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Olive Yao
09-12-10, 15:31
VS vroegen Duitsland CIA'ers niet te arresteren

ANP / NU.nl donderdag 9 december 2010


WASHINGTON -De Amerikaanse regering heeft er bij Duitsland op aangedrongen geen CIA-agenten te arresteren die in 2003 een Duitser hadden ontvoerd.

Dat blijkt uit Amerikaanse diplomatenberichten die donderdag zijn onthuld door website WikiLeaks.

De Amerikaanse geheime dienst had Khaled el-Masri, een Duitser van Libanese origine, opgepakt op oudejaarsdag 2003. De man was meegenomen naar een geheime locatie waar hij naar eigen zeggen werd gemarteld. De CIA-agenten beseften toen dat hij onschuldig was. De man was verwisseld met een naamgenoot.

Relatie beïnvloedt

In januari 2007 vaardigde de Duitse justitie dagvaardingen uit tegen dertien verdachten. Een maand later vroeg de Amerikaanse ambassade aan de Duitse regering om de vervolging te staken ''omdat dat de relatie tussen onze landen negatief zou beïnvloeden''. Duitsland staakte de vervolging inderdaad.

knuppeltje
10-12-10, 10:03
Tja, je wel naar grote broer luisteren natuurlijk.

Olive Yao
24-12-10, 21:16
Bedankt Joesoef. Even het oorspronkelijke telegram opgezocht:


Reference ID 07BERLIN242 (http://213.251.145.96/cable/2007/02/07BERLIN242.html)
Created 2007-02-06 17:05
Released 2010-11-28 18:06
Classification SECRET//NOFORN
Origin Embassy Berlin

VZCZCXYZ0015
OO RUEHWEB
DE RUEHRL #0242 0371748
ZNY SSSSS ZZH
O 061748Z FEB 07
FM AMEMBASSY BERLIN
TO SECSTATE WASHDC IMMEDIATE 6940S E C R E T BERLIN 000242

SIPDIS
NOFORN
SIPDIS
FOR S/ES-O, EUR AND L
E.O. 12958: DECL: 02/06/2017
TAGS: KJUS PTER PREL PGOV GM
SUBJECT: AL-MASRI CASE -- CHANCELLERY AWARE OF USG CONCERNS
REF: A. BERLIN 230
B. BERLIN 200
Classified By: DCM John M. Koenig for Reasons 1.4 (b) and (d)


¶1. (S/NF) In a February 6 discussion with German Deputy National Security Adviser Rolf Nikel, the DCM reiterated our strong concerns about the possible issuance of international arrest warrants in the al-Masri case. The DCM noted that the reports in the German media of the discussion on the issue between the Secretary and FM Steinmeier in Washington were not accurate, in that the media reports suggest the USG was not troubled by developments in the al-Masri case. The DCM emphasized that this was not the case and that issuance of international arrest warrants would have a negative impact on our bilateral relationship. He reminded Nikel of the repercussions to U.S.-Italian bilateral relations in the wake of a similar move by Italian authorities last year.

¶2. (S/NF) The DCM pointed out that our intention was not to threaten Germany, but rather to urge that the German Government weigh carefully at every step of the way the implications for relations with the U.S. We of course recognized the independence of the German judiciary, but noted that a decision to issue international arrest warrants or extradition requests would require the concurrence of the German Federal Government, specifically the MFA and the Ministry of Justice (MOJ). The DCM said our initial indications had been that the German federal authorities would not allow the warrants to be issued, but that subsequent contacts led us to believe this was not the case.

¶3. (S/NF) Nikel also underscored the independence of the German judiciary, but confirmed that the MFA and MOJ would have a procedural role to play. He said the case was subject to political, as well as judicial, scrutiny. From a judicial standpoint, the facts are clear, and the Munich prosecutor has acted correctly. Politically speaking, said Nikel, Germany would have to examine the implications for relations with the U.S. At the same time, he noted our political differences about how the global war on terrorism should be waged, for example on the appropriateness of the Guantanamo facility and the alleged use of renditions.

¶4. (S/NF) Nikel also cited intense pressure from the Bundestag and the German media. The German federal Government must consider the "entire political context," said Nikel. He assured the DCM that the Chancellery is well aware of the bilateral political implications of the case, but added that this case "will not be easy". The Chancellery would nonetheless try to be as constructive as possible.

