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### Viewing cable 05PANAMA1553, C) VISAS DONKEY: CORRUPTION 212(F) VISA

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
05PANAMA1553 | 2005-07-22 22:00 | 2011-05-28 00:00 | CONFIDENTIAL | Embassy Panama

`

    This record is a partial extract of the original cable. The full text of the original cable is not available.

` `

    C O N F I D E N T I A L SECTION 01 OF 06 PANAMA 001553

    SIPDIS

    DEPARTMENT FOR WHA/CEN

    E.O. 12958: DECL: 07/25/2025
    TAGS: PREL PGOV PM POL CHIEF
    SUBJECT: (C) VISAS DONKEY: CORRUPTION 212(F) VISA
    REVOCATION: WINSTON SPADAFORA

    REF:  A. 04 PANAMA 1274
         ¶B. 03 PANAMA 3294
         ¶C. 04 PANAMA 0823
         ¶D. PANAMA 0629
         ¶E. PANAMA 0778

    Classified By: AMBASSADOR LINDA WATT FOR REASONS 1.4 (B) AND (D).

    Action Request
    ---------------
    ¶1.  (C) Embassy Panama is seeking a security advisory opinion
    under section 212(f) of the Immigration and Naturalization
    Act in accordance with Presidential Proclamation 7750,
    suspending entry into the United States and revoking the visa
    of Winston Spadafora (DPOB: 22 DEC 1941; Panama).  Embassy
    information indicates that during his ongoing tenure as a
    Supreme Court Justice, Spadafora has directly benefited from
    public corruption, specifically bribery, which has had and
    continues to have a direct and serious adverse effect on U.S.
    national interests, as defined narrowly and broadly.  End
    Action Request.

    Who Is Winston Spadafora?
    -------------------------
    ¶2.  (C) Widely rumored to be Moscoso's lover, Winston
    Spadafora ran Mireya Moscoso's successful 1999 presidential
    campaign.  He then served as Minister of Government and
    Justice until Moscoso named him to the Supreme Court in 2001.
     The Legislative Assembly by a single vote confirmed him and
    fellow Supreme Court magistrate Alberto Cigarruista on
    January 9, 2002 in a proceeding marred by egg throwing and
    accusations against President Moscoso for allegedly bribing
    legislators.  Spadafora entered politics following the brutal
    torture and murder of his brother, Hugo Spadafora, in 1985 at
    the hands of Manuel Noriega's Panama Defense Forces.  The
    murder marked a turning point for the dictatorship's
    fortunes.  Spadafora worked unceasingly to publicize
    Noriega's involvement in his brother Hugo's murder, meeting
    frequently with U.S. congressional staff, and even going on
    an extended hunger strike.  Blacklisted by Noriega, Spadafora
    was forced to close his law practice for lack of business.
    Not surprisingly, the experience left Spadafora a rabid
    opponent of the Democratic Revolutionary Party or PRD, which
    at that time was the party of the dictators.

    What Did Winston Spadafora do?
    ------------------------------
    ¶3.  (C) Embassy possesses credible and compelling information
    indicating that during his 2002-2005 tenure as a Panamanian
    Supreme Court Justice (magistrado), Spadafora has willfully
    participated in and personally gained from an established
    system of bribery in which payoffs are actively solicited or
    accepted from claimants with cases before the high court.  In
    some cases he actively solicited and accepted bribes on his
    own.  Spadafora is hardly alone.  He is part of a group of
    seven justices on the nine-member Court, who routinely accept
    bribes and issue legal decisions contrary to reason.  He
    epitomizes everything that is wrong on the Court, where
    unbridled venality and a culture of entitlement to ill-gotten
    riches continue to reach new depths.  (Note: Embassy may seek
    security advisory opinions for several more Court magistrates
    of varying political stripes.  End note.)

