The Secret U.S. Debate Over Intelligence Sharing with Peru and Colombia A National Security Archive Electronic Briefing Book Edited by Michael L. Evans April 23, 2001

On Friday, April 20, 2001, a Peruvian Air Force jet, acting on intelligence supplied by a U.S. intelligence plane, shot down a civilian aircraft that was mistakenly suspected of being part of a drug trafficking operation.  An American missionary and her infant daughter were killed in a hail of gunfire, and the Bush administration immediately suspended all U.S. drug interdiction flights over Peru.  The current policy on the sharing of aerial tracking intelligence with Peru and Colombia was formulated in 1994, but not without a significant amount of debate within the Clinton administration, some of whom warned that, “mistakes are likely to occur under any policy that contemplates the use of weapons against civil aircraft in flight,” and that, “A shootdown leading to the death of innocent persons would likely be a serious diplomatic embarrassment for the United States.”  (See Document 7)

    The National Security Archive has obtained through the Freedom of Information Act declassified U.S. government documents pertaining to the policy debate that arose after the governments of Peru and Colombia announced their intention to use weapons against civilian aircraft suspected of carrying illegal narcotics.  The debate resulted at first in the suspension of “real-time” aerial tracking assistance with the two governments, but the suspension was soon lifted after vigorous opposition from the State Department and especially from the embassies in Lima and Bogotá.  The declassified documents featured below provide a revealing glimpse of the priorities that Clinton administration officials weighed during this episode, and expose deep interdepartmental divisions about the appropriateness of the U.S. response.

    Concerns about the forcedown policy first arose in July 1990 when the U.S. began sharing real-time aerial tracking information with Colombia and Peru to assist with the interdiction of planes operated by drug smugglers.  After Colombia informed U.S. officials that they were considering a policy to authorize the forcedown of suspected trafficker aircraft, the State Department issued a demarche  explaining to the Colombian government that both U.S. and international law preclude the use of weapons against civilian aircraft except in self-defense.  In response, Colombia adopted the procedures, but suspended their implementation.

    Peru adopted a forcedown policy in 1993, and in December 1993 Colombian officials informed U.S. Ambassador Morris Busby of their intention to implement the provisions of their policy adopted in 1990.  A U.S. interagency group began a review of the new policies in January 1994.  U.S. officials were concerned that these forcedown policies might violate provisions of U.S. and international laws, and that while the U.S. was not obligated to ensure the legal compliance of sovereign states, it might nevertheless be implicated in these actions through its bilateral intelligence sharing arrangements with the Colombian and Peruvian governments.  Colombia’s decision was announced on March 2, 1994, and on May 1 the Clinton administration, led by the Department of Defense, announced a suspension on the sharing of real-time aerial tracking data with the two governments.

    The move provoked a firestorm of criticism from the Peruvian and Colombian governments as well as officials from the State Department’s bureaus of International Narcotics Matters (INM) and Inter-American Affairs (ARA), who were apparently not notified of the decision ahead of time and who felt that the unilateral suspension would setback progress that had been made on counterdrug issues and jeopardize other U.S. interests in the region.  These officials were pitted against the State Department’s Legal Adviser and Justice Department officials who were concerned about the domestic and international legal implications of the shoot down policy.  Their arguments supported the merits of the decision to suspend the radar tracking data and voiced concern that “mistakes are likely to occur under any policy that contemplates the use of weapons against civil aircraft in flight, even as a last resort.”  (See Document 7)

    The administration ultimately decided that the best course of action was to alter the existing U.S. law to allow U.S. aerial tracking data to be used in operations against suspicious aircraft “if the President has determined that such actions are necessary because of the threat posed by drugtrafficking [sic] to the national security of that country and that the country has appropriate procedures in place to protect innocent aircraft.”  This policy did not seek a solution to the international legal problems raised by the forcedown policy, but rather sought “to reduce the [United States government’s] exposure to criticism that such assistance violates international law.”  (See Document 10)

    The following documents were obtained under the Freedom of Information Act in response to a request from Kate Doyle.

---

Note: The following documents are in PDF format.
You will need to download and install the free Adobe Acrobat Reader to view.

Document 1 U.S. Embassy Bogotá, Revised Colombian Interception Procedures, February 7, 1994, CONFIDENTIAL, 7 pp.

This U.S. embassy cable summarizes talks between a State Department official – including a legal affairs adviser – and the deputy legal adviser from the Colombian Ministry of Defense regarding the decision to authorize Colombia’s new aerial interdiction policy.  The Colombian tells the U.S. officials that internationally recognized procedures will be used to communicate with suspect aircraft before any shots are fired.  She further asserts that the policy is legally justified under international law in that the term “civil aircraft” does not apply to drug trafficking aircraft that have violated international law and have not filed a flight plan with the proper authorities.

