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C O N F I D E N T I A L SECTION 01 OF 04 BRASILIA 001315 
 
SIPDIS 
 
STATE FOR BSC, INL, DRL 
 
E.O. 12958: DECL: 09/16/2018 
TAGS: KCRM PGOV PREL PTER BR
SUBJECT: BRAZIL: WIRETAP SCANDAL HIGHLIGHTS POWER STRUGGLE 
AMONG EXECUTIVE, COURTS, CONGRESS 
 
REF: A. BRASILIA 01314 
     ¶B. BRASILIA 390 
 
Classified By: Deputy Chief of Mission Lisa Kubiske for reasons 1.4 (b) 
 and (d) 
 
¶1. Summary: Revelations that the Brazilian Intelligence 
Agency (ABIN) may have been wiretapping Supreme Court (STF) 
President Gilmar Mendes' calls (reftel) have reinvigorated 
Congressional inquiries into abusive wiretapping practices 
and will likely lead to legislation providing oversight over 
wiretaps -- which, if enacted, could be seen as positive 
steps in the maturation of Brazil as a rule of law-based 
society.  At the same time, an increasingly assertive 
judiciary may look to go one step further and impose limits 
beyond what the Congress is considering, a course that could 
negatively impact the capabilities of Brazilian law 
enforcement entities to conduct criminal investigations, and 
one that could hinder information-sharing with the United 
States.  More broadly, the STF wiretap scandal brought to the 
boiling point an ongoing struggle between the three branches 
of government, with each trying to assert or protect its 
authority from encroachment by the other branches.  This 
institutional turf battle represents an intensifying 
governance problem in Brazil, and increases the importance of 
engaging all three branches as we promote U.S. interests. 
End summary. 
 
------------------------------ 
Abuse of Wiretaps in Brazil: a Growing Problem 
------------------------------ 
 
¶2. (C) As a result of the wiretap revelations involving the 
STF, the press is once again focused on the Congressional 
Investigative Committee (CPI) convened in February to 
investigate abusive wiretapping practices in Brazil, 
including the CPI's discovery that in 2007 there were more 
than 400,000 judicially authorized wiretaps in Brazil.  The 
figure, which has been extensively reported by all media 
outlets, has led commentators to portray Brazil as akin to a 
police state.   Law enforcement contacts note that it is 
fairly easy to gain authorization to wiretap someone, and 
that once a judge has given authority, multiple lines can be 
tapped, for almost indefinite periods of time.  Most 
government officials in Brazil, according to press reports, 
assume their lines are tapped.  Sao Paulo-based Judge Fausto 
Martin de Sanctis, who is am Embassy contact, often refuses 
to speak over the phones, and when he does, uses coded 
language to communicate.  Both Minister of Justice Genro and 
Minister Felix confirmed this climate in separate instances, 
making public remarks implying that that the best policy is 
to assume you are being heard and to not say anything. 
 
¶3. (C) Roberto Carlos Martins Pontes, a Chamber of Deputies 
Legislative aide working on the Wiretap CPI, asserts that 
there has been abuse even when wiretaps are judicially 
authorized.  The biggest problem, he notes, is structural. 
"There are no control mechanisms", he noted.  "As part of the 
CPI", he recounted, "we tried to find out how many wiretaps 
were conducted in Brazil...we asked the federal police, 
judges, state police, and no one could give an answer." 
According to Pontes, the number reported in the press came 
from the response of the telecommunications companies who 
were asked how many numbers they were asked to intercept. 
According to Pontes, the total of 409,000, which amounts to a 
rate of about 270 per 100,000 people, is far beyond that of 
developed countries.  He noted, however, that this number 
could be highly misleading and is probably much lower. 
According to Pontes, the CPI staff suspects that the phone 
companies reported all the judicial authorizations for 
wiretaps they received, rather than all the individual phone 
numbers they had tapped.  These authorizations were in many 
cases renewals of wiretaps on the same number.  He added, 
however, that, "even if it is only 25% of the reported 
number, that is still extremely high", especially compared to 
the U.S. figure, which according to the U.S. Wiretap Report 
for 2007, amounts to 2,208 intercepts at both the federal and 
state level, or less than 1 per 100,000 people. 
 