    Panama's Justice Problem
    ------------------------
    ¶4.  (C) The Supreme Court's corruption, exemplified by
    Winston Spadafora, is a fundamental cause for the Panamanian
    public's lack of confidence in the rule of law.  The
    politicized judiciary stands at the axis of a dangerously
    delegitimized political system.  Increasing public disgust
    and cynicism about the system are fueled by accurate
    perceptions of official impunity, a culture of shameless
    entitlement, and growing indices of poverty and income
    disparity.  The Court's actions and the attitudes they breed
    directly undermine Panama's democratic institutions.  The
    Supreme Court is the final arbiter of disputes relating to
    interpretation of the law and must rule on issues relating
    directly to Panama's constitution.  To the extent that
    justices base their decisions on personal enrichment instead
    of applicable law, they undermine not only the Court, but the
    legislative branch which enacts the laws and the executive
    branch which enforces them.

    How Judicial Corruption Affects U.S. Interests
    --------------------------------------------- -
    ¶5.  (C) Panama's politicized, corrupt Supreme Court damages
    U.S. interests in two ways: narrowly, through corrupt Court
    actions that negatively affect specific U.S. policy
    objectives; and broadly, by undermining respect for the rule
    of law, taxing an already impoverished polity, and corroding
    the bases of popular support for democracy.  Both are serious
    impositions on U.S. interests, though the broad effect is the
    more dangerous one over time, as poor, cynical voters may
    turn for relief to anti-democratic populist demagogues, a la
    Venezuela's Hugo Chavez.  More concretely, the Embassy's
    principal Mission Program Plan objectives include
    anti-corruption and increasing transparency in government.
    The actions of the Court have thwarted both objectives and,
    in the process, frustrated a sizable USAID program (see Para
    12).  The Embassy's Narcotics Affairs Section also is a major
    contributor to improving judicial processes, in particular
    with its "Culture of Lawfulness" program.

    The Corrupt Court and the Torrijos Government
    ---------------------------------------------
    ¶6.  (C) How to reform Panama's judicial system is a conundrum
    for President Martin Torrijos.  Torrijos, who was elected in
    2004 on a "zero corruption" pledge, has not yet found a
    method of legally attacking the corrupt justices and forcing
    Panama's dysfunctional judicial system to take action against
    the obviously corrupt figures from the previous
    administration.  In February 2005, after public name-calling
    among Magistrates unloosed a public outcry for Torrijos to
    fire them all, the president appointed a commission to
    investigate judicial reform.  That commission will make its
    findings known in August 2005.  (See PANAMA 0629, "PANAMANIAN
    SUPREME COURT FRACAS BLURS GOVERNMENT FOCUS ON SOCIAL
    SECURITY REFORM," Reftel D.)  Embassy believes that revoking
    Spadafora's visa will give a big fillip to Torrijos's resolve
    to "do something" about the Court.

    Shameless Cases, Senseless Decisions
    ------------------------------------
    ¶7.  (C) Panama's Napoleonic-law-based legal code requires the
    Supreme Court to adjudicate every case brought before it.
    Thus, virtually every important Panamanian legal case, quite
    regardless of merit, eventually winds up before the Court.
    And anything can become a legal case.  (See Para  12.)  Must
    the former President's sister account for $8.5 million in
    public funds donated by Taiwan?  Must the former President
    produce receipts and vouchers to show how she disposed of $25
    million in "discretional" spending?  Is a company under
    investigation for fraudulently obtaining government subsidies
    entitled to "damages" because of the investigation?  Can a
    known drug trafficker be investigated and tried in Panama?
    Is a Panamanian-flagged ship illegally carrying arms to
    Colombian guerrillas and bearing falsified Panamanian police
    documents a proper subject for investigation?  Does a
    developer (and close associate of Spadafora's) have to pay
    $2.1 million back taxes to the authority that administers the
    reverted areas in the former Canal Zone?  All these and more
    are standard fare for the Court, which always seems to come
    out on the wrong side of justice, contrary to the dictates of
    reason, with Magistrate Spadafora in the lead.

