BRAZIL: WIRETAP SCANDAL HIGHLIGHTS POWER STRUGGLE

C O N F I D E N T I A L SECTION 01 OF 04 BRASILIA 001315 SIPDIS STATE FOR BSC, INL, DRL E.O. 12958: DECL: 09/16/2018 TAGS: KCRM PGOV PREL PTER BR SUBJECT: BRAZIL: WIRETAP SCANDAL HIGHLIGHTS POWER STRUGGLE AMONG EXECUTIVE, COURTS, CONGRESS REF: A. BRASILIA 01314 ¶B. BRASILIA 390 Classified By: Deputy Chief of Mission Lisa Kubiske for reasons 1.4 (b) and (d) ¶1. Summary: Revelations that the Brazilian Intelligence Agency (ABIN) may have been wiretapping Supreme Court (STF) President Gilmar Mendes' calls (reftel) have reinvigorated Congressional inquiries into abusive wiretapping practices and will likely lead to legislation providing oversight over wiretaps -- which, if enacted, could be seen as positive steps in the maturation of Brazil as a rule of law-based society. At the same time, an increasingly assertive judiciary may look to go one step further and impose limits beyond what the Congress is considering, a course that could negatively impact the capabilities of Brazilian law enforcement entities to conduct criminal investigations, and one that could hinder information-sharing with the United States. More broadly, the STF wiretap scandal brought to the boiling point an ongoing struggle between the three branches of government, with each trying to assert or protect its authority from encroachment by the other branches. This institutional turf battle represents an intensifying governance problem in Brazil, and increases the importance of engaging all three branches as we promote U.S. interests. End summary. -------------- Abuse of Wiretaps in Brazil: a Growing Problem -------------- ¶2. (C) As a result of the wiretap revelations involving the STF, the press is once again focused on the Congressional Investigative Committee (CPI) convened in February to investigate abusive wiretapping practices in Brazil, including the CPI's discovery that in 2007 there were more than 400,000 judicially authorized wiretaps in Brazil. The figure, which has been extensively reported by all media outlets, has led commentators to portray Brazil as akin to a police state. Law enforcement contacts note that it is fairly easy to gain authorization to wiretap someone, and that once a judge has given authority, multiple lines can be tapped, for almost indefinite periods of time. Most government officials in Brazil, according to press reports, assume their lines are tapped. Sao Paulo-based Judge Fausto Martin de Sanctis, who is am Embassy contact, often refuses to speak over the phones, and when he does, uses coded language to communicate. Both Minister of Justice Genro and Minister Felix confirmed this climate in separate instances, making public remarks implying that that the best policy is to assume you are being heard and to not say anything. ¶3. (C) Roberto Carlos Martins Pontes, a Chamber of Deputies Legislative aide working on the Wiretap CPI, asserts that there has been abuse even when wiretaps are judicially authorized. The biggest problem, he notes, is structural. "There are no control mechanisms", he noted. "As part of the CPI", he recounted, "we tried to find out how many wiretaps were conducted in Brazil...we asked the federal police, judges, state police, and no one could give an answer." According to Pontes, the number reported in the press came from the response of the telecommunications companies who were asked how many numbers they were asked to intercept. According to Pontes, the total of 409,000, which amounts to a rate of about 270 per 100,000 people, is far beyond that of developed countries. He noted, however, that this number could be highly misleading and is probably much lower. According to Pontes, the CPI staff suspects that the phone companies reported all the judicial authorizations for wiretaps they received, rather than all the individual phone numbers they had tapped. These authorizations were in many cases renewals of wiretaps on the same number. He added, however, that, "even if it is only 25% of the reported number, that is still extremely high", especially compared to the U.S. figure, which according to the U.S. Wiretap Report for 2007, amounts to 2,208 intercepts at both the federal and state level, or less than 1 per 100,000 people. BRASILIA 00001315 002 OF 004 ¶4. (C) Furthermore, he added, "under Brazilian law, wiretaps should be the last resort, but here they are often the first." According to Pontes, a formal inquiry does not even have to be opened before a wiretap is approved. And he adds that it is extremely easy for anyone to manipulate which numbers are tapped. The chain of judicial authorization to telecom