In the EU Parliament, PT Congressional leader presents evidence that the US Department of Justice repeatedly violated Brazilian law in its collaboration with the Lava Jato investigation, which damaged the Brazilian economy, opened the door for massive privatization of Brazilian natural resources to American corporations, and led to the illegitimate election of right wing extremist Jair Bolsonaro.
On Thursday, June 18th, PT Congressional leader Paulo Pimenta accused the United States of coordinating the corrupt Lava Jato investigation which, as the Intercept has now revealed through publishing leaked social media conversations between task force members, actively worked to protect conservative politicians from the investigation while removing former President Lula from the 2018 elections and helping elect right wing extremist Jair Bolsonaro to the presidency.
In a blatant quid pro quo, Lava Jato task force leader Sérgio Moro was given a key cabinet position by Bolsonaro.
The Brazilian lawmaker presented European Union Parliament with 13 archives documenting illegal US collaboration in the investigation, saying that “there is already a strong suspicion, based on facts, that Operation Car Wash was politically instrumentalized in order to produce objectively harmful effects on Brazil.” The report is reproduced in its entirety here.
External interference in Operation Car Wash and the subsequent legal persecution (Lawfare) of former President Lula.
“In general, US interventions in the internal affairs of the countries of the region occur indirectly. Thus, of the 41 successful interventions mentioned in a study published by Harvard, only 17 were made through direct use of force.In the case of indirect interventions, the most common mechanism of interference is that of “cooperation” in several areas. In fact, apparently innocent cooperation mechanisms often lend themselves to ideological and political co-option and undue influence on internal affairs in other countries.
In relation to the legal war against former president Lula and the coup of 2016, there is growing evidence that there has been and is American interference, especially through the so-called Operation Car Wash, implemented through bilateral judicial cooperation between Brazil and the USA. In fact, there is already a strong suspicion, based on facts, that Operation Car Wash was politically instrumentalized in order to produce objectively harmful effects on Brazil.In the economic field, this operation contributed to the destruction of the oil and gas productive chain, led to the below market rate sale of the pre-salt reserves, undermined our competitive civil construction industry, and compromised strategic defense projects related to submarine construction.
According to a study by the consultancy GO Associados, Car Wash caused a GDP decrease of 2.5% in 2015, contributing to the unemployment of hundreds of thousands of Brazilians.In the political field, Operation Care Wash played a significant role in the 2016 parliamentary coup which deposed President Dilma Rousseff without the presentation, by the commission, of any proof that she had committed a crime of responsibility, as required by the Constitution. Furthermore, a Car Wash Operation highlight has been the so-called judicial war against former President Lula, which had the political goal of preventing his candidacy in the 2018 elections.This operation was executed within the framework of close bilateral judicial cooperation between the US and Brazil.
The deepening of judicial and security cooperation between Brazil and the United States began in the 1990s, more specifically during the government of former President Fernando Henrique Cardoso (1995-2002).It was at this time that DEA and FBI opened offices in Brazil and began to cooperate actively with the Brazilian Federal Police and other agencies, with significant investments in training for our police officers. These investments created an inevitable relationship of dependency and enabled the progressive incorporation of the agenda of the “war on drugs” and other themes, which were of greater interest to the USA than to Brazilian public security.
This period also marked a deepening of cooperation between the prosecutors of both countries, not only aimed at fighting drug trafficking, but other international crimes such as corruption, tax evasion and money laundering. In order to provide legal basis for such cooperation the “Treaty between the Government of the United States of American and the Government of the Federate Republic of Brazil on Mutual Legal Assistance in Criminal Matters” was signed in 1997. This agreement establishes strict rules for cooperation. Among them, Article II of the Agreement stands out, which stipulates that each country designate a Central Authority and that “the Central Authorities shall make and receive requests pursuant to the Treaty [… ] For Brazil, the Central Authority shall be the Ministry of Justice.” It is also relevant to note that Article III states that, “the Requested State may deny assistance under the Treaty […] if its execution would prejudice the security or similar essential interests of the Requested State”.
However, these rules provided for in the agreement have been systematically violated in cooperation activities. This was said publicly by high ranking US officials involved in these activities. Such confessions show not only that the rules of the agreement have been disregarded, but also that the US authorities led the construction of Operation Car Wash and the case related to the triplex apartment.