¶5. (S/NF) The DCM pointed out that the USG would likewise have a difficult time in managing domestic political implications if international arrest warrants are issued. He reiterated our concerns and expressed the hope that the Chancellery would keep us informed of further developments in the case, so as to avoid surprises. Nikel undertook to do so, but reiterated that he could not, at this point "promise that everything will turn out well".
TIMKEN JR

Olive Yao
26-12-10, 21:53
The CIA's El-Masri Abduction

Cables Show Germany Caved to Pressure from Washington

Der Spiegel 9 december 2010, Matthias Gebauer and John Goetz


The American diplomatic cables provide new details about the case of Khaled el-Masri, a German citizen abducted by the CIA in 2003. The reports confirm just how much pressure the US put on Germany to not pursue 13 agents believed to have been involved. But they also reveal how cooperative and responsive German officials were in light of American worries.

In the case of Khaled el-Masri, the Lebanese-born German abducted by the CIA, the Munich public prosecutor's office and Germany's Justice Ministry and Foreign Ministry, in Berlin, all generously cooperated with the United States. The new insights on the German-American secret talks in the politically controversial issue in 2007 come from previously unpublished cables from the United States Embassy. Previously, the only thing known was that the US had applied pressure on Berlin in the case.

Just a few days ago, WikiLeaks published a cable recounting the details of a meeting that then-Deputy US Ambassador John M. Koenig had in the German Chancellery, the official office of Chancellor Angela Merkel. During the conversation, Koenig asked the Germans to "weigh carefully at every step of the way the implications for relations with the US" that investigations into the CIA-organized abduction would have. In another embassy cable, the Americans reported that Berlin had been informed of the "potential negative implications for our bilateral relationship" in the longer term.

A previously unknown cable from the US Embassy in Berlin, dated Feb. 1, 2007, throws light on how the Germans behaved during this back-room horse-trading. A day earlier, German prosecutors in Munich had issued arrest warrants for 13 suspected CIA operatives believed to have been involved in the abduction of el-Masri in Macedonia in late 2003 as well as in his being taken via Baghdad to a secret CIA prison in Afghanistan on Jan. 23, 2004. There, el-Masri was detained and interrogated until finally being released without charges and brought back to Germany at the end of May that year.

The abduction undoubtedly involved one of the CIA's so-called "extraordinary renditions." After 9/11, the CIA launched a highly secret program (http://www.spiegel.de/international/topic/cia_renditions/) that saw several dozen suspected terrorists abducted in foreign countries and transported to secret detention centers. Over time, journalists and European Union officials only slowly uncovered details about the program. The el-Masri case is one of the best-documented instances of such abductions. When it first came to light, it caused significant strains between Berlin and Washington.

Double-Dealing in Germany

The US diplomatic cables now reveal just how accommodating the Germans were in their behavior toward the Americans. On Feb. 1, American diplomats in Berlin were hectically making calls to people all over Germany in an effort to figure out just how serious German efforts to investigate the CIA abduction were at the time. That evening, they relayed their impressions in cables to the State Department, the Department of Justice and the National Security Council. Given the enormous risks involved in the case to both the CIA and the American government, the report was to be delivered immediately to all three agencies.

The details that have recently emerged illustrate that Germany was engaged in a bit of double-dealing when it came to the el-Masri case. In public, the German government continued to call for an investigation. But neither the government of Chancellor Angela Merkel nor the Justice Ministry would have touched the hot issue of illegal CIA kidnappings if it hadn't have been for the pressure exerted upon them by the media. Behind closed doors, German officials agreed that el-Masri was apparently merely the unfortunate victim of mistaken identity because of his name. But nobody wanted to have investigations into the CIA, which would surely cause even more damage to already tattered German-American relations.

The reports document the fact that this stance was also shared by Munich's public prosecutor's office, the state government of Bavaria and the Justice Ministry, in Berlin. For example, Bavaria's top prosecutor, August Stern, told one American diplomat that he had "felt compelled to act due to media pressure" to issue the arrest warrants. In fact, it was actually the research of journalists that led to the true identifications of the pilots of the CIA jets and the other members of the group involved in the kidnapping.

Bavarian State Officials 'Surprised and Displeased' by Arrest Warrants

According to the diplomatic cable, a short time later, an official from the Bavarian Chancellery, the offices of the state governor and his cabinet, also made an unsolicited call to the US Embassy. In the conversation, the official emphasized that the state's chancellery had played "no role in the actions of the prosecutor, who is independent." At the same time, the official said that the state governor's office had been "surprised and displeased" about the arrest warrants. According to the cable, Bavarian Justice Minister Beate Merk also expressed her surprise to American diplomats, although she refrained from making any other comments.

