Crisis of Command
America’s Broken Civil-Military Relationship Imperils National Security
Luiz Inácio Lula da Silva, known simply as Lula, remains one of Brazil’s most popular politicians. An uneducated lathe operator turned union leader, Lula helped found Brazil’s Workers’ Party, in 1980, before winning the presidency in both 2002 and 2008 with large majorities. Under Lula’s governance, Brazil became a major power, was awarded the honor of hosting the 2016 Olympic Games, and lifted 40 million of its people out of poverty. The most recent opinion poll shows that he remains the favorite in the 2018 presidential race. Since 2016, however, he has been under investigation as part of the anticorruption campaign known as Operation Car Wash, and a conviction would disqualify him from running.
Lula has denied all the accusations against him. He believes that the investigation is politically motivated, and many of his compatriots agree: according to a poll conducted by Instituto Paraná Pesquisas, a market research firm, 42.7 percent of Brazilians agree that Lula is being persecuted by the media and the judiciary in an effort to remove him from the 2018 presidential race. So far, prosecutors have found no hard evidence linking him to the alleged crimes, yet they have used aggressive tactics, such as leaking recordings of wiretapped phone calls he made to his family, to publicly embarrass him. In this and other ways, Lula’s case has raised crucial questions about Brazil’s judicial system: specifically, whether it can give Lula a fair trial and protect the due process rights of those accused of corruption.
Brazil maintains an antiquated system for investigating and judging criminal offenses, which it inherited from Portugal in the early nineteenth century (but which Portugal itself has long since abandoned). This system offers no separation between the role of the investigating judge, who supervises and approves the work of the police and the prosecutors, and that of the trial judge, who should hear cases without bias or preconceptions. In Brazil, both of these roles are played by the same person, even when, as in Lula's case, the investigation has included prejudicial findings against Lula by the judge.
In Lula’s case, that person is Sérgio Moro, a low-level federal judge from Curitiba. Moro is not only supervising the investigation, approving all the searches, seizures, and wiretaps, but also presiding over Lula’s multiple trials. This is despite the fact that earlier investigative decisions involved him speculating about Lula’s guilt. Moro even went as far as to attend the launch party for the Brazilian journalist Vladimir Netto’s book on Operation Car Wash, which depicts Lula in a negative light. At the event, Moro signed copies of the book and posed for photos. Such a scenario would be impossible in the Anglo-American trial system, which rigorously insulates trial judges from the investigative process. Even in Europe, where judges do play an investigative role, they may not try a person whom they have previously indicated may be guilty. And no judge in either Europe or the United States would think it proper to endorse the demonizing of a man on whom he or she is sitting in judgment.
Moro’s involvement in the case dates back to 2014, when officials discovered that an abandoned car wash in his jurisdiction was being used to launder money. The ensuing investigation, which Moro is leading, has grown to include 200 police and prosecutors. Those prosecutors claim that officials at Petrobras, the national oil and gas company, have long been colluding with a cartel of the country’s largest building contractors to enter into overpriced and fraudulent contracts. These Petrobras officials were allegedly rewarded with bribes and kickbacks and then funneled some of the money to a number of politicians, across the entire political spectrum, to use as campaign funds.
The investigation came to include Lula a year ago, after prosecutors claimed that since leaving the presidency, he had received gifts from one of the cartel companies implicated in Operation Car Wash. Since then, Moro has ordered Lula’s property seized, his bank accounts scrutinized, and his phone calls with his family and lawyers wiretapped. Yet investigators have discovered no hidden assets or overseas accounts. Since leaving office, Lula has lived in the same small, modestly furnished apartment outside São Paulo that he inhabited before becoming president. During his two terms in office, neither he nor his wife received any benefits other than his presidential salary and the gifts routinely bestowed on a head of state. There is no evidence that Lula took any actions while president that were motivated by the receipt or the promise of money or gifts.
Numerous scholars and other observers have criticized Moro’s intrusive tactics, arguing that in his zeal to incriminate Lula, he has overstepped the law. These critics point to the fact that last March, for example, Moro issued a bench warrant for Lula’s compulsory interrogation, a form of coercion that judges should use only if a suspect has refused to comply with a subpoena to testify. Lula had always cooperated in answering investigators’ questions, and when the police arrived at his house at six in the morning, Lula says he offered to answer their questions there—but the police refused and forced him, under pain of imprisonment, to accompany them to a police compound at an airport outside São Paulo, where he was held for questioning for four hours. News of his detention was leaked to the media and protesters opposed to Lula, who turned up in droves at the airport. Despite his good-faith efforts to comply with the authorities, the spectacle created the impression that Lula was not cooperating and that he had something to hide.