Indeed, in public statements on July 19, 2017, Mr. Kenneth Blanco, then Acting Assistant Attorney General for the Criminal Division of the United States Department of Justice (DOJ), and Mr. Trevor McFadden, then Deputy Assistant Attorney General in the Criminal Division of the Department of Justice spoke of cooperation between US authorities and the Operation Car Wash task force that was based on “trust” and occasionally took place outside of “formal processes”. Acting Assistant Attorney General Blanco said that, “This trust allows prosecutors and agents to have direct communications regarding evidence. Given the close relationship between the Department and the Brazilian prosecutors, we don’t need to rely solely on formal processes such as mutual legal assistance treaties, which often take significant time and resources to draft, translate, formally transmit, and respond to.”Such informal cooperation on the basis of “strong relationship” violates the guidelines of the agreement, since it stipulates, as we have seen, that everything must be approved and conducted by the Ministry of Justice. However, there is no official record showing that Ministry of Justice was ever aware of these informal activities.
Consequently, some judges and prosecutors, especially in Operation Car Wash, are not accountable to anyone. They ignore the norms of the agreement with the US. They act according to their personal and ideological idiosyncrasies, in a kind of personal cooperation, which has no legal justification.Here it is necessary to make an important observation. Brazil’s domestic legal system operates on the basis of different principles from those of US domestic law. In our positive law, the public servant is not only prohibited from breaking the law. He is prohibited from doing everything that the law does not explicitly allow. He can only act within the narrow framework of the letter of the law. This informal cooperation, outside official channels, violates the text of the agreement signed with the United States, which, according to Brazil’s domestic legal system, is legally binding. It constitutes, therefore, illegal cooperation.In addition to openly violating the guidelines of the cooperation agreement, such informal activities also violate constitutional principles.
The Brazilian Federal Constitution stipulates that it is the exclusive constitutional prerogative of the President of the Republic to conclude international treaties and to conduct the country’s external relations. This is the starting point of international relations, which requires that the voice of the country abroad be one. It is not permissible for a country to have several independent bodies that determine different external policies. For this reason, any cooperative activity would have to be at least communicated to and supervised by the Ministry of Foreign Relations. Obviously, this is not happening. Our prosecutors and judges have established, in clear violation of the Constitution, a specific and independent foreign policy with the United States.The national authorities and the Brazilian National Congress were not even informed, through official channels, of the lawsuits that were filed in the United States against Brazilian companies.
This is very unusual. Some argue that US lawsuits against Brazilian companies (EMBRAER, Petrobras, etc.) stem from the fact that these firms publicly traded on the US’ stock exchanges, automatically submitting to the capital markets legislation that is enforced by the Securities and Exchange Commission (SEC).But that’s only half true. The fines issued by the Americans to the Brazilian companies amount to around R$ 7 billion – the largest in history. These are fines for crimes committed in Brazil by Brazilian individuals and companies. As an aggravating factor, the Brazilian Treasury is the main shareholder of the company that received the largest fines, Petrobras.
Therefore, we are dealing with resources that are or could belong to the Brazilian public administration that are being transferred abroad. By what mechanism? What are the criteria for this asset sharing which has never been practiced before in Brazil? How did they arrive at these monetary values? Did the Brazilian Planning Ministry predict this overspend in the budget? Did the Ministry of Foreign Relations agree? All these pertinent questions remain unanswered.Furthermore, it is the exclusive responsibility of the Federal Senate, under the Brazilian Constitution (Article 52, item V), to authorize external financial operations, of interest to the Union, the States, the Federal District, the Territories and the Municipalities. It is obvious that such financial transactions are in the interest of the Union as they relate to real or potential Treasury resources. However, the Brazilian Senate only learned about these operations from the press.
It should be noted that in January,2018, Petrobras submitted a $2.95 billion offer to US investors to drop a lawsuit against the company. This offer is 6.5 times higher than the total amount of money recuperated to Brazilian coffers by Operation Car Wash (R$1.4 billion). Although the Brazilian Constitution guarantees the Public Prosecutor’s Office autonomy, this autonomy does not give it the prerogative to usurp the constitutional powers of the Federal Senate and the President of the Republic. Nor does it give it the right to disregard the rules of international agreements and Brazil’s domestic legislation.
But this is not just about informal cooperation without any legal justification. It is also about a partnership that was essentially built up by US interests. Indeed, in an informal relationship, made without the supervision of central authorities, the interests of the more prepared, experienced and resourceful party inevitably predominate.During the same speech, Assistant Attorney General Blanco states that its Criminal Division is made up of about 700 lawyers spread across 17 departments and offices, primarily in Washington D.C., but with offices located in other countries including Brazil. In other words, he confesses that there are US government attorneys operating freely in our country.
