US embassy cable - 04GUATEMALA466

C O N F I D E N T I A L SECTION 01 OF 02 GUATEMALA 000466 
 
SIPDIS 
 
E.O. 12958: DECL: 02/24/2014 
TAGS: PREL, PGOV, KDEM, GT 
SUBJECT: PRESIDENT BERGER FIRES ATTORNEY GENERAL, 
CONSTITUTIONAL COURT TO RULE 
 
 
Classified By: PolOff Robert E. Copley for reason 1.5 (b) 
 
1. (U) Summary:  President Berger announced on February 24 
that he had fired Attorney General Carlos De Leon.  The 
Constitutional Court has twice issued temporary rulings 
upholding Berger, but its final rulings could yet reinstate 
De Leon and deal a severe blow to Berger's legal reform 
efforts.  Media coverage and civil society strongly favor the 
President's action.  GANA Congressman Juan Luis FLORIDO Solis 
has replaced De Leon under some criticism that he lacks 
independence from the President.  End Summary. 
 
Background 
---------- 
2. (U) Attorney General Carlos De Leon was chosen by former 
President Portillo from a list of six names chosen through a 
consultative process.  Note: Florido's name was also on the 
list.  Rumors at the time linked De Leon to a number of 
corrupt business deals with the municipality of Mixco (a 
Guatemala City suburb) and rigged bids for government 
construction contracts that he subsequently subcontracted. 
Throughout his tenure, it became increasingly clear that De 
Leon was more interested in promoting his image than in 
pursuing prosecutions.  High profile cases stalled, a series 
of prosecutors resigned citing interference by De Leon, and 
in early February 2004, De Leon used two million Quetzales 
(about $250,000) in scarce resources to host a World Summit 
of Attorneys General (which we and most developed countries 
did not attend).  Tensions between Berger and De Leon have 
been building since Berger took office on January 14, 2004. 
On February 23, President Berger publicly gave De Leon a 
deadline of 24 hours to explain his actions in three cases. 
De Leon refused in an equally public manner to comply, citing 
his constitutional autonomy within the Executive.  Hours 
before the deadline, De Leon sought a ruling from the 
Constitutional Court vacating Berger's order and reaffirming 
the independence of the Attorney General.  In record time, 
the court refused to issue a stay and Berger announced to the 
media that he had fired De Leon.  De Leon promptly filed a 
new lawsuit claiming his dismissal, which was signed by 
Berger and 13 Ministers and was published as a government 
accord in the official gazette on February 25, was illegal. 
Late February 25, the court again issued a temporary ruling 
in favor of Berger, this time unanimously.  A third suit by 
De Leon was not accepted.  Based on these rulings, a judicial 
order was issued to prevent De Leon from leaving the country. 
 
But the rulings are not final 
----------------------------- 
3.  (C) The Constitutional Court's rulings are only 
temporary, however.  Final rulings are expected in about two 
weeks.  Juan Fransisco Flores Juares, Constitutional Court 
Magistrate, told us that he fears the Court could easily 
backpedal.  If the court rules in De Leon's favor in either 
case, (there is a legal precedent for upholding his 
autonomy-see comment) De Leon would have to be reinstated and 
Berger's legal reform efforts would suffer a major early 
defeat. 
 
Staff Implications 
------------------ 
4. (C) Alejandro Paiz, head of Criminal Investigations, 
announced he will resign.  Special Prosecutor for Human 
Rights, Thelma de Lam, with whom we have had a productive 
relationship, told HROff on February 24 that, even though she 
has a contract with the new administration, she would leave 
if De Leon's firing is upheld.  She added that 15 people in 
her office have only temporary contracts and would also 
probably be let go.  Shortly after the meeting, police 
officers and representatives from MINUGUA and the Human 
Rights Ombudsman's office surrounded the building due to 
complaints that De Leon's employees were removing computers 
and shredding documents.  According to press reports, police 
seized computers that these employees were loading into two 
pickup trucks. 
 
Replacement Sworn In 
-------------------- 
5. (U) De Leon's dismissal (Acuerdo Goberantivo 84-2004) also 
nominated lawyer Juan Luis Florido Solis to fill out the 
remainder of De Leon's original four-year term that began in 
May, 2002.  Florido's name, along with De Leon's, was among 
six produced by a consultative process.  In case of the 
resignation or removal of an Attorney General, the President 
is required to nominate a replacement from the same short 
list.  Florido was serving in the Congress as a member of 
Berger's GANA coalition.  The Mack Foundation and Supreme 
Court Justice Alfonso Alvarez-Lobos have already criticized 
Florido as not independent enough to be Attorney General.  In 
response, Florido has pointed out that he was a candidate for 
Attorney General long before he became a candidate for 
Congress.  He has resigned from the Reform Movement party, 
part of the GANA coalition.  Others have criticized Florido's 
lack of penal experience.  As a lawyer, Florido represented 
corporate interests, including Caterpillar and Hewlett 
Packard (though not currently).  Note: Hewlett Packard has a 
multi-million dollar contractual dispute with De Leon's 
Public Ministry.  End Note.  Florido has served as President 
and Vice President of the Chamber of Tourism as well as 
President of Banco Inmobilario. 
 
Comment 
------- 
6. (C) In early 1996, then-President Arzu gave his Attorney 
General, Ramses Cuestas, a 48-hour deadline to file a similar 
report.  In that case, the Constitutional Court upheld 
Cuestas' assertion that complying with the deadline would 
strip his office of its constitutional autonomy within the 
Executive.  The current court, however, is the same court 
that overturned numerous precedents when it allowed Rios 
Montt to run for President.  It is tempting to read into the 
court's temporary ruling against De Leon that the FRG has 
decided to dump the Attorney General (the President of the 
Constitutional Court is an FRG hack), but FRG Congressional 
representatives left the floor in an unsuccessful attempt to 
deny Florido the quorum he needed to resign his seat in 
Congress. 
 
7. (U) Firing the Attorney General without final rulings from 
the Constitutional Court is a bold move by President Berger, 
one that has been widely applauded by civil society.  There 
is no doubt in the public mind that De Leon has largely 
failed to carry out his duties--the official reason for his 
dismissal according to Berger--but it remains to be seen what 
standard the Constitutional Court will use.  The unanimous 
second ruling against De Leon is a very positive sign, but 
until these rulings are finalized they cannot be taken for 
granted. 
HAMILTON