141. Telegram 1643 From the Embassy in Costa Rica to the Department of State1
1643. Subject: Extradition: Robert L. Vesco. Refs: (A) State 58366; (B) State 60707.
1. Begin summary: We cannot count on improved political climate to affect possibilities for a successful extradition request, nor on repeal or amendment of 1974 “Vesco” extradition law. As Vesco is eligible to become a Costa Rican citizen in 1977, Embassy recommends that after informing Facio and Oduber of our intention, U.S. proceed with a high priority effort as soon as possible to extradite Vesco if USG and Costa Rican counsel judge that we have any chance to win or if this will [Page 414] permit us to challenge the 1974 law. There should be concurrent efforts to get a new extradition treaty provided that does not interfere with the preparation and presentation of our case. Developing of strategy for next phase of Vesco case is severely hampered by our continuing inability to consult competent Costa Rican legal counsel. End summary.
2. Embassy appreciates comprehensive and useful synthesis of the indictment against Vesco, U.S. statutes involved, and problems of extradition and the “Vesco law” provided in reftel (A). This ordered presentation indispensable as we plan for next phase of case.
3. Before discussing points raised reftels, Embassy wishes stress that our comments and analysis, including even some pertaining to interaction of legal situation with current political climate and roles of certain Costa Ricans, are submitted subject to consultation with competent Costa Rican legal counsel. As Department knows, Embassy does not have recourse to counsel concerning extradition treaty, 1974 “Vesco law” or procedures, in absence of which Embassy is unable to be as helpful as is needed and desired.
4. Extradition and the “Vesco law”—problems and comments of Costa Ricans.
A. Embassy unable provide much more insight than Department has already. However, we consider it important to bear in mind that Costa Rican executive branch views regarding such important questions as precedence of treaty over law, “jurisdiction” versus “territory,” and how much documentation will be necessary, will not be the controlling ones. They represent opinion of executive branch—not the judiciary. We cannot be sure that this advice is really the best, is disinterest, or is free of Vesco influence. Independent local legal judgment is needed. Finally, only an extradition attempt in which we can count on assistance of the best Costa Rican legal team available will answer those and other questions.
B. The Solorzano memorandum of March 23, 1973, should be considered for what it is and was: an informal memorandum from the then-acting Foreign Minister—a Figueres henchman. It is significant that no later GOCR document makes reference to it. (It would not surprise us if the document is not even part of the Foreign Ministry’s archives.)
C. Contrary to comment in para six reftel (A), the Foreign Ministry note of April, 1975, was a formal GOCR position; it did not represent the views of the Foreign Ministry only. Foreign Minister Facio made this point to Ambassador on April 15, 1975, (reported in San Jose 1495). President Oduber reaffirmed it in response to Ambassador’s question on May 13, 1975 (San Jose 1495, paragraph five).
D. Embassy is suspicious of comments contained in study by Attorney General’s office which was forwarded to Department in Sep [Page 415] tember, 1975 (the Umana study). As Department aware, Attorney General Tossi is beholden to Figueres, has never shown himself to be sympathetic to the U.S., and sabotaged potentially successful effort to get “Vesco law” amended in fall of 1975. In sum, we do not believe Attorney General’s office is to be fully trusted in any assessment of Costa Rican law or practice or treaty interpretation relating to Vesco matter.
E. In Embassy view most credible GOCR study of the law or treaty is probably the April, 1975, Foreign Office note given to Ambassador by Facio although even that is far from satisfying since it leaves the most important questions unanswered.
5. Political issues affecting extradition.
A. There seems to be little hope for repeal or change of 1974 “Vesco” extradition law although announcement of such intentions may continue to be made. Thus Facio told Ambassador on March 24 that Oduber is again considering having the law repealed, although Oduber told Ambassador only two weeks before that GOCR could not move to change the law for political reasons. Without the support of the government party, opposition forces in the assembly do not have the votes to repeal or to amend. If the “change of political atmosphere” referred to at end of paragraph four reftel (B) contemplates a possible change in the law, it should be discounted.
B. Similarly, although Vesco is likely to become an issue in the Presidential political campaign, it is impossible to predict the speed or manner in which this will develop, thus the USG cannot and should not count on any change in political atmosphere in the campaign to affect significantly our chances to extradite Vesco under the existing rules of the game. Unless there is some truly spectacular revelation of Vesco-related corruption or illegal activity (such as gun-running or narcotics trafficking), the existing political climate regarding Vesco is likely to remain unchanged, with his opponents gradually resigning themselves to having to live with him here.
C. We recognized that any extradition request can cause temporary problems or strains to develop in our relations with the GOCR. The task of our diplomacy will be to keep those strains under control, and to prevent them from lasting or affecting relations across the board. We cannot run away from the problem or fail to deal with it simply because we may disagree with some influential Costa Ricans on it. A decision to proceed with an attempt would not come as a surprise to the Costa Ricans since this possibility has been referred to repeatedly by the Embassy. Filing of an extradition request would not give the GOCR any more grounds for inaction than it now has and there is no reason why failure to succeed need necessarily engender recriminations or more lasting problems. The matter is difficult. But difficult matters must also be dealt with.
[Page 416]D. It can be expected that if we make another extradition attempt and fail, doubts will again be expressed about our good faith and competence. However, if we were to proceed with a good case and the assistance of the best and most respected Costa Rican legal team we could find, and if we could point clearly to the law as the obstacle to a successful extradition, we should be able to stand on that record.
