17 October, 2021

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Why US-Sri Lanka Pact ACSA Kept A Secret: Tied To US Defense Law

By Daya Gamage

Daya Gamage

Currently when the August 2017-signed 83-page military agreement between Sri Lanka and the United States – Acquisition and Cross-Services Agreement (ACSA) – is still kept a secret document, and whether the operation of the agreement still a mystery, a glimpse of what an ACSA is, what it means to the United States, what the policymakers of the United States attempt to achieve in signing an agreement of this nature and its impact on the country that enters into such an agreement with the U.S., and the regional impact following such military engagements when the Indo-Pacific is fast becoming battle ground are valid questions.

The 2017 ACSA was a renewal of the 2007 agreement signed by then Defense Secretary Gotabaya Rajapaksa with U.S. ambassador Robert Blake on behalf of the Government of Sri Lanka’s Defense Ministry and U.S. Department of Defense (DOD).

The process is: US Secretary of Defense arrives at the determination to enter into an ACSA treaty with a (non-NATO) country in consultation with the US Secretary of State. The Secretary of State, in Washington, needs to get a serious feedback from his diplomatic representatives resident in that country. Two classified diplomatic cables dispatched to Washington from the U.S. Embassy in Colombo a month prior to the signing of the March 2007 ACSA –determined that the signing of the military treaty clearly falls within the U.S. Code Title 10 Section 2342.  So was the 2017-signed ACSA.

The March 2007 ACSA became a solid forerunner to the enlarged and enhanced 83-page ACSA signed between the United States and Sri Lanka in 2017. During 2007, the U.S. was very much involved in the Global War on Terror (GWOT), and in 2017 Washington is seriously engaged in a steady military build-up in the Indo-Pacific region to face the Chinese military and economic expansion. Washington has already entered into three military-technology agreements with India.

Despite candidate Rajapaksa declared at a media briefing in October 2019, a month before the presidential election, that Sri Lanka benefited from the signing of the 2007 agreement, a once-classified diplomatic cable signed by Ambassador Robert Blake to Washington nevertheless stated (Quote) Sri Lanka, positioned astride major sea lanes and at the doorstep to India, can play a significant role in military readiness as political and military efforts shift focus on Asia in the new millennium.

The signing will expand DOD’s capacity and capability to conduct global operations by adding another logistical option in South Asia and provides flexibility to U.S. forces moving through the region.

Since this agreement primarily benefits U.S. forces, we think there are strong arguments to proceed with signing the agreement(End Quote)

The 2007 as well as the 2017 ACSA between the two countries were directly governed by a US Federal law 10 U.S. Code §2342.

This is precisely why the Sri Lankan people need to know the clauses of the 83-page 2017 ACSA which the Sri Lanka administration has decided to keep a secret. If the 2007 classified diplomatic cable from the U.S. Embassy, Colombo to Washington declared the agreement was in favor of the United States, there is strong reason believe that the 2017 agreement too was in favor of Washington. Furthermore, it is dictated by the US Federal law 10 U.S. Code §2342.

The issue is: Why is the 2017-signed 83-page ACSA kept a secret under the Gotabaya Rajapaksa presidency, and in what manner Sri Lanka has undertaken its part of responsibilities. The president undoubtedly is aware of the significance of an ACSA as he was one of the signatories to the original pact in 2007. He is now the Minister of Defense to know the ambit of the 83-page pact.

The agreement allows both countries to transfer and exchange logistics supplies, support, and re-fueling services clearly benefitted the United States in its military operation in the Asia-Pacific region – specifically US Pacific Command (USPACOM) which is now US Indo-Pacific Command (USINDOPACOM). That’s the only angle everyone knows, but there are obviously other significant undertakings.

Cross Services agreements – dictated by the U.S. Code Title 10 Section 2342 – under which a long process of U.S. Government (USG) assessment takes how useful a non-NATO country – such Sri Lanka – could be to the national interest of the United States: it could provide some answers as to why the 2017 ACSA is kept a secret. 