companies is lax and can be as simple as a fax, he noted. In fact, according to Pontes, the CPI has documented cases where people have inserted phone numbers in lists of authorized wiretaps between the time the judge authorized it and the time it gets to the technicians. Even the Brazilian Federal Highway Police has been found to conduct wiretaps, although they are not technically authorized to do so under the Brazilian constitution. (Note: The Brazilian constitution limits wiretapping authority to judicial police bodies, which include the Federal Police and the civil police of the states. End note.) -------------- More Control Over Wiretaps on the Way -------------- ¶5. (C) In response to the revelations in the September 3 Veja article regarding alleged ABIN wiretapping of the president of the Supreme Court and a federal senator, as well as the work of the CPI, more than ten bills have been proposed that would standardize procedures for requesting, granting, and communicating authorization of wiretaps, increasing punishments of public officials who abuse wiretaps. A couple of these are now moving swiftly through Congress. Pontes noted that one of the bills proposed strengthens procedures for transmitting judicial wiretaps authorizations using digital signatures. Another control mechanism is to authorize the Ministry of Justice to keep statistics on the number of wiretaps authorized in Brazil -- including length of wiretaps, types of crimes -- as many other countries do. The bills also extend the period for which wiretaps are authorized from 15 to 60 days, but under the proposed bills they would be renewable for a maximum of a year, unlike current law which allows for indefinite renewals. This limit would not apply, however, to "permanent" crimes, a terminology that is not explicit in law, but instead is subject to judicial review, and tends to refer to refer to crimes that are ongoing, as for example, a kidnapping. Asked by poloff if under such language wiretaps of individuals providing support for terrorist operations would be limited to a year, Pontes could not be sure, but added that it was an important concern and that perhaps the bills needed to have a broader "escape clause" that permitted longer taps depending on the type of crime. ¶6. (U) In addition to action in Congress, the judiciary is also taking measures on its own to exert more control over wiretaps. The National Justice Council (CNJ),a judiciary body that provides oversight of that branch, announced that it would start monitoring the use of wiretaps and would increase scrutiny of judges who authorize them. Among other measures, judges will be required to report to the CNJ authorization of wiretaps. ¶7. (U) In a move signaling that the judiciary intends to take an active role in restricting the use of wiretaps, beyond what Congress is considering, a Superior Justice Tribunal (STJ -- the appeals court of last resort on non-constitutional matters) decision handed down on 9 September threw out two years worth of wiretaps that were used as evidence in a conviction. The STJ justified their decision by noting that the wiretap had been for an excessive period of time. The combined effect of the CNJ and STJ decisions -- not to mention the scrutiny the issue is receiving in the press and Congress -- could be that judges will be more cautious about authorizing wiretaps in the future. (Note: Embassy's Resident Legal Adviser has been engaging with high ranking Brazilian federal prosecutors, including with the director of the Federal Prosecutor School, and provided them copies of U.S. statutes relating to wiretap law. The Brazilian prosecutors have also requested BRASILIA 00001315 003 OF 004 information regarding internal institutional controls imposed by the U.S. Department of Justice to limit wiretap abuses. End note.) -------------- Supreme Court Flexes its Muscles -------------- ¶8. (U) The STJ and CNJ decisions -- combined with the recent Supreme Court (STF) skirmishes with the Executive, ABIN, lower level judges, and elements of the Federal Police (DPF) as a result of the wiretapping of STF President Gilmar Mendes' phones (see reftel) -- come at a time when the STF has been embroiled in a broader struggle to reign in what it calls abusive law enforcement practices, recently issuing a string of statements and decisions that show institutional conflict between the branches is deeper and father reaching that just the wiretap issue. Mendes and some members of the STF have publicly decried the "spectacularization" of DPF operations, in reference to the notorious and increasingly common episodes when the DPF wraps up