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