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

229. Telegram From the Department of State to the Embassy in Chile¹

Washington, June 1, 1979, 2124Z

140552. Subject: Instructions RE U.S. Reaction to Outcome of Letelier Case.

(Secret–Entire text)

1. We have now carefully reviewed and analyzed the decision by Judge Borquez denying our request that Contreras, Espinoza and Fernandez be extradited to the United States to stand trial for the crimes for which they were indicted by the U.S. grand jury in Washington, D.C. We have also carefully considered the implications of that decision for our relations with Chile. While you were in Washington, you made an invaluable contribution to our deliberations.² We also benefitted greatly from the advice and counsel of Alfredo Etcheberry.

2. You should immediately seek an appointment with the Foreign Minister and make the following points to him:

(A) I have been instructed on the highest authority to reiterate to you our profound and grave disappointment at the ruling Judge Borquez issued on May 14 and at the lack of seriousness with which the Chilean government has conducted its own investigation of the responsibility of Contreras, Espinoza, and Fernandez for the murders of Orlando Letelier and Ronnie Moffitt on the streets of Washington, D.C.

(B) While I was in Washington, I participated in a full review of the Borquez decision and of our relations with Chile.³ As a result of Borquez’ ruling, we have arrived at a most delicate situation in our bilateral relations. The USG in good faith presented its extradition request. Although Borquez found our evidence admissible, his ruling, if allowed to stand, would effectively render that evidence useless in any proceeding in Chile. We note that he tacked on an instruction to the military court to start an investigation based on “absurdities and irregularities” that he had observed in the evidence. Had Borquez not deprecated our evidence and had he ordered a trial in Chile on the basis of that evidence, we would have been able to minimize the existing strain in our relations. The case would have gone to the same military court where Borquez proposes to end it, but based on our evidence. You must understand that it is on the basis of that same evidence that a U.S. grand jury in Washington, D.C. indicted these defendants—and the standard for indictment is essentially the same as the standard for extradition. Moreover, our evidence was strong enough to convince a jury to convict the two other defendants in this case who were tried in Washington, D.C.⁴

(C) Borquez’ ruling would make it impossible for any proceeding conducted here in Chile to be genuine and thorough-going. The military tribunal conducting any such proceeding would be able to ignore the evidence we have presented, on the grounds that the Chilean Supreme Court had already ruled that that evidence was not convincing and credible. Since that evidence must be the core of any good-faith prosecution of these defendants for the crimes charged, it is clear that a trial in which our evidence was ignored would be a mere formal exercise.

(D) Needless to say, we will be appealing the Borquez decision with vigor and determination. In the course of that appeal, our attorney will press our view that Borquez erred in focussing almost exclusively on Townley’s statements following his guilty plea and in disregarding the substantial body of other evidence we presented. He will particularly stress the fact that Borquez virtually ignored the full statement made by Townley to General Orozco before Townley had entered into any plea-bargain arrangement with the United States Government.⁵

(E) The future course of our relations with Chile will depend very heavily on the outcome of that appeal. If we are faced with a situation at the end of the appellate process in which no extradition has been granted, or in which Borquez’ ruling on the sufficiency of our evidence has not been reversed, so that any proceeding before a military tribunal would be hobbled from the outset, then I can tell you that the reaction of my government, the Congress, and the American people will be severe—more severe than anything we have yet seen in our relations.

(F) We are equally distressed and offended by the utter lack of seriousness with which the Chilean government has conducted the investigation of Contreras, Espinoza and Fernandez that has theoretically been under way in the military court for over a year, the so-called passport fraud investigation. Since it appears that this investigation has thus far led to nothing, we have real questions about the vigor of your investigation and prosecution of this crime. Given the magnitude and implications of the crimes involved, we cannot understand or accept the lethargy that has characterized the military tribunal’s so-called investigation. In his decision, Judge Borquez asks this same tribunal to expand its investigation specifically to include the potential responsibility of Contreras, Espinoza and Fernandez in the murders of Letelier and Moffitt. But the record of this tribunal in the passport fraud investigation makes it clear that unless the Chilean government takes a conscious decision to energize the tribunal, its proceedings will be without substance. In addition, of course, unless Borquez’ ruling on the sufficiency of our evidence is reversed, the military tribunal’s proceedings would be no more than a formal exercise.

