By Cecilia Orozco Tascón, EL ESPECTADOR, January 28, 2023
(Translated by Eunice Gibson, CSN Volunteer Translator)
The Director of Defense Oversight at the influential organization WOLA (Washington Office on Latin America) analyzes the impact and “political” meaning of the strong statements by Francisco Barbosa criticizing Petro’s strategy of “total peace”, during the recent visit of United States government officials. He believes that they produced great harm and that the Attorney General, “wasn’t thinking of the consequences of his taking that position.”
Question: The statements by Attorney General Francisco Barbosa evidenced his drastic change in behavior: from being criticized for his close relationship with the Duque administration where the President appointed him to his position, to being confrontational and sharp-toned with the Petro administration. How do you analyze this situation, the clash between the President of Colombia and the head of the agency for investigations?
Answer: One thing I admire about the Colombian political system is that it made the chief prosecutor, the Attorney General, a branch that’s separate from the administration. That usually works well. In the United States, the chief prosecutor is part of the executive branch and answers to the President. Donald Trump appears to have violated the law on quite a few occasions, but he had little to fear from investigations by the Attorney Generals that he handpicked: Jeff Sessions—whom he fired—and William Barr. The only thing that keeps a United States President from using his prosecutors as instruments for attack on political adversaries, in reality, are the regulations and the customs, not the Constitution.
Q: In the case of Colombia, the method for selecting the Attorney General (by the Supreme Court, but from a list chosen by the President) weakens his independence, as has been demonstrated when their terms coincide. Not like in the present case, when the Executive who chooses the list is gone and a different Executive comes in . . .
A: As I said, having an Attorney General who is really independent of the President is good, because it’s a control over Presidential power. But it can be bad for governance; when power is more divided, there is a greater probability of deadlock and paralysis. That seems to be what is happening in a central issue for the security of Colombians: the peace negotiations with the government. When Juan Manuel Santos started the conversations with the FARC, he was able to appoint an Attorney General, Eduardo Montealegre, who was in favor of the Peace Agreement. It looks as if Gustavo Petro won’t be able to count on one right now that will support him in this crucial matter.
Q. As he was leaving the visits by the United States Justice Department and the U.S. Attorney General, he spoke to the media using one of the most aggressive phrases that an Attorney General has used with respect to the current administration: “Never before has there been a bilateral ceasefire with drug trafficking organizations. It’s like making a bilateral ceasefire with Pablo Escobar or the Cali Cartel.” What do you think about that statement?
A. Barbosa’s statement is worrisome, because it’s the clearest indication we have seen that he is trying to utilize the Attorney General’s Office to oppose the administration’s peace strategy. It looks as if he won’t make room for negotiation. It also seems that he said it for the benefit of the media, maybe without thinking about the consequences of his taking that position. I don’t know if President Petro and the Attorney General have talked about the legal aspects of the peace policy. My perception is that they have not had a serious discussion. I also don’t know for sure if Barbosa is expressing his frustration after difficult conversations, of if he’s just taking shots in public before those conversations begin.
Q. Supposedly the two of them will be meeting tomorrow, Monday, but it’s not unlikely that the openly unfriendly tone and content of the Attorney General’s statements could interfere with carrying out the appointment.
A. In addition to that consequence, if it happens, Barbosa’s statement is inaccurate; the César Gaviria administration did make a deal with Pablo Escabar which led him to be in luxurious “house arrest” in the so-called “cathedral”. There he was “guarded” by his own people and under his own rules. That does look like a kind of bilateral ceasefire.
Q. Do the fiery statements by the Attorney General affect the relations between the government of Colombia and that of the United States?
A. Absolutely. They have a lot of impact on the relations between the United States and Colombia. The Biden administration supports, in general terms, the idea of negotiating peace with armed groups, but that support is not unconditional. One of the most skeptical offices in Washington is the Department of Justice, because the prosecutors are afraid of losing the capacity to extradite the biggest criminals. With his public statement, Barbosa just now stoked that skepticism enormously.
Q. I suppose the effect will be greater because his statements were made in the framework of an official visit by Attorney General Garland and the Department Justice. Is that the case?
A. Yes. It’s a complicated issue for Colombia. Barbosa and Merrick Garland have already met several times in the development of a relationship of cooperation. The Colombian Attorney General could be taking advantage of that relationship to scare the Biden administration about a policy that the Petro administration is still formulating. Although it’s true that the Attorney General’s Office is an autonomous agency, that fact doesn’t mean that it can carry out a different foreign policy than the President’s foreign policy. Doubtless, Barbosa can express his concerns to his counterparts, particularly about how to advance a line of cooperation if some extraditions are suspended. But airing differences with respect to some aspects of domestic policy with foreign governments, using imprecise and deliberately provoking language, makes it look as if Colombia has two contradictory foreign policies.
