian President Iván Duque sent a shock wave through the country’s delicate peace process with the former FARC guerrillas. He sent several objections to Congress—sort of a line-item veto—about the law underlying the transitional justice system at the heart of the accord, the Special Jurisdiction for Peace (JEP).
All governments that have supported Colombia’s peace process, along with the United Nations, voiced concern—except for one: U.S. Ambassador Kevin Whitaker went on national radio in support of Duque’s objections, saying they were necessary for the U.S. government’s ability to extradite former combatants who may have committed crimes after the November 2016 peace accord signing.
This week, Colombia’s House of Representatives overwhelmingly rejected Duque’s objections, in a thunderous and embarrassing defeat for the president. Meanwhile, news began to leak out about Ambassador Whitaker’s quiet lobbying for the objections with members of Colombia’s Congress in early April.
Here is a full English translation of the most thorough account of the Ambassador’s meetings to appear so far in Colombian media, which was posted last night to the Bogotá daily El Espectador. It shows Kevin Whitaker, a career diplomat now completing his fifth year as ambassador, sounding unhinged, gone “full Trump.”
In the accounts of legislators who leaked the meetings’ contents, Whitaker hints that all U.S. aid to Colombia will be cut if Congress defeats the objections. He indicates that the Obama administration kept him distant from the 2012-2016 peace negotiations because of his personal distaste for them. He doesn’t rule out President Trump “decertifying” Colombia in September for being a poor partner in the drug war. And he is personally rude to those who disagree with him.
If even half of what is reported here is accurate, then April 2019 is the month when the U.S. government moved officially from support of Colombia’s peace process to open opposition. Read on:
Details of the Breakfast between Whitaker and Congress
By Lorena Arboleda Zárate and Alfredo Molano Jimeno
This is an account of meetings the U.S. diplomat held with senators and representatives of the House, to seek to prevent the government’s defeat in the legislature on the objections to the Statutory Law of the JEP.
After the vote on Monday of this week in the plenary of the House, information emerged about the content of a series of meetings that ambassador Whitaker convened, with the presence of senators and representatives, in his diplomatic residence. Although confidentiality of the meetings was requested—and there was even a pact not to disclose details until after the objections had been voted—El Espectador was able to reconstruct the conversations Whitaker may have had with the legislators, and also with the former president and current director of the Liberal Party, César Gaviria, a group that has led the bloc in defense of the Peace Agreement.
On Monday, April 1, Whitaker invited the senators managing the objections legislation to a breakfast. At 7:00 in the morning, José David Name (Party of the U), Iván Marulanda (Green Alliance), Paloma Valencia (Centro Democrático), John Milton Rodríguez (Colombia Justa-Libres), Antonio Zabaraín (Cambio Radical), and David Barguil (Conservative Party) arrived at the ambassador’s house in the exclusive Rosales neighborhood, in the north of Bogotá. The appetizer was eggs with bacon and, to drink, Whitaker’s favorite: Don Pedro coffee. But the main dish was the objections [to the JEP law] and, particularly, his concern about the effects of the Peace Agreement on the extradition treaty between the two countries.
“The first thing to note is that the meetings with the Senate and the House were very different. In ours almost everyone was in favor of objections, except Senator Marulanda. Therefore, the atmosphere was not tense, as it was with the representatives, and the ambassador spoke with greater ease,” detailed one of the guests at breakfast. The meeting lasted for about an hour and a half, and according to five of the six attendees, the conversation revolved around three issues: the impact that the Santrich case might have on judicial cooperation between both countries; the reprisals that the United States could take; and the displeasure with the government of former President Juan Manuel Santos and with the management that the current one, Iván Duque’s, is giving to anti-drug policy.
“He said that Santos, Jaramillo (Sergio [Santos’s high commissioner for peace]) and (Humberto) De la Calle [Santos’s chief negotiator in Havana] were liars, who had deceived Barack Obama’s government with the Peace Agreement, that Santos always said that, with the Agreement, the FARC would turn over its drug trafficking routes and that it would be easier to fight narcotrafficking, but what happened was the opposite,” said another attendee. And although some guests said that the Cambio Radical senator, Antonio Zabaraín, suggested that the ambassador go to microphones and openly say that his country felt cheated, Whitaker said it was not appropriate, among other things, because in the Obama administration a special delegate, Bernard Aronson, had been sent to accompany the dialogue table. In fact, people close to the Havana dialogues commented that ambassador’s strong position is explained because Obama always kept him apart from the peace process, given his rejection of it.