(G) I want to leave you in no doubt that in my government’s view, relations between Chile and the United States are approaching a crossroads. Whether we are able to traverse that crossroads in a manner that will help lead to the improvement in relations between our two countries, instead of a severe deterioration, depends on you, not on us.

(H) We believe the judicial process should be allowed to run its course. However, I am instructed to tell you that should the Borquez ruling simply be affirmed on appeal—which would mean that the matter would be referred to the military tribunal with our evidence completely and unjustifiably disregarded—then we would be forced to take concrete steps to register our position. I cannot at this time get into the details of the steps that would be taken, but I would only reiterate that the US reaction would necessarily be severe, in view of the fact that we would be dealing with a case of unpunished terrorism. This could include a presidential determination that the Ex–Im Bank should deny applications for the extension of credit to Chilean interests on the grounds that Chile is harboring international terrorists and that such denial would advance US policy with respect to international terrorism. This finding would be public and could influence a wide range of other matters.⁶

(I) A large number of other steps were discussed while I was in Washington, but it would be unnecessary to take them if the appellate panel reverses Borquez’ decision so that a good-faith trial is conducted here in Chile on the basis of our evidence. In this regard I wish to call your attention to the letter Secretary Vance received recently from the Chairman of the House of Representatives Committee on Banking, Finance and Urban Affairs, Mr. Henry Reuss, in which Mr. Reuss addresses the question of private US bank lending to Chile.⁷ In addition, I am instructed to advise you that the unsatisfactory outcome which I have described would make it more difficult for the United States to be helpful in any external problems Chile may have.⁸

(J) In conclusion, I would underscore that the impasse we are approaching is not of our creation. Had your own investigation been conducted vigorously and seriously, we would not find ourselves in this situation. The undeniable fact is that there is more than ample evidence to require Contreras, Espinoza and Fernandez to stand trial for the murders of Orlando Letelier and Ronnie Moffitt. They should either stand trial in the United States or in Chile. That trial must be full and fair. If it is, we have confidence that these men will be brought to justice. If, by contrast, no trial is held, or the trial that is held is a sham, and if these men therefore walk the streets, I assure you that the reaction of my Government, of the US Congress, and of the American people will be severe.⁹

3. FYI: For your background, and for that of the Embassy staff and Mr. Etcheberry, you should be aware of USG view of the Borquez decision:

(A) Our deliberations have strengthened our view that the Borquez decision is inconsistent with international norms of justice. We can neither understand nor accept his conclusion that the evidence we adduced in support of our extradition request was insufficient to warrant extradition.¹⁰ Under our extradition treaties with all countries, including Chile, evidence adduced in support of an extradition request need not establish guilt. Rather, the norm is that it must simply be adequate to support a finding or probable cause to believe that the defendants in question committed the crimes charged. We have no doubt that the evidence we presented was adequate to meet that burden. Indeed, it was on the basis of precisely the same evidence that the U.S. grand jury in Washington, D.C. indicted the three defendants in question—and the standard for indictment is essentially the same as the standard for extradition. Moreover, our evidence was strong enough to convince a jury to convict the two other defendants who were tried in Washington, D.C.

(B) Because we find the Borquez decision so completely unacceptable, we believe that our immediate objective must be to seek a reversal or modification of the decision on appeal. We authorize and encourage Alfredo Etcheberry to pursue our appeal with all the vigor and determination at his command. We of course remain primarily interested in the extradition of the defendants, and we hope the appellate panel will order extradition. Failing that, our goal is a ruling on appeal that will permit a good-faith prosecution of the defendants in Chile. In particular, we seek a reversal of Borquez’ holding that our evidence is not credible or convincing and hence is insufficient to establish probable cause. Unless that holding is reversed, we do not see how a trial of the defendants in Chile could be genuine and thorough-going. This is so because the military tribunal conducting any such proceeding would be able to ignore the overwhelming evidence we have presented, on the grounds that the Chilean Supreme Court has already ruled that that evidence was not convincing and credible. Since we believe our evidence must form the core of any good-faith prosecution of these defendants for the murder of Orlando Letelier and Ronnie Moffitt, it would seem clear that a trial in which our evidence was ignored would be a sham. End FYI.