Roughly two weeks later, Moro handed the media close to 50 audio recordings of intercepted calls between Lula and his family, friends, and lawyers. Under Brazilian law, wiretapping calls is allowed only as a last resort—which was not the case here—and the recordings must be kept secret. Even more disturbing, the tapes included a conversation between Lula and then President Dilma Rousseff that had been recorded illegally. Moro had ordered a stop to the surveillance at 11:00 AM on March 16 of last year because the warrant had expired; furthermore, none of the calls intercepted by that point had provided any incriminating evidence. Yet the wiretapping continued illegally, capturing a conversation that day with Rousseff at 1:30 PM. (When it came to light, this conversation sparked a great deal of controversy, since it included a discussion of whether the president should appoint Lula as a minister, thereby granting him a degree of immunity.)
In April, Brazil’s Supreme Court condemned Moro for releasing the wiretapped phone conversations to the media in violation of the constitution. Moro responded by offering his "respectful apologies" for violating the rule that only the Supreme Court—and not a lower-court judge, such as him—can legally investigate a sitting president. Yet Moro received no further censure, despite the fact that in any other democracy, such tactics—whipping up public animosity against a suspect through illegal surveillance and the public release of the results of that surveillance—would inevitably get a judge removed from a case.
In July 2016, Lula filed a complaint before the UN Human Rights Committee—a case in which I am representing him—arguing that Moro had not only abused his power but also violated Lula’s civil and political rights. Lula’s first trial began in November 2016, and a decision on his guilt will probably be made in July 2017. Before the trial started, Lula repeatedly tried to have Moro removed, on the grounds that he was prejudiced, but these motions were denied—mostly by Moro himself. Over the past year, Lula has been featured several times on the cover of the right-wing magazine Veja in doctored photos that show him in prison clothes. These images have been reproduced en masse on balloons and dolls, which are then displayed at right-wing demonstrations. The authorities show no interest in stopping what has become a lucrative trade pushing the idea that Lula has already been found guilty.
None of this is meant to suggest that Lula is or should be above the law. He himself readily acknowledges this fact. But Lula’s treatment—his unnecessary detention, his trial by a judge who appears to be biased, the telephone wiretaps, the violation of his privacy through the release of the calls to the media—has curtailed the civil liberties that he, and every other Brazilian, is guaranteed by the country’s laws and constitution.
To prevent such abuses in the future, Brazil needs to adopt a new model for handling such cases. The best model is that pioneered in Hong Kong and also used in Australia, Singapore, and elsewhere. Such systems use an independent and well-resourced agency (called the Independent Commission Against Corruption, or ICAC, in Hong Kong) to investigate alleged wrongdoing by politicians, public servants, and state enterprises. Such agencies have full powers of surveillance, subpoena, and arrest and can hold public hearings. To ensure that their work remains nonpartisan, these bodies are overseen by a committee composed of distinguished individuals. When the ICAC or its like decides that criminal charges are merited, the allegations are then investigated by prosecutors, and any evidence they collect is tested at trial by impartial judges who have not been involved in the investigation. This system has enabled Hong Kong and the other jurisdictions that use it to hold public officials accountable without publicly demonizing and demeaning suspects in the process, or putting them on trial before a judge who has participated in the investigation.
Corruption—especially political corruption—must be prosecuted effectively. But unless it is prosecuted fairly, with due regard for suspects’ human rights, such efforts will prove counterproductive, resulting in miscarriages of justice and limiting suspects’ cooperation with the authorities.
If there is evidence that Lula has benefited from corruption, he must answer for it—but in fair proceedings before an impartial judge. Moro and the prejudice whipped up by the Brazilian media have made this impossible. The case should therefore be taken away from Moro and given to an impartial ICAC-style commission—not in order to protect corrupt politicians or thieving construction bosses but for the sake of the rule of law and human rights, and to prevent prosecutions from turning into persecutions.