BRASILIA 00001315  002 OF 004 
 
 
 
¶4. (C) Furthermore, he added, "under Brazilian law, wiretaps 
should be the last resort, but here they are often the 
first." According to Pontes, a formal inquiry does not even 
have to be opened before a wiretap is approved. And he adds 
that it is extremely easy for anyone to manipulate which 
numbers are tapped.  The chain of judicial authorization to 
telecom companies is lax and can be as simple as a fax, he 
noted.  In fact, according to Pontes, the CPI has documented 
cases where people have inserted phone numbers in lists of 
authorized wiretaps between the time the judge authorized it 
and the time it gets to the technicians. Even the Brazilian 
Federal Highway Police has been found to conduct wiretaps, 
although they are not technically authorized to do so under 
the Brazilian constitution.   (Note: The Brazilian 
constitution limits wiretapping authority to judicial police 
bodies, which include the Federal Police and the civil police 
of the states. End note.) 
 
----------------------------------------- 
More Control Over Wiretaps on the Way 
----------------------------------------- 
 
¶5. (C) In response to the revelations in the September 3 Veja 
article regarding alleged ABIN wiretapping of the president 
of the Supreme Court and a federal senator, as well as the 
work of the CPI, more than ten bills have been proposed that 
would standardize procedures for requesting, granting, and 
communicating authorization of wiretaps, increasing 
punishments of public officials who abuse wiretaps.  A couple 
of these are now moving swiftly through Congress.  Pontes 
noted that one of the bills proposed strengthens procedures 
for transmitting judicial wiretaps authorizations using 
digital signatures.  Another control mechanism is to 
authorize the Ministry of Justice to keep statistics on the 
number of wiretaps authorized in Brazil -- including length 
of wiretaps, types of crimes -- as many other countries do. 
The bills also extend the period for which wiretaps are 
authorized from 15 to 60 days, but under the proposed bills 
they would be renewable for a maximum of a year, unlike 
current law which allows for indefinite renewals.  This limit 
would not apply, however, to "permanent" crimes, a 
terminology that is not explicit in law, but instead is 
subject to judicial review, and tends to refer to refer to 
crimes that are ongoing, as for example, a kidnapping.  Asked 
by poloff if under such language wiretaps of individuals 
providing support for terrorist operations would be limited 
to a year, Pontes could not be sure, but added that it was an 
important concern and that perhaps the bills needed to have a 
broader "escape clause" that permitted longer taps depending 
on the type of crime. 
 
¶6. (U) In addition to action in Congress, the judiciary is 
also taking measures on its own to exert more control over 
wiretaps.  The National Justice Council (CNJ), a judiciary 
body that provides oversight of that branch, announced that 
it would start monitoring the use of wiretaps and would 
increase scrutiny of judges who authorize them.  Among other 
measures, judges will be required to report to the CNJ 
authorization of wiretaps. 
 
¶7. (U) In a move signaling that the judiciary intends to take 
an active role in restricting the use of wiretaps, beyond 
what Congress is considering, a Superior Justice Tribunal 
(STJ -- the appeals court of last resort on 
non-constitutional matters) decision handed down on 9 
September threw out two years worth of wiretaps that were 
used as evidence in a conviction.  The STJ justified their 
decision by noting that the wiretap had been for an excessive 
period of time.  The combined effect of the CNJ and STJ 
decisions -- not to mention the scrutiny the issue is 
receiving in the press and Congress -- could be that judges 
will be more cautious about authorizing wiretaps in the 
future. (Note: Embassy's Resident Legal Adviser has been 
engaging with high ranking Brazilian federal prosecutors, 
including with the director of the Federal Prosecutor School, 
and provided them copies of U.S. statutes relating to wiretap 
law.  The Brazilian prosecutors have also requested 
 
BRASILIA 00001315  003 OF 004 
 
 
information regarding internal institutional controls imposed 
by the U.S. Department of Justice to limit wiretap abuses. 
End note.) 
 