Some members of the negotiating table in Cuba we consulted explained that one of the red lines of the Santos government was not to affect the extradition treaty, to such an extent that in the Peace Agreement it was very clear that the judicial cooperation mechanism remained intact . That is, the concerns of the United States today are the product of the modulations of the laws derived from the agreement in Havana, which included a series of requirements before accepting the sending of a former member of the Farc to that country. And that of everything that happened in Cuba, Aronson was a rigorous witness. In the opinion of one of the former government negotiators, it was precisely the Jesus Santrich entrapment operation, “with a vengeful spirit,” that raised the volume of the extradition issue and put the need to shield the process within the sights of the Constitutional Court.
They also say that although the atmosphere was one of detente, [uribista senator] Paloma Valencia was uncomfortable with Whitaker’s statements about the effects of the extradition and took the opportunity to complain about the support that the U.S. government had given to the Havana table and the Peace Agreement. They relate that she even said that in that same house [ambassadorial residence], during the renegotiation after the triumph of the no [in the October 2016 plebiscite], her side warned the United States that this was going to happen. “Paloma asked him directly about the possibility of a decertification and the ambassador did not answer, but he did say that the consequences could be those that have been applied in Central America, withdrawing aid resources. Regarding Trump’s first statement this week, he said that we shouldn’t take it personally,” said one of the witnesses.
The only dissonant voice of the Senate group invited to the ambassador’s residence was that of Iván Marulanda, of the Green Alliance, an opposition party. His companions say that his discomfort was visible, that unlike his colleagues he found the ambassador’s words intimidating and rude, even more so when the diplomat spoke ill of Santos and each senator contributed some comment criticizing the former president. “The ambassador said that his government was Colombia’s largest aid donor and that since 2016, when the Agreement was signed, they had contributed US$1 billion, which would be at risk if the main interest of the United States in Colombia was affected: extradition. Marulanda replied that Colombians care more about the peace of the country than American money.“
Regarding the Santrich case, Whitaker was insistent that his government was not going to give any evidence to the JEP, that U.S. authorities were going to demand him from Colombia and that this case was a “point of honor” for the United States. “Not so much for Santrich , but for the future of the extradition treaty. He also told us he had information that other members of the FARC were trafficking drugs, although he did not give us names,” a legislator said. He added that the diplomat warned them that if the country did not hand over Santrich, Colombia would be targeted by a possible intervention, specifically by the International Criminal Court (ICC).
The senators’ meeting with the ambassador ended with a curious anecdote. Out in the parking lot, some told, Senator Zabaraín said that “the fault of all this is with (former president) Álvaro Uribe who, after winning the plebiscite, went to talk with Santos and accepted his invitation to the presidential palace.” Paloma Valencia immediately recalled that “I told him not to go.” In the end, they concluded that the presidential objections to the Statutory Law of the JEP will have the same fate in the Senate as in the House of Representatives, so for the objections’ supporters it is absolutely clear that “President Duque is going to file constitutional reforms around the special jurisdiction in the Congress of the Republic, “said one legislator.
The second meeting
Little of that encounter made it into the media, but what alerted about the ambassador’s movements in the Congress was the meeting that he maintained on Tuesday, April 2 (the following day), with the House representatives. Also at 7:00 in the morning, and with the same American breakfast, Whitaker received six of the seven legislators in charge of studying the objections in the lower house. Juanita Goebertus (Green Alliance), John Jairo Cárdenas (U), David Racero (Decentes), Carlos Ardila (Liberal Party), José Daniel López (Cambio Radical), and Álvaro Hernán Prada (Centro Democrático) attended. A composition very different from that of the pro-government majorities that visited the ambassador’s house the previous day.
El Espectador consulted five of the six attendees and, as in the Senate, they agreed on the purpose and the manner with which the meeting was held. For all, except the uribista representative, the ambassador’s exposition was intimidating, undiplomatic, and tense. They also agreed on the three positions presented by the ambassador. He told them, for example, that Congress should act as an autonomous power without attending to the decisions of the Constitutional Court, as it “could also be wrong.” He also repeated that the United States is not going to send any proof against Santrich [because the extradition agreement only requires probable cause], and will do everything possible to take him away. And, finally, he reiterated that the economic aid to Colombia could be at risk if the objections are defeated.