At the time, one of the most crucial issues for the Americans was whether or not the Munich arrest warrants would be observed outside of Germany. Although the flight manifests of the CIA-affiliated company Aero Contractors used pseudonyms, such as "Kirk James Bird," it wouldn't take too much research to figure out the true names of the CIA's kidnappers. Having an international arrest warrant with their names on it could mean that whenever they traveled -- either in the United States or abroad, whether for business or pleasure -- they could be brought before a court on charges of participating in the state-organized abduction of el-Masri. A trial like that would be a nightmare for the CIA.

Given these circumstances, the US Embassy in Berlin contacted the German Justice Ministry (BMJ), which provided it with some very thoughtful advice. According to one BMJ official, international arrest warrants could only be issued once the ministry had evaluated their legal soundness on a case-by-case basis as well as the "foreign policy implications." The official also cautioned the embassy that any strong political interference by Washington into domestic affairs "might be perceived as an admission of involvement" of the CIA agents by the Germans. Another BMJ official assured the embassy that the cases would not be "handled as routine" and that any step in any investigation would still first require a green light from Berlin.

The Americans also got some helpful hints from Germany's Foreign Ministry in the form of then-State Secretary Georg Boomgaarden, who is currently serving as Germany's ambassador to London. Though he admitted that he had only learned about the arrest warrants from media reports, he said that the legal maneuvers seemed a bit "premature" to him. Indeed, the senior diplomat even voiced his doubt about the validity of international arrest warrants approved by a German court that were apparently only based on information reported in the media. And, if Germany's Justice Ministry were to decide to pursue international arrest warrants, Boomgaarden assured the Americans that the Foreign Ministry would of course take any foreign-policy consequences into account.

It would be easy to write off the details from the cables as mere trifles if they hadn't been confirmed by reality. In 2007, then-Justice Minister Brigitte Zypries decided not to further pursue the 13 CIA agents. Though their names were still on an Interpol wanted persons list, the United States stated that it would not recognize its validity. Zypries explained that the Americans had made clear to her that they would neither arrest nor hand over the 13 CIA agents. In the end, she concluded that, given the slim chances of success, it made no sense to even try to get them extradited.

Olive Yao
26-12-10, 22:17
Deze kwestie is mede uit politiek-filosofisch oogpunt ernstig.

Taken van de staat zijn, burgers te beschermen en de rechtsstaat te handhaven. Ook libertarisme – ultraliberalisme dat een minimale staat wil – erkent tenminste die taken. Als de staat die taken verzaakt zijn burgers daarvoor op zichzelf aangewezen. Wanneer die toestand intreedt vervalt het verbod van eigenrichting.

Duitsland verzaakt zn minimale staatstaken. Dat is ernstig.

Khaled el-Masri's affaire staat niet op zichzelf. Volg als je wilt de link in het artikel hierboven; een en ander zul je al weten.

Joesoef
27-12-10, 19:26
YouTube - RAP NEWS 5: News World Order - the war on journalism (ft. Julian Assange)

Olive Yao
06-01-11, 22:03
US Pressured Italy to Influence Judiciary

Der Spiegel 17 december 2010, John Goetz en Matthias Gebauer

The CIA rendition of cleric Abu Omar in 2003 turned into a headache for Washington when a Milan court indicted the agents involved. Secret dispatches now show how the US threatened the Italian government in an attempt to influence the case. Prime Minister Silvio Berlusconi was apparently happy to help.

lees verder (http://www.spiegel.de/international/europe/0,1518,735268,00.html)


Italian Court Delivers Damning Verdict on CIA Renditions

Der Spiegel 11 mei 2009, Britta Sandberg

A court in Milan has delivered its verdict in the spectacular trial of several CIA agents involved in the 2003 kidnapping of the Islamist Abu Omar. Some 23 American agents received prison terms after being found guilty in absentia. The court's decision is a condemnation of the anti-terror policies of George W. Bush.

lees verder (http://www.spiegel.de/international/europe/0,1518,659418,00.html)


Italiaanse politici, Berlusconi voorop, willen collaboreren met de VS om de zaak in de doofpot te stoppen.
Maar de italiaanse openbare aanklager Armando Spataro blijft de zaak 5 jaar lang onderzoeken, hoewel de regering hem tracht te stoppen.

Spataro: "Staatsgeheimen kunnen in een democratie niet worden gebruikt als voorwendsel om misdaden te verbergen".

