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Cablegate: Panama: Details of Pardon Revocation for Posada

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RR RUEHWEB

DE RUEHZP #0749/01 2611653
ZNY CCCCC ZZH
R 171653Z SEP 08
FM AMEMBASSY PANAMA
TO RUEHZA/WHA CENTRAL AMERICAN COLLECTIVE
RUEHUB/USINT HAVANA 0098
RUEHC/SECSTATE WASHDC 2514
RUEKJCS/SECDEF WASHDC
RHMFISS/DEPT OF JUSTICE WASHINGTON DC
RHEFHLC/HOMELAND SECURITY CENTER WASHINGTON DC
RUCNFB/FBI WASHINGTON DC
RHMFISS/CDR USSOUTHCOM MIAMI FL
RUEAIIA/CIA WASHDC
RHEFDIA/DIA WASHDC
RHMFISS/JOINT STAFF WASHINGTON DC
RHEHAAA/NSC WASHDC

C O N F I D E N T I A L PANAMA 000749

SIPDIS

E.O. 12958: DECL: 09/17/2018
TAGS: PGOV PM PREL PTER VE
SUBJECT: PANAMA: DETAILS OF PARDON REVOCATION FOR POSADA
AND 181 OTHERS

REF: A. A. PANAMA 542
B. B. PANAMA 556

Classified By: Classified by POLCOUNS Brian R. Naranjo for Reasons 1.4
(b) and (d)

-------
SUMMARY
-------

1. (U) Post acquired a copy of the June 30 Supreme Court
ruling that revoked the pardon of Luis Posada Carriles - who
is accused of plotting the assassination of Fidel Castro - as
well as three of Posada's accomplices and 178 others. The
Panamanian Supreme Court acted to overturn what they saw as
an Executive action that was outside the scope of the
Executive's power to pardon individuals for "political
crimes." The ruling overturned Executive Decrees No. 317 of
August 25, 2004, No. 318 of August 26, 2004 and No. 321 of
August 30, 2004, which pardoned a total of 182 persons for a
variety of crimes.

---------------------------------
Pardons for Political Crimes Only
---------------------------------

2. (U) Former President Moscoso and Arnulfo Escalona Avila,
ex-Minister of Government and Justice, violated Article 179,
Number 12 (now Number 184) and Number 22 of the Constitution
by ignoring the fact the President is given the power to
pardon only for "political crimes" and not for "common
crimes," according to the ruling. For common crimes, the law
specifically allows the Executive two avenues: reduction of
sentence and a decree granting parole. Many of the
individuals who received pardons included in the three
decrees had been accused or convicted of common crimes,
according to former Solicitor General Alma Montenegro de
Fletcher, whose counsel is quoted in the Court's opinion.
Further, Fletcher characterized the pardons as given in a
"abusive and indiscriminate" manner.

3. (U) The ruling acknowledged that the law did not include a
clear determination of what should be understood as a
"political crime," but proceeded to interpret them as: 1)
crimes against the State's "internal legal capacity;" and 2)
electoral crimes. They cited an extensive list of crimes
that were not political crimes, including the possession of
explosives, one of the charges against Posada.

------------------------
Pardoned Without a Crime
------------------------

4. (U) Some individuals pardoned by former President Moscoso
had been neither accused nor convicted of a crime at the time
of the pardons. The ruling notes that in order for there to
be a pardon, had to have been a crime and a condemnation, so
any pardons given to non-guilty persons were thus invalid.
Further, the ruling pointed out that to pardon individuals
before conviction would be to characterize them as "political
delinquents pardoned by the Executive Brach," a violation of
their rights to a presumption of innocence.

------------------------------------
"Original state" not Double Jeopardy
------------------------------------

5. (U) The ruling has a "retroactive effect" and should
restore each case at issue to the "original state" in which
it was found at the time of the pardons, but not necessarily
include a new legal process for the same criminal action.
All legal processes that had resulted from the pardons did
not have legal support and all legal processes as well had to
return to their "natural state." The ruling directly
addresses the issue of double jeopardy, stating that because
the pardons were unconstitutional, returning the cases to
their "original state" does not constitute double jeopardy.
Article 32 of the Constitution says that no one shall be
judged "more than once for the same criminal cause."
Additionally, under Panamanian law, an Executive pardon
forever extinguishes both the criminal act and the punishment

in the eyes of the law. However, the ruling states that it
"restores the procedural situation of those pardoned to the
natural state they were in" before the "unconstitutional
nullity" (the pardons) took place. Thus, in the opinion of
the Court, this decision does not violate double jeopardy
because the pardons violated the Constitution.

-------
COMMENT
-------

6. (C) The ruling reads as a clear attempt by the Court to
assert control over a out-of-control President who abused her
power to pardon. The large number of persons pardoned in
three different waves, for a large variety of crimes, and
some pardoned from no crime (or accusation) at all, clearly
raised the Court's concern. There is no indication in the
ruling that the Court wished to single out Posada, his
accomplices, or any other pardoned individual. Posada is not
mentioned at all except in a listing of pardoned individuals.
A copy of the ruling in Spanish can be obtained by sending
an e-mail to Kellee Farmer at farmerk@state.gov.
MESA

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