    Running the Court as a Racket
    -----------------------------
    ¶8.  (C) The Court sets the tone for society which has grown
    ever more cynical by the Court's own example, and that tone
    can be summed up as, "Everyone lies, cheats, and steals and
    no one is punished, so why shouldn't we?"  Crudely put, the
    Justices run the Court as a racket.  Panama's Supreme Court
    magistrates decide cases based on a careful calculation of
    political or financial benefits, to themselves, their
    friends, and their political patrons.  They run the Court as
    a money-making venture, without regard for the law, the needs
    of the country, or the public good.  Very often, the arcane
    legalisms and arguments that are the Court's stock-in-trade
    make it very difficult for the average person to follow what
    is going on and act shields the magistrates from public
    scrutiny.  Nonetheless, people assume that venality rules at
    the Court and they are right.

    For Sale to the Highest Bidder
    ------------------------------
    ¶9.  (C) A well-placed, reliable source recently detailed for
    EmbOff the path of a typical Supreme Court case in Panama.
    He explained that in virtually every case brought before the
    high court, Justices openly discuss among themselves the size
    of the payments they expect and exactly how each Justice will
    rule.  The Justices decide cases based on each party's
    perceived ability to pay.  They then negotiate the price of
    their votes with the attorney from the designated "winning"
    party.  They even prepare well-argued dissenting opinions to
    elicit money from the losing clients and attorneys, who pay
    to maintain good relations with the Court in the future.
    Legal arguments are irrelevant.  Precedents are used
    arbitrarily, if they fit the Court's needs of the moment.
    "There is no such thing as a successful trial attorney in
    Panama," the source said.  Everything depends on money.  (See
    04 PANAMA 1274, "SOMETHING'S ROTTEN IN PANAMA'S SUPREME
    COURT," Reftel A.)

    Follow the Money
    ----------------
    ¶10.  (C) The Magistrates ask those who come before the Court
    "What ruling do you want?  What do you want us to do?  And
    how much are you prepared to pay?"  After decisions are set,
    negotiations begin between the Justices and parties to the
    case.  Once the bribe money is agreed upon, the Justices
    split it evenly, including those who lodge dissenting
    opinions.  Settlements often are six figures and up.  The
    source noted that even attorneys who believe they have an
    iron-clad case are willing to pay off the magistrates to
    build "good will" for future cases.  (Comment: Magistrate
    Adan Arjona, whose personal relations with the  other
    magistrates are bad, verging on openly hostile, appears not
    to participate in this graft.  His frequent lone, dissenting
    vote is an indication of his probity.  End Comment.)

    Institutionalized Conflict of Interest
    --------------------------------------
    ¶11.  (C) The orchestrated logistics of the Court's purchased
    decisions are chillingly crass.  Many of the Justices'
    alternates (Suplentes) work for and receive salaries from
    both the high court and influential Panamanian law firms
    pleading cases before the Court.  They are the nexus between
    the Supreme Court and prosecution and defense attorneys.
    (Comment: "Conflict of interest" does not exist as a concept
    in Panamanian political culture, including the courts.
    Politicians and Supreme Court magistrates routinely use
    public office for private gain.  The heart of the Supreme
    Court's business, in other words, is routine,
    institutionalized conflict of interest.  End Comment.)

    Thumbnails of the Court's Misdeeds and Spadafora's Role
    --------------------------------------------- ----------
    ¶12.  (C) The Court's already notorious judicial behavior
    seemed to decline even further during the nine-month tenure
    of Cesar Pereira Burgos as Chief Justice, and continued after
    his October 2004 ouster (having passed the retirement age of
    75 for public officials).

    During 2004-2005, Panama's Supreme Court has

    -twice ordered restitution of a controversial government
    contract and freeing of assets blocked by Comptroller Alvin
    Weeden, concerning the Ports Engineering Consulting
    Corporation (PECC) scandal (see Reftel B).  (Spadafora voted
    with the dissenters on 6/11/2004 in the 6-3 vote, apparently
    to protect his good friend Weeden, who had gone after former
    president Ernesto Perez Balladares and Martin Torrijos's
    cousin, Hugo Torrijos.)

    -quashed an investigation (9/17/2003) of several legislators
    who allegedly took bribes to approve the controversial CEMIS
    case, even after one legislator admitted taking a bribe on
    television.  (Spadafora voted with the 6-3 majority.  Arjona
    dissented.  See Para 16.)

