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Viewing cable 09MEXICO3101, MEXICO: ARTICLE 29 'STATE OF EXCEPTION' --

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Reference ID Created Released Classification Origin
09MEXICO3101 2009-10-28 21:09 2010-12-02 21:09 SECRET Embassy Mexico
VZCZCXRO2839
RR RUEHCD RUEHGD RUEHHO RUEHMC RUEHNG RUEHNL RUEHRD RUEHRS RUEHTM
DE RUEHME #3101/01 3012136
ZNY SSSSS ZZH
R 282136Z OCT 09
FM AMEMBASSY MEXICO
TO RUEHC/SECSTATE WASHDC 8804
INFO RUEHXC/ALL US CONSULATES IN MEXICO COLLECTIVE
RHMFISS/DEPT OF JUSTICE WASHINGTON DC
RUEHC/DEPT OF LABOR WASHINGTON DC
RUEATRS/DEPT OF TREASURY WASHINGTON DC
RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RHMFISS/CDR USSOUTHCOM MIAMI FL
RHMFISS/HQS USNORTHCOM
RUEAHLA/DEPT OF HOMELAND SECURITY
RUEABND/DEA HQS WASHINGTON DC
RHEHAAA/NSC WASHINGTON DC
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 

MEXICO 00003101 002 OF 003 


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. 

MEXICO 00003101 003 OF 003 


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