Document 2 Department of State, Office of the Legal Adviser, Forcedown Policy: Options for Colombia and Peru, February 9, 1994, SECRET, 8 pp. Includes attachments: 1) Position Paper on the Use of Weapons against Aircraft Suspected of Carrying Drugs, October 18, 1989;  2) Use of Weapons against Civil Aircraft: International Law Issues, January 19, 1994.

This draft options paper examines the legal and policy issues raised by the Colombian and Peruvian government decisions to authorize the use of force against suspected drug trafficking aircraft.

    The first attachment discusses the reasons for State Department opposition to legislation sponsored by Senator Mitch McConnell that would authorize the use of force against aircraft suspected of carrying illegal drugs and which do not respond to requests to land.  The document notes that the U.S. has long supported efforts to strengthen protections for civil aircraft, adding that the U.S. “strongly condemned the Soviet shootdown of KAL flight 007, despite that government’s assertion that the aircraft entry into Soviet airspace was a criminal offense under Soviet law.”  The paper also cites a 1984 amendment of the Chicago Convention on civil aviation – adopted in the wake of the KAL incident – banning the use of force against civil aircraft.  The document further asserts that the adoption of the McConnell legislation would expose the U.S. to “intense international criticism,” and that the adoption of such a policy might send the wrong signal to other, less careful nations “that could affect the safety of innocent U.S. citizens.”

    The second attachment considers that international legal issues raised by the Colombian and Peruvian policies.  The U.S., according to the document, is under no obligation to ensure that other governments comply with international law.  However, U.S. participation “in the activities of another government could implicate the USG [U.S. government] in those activities,” and thus violate international law.

Document 3 Department of State, Office of Foreign Language Services, Ministry of National Defense Information and Press Office: Press Release, March 2, 1994, 4 pp.

The Colombian government announced its intention to implement the forcedown policy on March 2, 1994, in this press statement.  The document asserts that the policy is legal under international law, and that it is “aimed at defending and preserving national sovereignty and preventing overflight by aircraft that do not have the proper flight plan to overfly Colombian airspace.”

Document 4 U.S. Embassy Lima, Your Proposed Visit to Peru, May 4, 1994, UNCLASSIFIED, 2 pp.

Three days after the Department of Defense announced the suspension of aerial tracking assistance, the U.S. ambassador in Peru sent this message to Pentagon officials requesting that they postpone a planned visit to Peru pending the outcome of the issue.  The postponement of the visit, which had been intended to persuade Peru to preserve a counterdrug helicopter unit owned by the State Department, illustrates the extent to which the impasse disrupted U.S. counternarcotics programs in the Andes and reveals the level of frustration felt by U.S. officials in the two countries.  “Our inability to define a reliable USG [U.S. government] policy,” the ambassador asserts, “leaves us unable to authoritatively resolve the current uncertainty about this aspect of DOD [Department of Defense] counternarcotics cooperation.”

Document 5 U.S. Embassy Lima, Suspension of Provision of DOD Real-time Radar Track Data to Peru, May 9, 1994, SECRET, 4 pp.

On April 28, 1994, the U.S. embassy requested that Peru provide a guarantee that weapons would not be used against “civil aircraft in flight.”   In response, the Peruvian minister of defense delivered a letter, the text of which is transmitted in this cable, to the embassy.  Turning the tables, the minister “suggests” the suspension of all U.S. intelligence flights over Peruvian airspace as well as operations at the U.S.-operated radar site at Yurimaguas, “while the North American government takes a definitive decision” with respect to the sharing of real-time tracking data.   The minister also quotes from the Chicago Convention on civil aviation, noting that “every state has full and exclusive sovereignty in the airspace situated over its territory.”

Document 6 Department of State, Bureau of International Narcotics Matters, Talking Points: Implication of DOD’s Forcedown Decision, May 9, 1994, CONFIDENTIAL, 4 pp.

State Department frustrations about the Department of Defense decision to suspend the sharing of real-time intelligence are evident in this talking points memorandum, prepared by the Bureau of International Narcotics Matters for a briefing with the Secretary of State.  According to the document, the suspension “has undercut our counternarcotics efforts and damaged our credibility in the hemisphere.”  The U.S. embassies “were caught completely off-guard” by the decision, and, “Several of our fundamental foreign policy and narcotics control interests are now at risk.”  U.S. ambassadors in both countries are concerned that the decision will poison other U.S. policy issues and send the wrong signal to narcotics traffickers who are now likely to expand their operations.

Document 7 Department of State, Action Memorandum, Use of Weapons Against Civil Aircraft, May 10, 1994, SECRET, 6 pp.

