Cablegate: Brazil: Wiretap Scandal Highlights Power Struggle

DE RUEHBR #1315/01 2771514
R 031514Z OCT 08




E.O. 12958: DECL: 09/16/2018


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.


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