E. On balance, not proceeding with another extradition attempt because we foresee failure due to the existence of the 1974 law may carry more risk to bilateral relations than proceeding and failing. To let the matter die quietly without any statement on our part would undoubtedly please Oduber and some members of his party and government. However, such silence and inaction would lend credence to the view that the USG never was really serious about Vesco; that he was being politically persecuted; that we do not want him back in the U.S. during an election year. In addition, U.S. justice would not be served, since the effort would not even have been made. Finally, we would not have explained our failure to make an effort to promote our interests, to see Vesco’s corrupting influence in Costa Rica, and to try to change Costa Rica’s image as a safehaven for fugitives from U.S. justice. To limit such damage and make the public record unequivocally clear, there would have to be an announcement (to be made in Washington) that we are not proceeding with another extradition attempt because of the impossibility of succeeding in the face of the “Vesco law.” Such an announcement would displease the Oduber government, please the opposition during an election period, and might pose a 1978 campaign issue of U.S./GOCR disagreement. This could well create more problems for us than would proceeding and failing.
6. Consultation with GOCR. In view of frequent discussions we have had with the Costa Rican Government, especially Oduber and Facio, on the Vesco issue and considering our desire to maintain close contacts and dealings of confidence with them on many matters, Embassy believes we should consult with them in general terms at the outset just before we present extradition case. However, we should be selective in deciding what, if any, part of their advice to follow, since there are good grounds for misgivings about bona fides of such advice. We certainly should not put ourselves and our case in GOCR hands; should we be criticized in the post mortem for not having done so, so be it. It is another matter to have to run.
7. Options. Of the options presented in State 58366, Embassy favors amended option B; that is, to present broad elements of a fully prepared case to Oduber and Facio, just before going ahead, informing them that we will be proceeding, that we believe we have a winning case under the treaty and that we are concerned about “Vesco law” but have decided to pursue our request because of GOCR assurances. We [Page 417] recommend that Facio be requested to testify to court as to precedence of treaty over law. Regarding option A, we do not see a need for provisional arrest nor are we aware of any time constraint on the Foreign Ministry for transmitting our request to court, but we defer to competent legal opinion on those points. Based on experience last time, Foreign Ministry can present our initial request directly to the court. Ambassador then presents case and any subsequent briefs directly to court with assistance of private local counsel and as desired, of GOCR legal officers. Procedure this time might be affected by new law and/or advice of our lawyer.
8. A New Treaty. Embassy does not see any overriding substantive or tactical conflict between option B, proceeding with an extradition request, and simultaneously option C, moving to get a new treaty in force. Instead we see a two-track effort which means that if we can get a new treaty before our case is ready, we will have a better chance thereunder; if not, we will continue under the present treaty (there will be no choice at any rate). We do not see why renegotiation should imply that “Vesco law” applies to USG/GOCR extradition relations, nor do we know of any pressure Oduber is now under which renegotiation would take off him for foreseeable future, as long as there is a simultaneous extradition request. In Embassy’s view there is nothing to lose and a slight possibility of gain by pressing forward vigorously with the negotiation of a new treaty. Oduber has already said he would instruct Foreign Ministry to cooperate and some moves in this direction can be expected. Much bigger problem lies in getting cooperation from antagonistic Attorney General.
9. Conclusion: Embassy recommends that:
A. Local legal counsel should be retained immediately to study the law, plan strategy, assess our chances, and advise the USG as necessary. USG should accept that first-class effort required to extradite Vesco will be expensive. We should engage the best local attorney or attornies we can get, and we may want to detail a U.S. attorney here during the effort. Embassy recommends that commitment be made now to provide full funding for this endeavor.
B. USG should prepare and press forward as soon as possible with an extradition case if chances for success are reasonably good or if this will permit us to challenge the constitutionality of the 1974 law.
C. Should U.S. lawyers and expert Costa Rican counsel conclude that the 1974 law makes a successful extradition of Vesco under the existing treaty impossible, and decision is made not to proceed, then the USG should make it known publicly (from Washington) that no attempt to extradite Vesco is possible because of the law despite the bilateral problems this might cause.
[Page 418]D. Simultaneous with preparation of an extradition request, the USG should attempt to proceed rapidly with the negotiation of a new extradition treaty, but in no case should delay an extradition request on this account. A key U.S. objective in this negotiation will be to cover the loopholes between the present treaty and the 1974 law.
10. Results of Country Team’s long and careful consideration of Vesco issue is presented fully in recently-submitted CASP (San Jose A–18 dated March 22). Embassy recommends that CASP be reviewed together with this telegram.
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Summary: The Embassy reviewed the local political context of the Vesco case and recommended a two-track effort involving a new extradition request and an effort to negotiate a new extradition treaty.
Source: National Archives, RG 59, Central Foreign Policy File, D760125–0554. Confidential; Priority; Stadis; Exdis. In telegram 58366, March 10, the Department reviewed the most recent indictment against Vesco and outlined options for future action on the case. (Ibid., D760091–0418) In telegram 60707 to San José, March 12, the Department requested the Embassy’s views on the political issues affecting extradition and its recommendations on how best to proceed. (Ibid., D760094–0637) The Solorzano memorandum dated March 23, 1973, was not found. In telegram 1495 from San José, April 15, 1975, the Embassy reported the Costa Rican position regarding the extradition law. (Ibid., D750131–1008) The Umana study dated September 1975 is summarized in telegram 4702 from San José, November 5. (Ibid., D750386–0263) The April 5 Foreign Office note was not found. Airgram 18 from San José is dated March 23. (Ibid., P760043–2083)
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