Hatert
07-01-11, 00:48
Conclusie: Vrijheid en democoratie is een mythe. Het westen jat zoveel bij elkaar dat zelfs de grootste sukkels binnen de landsgrenzen tevreden gehouden worden maar voor de rest is het allemaal roven, stelen, bedriegen, manipuleren, bombarederen en uitmoorden wat de klok slaat.

Daarom is er verzet tegen deze kafirdemocratie.

Olive Yao
07-01-11, 01:50
Conclusie: Vrijheid en democoratie is een mythe. Het westen jat zoveel bij elkaar dat zelfs de grootste sukkels binnen de landsgrenzen tevreden gehouden worden maar voor de rest is het allemaal roven, stelen, bedriegen, manipuleren, bombarederen en uitmoorden wat de klok slaat.

Daarom is er verzet tegen deze kafirdemocratie.


Conclusie: Vrijheid en democoratie is een mythe.

Onder "vrijheid" verstaan we geen externe bepaling. Vrijheid beschouwen we tevens als waarde. Het abstracte concept en de waarde komen tot bestaan in concrete vrijheden.

Wat is volgens jou een mythe? Het concept? De waarde? Bepaalde concrete vrijheden?

Democratie breidt zich geleidelijk uit en versterkt zich geleidelijk. Dat is wel een project dat nooit klaar zal zijn, iedere generatie moet het opnieuw bewaken.
De belangrijkste bedreiging van democratie is concentraties van macht. Daarbij speelt kapitalisme heden een grote rol: concentraties van geld leiden tot concentraties van macht.

Mainstream theorie over democratie is skeptisch over het functioneren van democratie. I. e., dit skepticisme is mainstream. (Die stelling waag ik op grond van de zeer beperkte hoeveelheid theorie over dit functioneren die ik las). Begrijpelijk.



Daarom is er verzet tegen deze kafirdemocratie.

Verzet tegen democratie van niet-moslims? Dat kan. Wie niet-moslims en democratie afwijst zal ook de combinatie afwijzen. Heeft niets met deze topic te maken.

Olive Yao
09-01-11, 13:06
Spaanse associatie en rechter willen VS “Guantanamo Bay–juristen” vervolgen


Reference ID 09MADRID347 (http://213.251.145.96/cable/2009/04/09MADRID347.html)
Created 2009-04-01 17:05
Released 2010-12-01 23:11
Classification CONFIDENTIAL
Origin Embassy Madrid

Classified By: ADCM William H. Duncan for reasons 1.4 (b), and (d)

¶1. (C) SUMMARY: A Spanish NGO has requested that the National Court indict six Bush Administration officials for creating a legal framework that allegedly permitted torture. The NGO is attempting to have the case heard by Investigating Judge Baltasar Garzon, internationally known for his dogged pursuit of “universal jurisdiction” cases. Garzon has passed the complaint to the prosecutor's office for them to determine if there is a legitimate case. Although he seemed displeased to have this dropped in his lap, Chief Prosecutor Javier Zaragoza told us that in all likelihood he would have no option but to open a case. He said he did not envision indictments or arrest warrants in the near future. He will also argue against the case being assigned to Garzon. MFA and MOJ contacts have told us they are concerned about the case, but have stressed the independence of the Spanish judiciary. They too have suggested the case will move slowly. END SUMMARY.

The Accused
-----------

¶2. (U) The six accused are: former Attorney General Gonzales; David Addington, former chief of staff and legal adviser to the Vice President; William Haynes, former DOD General Counsel; Douglas Feith, former Under Secretary of Defense for Policy; Jay Bybee, former head of the DOJ Office of Legal Counsel; and John Yoo, a former member of Bybee's staff.

¶3. (SBU) The NGO that filed the criminal complaint is the Association for the Dignity of Spanish Prisoners. According to Spanish press reports, a team of four lawyers worked on the complaint. This team also brought a case for a different Spanish NGO in January 2009 against Ehud Barak and six senior Israeli military officials for alleged war crimes in Gaza in 2002. (Note: In early 2009, the press reported that FM Moratinos had told the GOI Spain would revise its universal jurisdiction laws to prevent such cases; we cannot corroborate this. End note.) Gonzalo Boye Tucet is one of the four lawyers behind the current lawsuit and is taking the lead with the media. Open source material identifies Boye as a Chilean-born lawyer who is a former member of the International Revolutionary Movement. He served eight years in a Spanish prison as part of a 14-year sentence he received for his role in the 1988 kidnapping of a Spanish businessman, a plot which reportedly was financed in part by ETA.

