FORMER FM BLACKER MILLER: PROVISIONAL ARREST

UNCLAS LIMA 004408 SIPDIS SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PGOV PREL KJUS PE SUBJECT: FORMER FM BLACKER MILLER: PROVISIONAL ARREST REQUEST NOT POLITICALLY MOTIVATED, BUT CHARGE A POLITICAL OFFENSE REF: A. 11/8 EMAIL POLCOUNS ALUDWIG TO WHA/AND AND L/LEI ¶B. 11/8 EMAIL FROM L/LEI TO POLCOUNS ALUDWIG Sensitive But Unclassified. Please handle accordingly. ¶1. (SBU) Summary: This is an action request - please see para ¶6. The GOP request for the provisional arrest of former Peruvian FM Augusto Blacker Miller for his alleged participation in the 1992 self-coup ("auto-golpe") is not, in our view, politically motivated; that is, we do not believe the government is pursuing this case for political ends. However, notwithstanding the Adhoc Prosecutor's Office's considered arguments, the "rebelion" (rebellion or treason) charge against Blacker Miller that forms the basis of a possible future extradition request is intrinsically political, and as such would appear to be a basis for denying an eventual extradition request under Article IV of the U.S.-Peru Extradition Treaty. End Summary. Not Politically Motivated -------------- ¶2. (SBU) The GOP request for the provisional arrest with a view to extraditing former Peruvian Foreign Minister Manuel Augusto Blacker Miller is not, in our view, politically motivated. That is, we have no evidence that the government is directing political pressure on prosecutors to influence the legal process or that the provisional arrest request itself is aimed at weakening or removing Blacker Miller for reasons of his political standing. Importantly, the Adhoc Prosecutors Office for Fujimori-Montesinos cases was created by the government of former President Alejandro Toledo, and began building the case against Blacker Miller that has resulted in the current provisional arrest request before current President Alan Garcia took office. Moreover, the legal process appears to be going at its own pace, neither sped up, slowed down, nor otherwise unduly pressured or directed by the current government. ¶3. (SBU) By all the evidence, the Prosecutors Office appears merely to be carrying out its mandate of prosecuting officials in the Fujimori-Montesinos government who were allegedly involved in corruption and abuse of power. Repeated interactions with Adhoc prosecutors, who are unfailingly professional and by all appearances undistracted by political considerations, buttress this view. Likely a Political Offense -------------- 4 (SBU) Blacker Miller is being charged solely with "rebelion" (treason or rebellion) for his alleged participation in the 1992 self-coup ("auto-golpe") in which the government of then President Alberto Fujimori shut down congress and established a de facto government. However reprehensible or anti-democratic the action, the treason or rebellion charge by its nature appears to be a political offense, which would explicitly exclude it from consideration under the Extradition Treaty Between the United States of America and the Republic of Peru signed on July 26, 2001 (entered into force August 25, 2003). ¶5. (U) Polcouns and Poloff met with Chief of Extradition Cases Omar Chehade and Legal Advisor Jessie Trevejo of the Prosecutors Office on 11/9 to discuss the case. Chief Prosecutor Carlos Briceno participated in the final part of the meeting. The Prosecutors argued the charge overcomes the "political crime" interpretation for the following reasons: -- Blacker Miller planned and participated in a coup that subverted constitutional order (as opposed to the rule of a dictator) and consolidated power in a system he knew would be engaged in illegal acts such as corruption for personal profit, narco-trafficking and kidnapping. (Note: Prosecutors do not allege that Blacker Miller participated directly in any of these crimes, only that he knew with forethought they would result from the subverting of constitutional order. End Note.) -- Prosecutors draw from so-called "teoria mixta" to distinguish a coup that overthrows undemocratic governments from those that topple democratic ones, arguing that the latter is a greater offense and less susceptible to the "political crime" interpretation. They will reference international law, including relevant OAS resolutions. In this respect, they appeal to the U.S. commitment to constitutional government and democratic sentiments. -- The charge cannot be seen as political persecution because Fujimori himself, while President of Peru, signed the Peruvian laws that are being used to charge him. Alternatives -------------- ¶5. (SBU) The prosecutors emphasized that their paramount interest was to bring Blacker Miller back to Peru to face the charges, and acknowledged that returning him "some other way" would obviate an extradition request. They mentioned expulsion or deportation from the U.S. as possible alternatives. After investigating the alternatives, Consul General and DHS chief agree that Blacker Miller does not appear to be in violation of U.S. immigration law. Preventing Damage: Action Request -------------- ¶6. (SBU) The Prosecutor's Office understands the politically and diplomatically sensitive nature of the case, and has sought to keep it out of the press for this reason. Poloffs told the prosecutors it will be hard to convince legal experts in the USG that the charge of rebellion is anything other than political, even as we deplored and continue to deplore Fujimori's auto golpe. We added that, in addition to maintaining fidelity with the terms of our bilateral extradition treaty, which excludes political offenses from consideration, we wanted to avoid the publicly damaging prospect of a formal extradition request that was doomed to fail. To this end, Post requests the department's guidance regarding the likely fate of an extradition request for Blacker Miller to convey informally with the Adhoc Prosecutors office. STRUBLE