

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



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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.



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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