Q. Should the Colombian government counteract the damage done by Barbosa now, or wait until things cool down before sending our Ministers of Justice, of Foreign Affairs to Washington, or activating its Ambassador to make its own version known?
A. It would be better if the administration would respond quickly, and send its own messages and officials to Washington to counterbalance the Attorney General’s narrative before it gains strength.
Q. On the other hand, the way that Barbosa’s statements were pronounced immediately after his appointment with Garland, can it be deduced that the Colombian is repeating the opinion of the Attorney General of the United States and the Department of Justice with respect to Petro’s policy of “total peace”?
A. It’s probable that Barbosa has heard officials of the Department of Justice, maybe Garland among them, express strong objections to the suspension of extradition of members of organized crime. But I doubt very much that Merrick Garland, who is known for his moderation and restraint, would encourage Barbosa to express those concerns in the provocative language that he used.
Q. Barbosa also said that the decrees issued after the passage of the “total peace” law must be revised, but he said that after Congress had passed it, two months ago, the law that authorizes the President to “carry out all of the actions tending to institute approaches with armed organized crime structures”. Nevertheless, when they had the debates on that law, the Attorney General wasn’t present. That seems inconsistent.
A. I don’t know why the Attorney General didn’t play a more active role at the time when the law was being discussed. In this case, however, he could probably defend himself by saying that he and Petro disagree on their interpretations of that law and on the authority it gives to the President.
Q. The greatest controversy is coming from the administration’s petition to suspend temporarily the arrest warrants of members of criminal gangs. It makes sense, but Congress also approved a paragraph that says “once the process of dialog is initiated (. . .) the appropriate legal authorities will suspend the arrest warrants (. . .) for the members (. . .) of the armed structures that demonstrate willingness”. In your experience, will this legislative decision be unacceptable to foreign countries?
A. A temporary suspension of arrest warrants is not synonymous with impunity. It’s a practical and logical measure to permit negotiations to be carried out. It’s clear that these negotiations ought not lead to an agreement that grants impunity for war crimes or crimes against humanity, or that dishonor the countless victims of those individuals. They have the obligation to confess their role in fostering criminality by trafficking drugs, weakening institutions and the Rule of Law, the damage they have done to the environment, and their violations of the rights of indigenous communities, of women, and of other historically marginalized groups. But, I repeat, a temporary suspension of their arrests should not be interpreted as an agreement for impunity. And extradition to the United States, which only punishes their drug trafficking activities, delays their accountability to their victims in Colombia.
Q. Specifically, and referring to the matter of extradition, some of those that are coming out as spokesmen for the criminal groups are wanted for extradition. Will the simultaneous requests for suspension of their arrest and extradition irritate the government of the United States?
A. That’s a very significant issue for the United States government. Their prosecutors and diplomats put great importance on the extradition treaty with Colombia. Álvaro Uribe and former Attorney General Mario Iguarán received many messages expressing the serious concerns of their counterparts in the United States during the Peace and Justice negotiations with the paramilitary groups. And Uribe ended up extraditing many of the leaders of the AUC. The United States also expressed its concerns to Juan Manuel Santos when he was negotiating with the FARC, as demonstrated by the Santrich episode. The concern about the suspension of the extradition proceedings is probably the biggest obstacle making the United States government hesitant to support these peace negotiations more decisively. Besides that, if the prosecutors, the military, and the police representing the security sector in Colombia are not in agreement with “total peace”, they themselves will communicate their annoyance to their counterparts in the United States. That would increase the concern in Washington. But that’s nothing new.
Q. In your analysis of the Colombian situation, do you think the statements by the Attorney General were made in a legal sense, or rather, in a political context, keeping in mind that his term ends this year and he is a close friend of Duque, the Uribist enemy not just of the Peace Agreement but also of this administration?
A. By being so vague, pompous, and based on his interpretation of a strategy that continues to be under discussion, Barbosa’s statement was a political act. It wasn’t a technical legal analysis, but rather it was Barbosa’s political declaration of opposition to the framework of negotiations by the Petro administration, and an alignment with its political opponents. By the way, Barbosa, Duque, and other conservatives in Colombia have an advantage over the Petro administration in Washington. Many of them have studied or worked in the United States and they maintain their relationships with the local elites. They have much more comfortable and fluid communication with United States leaders. When they want to make a political statement here, they will be listened to, as has just happened with Barbosa.
Q. Therefore, would it be more pragmatic for the Petro administration to change and send officials well connected with the Biden administration. Or would it not be strategic to do that now, after the blow that Barbosa struck?
A. Given the impact that the United States will have on the development of the policy of “total peace”, it would be important for the Petro administration to be present in Washington and initiate a conversation right away with the United States officials that influence policy on Colombia. Right now, in my opinion, there’s an asymmetry of information in the United States, between the messages from Petro’s opponents and those of his administration.
