CORREA MAKES HAY AS NOBOA BOTCHES AG APPOINTMENT

C O N F I D E N T I A L QUITO 000197 SIPDIS SENSITIVE SIPDIS E.O. 12958: DECL: TEN YEARS TAGS: PGOV PREL EC SUBJECT: CORREA MAKES HAY AS NOBOA BOTCHES AG APPOINTMENT Classified By: PolOff Erik Martini for reasons 1.4 (b&d). ¶1. (C) Summary: In a hurried backroom deal, the PRIAN used its majority in Congress to appoint a highly controversial Attorney General, Francisco Cucalon Rendon. Both the process and the selection have been strongly criticized by President Correa and justice sector NGOs, fueling expectations that the appointment will not stand. Cucalon was selected to the same post in 1997, resigning three months later under a cloud based on allegations of questionable decisions to release suspects in narcotics cases as an appeals court judge. ¶2. (C) Correa is highlighting Noboa's miscalculation to further discredit Congress and its working majority, including ex-President Gutierrez. The PRIAN is standing by Cucalon, denying the allegation that he previously served as Noboa's personal lawyer and challenging anyone with proof of his unsuitability for the post to come forward. We have privately encouraged Congress to reconsider the AG appointment based on the legitimate process concerns, and are scrutinizing the list of names being mentioned as possible candidates to prevent another disastrous choice. End Summary. Background -------------- ¶2. (U) The Ecuadorian constitution provides that Congress elects the attorney general by a majority vote from a slate of three candidates presented by the National Judicial Council (CNJ). It also provides that if there is a vacancy, the CNJ must present a slate within 20 days, or Congress can designate the attorney general without a slate. The attorney general position has been filled since February, 2005 by an acting AG, Cecilia Armas. During that time, Congress considered and rejected a slate from the CNJ, but never elected its own attorney general. The CNJ is currently developing a new slate of candidates, expected by next week at the latest. Congressional Deals -------------- ¶3. (SBU) A majority in Congress composed of Lucio Gutierrez's Patriotic Society Party (PSP),and Alvaro Noboa's PRIAN, the Social Christian Party (PSC),and the Christian Democratic Union (UDC) agreed to divide the two most important independent appointments under Congressional control: giving the selection of the AG to the PRIAN and the comptroller general to the PSP. (Note: The comptroller general acts as a government's inspector general, policing all aspects of the administration of government. Under the Ecuadorian constitution, Congress elects a slate of three candidates and the President selects from that slate. End note.) On January 18, a simple majority approved Cucalon's appointment (the UDC abstained) and a 2/3 majority voted in favor of the PSP's selections for the comptroller post. All the minor parties, including UDC, walked out of Congress in protest; there was no debate. ¶4. (C) Pascual del Cioppo, the PSC leader in Congress, told us that the selection of Cucalon came as an unpleasant surprise to the PSC. PRIAN Congress leader Sylka Sanchez informed alliance members of party leader Alvaro Noboa's choice of Cucalon only on the morning of the vote. PSP leader Lucio Gutierrez told us the same, and immediately distanced his party from Cucalon, saying the selection could be reconsidered. Cucalon Criticism -------------- ¶5. (U) Criticism of the selection process for the attorney general began immediately after the January 18 votes. It was decried as the kind of extra-constitutional dealmaking typical of the way the established parties have traditionally behaved in the Congress, repudiated in the last election. President Correa and allied minority leftist parties were joined by respected justice sector watchdog groups in contending that Congress had acted unconstitutionally by not waiting for the slate of candidates from the CNJ, thereby politicizing the job of attorney general. The PRIAN defended the selection on technical legal grounds, but a majority of the legal establishment seems to be backing Correa's position on the process argument. ¶6. (C) Criticism also focused on Cucalon's qualifications for the nation's top prosecutor job. The CNJ revealed that as a candidate for the post he had not passed the qualifying tests they administered. Cucalon had been appointed attorney general in 1997 by the Alarcon administration, but resigned after 90 days because of criticism over Cucalon's role defending narco-traffickers as a lawyer and dismissing charges against narco-traffickers as an appeals court judge. He has defended himself against those charges, but Embassy files show that we were concerned about Cucalon at that time and pressed for his removal behind the scenes. We have privately shared our concerns about Cucalon with key members of Congress; the PSC and PSP tell us they are reconsidering their support. Correa Makes Hay -------------- ¶7. (U) Learning of the Cucalon appointment while attending the MERCOSUR summit in Rio de Janeiro, Correa immediately rejected the action as unconstitutional. He subsequently declared his government would not recognize Cucalon as attorney general, and called for citizens to correct this "embarrassment." Correa supporters dutifully surrounded Public Ministry buildings and Cucalon has not been allowed to enter any Public Ministry building since. Minister of Government Gustavo Larrea dispatched police to "guard" the public buildings against violence, but with orders neither to physically block Cucalon's entry nor to remove the protesters. Some police and lower level prosecutors joined the protests, refusing to come to work on January 22 and 23. Cucalon's Defense -------------- ¶8. (SBU) Cucalon has not helped his case by declaring, in response to his critics, "I'm no saint, and they may well find more to complain about." Cucalon also asserts that he was never charged or convicted of corruption and his U.S. visa was never cancelled. We have confirmed these assertions are true. Since being blocked from entering the Public Ministry building in Quito, Cucalon has embarked on a provincial tour. After being warmly received in his home city of Guayaquil on January 20, Cucalon was later blocked from entering Public Ministry buildings in Guayas, Los Rios and Tungurahua provinces. Cucalon is now accusing Correa of being a "dictator," and has lodged a complaint against Government Minister Larrea, alleging the government is paying protesters to deny Cucalon access to his office. CNJ Re-enters the Fray -------------- ¶9. (U) On January 19 the CNJ proclaimed it would stop its process of selecting a slate of attorney general candidates in view of the Congressional vote installing Cucalon. However, when Correa on January 20 declared the CNJ would send a slate "within a week," the CNJ quickly went back to work, announcing January 23 the resumption of testing and evaluation of candidates to have a slate ready by January 30. Comment -------------- ¶10. (C) The PRIAN's precipitous nomination of an already tainted attorney general gives Correa additional ammunition to use to discredit the new Congress at a key moment. Though the PRIAN is currently standing by Cucalon, the presentation of a qualified list to Congress next week will offer members of the majority a chance to reconsider their support of Cucalon. Gutierrez and the PSP have wisely stayed above the Cucalon fray, signaling ambivalence over its support for Cucalon while winning a public commitment from Correa to select from among the PSP's three nominees for the Comptroller General post. ¶11. (C) USG interests favor the appointment of credible crime fighters to these two key posts. Cucalon in recent years has been supportive on ACS issues and we could probably work effectively with him if need be, but a more independent and qualified candidate would be the better institutional and political outcome. BROWN