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### Viewing cable 09MEXICO3101, MEXICO: ARTICLE 29 'STATE OF EXCEPTION' --

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
09MEXICO3101 | 2009-10-28 21:09 | 2010-12-02 21:09 | SECRET | Embassy Mexico

`

    VZCZCXRO2839
    RR RUEHCD RUEHGD RUEHHO RUEHMC RUEHNG RUEHNL RUEHRD RUEHRS RUEHTM
    DE RUEHME #3101/01 3012136
    ZNY SSSSS ZZH
    R 282136Z OCT 09
    FM AMEMBASSY MEXICO
    TO RUEHC/SECSTATE WASHDC 8804
    INFO RUEHXC/ALL US CONSULATES IN MEXICO COLLECTIVE
    RHMFISS/DEPT OF JUSTICE WASHINGTON DC
    RUEHC/DEPT OF LABOR WASHINGTON DC
    RUEATRS/DEPT OF TREASURY WASHINGTON DC
    RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
    RHMFISS/CDR USSOUTHCOM MIAMI FL
    RHMFISS/HQS USNORTHCOM
    RUEAHLA/DEPT OF HOMELAND SECURITY
    RUEABND/DEA HQS WASHINGTON DC
    RHEHAAA/NSC WASHINGTON DC

` `

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

    NOFORN
    SENSITIVE
    SIPDIS

    E.O. 12958: DECL: 07/24/2019
    TAGS: PREL PGOV PINR MX
    SUBJECT: MEXICO: ARTICLE 29 'STATE OF EXCEPTION' --
    UNCERTAIN RESULTS, FEW BENEFITS

    REF: A. MEXICO 3076
    ¶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
    reached.

    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
    them."

    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
    protests.

    ¶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
    GOM.

    ¶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
    exception.

    ¶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.

    Comment
    -------

    ¶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.

    Visit Mexico City's Classified Web Site at
    http://www.state.sgov.gov/p/wha/mexicocity and the North American
    Partnership Blog at http://www.intelink.gov/communities/state/nap /
    FEELEY

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