Cablegate: Martinelli Ratchets Up Pressure On Attorney General

VZCZCXYZ0092
RR RUEHWEB

DE RUEHZP #0029/01 0262133
ZNY CCCCC ZZH
R 262133Z JAN 10
FM AMEMBASSY PANAMA
TO RUEHC/SECSTATE WASHDC 0359
INFO RHEFDIA/DIA WASHINGTON DC
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC
RUEAIIA/CIA WASHINGTON DC
RUEHBE/AMEMBASSY BELMOPAN 0013
RUEHBO/AMEMBASSY BOGOTA
RUEHCV/AMEMBASSY CARACAS
RUEHME/AMEMBASSY MEXICO
RUEHMU/AMEMBASSY MANAGUA
RUEHSJ/AMEMBASSY SAN JOSE
RUEHSN/AMEMBASSY SAN SALVADOR
RUEHTG/AMEMBASSY TEGUCIGALPA 0067
RUEHZP/AMEMBASSY PANAMA
RUEKJCS/SECDEF WASHINGTON DC

C O N F I D E N T I A L PANAMA 000029

SIPDIS

E.O. 12958: DECL: 2020/01/26
TAGS: PGOV KJUS PINR PM
SUBJECT: Martinelli Ratchets Up Pressure on Attorney General

REF: 09 PANAMA 765; 09 PANAMA 242; 09 PANAMA 776

CLASSIFIED BY: Gilmour, Charge; REASON: 1.4(B), (D)

Summary

------------

1.(U) With his Supreme Court (CSJ) nominees confirmed, President
Martinelli appears intent on ousting Attorney General Ana Matilde
Gomez and bringing the Public Ministry under his personal control.
Martinelli is after Gomez because of her alleged incompetence and
unwillingness to prosecute the opposition Revolutionary Democratic
Party (PRD) - most prominently former President Ernesto Perez
Balladares aka "El Toro". Stacking the CSJ facilitates
Martinelli's pursuit of his (widely-considered corrupt) political
enemies in two ways; by enabling the removal of an independent and
non-compliant AG, and by ensuring that the court will handle the
coming cases in accordance with his desires. Civil society and
the press are vocally upset and are publicly protesting the moves
against Gomez and the threat to independent democratic institutions
in Panama. End Summary.

Persecuting the Prosecutor

---------------------------------

2. (C) With less than subtle timing, the Martinelli administration
moved against Attorney General Ana Matilde Gomez before the dust
had settled over the appointment of two new CSJ justices and
election of the court president. The day after new CSJ president
Anibal Salas assumed his post, Panama's Solicitor General filed a
request with the court to remove Gomez, which requires the
concurrence of a majority of justices. Brand-new Justice and
Martinelli appointee Jose Almengor, who formerly worked for Gomez
as a prosecutor, was named to oversee the case. Almengor joined
Martinelli's staff in May 2009 after AG Gomez opened an
investigation against him two months earlier for allowing an
accused money launderer to leave the country (Ref A). The
launderer was connected with David Murcia Guzman, who is currently
standing trial in the U.S. Since then, there have been allegations
that Murcia made large campaign donations to both PRD candidate
Balbina Herrera and Martinelli during last year's presidential
election (Ref B) - allegations that caused Gomez to request that
both candidates' immunity be suspended so that she could
investigate . Justice Almengor later recused himself after a
request from Gomez's lawyers and pressure in the media over his
conflict of interest in the case.

Ex Post Facto Case Number One

---------------------------------------

3. (C) The case against Gomez concerns charges that she ordered an
unauthorized wiretap on her one of her former drug prosecutors,
Arquimedes Saez, who was suspected of extortion and bribery. Saez
was eventually fired by Gomez in 2005. The allegation against
Gomez is "abuse of power", which is not a criminal act and thus is
not legal grounds for the CSJ to remove her from her position.
Additionally, her wiretapping of Saez, although not within the
Attorney General's authority under current Panamanian law, was
legal at the time that she ordered it carried out. (Ref C)

4. (C) Juan Antonio Tejada, Gomez's defense attorney, who is both a

former prosecutor and ombudsman, said to Polcouns that he had
assumed Gomez's legal defense, but that it is a political, not a
legal, case. According to Tejada, the writing is on the wall and
she will be removed. Technically, the CSJ cannot remove her on an
abuse of powers charge, but they will do it anyway. The best that
her defense team can do is buy time for the next issue to be worked
out: who will succeed her. Here Panama's constitution contradicts
itself. One section says she names her successor herself, which is
the reason she moved her preferred successor Rigoberto Gonzalez
from her defense team back to his old Secretary General's job at
the Public Ministry and hired Tejada. Another part of the
constitution says the President would get to name a new AG. Civil
society groups are opposed to this course of action, as it would
give Martinelli control over the last remaining independent
institution in the government.

Bull Baiting

---------------

5. (C) Martinelli has made no secret of his dissatisfaction with
Gomez over her tepid efforts to prosecute Perez Balladares. Perez
Balladares began appearing in the press in August 2009 after
Martinelli publicly cancelled the gambling concessions of several
slot-machine operators, which had been granted during the Perez
Balladares administration. It appears that Perez Balladares was
receiving a steady stream of income from these casinos at the time
that Martinelli moved against him. A torrent of stories in leading
daily La Prensa has since followed, including a full page spread of
cashed checks from the casinos signed by Perez Balladares. Post
has been informed by the editor of La Prensa that the person
supplying the information is none other than President Martinelli
himself.