their investigations with high-profile arrests and "perp walks" that that are widely covered by the media. Mendes has argued that the DPF is using the arrests as a tool to prejudice future juries against defendants. This view led to the STF overturning a conviction of a defendant who had been made to stand trial wearing handcuffs, ruling that this prejudiced the outcome of the trial. As a result, the court imposed strict limitations on the use of handcuffs, and after being challenged by the DPF, which continued to use handcuffs in an arrest it conducted after the decision, the STF restricted the rules on use of handcuffs even further. Currently they can be used only in cases where there is a demonstrable risk to the arresting officers of immediate harm. ¶9. Furthermore, Mendes also has turned his sights on the money laundering courts -- about 23 courts around the country established in 2003 to create a group of officials specializing in money laundering crimes -- for what he sees as inappropriate cooperation between judges, police and prosecutors, going so far as to compare them to a "militia" and implying that their concerted actions skirt the law. Mendes called on the CNJ, which he presides, to re-consider the existence of the courts, adding that cases should be assigned to judges on a random basis, and that each entity -- police, prosecutors, and judges -- should do their work independently. According to Embassy contacts, however, the courts are an effective tool used by the DPF and prosecutors to pursue complicated money laundering cases precisely because of that close cooperation that Mendes decries. In fact, one of the reasons for Brazil's dismal record in successfully bringing all manner of criminal cases from investigation to trial in Brazil is because of the lack of cooperation between the police, prosecutors, and judges. -------------- Comment: U.S. Interests Amidst the Power Struggle -------------- ¶11. (C) That Brazilian officials are taking the opportunity of this latest scandal to establish a set of national guidelines that judges, prosecutors, police, and private companies have to follow when authorizing wiretaps is another step toward rule of law in Brazil. At the same time, wiretaps are one of the best tools Brazilian law enforcement agencies have against crime, since these agencies are weak in other investigative techniques. The potential restriction of their ability to carry out wiretaps could harm U.S. interests in fighting organized crime, narcotics trafficking, and countering terrorism. Although it is too soon to tell how restrictive the bills in Congress will be, there is an understanding in Congress and the Executive of the need to have a robust, but legal, wiretap capability. In the Supreme Court, however, which many in congress and the executive accuse of legislating from the bench, there may be less compunction about severely restricting the use of wiretaps and other investigative tools, even to the detriment of BRASILIA 00001315 004 OF 004 effective law enforcement action, if other instances involving abusive practices surface. ¶12. (SBU) Comment, continued: More broadly, the wiretapping of STF president Mendes has brought to the forefront an ongoing power struggle between all three branches that has been percolating for some time. One aspect of this struggle has been the repeated sidelining of congress by the executive branch through the increasing use of provisional measures (ref b). A second is the STF's more assertive role under Mendes in issuing an increasing number of "sumulas vinculantes"-- a concept similar to "stare decisis," in which the STF sets precedents to be followed by lower courts. The STF has issued ten "sumulas" since Mendes took over the presidency earlier this year, versus three from 2004 through ¶2007. In addition to suffering attacks by the president of the Senate and other congressional leaders for usurping its legislative authority, Mendes and members of the executive branch have exchanged shots over what they consider the other branch's abuse of its powers -- making this, essentially, a two-front battle for each of the branches. Post had been making a strong effort over the past two years to reach out to Congress and, with the arrival of the Resident Legal Adviser earlier this year, is now making a similar concerted effort with the courts, as well as with prosecutors (who are also independent of the executive). As each branch asserts its independence, maintaining a robust outreach effort with all three branches and with prosecutors is becoming increasingly important to effective promotion of U.S. interests. End comment. SOBEL