    -in separate cases, threw out well substantiated charges
    against an Israeli arms trafficker on 3/30/2004 (see Para 13
    below), and a Colombian narcotrafficker on 4/30/2004 (see
    Para 14 below), and freed them both.  (In both cases,
    Spadafora voted with the 8-1 majority and Arjona dissented.)

    -thumbed its nose in (late May 2004) at $170,000 in FY2004
    USAID funds to improve judicial transparency by pulling the
    plug on instant internet publication of Court decisions, an
    Arjona initiative.  (This decision involve a ruling by chief
    justice Pereira Burgos, not a formal Court vote.  According
    to a Court insider and Embassy confidant, Chief Justice
    Pereira and Spadafora in particular were "very interested" in
    keeping the Court's activities and decisions as much out of
    the public eye as possible.)

    -blocked an investigation and public disclosure (5/11/2005)
    of how former presidents Moscoso and Perez Balladares each
    spent $25-million-plus in "discretional" funds.  (Spadafora
    was not involved in this provisional decision.  Arjona was
    the lone dissenter.)

    -blocked an audit (2/28/2004) into the use of $12 million in
    funds donated by Taiwan, purportedly to build Museo del Tucan
    and a public hospital, because the funds were deposited in
    Mar del Sur, a private foundation  controlled by former
    president Moscoso's sister, Ruby Moscoso.  (Spadafora voted
    with the 8-1 majority.  Arjona was the lone dissenter.)

    -blocked an order (6/22/2005) from a state finance bureau
    requiring the Figali Convention Center to pay $2.1 million in
    back taxes.  (Spadafora voted with Magistrate Hoyos in this
    2-1 provisional decision.  Arjona dissented.  Jean Figali is
    a close friend and business associate of Spadafora.  See Para
    19 below.)

    -blocked an ongoing investigation (6/24/2005) at Pana
    Habanos, a Panamanian cigar company under suspicion for
    fraudulently collecting $2.3 million in state subsidies, and
    ordered the state to pay hundreds of thousands of dollars in
    damages.  (Spadafora again voted with Magistrate Hoyos in
    this 2-1 decision.  Arjona dissented.  See Para 20.)

    Yelenik-Otterloo -- Insufficient evidence?
    ------------------------------------------
    ¶13.  (C) The Yelenik-Otterloo case (See 04 PANAMA 0823,
    "PANAMANIAN SUPREME COURT THROWS OUT CHARGES AGAINST ISRAELI
    ARMS SMUGGLER," Reftel C) involved a group of alleged
    conspirators, led by Israeli citizen Shimon Yelenik, who used
    a Panamanian-flagged vessel (the Otterloo) to smuggle arms
    (among them 5000 AK-47s and 2.5 million rounds of ammunition)
    from Nicaragua to Colombia, for use by the Colombian AUC
    Paramilitary Forces (Autodefensas Unidas de Colombia).
    Investigators of the Organization of American States (OAS)
    determined that Shimon Yelenik had fraudulently claimed to
    represent the Panamanian government in making the arms
    purchase and had used forged Panamanian National Police
    purchase orders to arrange the sale.  The Otterloo filed
    documents claiming its destination was Panama, though in fact
    its true destination was Turbo, Colombia.  Panama's Supreme
    Court Justices found the evidence did not link the case
    "sufficiently" to Panama and ruled they had no jurisdiction.
    They ordered Yelenik, who at that time was incarcerated in
    Panama, to be released immediately.

    What About Henao Montoya?
    -------------------------
    ¶14.  (C) Reminiscent of Yelenik, the Court more recently
    ruled (date) that Panamanian prosecutors had not presented
    sufficient evidence to continue to hold known drug trafficker
    and money launderer Lorena Henao Montoya.  They ordered her
    immediate release.  La Prensa reported the ruling in an
    article titled "Another Ruling to Remember" that begins,
    "While the Supreme Court of Justice frees presumed
    narcotraffickers in Panama, in Colombia they put them behind
    bars."  (Note: Colombian authorities arrested Lorena Henao
    Montoya immediately upon her arrival in Bogota.  She is the
    sister of convicted drug dealer Jesus Arcangel Henao Montoya,
    who was remanded to USG custody in DATE after residing for
    several months in Panama under an assumed identity.  Arrested
    in Panama in January 2004, she also was the wife of Ivan
    Urdinola Grajales, who headed the Colombian Valle Norte drug
    cartel until his murder in prison in 2002.  Lorena later
    married Urdinola's bodyguard; both were suspected to be
    complicit in Urdinola's murder.  End note.)