The influence of the USA on Brazilian public prosecutors is the subject of several US diplomatic messages leaked by Wikileaks, which mention the “Bridges Project”. This was a Regional Cooperation Conference, held in October 2009, between selected members of the Federal Police, Judiciary, Public Prosecutors Office and US authorities in Rio de Janeiro.The report says that US agents invited Brazilians to create a task force to work on a factual case, which would receive external support in “real time”.According to one of the communiques, training courses in São Paulo and Curitiba were requested by Brazilian judges, prosecutors and police officers after the success of the conference on “illicit financial crimes” sponsored by the “Project Bridges” (financed with US resources). They were interested in learning how, for example, to extract, in a practical way, confessions from people accused of money laundering and other crimes.
According to the North Americans, the success of the seminar could be measured by requests for new training by the Brazilian professionals. “The participants praised the hands-on training and requested additional training on the collection of evidence, interrogation and interviewing, court room skills, and the task force model […] Many commented that they wanted to learn more about the proactive task force model, develop better cooperation between prosecutors and law enforcement, and gain direct experience in working on long term complex financial cases. “The US agents who participated said that, “there is a continual need to provide hands-on training to Brazilian federal and state judges, prosecutors and law enforcement regarding the illicit financing of criminal conduct […] Ideally, the training should be longer-term and coincide with the formation of training task forces. Two large urban centers with proven judicial support for illicit financing cases, in particular Sao Paulo, Campo Grande, or Curitiba, should be selected as the location for this type of training.”
The notes leaked by Wikileaks further indicate that US agents intended not only to teach how a task force would be formed for a particular case, but to encourage it to be turned into a “real investigation” with “access” to North American coaches. Thus, it becomes clear that the Operation Car Wash task force was formed through proactive participation and influence of US authorities. It should be noted that this influence is reflected in the methods used.
Operation Car Wash’s US counterpart is located in the Fraud Section of the US Department of Justice. Andrew Weissmann, head of this section between 2014 and 2017, is a prosecutor known in the US for using unorthodox methods. He gained fame for commanding the task force that investigated the ENRON energy company at the beginning of this century.Accusations against and arrest of relatives, imprisonment as a torture method, aggressive and risky tactics and the use of selective leaks are, according to reports in the USA, procedures regularly used by Weissmann in the Enron task force, which Operation Car Wash replicated.The American influence is also political. During his speech, Attorney Blanco made specific reference to the Lula conviction and also emphasized the US partnership with the Brazilian Public Prosecutors Office on this case. In the speech, which was captured on video, Blanco says, “Indeed, just this past week, the prosecutors in Brazil won a guilty verdict against former President Lula da Silva, who was charged with receiving bribes from the engineering firm OAS in return for his help in winning contracts with the state oil company Petrobas. It is cases like this that put Brazil at the forefront of countries that are working to fight corruption, both at home and abroad.” In this manner, a US DOJ official explicitly refers to former President Lula as a sort of great trophy of bilateral cooperation. For him, the condemnation of Lula puts Brazil in the “vanguard of the fight against corruption”.
Thus, the US State’s Attorney’s Office intends to interfere in the political life of Brazil, which represents a clear distortion of bilateral cooperation.It must taken into consideration that the US usually uses cooperative activities to impose its economic and political interests. The weakening of Brazilian companies, such as Petrobras, Odebrecht and Embraer objectively favors US interests and those of its allies, either by eliminating competitors or through the prospect of facilitating the purchase of strategic assets such as oil and gas, pipelines, land, water, energy companies, high-tech companies, etc.
At the same time, cooperative activities in the area of combating illicit or alleged illicit acts can serve as an opportunity for the creation of political targets of US interest. Given the obvious asymmetry in Brazil / US bilateral relations, such geopolitical goals would not be difficult to achieve, under the seemingly neutral and “mutually beneficial” mantle of cooperation activities.
However, the opposite of this -the use of cooperative activities in the defense of Brazilian interests in the US – would be virtually impossible, since the only superpower on the planet does not accept, under any circumstances, that foreign authorities interfere in their affairs or harm their public or private interests.It should be noted in this regard that the Foreign Corrupt Practices Act (FCPA), an American law that seeks to prevent companies (American or foreign) from making payments to government officials in exchange for advantages to their business, has a clear extraterritorial character.
According to the the US, Department of Justice (DOJ) corruption investigations can take place in any country if an investigated company has any kind of connection, no matter how small, to the USA. In this way, any company that trades shares on the US stock exchange or holds any bank account in the US can be investigated.In the US government’s vision, this law (as well as others) has given it a kind of international jurisdiction to investigate corruption cases anywhere in the world. Since it is hard for an international company to not have any interests in the US, this submits all companies of any kind of relevance to the legal and political whims of the US legal system.In this manner, this apparently neutral corruption fighting on the international scale can be easily distorted to only benefit specific geopolitical or geoeconomic interests.”