The U.S. Code declares (Quote) (a)(1) Subject to section 2343 of this title and to the availability of appropriations, and after consultation with the Secretary of State, the Secretary of Defense may enter into an agreement described in paragraph (2) with any of the following: (among others)

(D) The government of a country not a member of the North Atlantic Treaty Organization but which is designated by the Secretary of Defense, subject to the limitations prescribed in subsection (b), as a government with which the Secretary may enter into agreements under this section. (End Quote)

Here’s Sub-Section (b):

(Quote) (b) The Secretary of Defense may not designate a country for an agreement under this section unless –

(1) the Secretary, after consultation with the Secretary of State, determines that the designation of such country for such purpose is in the interest of the national security of the United States; and

(2) in the case of a country which is not a member of the North Atlantic Treaty Organization, the Secretary submits to the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on Armed Services and the Committee on International Relations of the House of Representatives notice of the intended designation at least 30 days before the date on which such country is designated by the Secretary under subsection (a). (End Quote)

The Pentagon, the State Department and Armed Services and International Committees of the U.S. Senate and House of Representatives are very much involved in the process using feed backs and assessments from the U.S. diplomatic post in the host nation. Undoubtedly the American Embassy in Colombo assessed the ground situation – and in consultation with Sri Lankan officials at both times (2007/2017) to report to Washington paving the way for the activation of the ACSA.

To enter into an ACSA treaty, the designated country – in this case of Sri Lanka which entered into the agreement twice in 2007 and 2017– Washington has to determine (Quote) the designation of such country for such purpose is in the interest of the national security of the United States (End Quote)

In May 2004, Colonel Virgil S.L. Williams and Colonel Debbie Little, both of the United States Army, presented a position paper to the U.S. Army War College in Pennsylvania under the title “United States Security Strategy for the Asia-Pacific Region’ in which it said – among others – “In addition to host nation supplies and services, ACSA can give U.S. access to basing and infrastructure necessary for force projection in and through the USPACOM (US Pacific Command) area of responsibility”.

US Pacific Command (USPACOM) is currently known as Indo-Pacific Command (INDOPACCOM).

Those knowledgeable could focus the serious nature of engaging in military treaties such as ACSA at a time Washington is heavily building its military power-might in the Indo-Pacific region to combat the expansion of the Peoples Republic of China. The question is whether Sri Lanka is a ‘willing partner’ to this at a time the Sri Lanka administration continues to keep the 83-page 2017-signed ACSA a classified document.

What further alarms those who are committed to safeguarding the sovereignty and non-alignment of Sri Lanka is that the United States Indo Pacific Command (INDPACCOM) is seriously engaged in enhancing American military presence leading to combat the Chinese ‘expansionism’.

We refer here to provisions of the United States Federal Law 10 U.S. Code 2341.

To quote 10 U.S. Code 2341: Subject to section 2343 of this title and subject to the availability of appropriations, the Secretary of Defense may—acquire from any government for elements of the armed forces deployed (or to be deployed) outside the United States if that country —

(A) Has a defense alliance with the United States;

(B) permits the stationing of members of the armed forces in such country or the home porting of naval vessels of the United States in such country; (Permitting is possible if the SOFA or VFA is signed, and a Sri Lankan cabinet minister – cabinet spokesman himself – has declared that GSL had signed the SOFA. The government has so far not dismissed this statement of the cabinet spokesman).

(C) Has agreed to preposition materiel of the United States in such country; or

(D) Serves as the host country to military exercises which include elements of the armed forces or permits other military operations by the armed forces in such country. (End Quote)

“Permits other military operations by the armed forces in such country” needs explanations from both the United States and Sri Lanka.

Referring to A: has a defense alliance with the United States is where the ACSA treaty between Sri Lanka and the United States – renegotiated and agreed upon expanding it from 8 pages of 2007 to 83 pages in 2017 – and the Status of Forces Agreement (SOFA) or Visiting Forces Agreement (VFA) make provisions for the American military to enter Sri Lankan soil under 10 U.S. Code 2341.

The Indian Factor

In March 2002, a delegation of US officials, led by the then Assistant Secretary of State for South Asian Affairs Christina Rocca, and including US Brigadier General Timothy Ghormely, commander of the US Marine Expeditionary Brigade, visited Sri Lanka for talks with then prime minister Ranil Wickremesinghe, his Defense Minister Tilak Marapana and senior army officers at the Palaly army camp in the north. A four-member team of US military and legal experts visited Sri Lanka the following month. The latter visit was an unannounced one.

The Wickremesinghe administration was covertly negotiating with the United States to enter into the Acquisition and Cross Servicing Agreement (ACSA).

India’s opposition blocked the signing of the agreement as India and the United States were in diplomatic confrontational terms during that time. With New Delhi teaming up with Washington on military and technological issues having entered into three defense agreements– especially both countries’ confrontation with China, Sri Lanka had an easy task of entering into military pacts with the United States in 2017. And expanded (83-page) one at that.

At a time the ‘power play’ in the Indo-Pacific is on the rise and the Chinese are expanding their influence in the same region, it is important to know the mechanism of the 2017-ACSA when it is dictated or tied to a U.S. (Defense) Federal law.

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    1

    So so the ACSA must be the reason for USA let NGR to renounce his green card easily enabling him to contest the 2019 Presidential Election?

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