Cablegate: Former Fm Blacker Miller: Provisional Arrest

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PP RUEHWEB

DE RUEHPE #4408/01 3211807
ZNR UUUUU ZZH
P 171807Z NOV 06
FM AMEMBASSY LIMA
TO RUEHC/SECSTATE WASHDC PRIORITY 3016
INFO RUEHAC/AMEMBASSY ASUNCION PRIORITY 1552
RUEHBO/AMEMBASSY BOGOTA PRIORITY 4108
RUEHBR/AMEMBASSY BRASILIA PRIORITY 7090
RUEHBU/AMEMBASSY BUENOS AIRES PRIORITY 2673
RUEHCV/AMEMBASSY CARACAS PRIORITY 9933
RUEHLP/AMEMBASSY LA PAZ NOV 3838
RUEHMN/AMEMBASSY MONTEVIDEO PRIORITY 9027
RUEHQT/AMEMBASSY QUITO PRIORITY 0824
RUEHSG/AMEMBASSY SANTIAGO PRIORITY 0945
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC PRIORITY
RUMIAAA/USCINCSO MIAMI FL PRIORITY

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

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