Christopher

1. Source: National Archives, RG59, Central Foreign Policy File, P850011-1459. Secret; Immediate; Nodis. Sent for information immediate to the White House. Drafted by Oxman; cleared by Vaky, Pastor, Newsom, Perry, and in L, A, and S/S-O; approved by Christopher.
2. Landau returned to Chile on May 31. (Telegram 139536 to Santiago, June 1, National Archives, RG 59, Central Foreign Policy File, D790247-0679)
3. The review included a May 22 interagency meeting, chaired by Newsom, which Oxman described as “an occasion to give all interested parties a briefing on what has happened and a chance to register their views.” (Oxman to Newsom, May 22; National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 31, Human Rights—Chile II) In a May 21 briefing memorandum to Newsom, Vaky wrote: “the consensus among ARA, Justice, L, D, our Chilean lawyer, and others” was “that we should let the Chilean Supreme Court review run its course without further U.S. public pronouncements. The Ambassador, however, upon his return to Santiago would tell the GOC privately how we intend to react if the three Chilean military officers go untried.” (National Archives, RG 59, Bureau of Human Rights and Humanitarian Affairs, Chron and Official Records of the Assistant Secretary for Human Rights and Humanitarian Affairs, Lot 85D366, Chile)
4. On February 14, Guillermo Novo and Ross were each convicted of conspiracy to murder a foreign official, murder of a foreign official, and of two counts of first degree murder for the killings of Letelier and Moffitt. Ignacio Novo was convicted of lying to the grand jury and of failing to inform authorities of the crime. (Kenneth Bredemeier, “Cuban Exiles Guilty in Letelier Death,” Washington Post, February 15, 1979, p. A1)
5. In a May 29 memorandum to Oxman, Propper and Barcella wrote “that Mr. Townley gave a statement to General Orozco at Quantico, Virginia, implicating the three Chilean defendants, prior to the plea agreement with us. He was then ordered to tell the truth and cooperate with the United States Government.” (National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 31, Human Rights—Chile II)
6. In a May 25 memorandum to Brzezinski, Pastor informed him that the Department of State “wants to deliver a very, very firm demarche,” and “would like to be specific about the threat and include the point about a Presidential determination on terrorism.” Aaron initialed his approval of the draft instructions to Landau regarding the demarche. (Carter Library, National Security Affairs, Brzezinski Material, Brzezinski Office File, Country Chron File, Box 7, Chile)
7. Not found.
8. Presumably a reference to the dispute between Chile and Argentina over the Beagle Channel. See Document 36.
9. In telegram 3890 from Santiago, June 6, Landau reported that during his meeting with Cubillos, he “read him the instructions contained” here. Cubillos “was pessimistic, claiming that we have a weak case, that the review panel will uphold Borquez, and that there is nothing the GOC can do to influence the judges.” (National Archives, RG 59, Central Foreign Policy File, D790255-1039)
10. In a May 22 intelligence information cable, the Central Intelligence Agency reported that Borquez said “that both the U.S. Government (USG) and Government of Chile (GOC) have political interests in the outcome of this case. He said that, given a choice between the political interests of the GOC and those of the USG, there is no doubt as to how a Chilean judge should rule,” and that “the results of this case” were “critical to the political interests of Chile while the interests of the USG will only be marginally affected by the decision.” Borquez “included the instruction to pass the case to a military judge only as a concession to the USG.” ([document number not declassified]; Carter Library, National Security Affairs, Staff Material, North/South, Pastor, Chron Files, Box 92, Chile, 5/79-1/81)