Cablegate: Mexico: Article 29 'State of Exception' --

DE RUEHME #3101/01 3012136
R 282136Z OCT 09

S E C R E T SECTION 01 OF 03 MEXICO 003101


E.O. 12958: DECL: 07/24/2019

B. MEXICO 2154

Classified By: Charge d' Affaires John Feeley.
Reason: 1.4 (b),(d).

1. (S/NF) Summary. Defense Secretary Galvan raised recently
the possibility of invoking Article 29 of the constitution to
declare a state of exception in certain areas of the country
that would provide more solid legal grounds for the
military's role in the domestic counternarcotics (CN) fight.
Secretary of Government Gomez Mont has alternately provided a
different view, citing a Supreme Court decision as sufficient
precedent for providing the military the legal basis for its
domestic CN activities. Our analysis suggests that the legal
benefits to invoking a state of exception are uncertain at
best, and the political costs appear high. While the
possibility of such a declaration cannot be discounted at
some future date, the GOM seems far from settled on the
efficacy or need for such an immediate move. End Summary.

Background and Context

2. (S/NF) In an October 19 meeting with Director for
National Intelligence Dennis Blair (ref a), Secretary of
Defense (SEDENA) General Guillermo Galvan Galvan lamented the
lack of legal basis for the military's domestic
counternarcotics deployment as key to shaping the public's
perception that the Armed Forces lack the appropriate
authorities to conduct such operations. He noted that SEDENA
is working to pass the National Security law (ref b),
proposed by President Calderon in the final days of the last
congressional session, to help shore up these legal
foundations. Additionally, he mentioned that Article 29 of
the Mexican constitution would permit the President to
declare a state of exception in specific areas of crisis and
give the military greater juridical scope to maneuver. In a
later meeting, Secretary of Government Fernando Francisco
Gomez Mont responded to questions by U.S. officials on the
Article 29 issue. He contradicted Galvan's view that the
military does not have legal basis for its domestic CN
activities and cited a Supreme Court decision as having
already set precedent (Note: Gomez Mont is almost certainly
referring to a 1996 Supreme Court decision that ruled the
military has the authority to operate at the request of local
authorities in support of policing operations. End note.) He
implied that the invocation of Article 29 does not have the
legal urgency or necessity Galvan suggested, but did admit
that the state of exception in places such as Ciudad Juarez
"had been discussed." He said that no decision had been

Article 29 Text

3. (S/NF) The translated text of Article 29 of the
constitution reads: "In the event of invasion, serious
disturbance, or any other event which may place society in
great danger or conflict, only the President of the Mexican
Republic, with the consent of the Council of Ministers and
with the approval of the Federal Congress, and during
adjournments of the latter, of the Permanent Committee, may
suspend throughout the country or in a determined place the
guarantees which present an obstacle to a rapid and ready
combating of the situation; but he must do so for a limited
time, by means of general preventive measures without such
suspensions being limited to a specified individual. If the
suspension should occur while the Congress is in session, the
latter shall grant such authorizations that it deems
necessary to enable the Executive to meet the situation. If
the suspension occurs during a period of adjournment, the
Congress shall be convoked without delay in order to grant

What Would Article 29 Look Like?

4. (S/NF) The terms of the state of exception detailed in
Article 29 are vague and offer little insight into how its

MEXICO 00003101 002 OF 003

invocation would play out on the ground. There appears to be
a great deal of leeway for the President -- with the approval
of Congress -- to determine what kinds of guarantees to
suspend given the nature of the emergency at hand. To paint
a scenario: the GOM could elect to apply the article in a
zone of perceived crisis, such as Ciudad Juarez, for the
period of one year. The decree could potentially suspend
rights guaranteed in the first chapter of the constitution,
including freedom of expression, freedom of press, freedom of
assembly, freedom of passage, or some tenets of legal due
process. The military, for example, might be granted broader
detention authorities. The law does not explicitly call for
greater military involvement, and Gomez Mont told US
officials that it is not martial law "in the way that you
know it." Galvan's interest in the state of exception
suggests two possibilities: that he envisions a potentially
broader role for the military (at the expense, perhaps, of
cooperation with other insitutions), or that he is seeking a
stronger legal framework and additional legal protections to
back up the military's current domestic operations. Calderon
has already put the military in charge of municipal police in
Ciudad Juarez and other areas in Chihuahua State.

