209. Telegram From the Embassy in Brazil to the Department of State 1

2204. Ref: Deptels 13362 and 1342.3

We fully agree concerns expressed reftels. Fortunately, similar feelings are shared by many influential elements in leadership of revolution, including most of the governors concerned (with possible exception Adhemar), UDN leaders in Congress, and at least some of military.

I distinguish between two types of constitutional problem. Those concerning timing of congressional election of president and eligibility Castello Branco seem to me of secondary order, subject to juridical rationalization without undue distortion. Distinguished lawyers have already expressed view that Article 794 (2) reference to election [Page 459] being held “thirty days after the last vacancy” can be construed as meaning “within thirty days,” since constituent assembly would otherwise have said “on the thirtieth day”.

Congress is now passing a law to establish the manner of the election, which will also cover this point. As to eligibility under article 139 (I) (C), there is plausible argument that in context of nearby articles this refers only to direct popular elections and not to indirect election by Congress. As a second line of retreat in case Castello Branco, chiefs of general staff may be construed as referring only to general staff of the armed forces, and not to chiefs of staff of individual services.

Atmospheric noises about shutting Congress down are, I believe, only from irresponsible sources and need not be taken seriously.
What seems to be more serious is question public liberties and cancellation mandates extreme left-wing deputies. In this respect, there is real problem of vigorous desire on part military leadership of revolution to make quick and effective purge of Communist and other subversive extremists in public services, trade unions, and Congress. There are ten or twelve congressmen such as Brizola, Neiva Moreira, Juliao, Marco Antonio Coelho, Max da Costa Santos, Benedito Cerqueira, and Sergeant Garcia, whose active participation in efforts at violent subversion is certainly beyond doubt and should be readily subject to objective proof. Unfortunately, articles 45 and 213 are very strong protections of congressional immunities. The harder-line military are talking about revoking the mandates of up to forty left-wing congressmen, which would be grossly excessive, but even the most moderate feel it essential to revoke those of some ten to twelve. The right way to do this would be under article 48 (2), but with the PTB solidly opposing, it would be very difficult to secure a two-thirds absolute majority for this purpose. The cases of Governors Arraes and Seixas Doria appear to have been cared for through impeachment by their respective legislative assemblies. The two related problems are press censorship and holding of suspected subversives without habeas corpus.
On press censorship, we have pointed out through both military and civilian channels importance of not creating hostility among foreign and especially US journalists. I got a strongly helpful reaction on this from Lacerda, who at six pm instructed an aide to determine who was responsible and say he would denounce it publicly if not called off forthwith. He was on way to see Castello Branco and promised make this point strongly.
The military leadership has prepared a so-called “institutional act” designed to revoke parliamentary immunities, life tenure for professors and judges, and stability of tenure for civil and military public employees, and there is under debate today the question whether this should be simply issued as an executive act of the high command of [Page 460] the revolution or perhaps issued ad referendum by Congress. Putting a good juridical face on the former would be very difficult, but it may already be a fait accompli. We have tried to use our limited influence in the circumstances, and I stress that it is limited, to maintain the greatest possible color of legitimacy in the form of congressional sanction.
I took advantage of an almost accidental date with the new War Minister Monday5 afternoon to point out that we are happy with the results of the revolution, that we want to support the new government in every possible way, but that our ability to support depends upon domestic congressional and public opinion which is very sensitive to anything which smacks of an old-fashioned reactionary Latin American military coup. For this reason, while recognizing the need for an effective purge of true subversives, juridical appearances are highly important. Tuesday morning, I arranged to convey a similar message to Castello Branco, doing it through Colonel Walters since I felt it unwise to see Castello personally at present stage. Walters also talked with Colonel Miranda of National Security Council. I made the same points in call on Lacerda Tuesday afternoon. War Minister Costa e Silva was not very responsive. Castello Branco, who is more sophisticated and civil minded, did appear to understand it and undertook to bear it in mind. Lacerda fully acknowledged the point, which fits with his own current campaign to dampen down excesses by police and army. He felt it unlikely, however, that some form of juridically questionable institutional act could be avoided, saying it was an inevitable bridge between the revolution and the full restoration of constitutional guarantees.
Department should bear in mind that Brazil had very narrow escape from Communist-dominated dictatorship and is only few days past what could have been civil war type confrontation. I see no way now of pushing this question further without over-straining our credit and producing counter-productive reactions. If other opportunities present themselves, we will make use of them.6
  1. Source: National Archives and Records Administration, RG 59, Central Files 1964–66, POL 23–9 BRAZ. Secret; Priority. Passed to the White House, CIA, JCS, OSD, CINCSO, CINCSTRIKE also for POLAD, and CINCLANT also for POLAD.
  2. In telegram 1336 to Rio de Janeiro, April 6, the Department stressed the importance of preserving the “color of legitimacy” and asked the Embassy to consider what the United States could “appropriately do to influence events in this direction.” (Ibid.)
  3. In telegram 1342 to Rio de Janeiro, April 6, the Department reported that a New York Times representative had phoned to comment on recent developments, including allegations of censorship and a “rumored threat to close Congress if uncooperative on Presidential changes.” The Department suggested that the Embassy use its influence to “check or slow down such developments.” (Ibid.)
  4. Reference is to the Brazil constitution of 1946.
  5. April 6.
  6. Gordon raised the question of “constitutional formalities” in a meeting with Mazzilli on April 8. After expressing similar concern, Mazzilli said that he was “using all resources to secure meeting of minds between military and political forces, with conservation of constitutional forms as ‘point of honor for the country.’” (Telegram 2209 from Rio de Janeiro, April 8; National Archives and Records Administration, RG 59, Central Files 1964–66, POL 23–9 BRAZ)