Mexican Government Eyes Invoking Martial Law-Like "Article 29" in Ongoing Drug War

Leaked State Department Cable Also Reveals Armed Forces Battling “Cartels” on Thin Legal Ground

In the ever-escalating war on drugs, it appears Mexican narco-traffickers may not be the only combatants breaking the law of the land.

Mexico's Secretary of Defense and the head of U.S. National Intelligence met in October 2009 to discuss, among other matters, the lack of justification under Mexican law for President Felipe Calderon's deployment of Mexican military in his battle against the “drug cartels,” according to a U.S. State Department cable released by Wikileaks.

That meeting came some six months after Calderon's March 2009 move to ramp up the Mexican Army's firepower in Ciudad Juarez to nearly 5,000 troops and some three years after Calderon declared his war on the “drug cartels” in late 2006 and enlisted more than 50,000 Mexican troops to carry out that assault nationwide.

At the meeting, as a suggestion to deal with what he “lamented [was a] lack of legal basis [emphasis added] for the military's domestic counternarcotics deployment,” Mexican Secretary of Defense (SEDENA) General Guillermo Galvan Galvan dropped what can only be described as the Article 29 bombshell.

From the State Department cable, drafted on Oct. 28, 2009:

He [Galvan] 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.

… To paint a scenario: the GOM [Government of Mexico] 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 State Department cable goes on to discuss that approval from both houses of the Mexican Congress would be required in order to invoke Article 29 and that Calderon likely didn't have the votes needed to pull it off.

“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,” the State Department cable says. “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.”

Now, the State Department cable does mention that other options do exist potentially for creating the necessary legal justification (now apparently lacking) for the deployment of Mexican troops in Calderon's war on narco-traffickers. However, the fact that Mexican government officials, at the highest levels, are concerned that the current deployment may not be legal is quite shocking at this late point in Calderon's drug war — which has cost the lives of some 30,000 people since 2006 and resulted in more than 4,000 human rights complaints against the Mexican military.

But equally shocking is the fact that Mexico's Secretary of Defense is contemplating invoking, in parts of Mexico, such as Juarez, an even more extreme form of military intervention as envisioned under Article 29, which has many similarities to the concept of martial law in the U.S.

More from the State Department cable:

[Defense Secretary] 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 institutions), or that he is seeking a stronger legal framework and additional legal protections to back up the military's current domestic operations.

… 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.

For the immediate future, though, according to the State Department cable, it seems President Calderon is not likely to embrace a move to invoke the Article 29 exception.

“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,” the State Department cable says. “… 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.”

As a result, it appears Calderon's failed militaristic drug-war strategy will likely continue to operate on a very thin, to nonexistent, legal framework.

But the revelations exposed via the recently leaked State Department cable should sharpen the international criticism of the ongoing human rights abuses being carried out by the Mexican military and raise even more questions about the legitimacy of the U.S. role in supporting that military campaign through the $1.4 billion Merida Initiative. 

Stay tuned …

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