------------------------------------------ 
Supreme Court Flexes its Muscles 
------------------------------------------ 
 
¶8. (U) The STJ and CNJ decisions -- combined with the recent 
Supreme Court (STF) skirmishes with the Executive, ABIN, 
lower level judges, and elements of the Federal Police (DPF) 
as a result of the wiretapping of STF President Gilmar 
Mendes' phones (see reftel) -- come at a time when the STF 
has been embroiled in a broader struggle to reign in what it 
calls abusive law enforcement practices, recently issuing a 
string of statements and decisions that show institutional 
conflict between the branches is deeper and father reaching 
that just the wiretap issue.  Mendes and some members of the 
STF have publicly decried the "spectacularization" of DPF 
operations, in reference to the notorious and increasingly 
common episodes when the DPF wraps up their investigations 
with high-profile arrests and "perp walks" that that are 
widely covered by the media.  Mendes has argued that the DPF 
is using the arrests as a tool to prejudice future juries 
against defendants.  This view led to the STF overturning a 
conviction of a defendant who had been made to stand trial 
wearing handcuffs, ruling that this prejudiced the outcome of 
the trial. As a result, the court imposed strict limitations 
on the use of handcuffs, and after being challenged by the 
DPF, which continued to use handcuffs in an arrest it 
conducted after the decision, the STF restricted the rules on 
use of handcuffs even further.  Currently they can be used 
only in cases where there is a demonstrable risk to the 
arresting officers of immediate harm. 
 
¶9.  Furthermore, Mendes also has turned his sights on the 
money laundering courts -- about 23 courts around the country 
established in 2003 to create a group of officials 
specializing in money laundering crimes -- for what he sees 
as inappropriate cooperation between judges, police and 
prosecutors, going so far as to compare them to a "militia" 
and implying that their concerted actions skirt the law. 
Mendes called on the CNJ, which he presides, to re-consider 
the existence of the courts, adding that cases should be 
assigned to judges on a random basis, and that each entity -- 
police, prosecutors, and judges -- should do their work 
independently.   According to Embassy contacts, however, the 
courts are an effective tool used by the DPF and prosecutors 
to pursue complicated money laundering cases precisely 
because of that close cooperation that Mendes decries.  In 
fact, one of the reasons for Brazil's dismal record in 
successfully bringing all manner of criminal cases from 
investigation to trial in Brazil is because of the lack of 
cooperation between the police, prosecutors, 
and judges. 
 
----------------------------------------- 
Comment: U.S. Interests Amidst the Power Struggle 
----------------------------------------- 
 
¶11.  (C) That Brazilian officials are taking the opportunity 
of this latest scandal to establish a set of national 
guidelines that judges, prosecutors, police, and private 
companies have to follow when authorizing wiretaps is another 
step toward rule of law in Brazil.  At the same time, 
wiretaps are one of the best tools Brazilian law enforcement 
agencies have against crime, since these agencies are weak in 
other investigative techniques.  The potential restriction of 
their ability to carry out wiretaps could harm U.S. interests 
in fighting organized crime, narcotics trafficking, and 
countering terrorism.  Although it is too soon to tell how 
restrictive the bills in Congress will be, there is an 
understanding in Congress and the Executive of the need to 
have a robust, but legal, wiretap capability.  In the Supreme 
Court, however, which many in congress and the executive 
accuse of legislating from the bench, there may be less 
compunction about severely restricting the use of wiretaps 
and other investigative tools, even to the detriment of 
 
BRASILIA 00001315  004 OF 004 
 
 
effective law enforcement action, if other instances 
involving abusive practices surface. 
 
¶12. (SBU) Comment, continued: More broadly, the wiretapping 
of STF president Mendes has brought to the forefront an 
ongoing power struggle between all three branches that has 
been percolating for some time.  One aspect of this struggle 
has been the repeated sidelining of congress by the executive 
branch through the increasing use of provisional measures 
(ref b).  A second is the STF's more assertive role under 
Mendes in issuing an increasing number of "sumulas 
vinculantes"-- a concept similar to "stare decisis," in which 
the STF sets precedents to be followed by lower courts.  The 
STF has issued ten "sumulas" since Mendes took over the 
presidency earlier this year, versus three from 2004 through 
¶2007.  In addition to suffering attacks by the president of 
the Senate and other congressional leaders for usurping its 
legislative authority, Mendes and members of the executive 
branch have exchanged shots over what they consider the other 
branch's abuse of its powers -- making this, essentially, a 
two-front battle for each of the branches. Post had been 
making a strong effort over the past two years to reach out 
to Congress and, with the arrival of the Resident Legal 
Adviser earlier this year, is now making a similar concerted 
effort with the courts, as well as with prosecutors (who are 
also independent of the executive).  As each branch asserts 
its independence, maintaining a robust outreach effort with 
all three branches and with prosecutors is becoming 
increasingly important to effective promotion of U.S. 
interests.  End comment. 
 
 
SOBEL