“Whitaker said that he expected total confidentiality of the meeting because he wanted to speak with total frankness. That his government was very worried, and he detailed his country’s central priorities. Then, Representative Cardenas explained the reasons why he opposed the objections, arguing legal and not political reasons. From that moment on, the atmosphere became tense and even, with a gesture of arrogance, he questioned Cárdenas saying: ‘I don’t understand those inanities.’ Then José Daniel (López) spoke and pointed to the principle of separation of powers and the ambassador went after him, saying: ‘Don’t come at me with legalisms’. Then he added the idea that the United States’ affection towards its friends expresses itself with money. ‘Love is money’, was the phrase he used [in English],” said a representative.
But Prada, who was representing uribismo, said that the phrase used by the ambassador should be contextualized. He noted that, from his perspective, that expression was not used in a blackmail tone but “to express to us that the United States has affection for Colombia, that bilateral relations are excellent and that they are willing to continue helping us,” he said. In addition, he criticized that the confidentiality the ambassador requested for the meeting has been broken, “taking advantage of the fact that this year we have [local] elections, making it look like the ambassador had been pressuring, and it wasn’t like that. And in addition, the ambassador has the right to know what is happening with a peace process that we are trying to remedy on some issues.”
In the second intervention the ambassador made, another lawmaker told, he said: “In my government we have invested US$1 billion since the agreement was signed, and it doesn’t seem fair if we can’t suggest anything and not be heard”; He added that Whitaker was especially rude in his treatment of representative Carlos Ardila. “He interrupted him when he was explaining his reasons and, as he was with his arms folded, he said ‘do something for your country instead of going around with your arms folded. That’s why they elected you.’ He said he did not understand how it was possible for the Court to be above Congress and spoke about the well-known Dred Scott decision.”
The representatives said that Juanita Goebertus at that time asked to speak, replied to the ambassador and told him that she knew that sentence very well, which was from 1857, and that it had cost the United States a civil war and two constitutional amendments. The ambassador looked at her haughtily and said: “I see you know a lot about us.” Juanita replied that she had studied in his country. “During the meeting, Whitaker repeated several times that he was not a lawyer, but that he did not doubt that the president’s objections were correctly presented. On extradition, he reiterated that the treaty was clear and that they were not going to provide evidence, period. He never asked for our vote, but he did say that Congress should accept the objections.” The Congresswoman of the Green Alliance concluded by telling the ambassador that, from her experience in the United States, she could say that she admired the separation of powers in that country and that she had never been in a meeting “so far out of diplomatic tone” as the one he had summoned.
The reading that some representatives gave to the meeting with Whitaker is that, according to what they said, it left in evidence a “flawed” relationship between the U.S. government and President Iván Duque: ” They do not see him with enough capacity to move his commitments forward. They see him as weak,” said one representative. Undoubtedly, the meeting with those of the House was highly tense, and that explains that why it leaked a few hours after it happened. That same day the bill rejecting Duque’s objections was filed in the chamber, and news also filtered of an ambassadorial dinner invitation to the magistrates of the Constitutional Court, which the justices rejected as highly inappropriate.
Whitaker closed the week by visiting former President Gaviria at his home to ask for a political concept on the objections. However, the government’s defeat in the House was inevitable, as was Trump’s scolding of President Duque. An epilogue of the week that shows that the United States is moving strongly in domestic politics, as in the times of Plan Colombia.
The State Department issued a statement late on Friday saying: “At the secretary’s instruction, we are carrying out the president’s direction and ending FY 2017 and FY 2018 foreign assistance programs for the Northern Triangle. We will be engaging Congress as part of this process.”
I’m not a lawyer, and not a foreign aid appropriator. I’ve asked a couple of people, but don’t know if I’ll get responses over the weekend. If I do, I’ll edit this post if necessary in blue text. But here’s why I don’t think President Trump’s “canceling” of aid to Central America’s Northern Triangle will succeed, except perhaps during the remainder of this fiscal year. It may be up to the judicial branch to sort this out.
Appropriations aren’t just suggestions. When Congress has specifically appropriated aid to a country, foreign aid law provides specific reasons why it can be canceled. These include military coups, gross human rights violations, drug decertifications, and others. “The president’s mad” isn’t one of those reasons.
Giving money that was prohibited from being appropriated was at the heart of the Iran-Contra scandal in the 1980s. Not giving money that was specifically appropriated? Similar, with some exceptions noted below.