Q. In another part of his statements, Barbosa said that, “there is a worry about cessation of hostilities with drug traffickers, because it’s something that’s never been done.” President López Obrador stopped pursuing the sinister Sinaloa Cartel to avoid endangering the civilian population of the city of Culiacán, he said. Did the United States punish México for that?
A. United States officials did communicate their dissatisfaction energetically, and in private, to the Mexican government. But, regarding the point you mention, there is a better parallel in the informal contacts that agents of the United States maintain with organized crime figures about the conditions of their eventual surrender. It’s not unusual to make offers of reduced sentences in exchange for furnishing useful information. Negotiation on crimes and charges and sentences to be imposed (plea bargaining) can begin before there is an arrest. The difference is that it’s less formal and without the 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 in this country since the leftist opposition won the elections and became the governing administration?
A. It’s nothing new to see a democracy in Latin America, in a historically unequal country, choose a leftist political movement after generations of control by the conservative elites, and to see, later on, other powers of the conservative State trying to restrain the leftist leader who won. Sometimes (as happened with Salvador Allende) the conservatives win the contest with tragic results. Sometimes (in the case of Hugo Chávez) the leftist movement manages to eliminate controls over its power, which also brings bad results. But other times (Lula, Bachelet, Mujica), the leftist movement succeeds in governing in spite of its conservative opponents, while it strengthens democratic governmental institutions. Colombia finds itself in the first months of that similar dynamic. Gustavo Petro and Francia Márquez seem to realize that they have to act quickly to achieve a noticeable change in people’s lives; if not, Colombian voters will go back to supporting candidates on the right in 2026.
Q. It’s true: the people are impatient and the critics, very insistent.
A. The administration, notwithstanding its innovative efforts, often seems overwhelmed by all of the issues on its agenda. Some policies, like “total peace”, seem improvised. There’s not enough communication about what’s in the plan, too much policy seems to be made by tweets, and the agencies are still hiring key staff.
Q. From your viewpoint as a foreign analyst, what are the most correct things and the most incorrect things about the project of “total peace”?
A. We don’t really know yet, as I have said, what “total peace” is; at least not in any detail. I can only speculate about its successes and failures. The biggest success so far, is having created the hope that the historic cycles of violence in Colombia can be broken without having do that on the field of battle. If the Petro administration can demobilize the majority of the armed groups in the country without firing a shot, through persuasion, compromise, and negotiation, it would be transformative. The biggest failure, right now, is the lack of clarity about what is going to happen, later on, if the “total peace” were to be a success. If there continues to be an absence of government in the countryside, as happened with Santos, the efforts won’t be worth the trouble. Why would you eliminate an ensemble of leaders of armed groups in order for new ones to come in their place if the government has not arrived in the countryside?
Q. What about the concept of former Justice Minister Yesid Reyes about the arrest warrants?
A. In my opinion, Attorney General Barbosa was mistaken when he said that there is no legal framework to permit lifting the arrest warrants that are in effect against members of armed structures that are organized to commit crimes of high impact. Statute 2272 of 2022 expressly provides that possibility, temporarily, intended solely for authorized spokesmen of those organizations and only to achieve their submission to the justice system. Conversely, his concern about the decrees that order cessation of hostilities against those criminal organizations, so as to put in place opportunities for dialog oriented toward seeking their submission seems legitimate to me. That cessation of hostilities prohibits offensive military operations and police operations against those groups, which signifies that those who are part of that could only be captured if the authorities meet some of them fortuitously. In practice, that would suspend, de facto, the arrest warrants for all of the members, not just the authorized spokesmen and not just for the 15 days that the government asked for, but up to June 30, 2023. And with the imprecise purpose of putting together opportunities for dialog.”
Q. “For now, it’s not probable that they will try to overthrow Petro”. Do you think it’s possible that the current right-wing opposition in Colombia, which has proved to be very active and harsh, will try to go on from legitimate criticism of the Petro administration to the conspiracies and upheaval that took place in Perú?
A. There will always be a desire to limit Petro’s capacity to govern, if not to take him down. When he was the Mayor of Bogotá, remember what the Inspector General Alejandro Ordoñez tried to do. But, for now, I don’t think it’s probable that they will try to overthrow the President. Petro has been more strategic than Pedro Castillo, who was unlucky, unpopular, and disorganized. Putting aside the accusations of corruption against him, Castillo was chaotic by including his dozens of ministers, and seemed incapable of communicating a vision, while the opposition dominated the Congress. In contrast, Petro began constructing an operative parliamentary majority and approached his opponents, including Álvaro Uribe. He is also a much better communicator—in spite of some unfortunate uses of Twitter—and his approval rating continues to be near 50%. While those tendencies continue, Petro doesn’t have to worry about conspiracies.