    28 Volumes of Evidence Were Not Enough
    --------------------------------------
    ¶15.  (C) Supreme Court Magistrate Adan Arjona (protect), the
    Court's outspoken reformer and one of only two justices not
    in the Embassy's 212(f) cross hairs, gave AID Director and
    POL Counselor a copy of his dissenting opinion in the Henao
    Montoya case.  Arjona's dissent notes that the arrest order
    contained 28 volumes of evidence and alleged that Lorena
    Henao Montoya used her driver's name to register her illicit
    property in Panama.  Investigators presented evidence that
    allegedly identifies her as "the true leader of a
    macro-criminal apparatus."  Arjona said that the Court's
    ruling on Lorena Henao Montoya and similar cases have had an
    extremely demoralizing effect on dedicated government
    prosecutors.  (Note: The other justice who has not attracted
    negative attention from the Embassy is Esmeralda Arosemena de
    Troitino, whom President Torrijos appointed in September 2004
    to finish out the term of then-Chief Justice Pereira Burgos.
    End note.)

    A Good Month For Bribes
    -----------------------
    ¶16.  (SBU) Spadafora's role in the CEMIS corruption case has
    linked his name inextricably with a scandal that probably has
    evoked the most public revulsion in Panama's history.  CEMIS
    -- an ambitious, $400 million air, land, and sea
    infrastructure project, to be built on reverted land near
    Colon -- was approved by the Assembly on December 29, 2002.
    In highly contentious, controversial votes on January 9, the
    Assembly confirmed Winston Spadafora and Alberto Cigarruista.
     Then-President Mireya Moscoso allegedly bribed several PRD
    legislators in the PRD-controlled Assembly, one of them
    Carlos Afu, to ensure the confirmations.  The new justices
    took the oath of office on January 12, and Moscoso signed the
    CEMIS bill on January 15.  On January 14, 2002, PRD
    legislator Balbina Herrera (now Minister of Housing) publicly
    denounced Afu for taking a bribe to vote for Spadafora and
    Cigarruista.  On January 16, 2002, Afu appeared on TV waving
    a large wad of cash, claiming it was a $6,000 down-payment on
    a $20,000 bribe to vote for CEMIS and crowing that he was not
    the only PRD legislator whose vote had been bought.  (Note:
    During 1/16/2002 news conference, Afu kept his mouth shut
    about any Spadafora/Cigarruista bribes.  Afu got away with
    bucking the PRD on the Spadafora/Cigarruista and CEMIS votes,
    kept his seat in the Assembly, never was prosecuted, and
    finally won reelection as an Arnulfista (Panamenista) in the
    2004 election.  The CEMIS bribes allegedly came from the
    privately owned San Lorenzo Consortium.  See PANAMA 0778,
    "PANAMA ATTORNEY GENERAL TESTS TORRIJOS ADMINISTRATION,
    REOPENS CEMIS AND SUPREME COURT BRIBERY CASES."  See Reftel
    ¶E.  End note.)
    CEMIS And Spadafora
    -------------------
    ¶17.  (C) Following Afu's widely viewed TV escapade, the
    Public Ministry mounted an investigation into CEMIS for its
    allegedly corrupt practices, which CEMIS challenged before
    the Supreme Court.  The Embassy has developed specific and
    credible information of a substantial payoff made to
    Spadafora for a favorable ruling in the CEMIS case.
    According to Embassy information, Spadafora, though his
    agent, solicited a bribe of $500,000 to rule in the
    claimant's favor.  The claimant eventually was successful in
    negotiating the payoff amount down to $250,000.  After the
    payoff, the case was decided in the claimant's favor.
    Following a Public Ministry investigation, in September 2003,
    with Spadafora voting with the majority, the Supreme Court
    voted 6-3 to close and nullify the Public Ministry's
    investigation.  CEMIS construction never got under way.