5. (S/NF) The discussion of Article 29's application is
highly theoretical. Gomez Mont, when asked whether a state
of exception would imply the federalization of municipal
authorities, acknowledged a "constitutional gray area." He
admitted that municipal governments could "be limited," but
said that Mexico's signature to the UN Human Rights Charter
limits how far the GOM could go in suspending rights.

The Limits

6. (SBU) The GOM does not take lightly its use of Article 29.
The GOM has not, in fact, invoked it since when it declared
war on Italy, Germany, and Japan during World War II. The
GOM has even abstained from employing the measure during
times of cataclysmic internal strife such as the 1968 student
protests, the 1985 Mexico City earthquake, the 1990s fight
against armed uprisings in Chiapas, or the 2006 Oaxaca

7. (C) The GOM's hesitation so far to invoke the article is
due to a number of factors, which are particularly relevant
given the democratic context in which Mexico now operates.
Perhaps most critical, the article clearly stipulates that
Congress -- meaning both Chambers -- must approve the measure
and its various permissions, circumvention of rights,
geographic application, and time frame, suggesting that the
President's ability to achieve a state of exception under his
terms would be uncertain, at best. Such a move would not be
seen solely as a law enforcement procedure but as a carefully
calculated move with significant political implications.
President Calderon lacks an absolute majority in either the
Chamber of Deputies or the Senate, and it is unlikely that
his opponents would approve carte blanche significantly
expanded authorities for the military or federal government.
Indeed, Calderon instead might run the risk of having his
hands tied by Congress, depending on the vote and final
details of how Article 29 would be invoked. For example, the
legislature might vote to allow the federal government to
declare a limited state of exception in a crisis zone for a
short period of time, asking that Calderon then return to
Congress to renew the mandate. This would give Congress at
least nominal oversight over the military's counternarcotics
operations, a role it has sought but not had up to this
point. Congress could also reject wholesale the article's
invocation, which would be an embarrassing public blow to the

8. (C) Moreover, Calderon is negotiating with Congress on
other legislation that will better serve his counternarcotics
goals. Proposed in late April, reforms to the National
Security Act would provide a firmer legal framework for the
military's domestic counterdrug fight, give the President the
power to declare a threat to domestic security and deploy the
military without congressional approval. It would also
provide the military with greater intelligence authorities
and powers over the state and local forces in the area.

MEXICO 00003101 003 OF 003

Institutional Revolutionary Party (PRI) contacts have
indicated that they would prefer to limit presidential
authority than expand it, and PRD Senator and member of the
Justice Committee, Tomas Torres, has told Poloff that the
reform as written is unlikely to pass. Nevertheless, such
legislation permanently codifying the military's role and the
President's authority to deploy it would certainly be of
greater use to Calderon than would be a watered down state of

9. (S/NF) Gomez Mont told U.S. officials during the October
19 exchange that the invocation of Article 29 would be
"highly controversial," and downplayed its immediate
necessity. The public relations cost of declaring a state of
exception in places like Ciudad Juarez would likely be high,
and almost certainly would draw increased scrutiny from the
international and domestic human rights community. Moreover,
a defeat by Congress of an Article 29 proposal would be seen
as a public rejection of Calderon's counternarcotics strategy.


10. (C) Benefits to an Article 29 strategy would be limited.
If written correctly and approved by Congress, it could give
the military a temporary legal cover for its activities and
perhaps allow it to focus more on operations and less on its
critics. Notable Mexico legal experts have envisioned the
employment of Article 29 only in the case of a "firestorm,"
such as local or state governments rejecting military
assistance in areas where the GOM sees it as badly needed.
Galvan's views are more reflective of the military's desire
for legal protections on human rights and other grounds, than
of any imminent legal or political challenges to the
military's current domestic counternarcotics role. Clearly,
Calderon is looking for new tools with which to fight
increased levels of violence in places like Ciudad Juarez,
but any benefits he would gain with an Article 29 state of
exception would be undermined by the high political costs of
such an approach. With questionable support in Congress and
limited political capital, he would put at risk popular and
congressional support that has given the military broad room
to maneuver in the current legal framework. While the
possibility of the declaration of a state of exception cannot
be discounted at some future date, the GOM seems far from
settled on the efficacy or need for such an immediate move.

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