Foreign Relations of the United States, 1977–1980 Volume XXIV, South America; Latin America Region

228. Telegram From the Embassy in Chile to the Department of State¹

Santiago, May 14, 1979, 2051Z

3321. Subject: (C) Letelier/Moffitt Case: Borquez Refuses Extradition; Orders Trial in Chile.

1. Confidential entire text.

2. Summary: Borquez released his decision May 14. It accepts validity of US evidence presented with extradition request but finds it unconvincing for purposes of extradition. He also argues that US practice is not to extradite its own citizens. Borquez concludes, however, that in addition to evidence presented by USG, he has found sufficient grounds for believing that the three Chilean army officers may have been involved in the Letelier/Moffitt assassinations and he, therefore, orders a military court to begin a trial against them in Chile. The term trial has a broader meaning than in US jurisprudence. The trial process ordered by Borquez may, but will not necessarily, lead to formal indictment and a decison on guilt or innocence. The immediate next step is an appeal of the Borquez decision by defense and USG lawyers. We expect this to extend through June. Meanwhile the three defendants will remain in custody. End summary.

3. Supreme Court President Borquez informed lawyers for Contreras, Espinoza and Fernandez of his decision at 9 am May 14. USG Lawyer Etcheberry obtained a copy of the 46-page decision shortly thereafter. There are four main elements in the decision:

—First, Borquez rejects the contention of Supreme Court Fiscal Chamorro (Santiago 2619)² that the evidence presented in support of the extradition request must be in accordance with Chilean judicial norms. Rather, US rules of evidence govern; therefore, the Townley testimony is not discarded simply because it was the result of plea bargaining.

—However, second, Borquez does not find the evidence presented convincing for purposes of extradition. Devoting little attention to the other evidence, Borquez focussed on the Townley testimony and, with reference to the plea bargaining, and alleged changes in Townley’s testimony, he questions whether Townley is an impartial and believable witness.

—Third, Borquez takes note of Article V of the bilateral extradition treaty which allows Chile or the United States the option of not extraditing its nationals but concludes that even if there had been enough evidence for extradition, the Supreme Court would have had no moral obligation to do so since US courts have refused to extradite in similar circumstances.

—Nevertheless, finally, because he is convinced that the three defendants have made absurd and contradictory statements (“contrary to some facts established in the record”), he orders, in accordance with Article III (2) of the Code of Military Justice, “an authenticated copy of the decision be sent, at the appropriate time, to the second military court located in this capital, for the purposes of beginning the necessary trial (Sumario), if one is not already underway, to investigate the responsibility Fernandez, Espinoza and Contreras may have in the crimes of murder of Orlando Letelier and Ronni Moffitt carried out in the city of Washington in the United States of America September 21, 1976.”

4. Trial or investigation?: USG Lawyer Etcheberry says categorically that Borquez has ordered trial. Even had Borquez denied extradition solely on the basis of nationality, his wording in ordering a trial in Chile would have been identical to that quoted above. In this respect there is an important and confusing difference between the US and Chilean legal systems. A trial in Chile, whether military or civilian, begins with an investigation by a judge. Evidence gathered by the judge during the investigative state can be used to convict. When the judge is convinced that there is enough evidence to make conviction a likely prospect, he can bring formal indictments against defendants. If, however, he decides that there is not sufficient evidence, the trial would be terminated at that point. Thus, while Borquez has ordered a trial in military court under Chilean procedures and using Chilean terminology, the initial stage will be more analogous to grand jury proceedings in the United States. The military judge will be able to make use of the evidence presented by the USG in requesting extradition, that developed by Borquez in the course of his own investigation, and whatever else the military judge may already have or be able to obtain. As the Department is aware, an investigation into the possible criminal activities of Contreras, Espinoza and Fernandez (nominally, at least identified with passport fraud) has been underway for more than a year. We would expect the military court to subsume Judge Borquez’ instruction under that umbrella.

5. Appeals process: The order to the military court will not take effect until the appeals process is completed. Etcheberry has been told that lawyers for Contreras and Espinoza will appeal the Borquez decision but that the lawyers for Fernandez will not. Etcheberry will, of course, appeal the decision also, requesting that the review panel grant extradition. Lawyers have five days from today to file their appeals. A clerk of the court will then probably take two or three weeks to prepare all the materials for the review judges. The oral presentations may be made about June 10 and a final decision will follow two or three weeks thereafter. In the meantime, the three defendants will remain under custody.

6. Immediate USG steps: We plan to follow the basic lines of the scenario set forth in Santiago 2942.³ I will be travelling to Washington for consultation tomorrow, May 15, and Etcheberry will travel the following evening. By septel we are sending revised proposals for the press statements to be made by state and justice, with suggested responses to possible questions.⁴

7. Comment: The Borquez decision is better than we had anticipated during the last few days. He has in fact ordered a trial in Chile for the three defendants. Whether it prospers and justice is done will now depend upon the priorities and imperatives attached to it by this military regime. The outcome is less satisfactory than would have been the case had Borquez found our evidence compelling and denied extradition solely on the grounds of Chilean nationality. In that case, the result of a trial here would have been almost a foregone conclusion.

8. While taking note that Borquez has ordered a trial here, the USG should continue to press for reversal of the Borquez decision at the appellate level. I consider that unlikely but there may still be a small chance that the review panel will find our evidence convincing and base the refusal to extradite on the nationality clause. In that case our evidence will have full value before the military court.

Landau

1. Source: National Archives, RG 59, Central Foreign Policy File, D790218-0385. Confidential; Niact Immediate; Stadis; Exdis.
2. Dated April 18. (National Archives, RG 59, Central Foreign Policy File, D790178-0231)
3. Dated April 30. Landau recommended that on his return from consultations in Washington, he “would plan to inform GOC officials the minimum measures we intend to take,” and that these could “include withdrawal of the military group and suspension of the pipeline, and a presidential determination against Ex-Im Bank credit on grounds of supporting international terrorism.” Furthermore, he reported that the “only two measures which would be really meaningful and cause the GOC grave concern” were “breaking relations” and convincing “Congress to enact legislation barring private bank lending.” (National Archives, RG 59, Central Foreign Policy File, D790197-0389)
4. Telegram 3322 from Santiago, May 14. (National Archives, RG 59, Central Foreign Policy File, D790218-0450) In a May 15 memorandum, Vance informed Carter of Landau’s recall for consultations and of the appeal of the Supreme Court’s decision. (Carter Library, National Security Affairs, Brzezinski Material, Subject File, Box 21, Evening Reports (State), 5/79)