2. The Impoundment Control Act of 1974 specifically prohibits the president from withholding appropriated funds.
Under this law, rescinding funds requires congressional approval. Wikipedia explains: “The Act was passed in response to feelings in Congress that President Nixon was abusing his power of impoundment by withholding funding of programs he opposed.” Sound familiar?
3. Trump could abuse his reprogramming authority, but it would cost him.
Here’s where it gets tricker. What if the White House proposes not to withhold money, but to transfer the Central America aid to another country? There must still be nearly a billion dollars in the pipeline for 2017 and 2018. What if Trump wants to give it to, say, Israel instead?
He can do that—but there will be consequences. Section 634A of the Foreign Assistance Act only requires that Congress be notified in detail of any “reprogramming” of assistance, 15 days in advance.
But the president would pay a huge price if the reprogramming were to happen despite congressional opposition. Under longstanding custom, if the chairman of the responsible congressional committee receiving the notification disagrees with it, he/she can place a “hold” on it and keep it from happening. Negotiations usually ensue. If the president ignores the hold, it’s assumed that the committee chairman would retaliate against the president’s priorities in the next year’s funding bill. The “notification” requirement has teeth because you don’t want to piss off appropriators or authorizers who have power over your budget.
A similar episode is happening right now with the House defense committees. They were notified this week of a reprogramming of $1 billion from Defense Department personnel accounts into the Defense counter-drug account, which allows spending on barriers—Trump’s “border wall”—for counter-drug purposes. House Armed Services Chairman Rep. Adam Smith (D-Washington) responded to the notification with a letter refusing the reprogramming. Smith probably doesn’t have the power to do that, but the Pentagon may pay a big price in future budgets for defying him.
These two cases of massive reprogrammings in the face of strong congressional opposition are setting us up for a constitutional crisis. Why bother having an appropriations process at all if the executive branch can just go ahead and defy it anytime it wants by checking a “notification” box?
4. There’s some fuzzy “up to” language in the appropriation.
A potential minefield is in the 2018 appropriations law, which tells the State Department that “up to $615,000,000 may be made available for assistance for countries in Central America.” That “up to” language could be a problem: isn’t “zero dollars” technically an amount “up to $615 million?” But probably not, because of the next point.
5. But Central America aid must be spent as laid out in the bill’s report language.
The foreign aid bill comes with an explanatory statement that, for some countries, includes a table specifying exactly, line by line, how Congress intends the aid money to be spent for that country. Every year’s foreign aid appropriation law has included such a table for Central America in its explanatory statement.
Section 7019 of the 2018 foreign aid bill states plainly, “funds appropriated by this Act under titles III through V shall be made available in the amounts specifically designated in the respective tables included in the explanatory statement.” So never mind the “up to” language: Congress has required Central America to get specific amounts of funds according to a line-by-line table.
However: subsection (b) of Section 7019 does allow “deviations” from that table. But only “to respond to significant, exigent, or unforeseen events, or to address other exceptional circumstances directly related to the national interest.” The White House could seek to drive through that loophole by claiming that an “exceptional circumstance” calls for moving all aid away from Central America. However, 7019(b) also requires “prior consultation with, and the regular notification procedures of, the Committees on Appropriations” before any “deviation.” Consultation is more than just notification, so using the 7019(b) loophole would involve a big battle between the Trump administration and appropriators.
6. Some government-to-government aid could be reprogrammed through “decertification.”
The aid for the central governments of El Salvador, Guatemala, and Honduras came with conditions. 25 percent of it stays “in the freezer” until the Secretary of State certifies that those countries are doing more to discourage migration and combat smuggling. Another 50 percent is held up until the Secretary certifies that those countries are making improvements on twelve measures regarding human rights, citizen security, anti-corruption, and similar values.
If those countries are determined not to be making progress, that 75 percent can be reprogrammed away to other countries.
Note, though, that this condition only applies to aid to the central governments of those countries. Aid to provincial or municipal governments, judicial branches, or non-governmental entities is not affected by this certification requirement. So this is probably not the vehicle the administration would choose if it wants to attempt a total cutoff of aid to Central America.
It’s going to be a battle.
No matter what, it could take a few months for Congress—and who knows, maybe the courts—to resolve this. In the meantime, if you’re Russia or China, or even Iran, and you want to spend a little money filling a vacuum of diplomatic and economic engagement deep in the United States’ backyard, then this is your moment to write some checks and strike up some new relationships.