    Spadafora Shakes Down a Banker
    ------------------------------
    ¶18.  (C) A Panamanian banker recently told POL Counselor the
    following story that implicates Spadafora in what essentially
    was a shakedown.  A year or two ago a Panamanian company
    stopped making payments on a six-figure loan to his bank,
    only several months after the loan was made.  The banker
    moved swiftly to seize the firm's major new equipment assets,
    which the firm had bought with the loan, as was his right
    under the terms of the loan.  The firm's partners protested
    the seizure and threatened to sue.  The banker then received
    a visit from one of the attorneys regularly associated with
    the Supreme Court.  The attorney said, "We think you'll have
    to settle for 30%."  "Why should I settle for 30%?" the
    banker countered.  The lawyer then made a call on his cell
    phone.  "Winnie," he said, "can you fax over that decision
    (fallo)?"  (The banker confirmed that the lawyer was talking
    to Winston Spadafora.)  The case had not actually reached the
    Supreme Court yet, the banker explained to POL Counselor, but
    Spadafora had written a decision in advance, with the
    expectation of spurring a speedy out-of-court settlement and
    pay-off.  The "decision" finding in favor of the plaintiffs
    arrived by fax and the banker read it.  The banker said he
    had no choice but to settle out of court for 30% of the
    principal.  He assumed some portion of the remaining 70% was
    split between Spadafora and the attorney.

    Figali Convention Center
    -----------------------
    ¶19.  (C) The Moscoso administration awarded a development
    permit to Jean Figali under terms that critics called overly
    generous.  The result was the Figali Convention Center on the
    Amador causeway outside of Panama City and within the
    "reverted areas" under the jurisdiction of the Interoceanic
    Region Administration (ARI).  An Embassy contact told EmbOff
    that in return for a "favor" Spadafora had done for him at
    ARI, Figali had paid part of the costs of Spadafora's luxury
    apartment.  Figali by 2005 was in arrears to the tune of $2.1
    million in back taxes owed to ARI.  Spadafora's Court
    decision suspended Figali's payments.

    Pana Habanos
    ------------
    ¶20.  (C) Pana Habanos collected $2.3 million in export
    subsidies based on what the Comptroller General claimed were
    inflated cigar export figures.  The amount of subsidy due to
    the firm based on what the Comptroller determined to be the
    firm's actual level of exports should have been $472,000.
    Thus the firm owed the state something over $1.8 million,
    exclusive of damages and a criminal fraud prosecution.  But
    in the world of Panama's Supreme Court the ordinary laws of
    physics don't always apply.  Spadafora's Court decision
    reversed logic and found that the state had falsely accused
    Pana Habanos and owed it an unspecified amount of damages.

    Why Proclamation 7750 applies
    -----------------------------
    ¶21.  (C) Through sustained action that represents serious
    adverse effects on the national interests of the United
    States and severely undermines the democratic institutions of
    Panama, Winston Spadafora knowingly chose to abuse his
    position in Panama's highest court for his own personal
    enrichment.  Spadafora represents much of what is wrong with
    Panamanian politics and exemplifies the overwhelming
    difficulty the GOP faces in enacting meaningful judicial
    reform.  If corruption is rampant and unpunished at the
    highest levels of the its judicial system, Panama has little
    hope of success in confronting entrenched corruption
    elsewhere in government and the business community.

    Current Visa/Travel Plans
    -------------------------
    ¶22.  (SBU) Spadafora has not been informed that he may be
    covered by Presidential Proclamation 7750, under section
    212(f) of the INA.  Spadafora currently has a valid B1/B2
    visa that will expire on 18-DEC-2005.  Embassy is not aware
    of any specific or immediate travel plans.

    Embassy Recommendation
    ----------------------
    ¶23.  (C) Based on the facts of the case, Embassy recommends
    that Spadafora's visa be revoked, that he not/not be
    permitted to travel to the U.S., and that no waiver be
    granted should he apply for one.

    ¶24. (SBU) If Department authorizes visa revocation, Embassy
    plans to confirm the statutory grounds for revocation and the
    fact that it occurred if consulted by the press.

    WATT

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