This document presents three policy options for the Secretary’s consideration supported by different bureaus within the department.  The Office of the Legal Adviser (L) and the Bureau of Economic and Business Affairs (EB) support the Defense Department’s decision to suspend “real-time” intelligence sharing, while the Bureau of International Narcotics Matters (INM) and Inter-American Affairs (ARA) oppose the decision.  ARA and INM argue that Peru’s “more aggressive policy” is working and that “the very threat [that they might be shot down] has had a positive effect in compelling traffickers to land as directed.”  L and EB counter that the U.S. has been strong in its support for the international prohibition on the use of force against civil aircraft and specifically that, “The prohibition applies whether or not the aircraft in question is suspected of engaging in criminal activity.”  They warn against making exceptions to this rule arguing that “mistakes are likely to occur under any policy that contemplates the use of weapons against civil aircraft in flight, even as a last resort.”  The L and EB argument also assets that, “A shootdown leading to the death of innocent persons would likely be a serious diplomatic embarrassment for the United States, subject the USG to intense criticism before the International Civil Aviation Orgnization, and undermine our efforts in the Iran Air proceeding at the World Court.”

NOTE: The “Options Paper” referred to as Tab 1 is apparently Document 2 from February 9, 1994.  The various options listed in the document remain classified.

Document 8 U.S. Ambassador to Colombia Morris Busby to Under Secretary of State for Political Affairs Peter Tarnoff, Forcedown Guidance from DOJ, May 31, 1994, SECRET, 4 pp.

In a forceful plea to the Under Secretary of State for Political Affairs, Ambassador Morris Busby laments the Defense Department’s unilateral decision to suspend Colombia’s access to radar intelligence data.  Calling the ban “totally unnecessary,” Busby argues for the U.S. to quickly negotiate a short-term “accommodation” with Colombia so that the “absolutely essential” access to real-time intelligence data can resume.

Document 9 Department of State, Memorandum for Deputy Secretary Talbott, Deputies Meeting on Forcedown Policies, June 4, 1994, Classification Unknown, 2 pp.

On June 4 the Deputies Committee of the National Security Council met to consider U.S. policy options on the provision of aerial tracking intelligence to Colombian and Peru.  State Department representatives consider it highly unlikely that the U.S. might be able to convince the two countries to drop the forcedown policies.  Another option, the segregation of intelligence data to preclude its use in effecting a forcedown, is considered by most to be infeasible.  A third option, “Attempt to eliminate domestic and international legal impediments to full scale USG participation in the Colombian and Peruvian aerial interdiction programs,” is to be included in an options paper to be considered by the president.

Document 10 Department of State Action Memorandum, Implementing the President’s Decision on Colombia Peru Forcedown Policies, June 23, 1994, CONFIDENTIAL, 4 pp.

On June 21, President Clinton made a decision.  He would propose language in the National Defense Authorization Act of 1995 to amend the law prohibiting the sharing of real-time intelligence with Colombia and Peru to allow for the shoot down of suspected drug smuggling planes if appropriate procedures are in place to protect innocent aircraft and “the President has determined that such actions are necessary because of the threat posed by drugtrafficking [sic] to the national security of that country.”  This document recommends a three-step policy for the short-term renewal of aerial tracking assistance to Colombia and Peru to cover the period before Congress has adopted the new language.  Step one would seek to convince Peru and Colombia to agree to certain restrictions on the use of real-time intelligence until the U.S. legislation can be modified to accommodate the shoot down policy.  Step two would encourage the two governments to comply with international law, perhaps by declaring a “national emergency” as permitted under the relevant conventions.  The third stop contemplates a campaign to convince nations deemed “aviation partners” to accept a “narrow exception” to international law in cases where “drug trafficking threatens the political institutions of a state and where the country imposes strict procedures to reduce the risk of attack against non-drug trafficking aircraft.”

    Significantly, the document notes that, “The President explicitly did not condition the resumption of assistance on a solution to the international law problems associated with the USG’s provision of such assistance.  Instead, the plan he approved suggested that the USG would take steps to reduce the USG’s exposure to criticism that such assistance violates international law.”

	Document 11 Presidential Determination No. 95-7, Resumption of U.S. Drug Interdiction Assistance to the Government of Colombia, December 1, 1994, 1 p.
	Document 12 Presidential Determination No. 95-9, Resumption of U.S. Drug Interdiction Assistance to the Government of Peru, December 8, 1994, 1p.

These two brief documents, signed by President Clinton, determine for the record that aerial interdiction of suspected drug trafficking aircraft is necessary to defend the national security of Peru and Colombia, and that both countries have procedures in place to protect loss of innocent life, satisfying the legal requirements of the administration's amendment to the National Defense Authorization Act of 1995.

Document 13 Department of State, Cable to U.S. Embassy Bogotá, Presidential Determination Demarche, December 15, 1994, CONFIDENTIAL, 1 p.

The language of this diplomatic note to the Colombian government is intended to make clear that the Clinton administration has made “a tremendous legal and administrative effort” to get the intelligence sharing arrangements back on track.  Ambassador Busby is asked to tell Colombian President Samper, “Because narcotics is very important to us, the administration expended a great deal of effort to change U.S. law and permit us to resume our cooperation.”