6. (C) The hunt for Perez Balladares boiled over in late December,
when he was subpoenaed to appear before prosecutors - the first
time that a former President has been required to do so in Panama.
In a four-day manhunt, as avidly watched in Panama as the LAPD
pursuit of OJ Simpson, Perez Balladares at first could not be
located by authorities. When he did turn himself in, it was in on
his terms, as he showed up at the prosecutor's office with his wife
in a fancy car driven by his nephew, and stayed for only 20 minutes
before invoking his constitutional rights against incriminating
himself. Martinelli then went on national TV, saying he felt
"frustrated and made fun of". In the same breath, he felt
compelled to add that "he respects the idea of separation of
powers" i.e. between the executive and the judiciary.

Ex Post Facto Case Number Two

---------------------------------------

7. (C) At its root, the case against Perez Balladares is flawed. In
the years the transfers were made, "money laundering" was only in
the criminal code related to narcotrafficking. Therefore, the
money laundering charges on casino proceeds won't stand up in court
and the government does not have a case. VP/FM Juan Carlos Varela
admitted to the Ambassador that Martinelli knows this. According
to Tejada, civil society is furious with Martinelli for insisting
that this baseless case be pursued. While they want to see Preez
Balladares punished for corruption as much as Martinelli does,
Panamanian professionals worry that a not-guilty verdict in this
case will result in the vindication of Perez Balladares and the
legitimization of his ill-gotten wealth.

Civil Society and the Civilistas Tread Carefully

--------------------------------------------- -----------

8. (C) The handling of El Toro's arrest appears to have been the
last straw for Martinelli, dissolving what had looked like a truce
with the AG. A few days after the affair, the Solicitor General
presented his case against Gomez to the newly seated CSJ. Civil
society reaction has been uniformly negative. The National Council
of Private Enterprise (CONEP) and The Fundacion Ethica y Civilismo
both took out full page ads in leading dailies decrying the move
against Gomez, which Martinelli has publicly claimed to have
nothing to do with. One editorial characterized the current
situation as the worst constitutional crisis in Panama since a coup
attempt in 1990. Poloff attended an Association of Panamanian
Executives (APEDE) forum in defense of Gomez, who was formerly
their general council. Yet direct criticism of Martinelli was
lacking at the three-hour meeting, where speakers tended to focus
on the technical and legal merits of the case against Gomez vice
the animus behind it.

9. (C) The subdued reaction, particularly from the important APEDE
business association, is partly due to the nature of the governing
coalition which Martinelli controls. Many former "civilistas" who
previously led the charge against an abusive executive power during
the military dictatorship are now supportive of the anti-PRD
governing coalition and appear reluctant to publicly criticize
their leader, though privately they express grave concerns. The
main opposition party (the PRD) remains in disarray amidst
infighting and a serious diminution of their numbers. Martinelli
still enjoys unprecedented popularity and has the ability and
willingness to inflict serious harm on any critics who become too
vocal. According to conversations Polcouns has had with civil
society groups, Martinelli feels that he does not need the
civilista groups as a bridge to the people - he talks to the people
directly, and as long as his poll numbers stay up, he sees no
reason to change his modus operandi. Civil opposition may also be
thrown off-balance by Martinelli's impulsive actions and
passive-aggressive tactics, which have him in one speech
admonishing prosecutors "not to be intimidated by those who
appointed them", and in another implying that El Toro was handled
too gently by the AG during his subpoena process . He also
countered the full-page ads with a GOP communiquC) claiming that his
administration was acting in the interests of the majority of
Panamanians against obscure interests while at the same time
denying any influence in the Attorney General's case.

Comment

-------------

10. (C) Comment: The blunt timing of the action against Gomez is
confirmation of Martinelli's orchestration of the campaign against
the Attorney General, despite earlier indications that he had
reached an accommodation with her. The common perception, as
illustrated in the political cartoon that appeared January 7 and is
attached below, is that Martinelli now controls the Supreme Court,
the Comptroller's office, and the National Assembly. Panamanian
chief executives have traditionally used CSJ nominations to control
the institution. However, the unfortunate conjunction of the court
appointments and his pursuit of the Attorney General AG contradict
the raison d'etre for his presidency - a change from corrupt
business as usual governance to a more accountable and legitimate
rule. The risk is that Panamanians may loose faith in their
democracy as the name of Martinelli's "Democratic Change" party
takes on an unintended and ironic meaning among the public.

Why is the outcry greater against Martinelli than previous
presidents? First , other executives used party apparatus to
control government institutions. Martinelli is not from a
traditional party and doesn't have a structure that can work behind
the scenes and legitimate his actions. Therefore, he is acting
much more directly by placing people he personally can trust and
control in key positions. Secondly, he has raised expectations of
change, and is disappointing those who believed in him very early
in his presidency vice previous leaders who did so much more
gradually.

Why does it matter? Panama has always squeaked by on mediocre
institutions. But mediocrity cannot withstand the rapid rise of
violent crime related to narcotrafficking. The security situation
is at a tipping point. Civil society professionals sense the
urgency of the security problem and there is a greater demand than
ever before for democratic institutions that work.

cid:image002.png@01CA9EA4.F3A2AC30
GILMOUR

© Scoop Media