¶4. (C) The NGO is emphasizing that Spain has a duty to investigate because five Guantanamo detainees are either Spanish citizens or were/are Spanish residents. However, the NGO does not claim to be representing these individuals. Their names are: Hamed Abderrahman Ahmed (known in the media as “The Spanish Taliban”); Lahcen Ikassrien (aka Chaj Hasan); Reswad Abdulsam; Jamiel Abdul Latif al Bana (aka Abu Anas); and Omar Deghayes.

¶5. (C) The NGO has attempted to steer this case directly to National Court Investigating Judge Baltasar Garzon. For two decades, Garzon has generated international headlines with high profile cases involving Spanish politicians, ETA, radical Islamic terrorists, and crimes against humanity. Perhaps his most famous case was his attempt to bring to trial in Spain former Chilean ruler Augustin Pinochet. Garzon has a reputation for being more interested in publicity than detail in his cases. The NGO's argument for Garzon taking the case is that he investigated some of the individuals named in paragraph four as part of an investigation of al Qaeda cell in Spain. Garzon has passed the NGO's complaint to the prosecutor's office for them to determine if there is a legitimate case.

The Complaint
-------------

¶6. (U) Post has forwarded the 98-page complaint to L. In sum, it alleges that the accused conspired with criminal intent to construct a legal framework to permit interrogation techniques and detentions in violation of international law. The complaint describes a number of U.S. documents, including: a December 28, 2001, memorandum regarding U.S. courts' jurisdiction over Guantanamo detainees; a February 7, 2002, memorandum saying the detainees were not covered by the Geneva Convention; a March 13, 2002, memorandum on new interrogation techniques; an August 1, 2002, memorandum on the definition of torture; a November 27, 2002, memorandum recommending approval of 15 new interrogation techniques; and a March 14, 2003, memorandum providing a legal justification for new interrogation techniques. The complaint also cites a 2006 U.S. Supreme Court case which its says held the February 2002 memo violated international law and President Obama's recent Executive Order on ensuring lawful interrogations.

¶7. (C) The complaint asserts Spanish jurisdiction by claiming that the alleged crimes committed at Guantanamo violated the 1949 Geneva Convention and its Additional Protocols of 1977, the 1984 Convention Against Torture or Other Cruel, Unusual or Degrading Treatment or Punishment, and the 1998 Rome Statute. The GOS is a signatory to all three instruments. The complaint cites Article 7 of the 1984 Convention Against Torture, which states that if a person accused of torture is not extradited to the nation that is bringing a case against him or her, then the competent authorities in the country where the person is should bring a case against him or her. There is media speculation that one of the NGO's goals may be to encourage the U.S. to begin judicial proceedings on this matter.

¶8. (U) The complaint does not specifically call for arrest warrants. Rather, it ends with a call for the Spanish courts to take statements from the accused and to request information from the USG about the various internal documents cited in the complaint (declassification dates and authorities, an official report about the legal nature of memoranda such as the ones cited in the complaint, and an official report on the legal nature and binding force of Executive Orders).

Contacts with Spanish Authorities
---------------------------------

¶9. (C) On April 1, POLOFF and Embassy FSN Legal Adviser met National Court Chief Prosecutor Javier Zaragoza, who said that he personally will decide whether to open a criminal case. There is no statutory timeframe for his decision. Zaragoza said the complaint appears well-documented and in all likelihood he will have no option but to open a case (the evidence was on his desk in four red folders a foot tall). Visibly displeased with this having been dropped in his lap, Zaragoza said he was in no rush to proceed with the case and in any event will argue that the case should not be assigned to Garzon. Zaragoza acknowledged that Garzon has the “right of first refusal”, but said he will recommend that Garzon's colleague, Investigating Judge Ismael Moreno, should be assigned the case. Zaragoza said the case ties in with Moreno's ongoing investigations into alleged illegal “CIA flights” that have transited Spain carrying detainees to Guantanamo. Zaragoza said that if Garzon disregards his recommendation and takes the case, he will appeal. Zaragoza added that Garzon's impartiality was very suspect, given his public criticism of Guantanamo and the U.S. war on terror (we note that, among other things, Garzon narrated a documentary in 2008 that was extremely critical of the U.S. involvement in Iraq and Afghanistan and its approach to fighting terrorism) and his August 2008 public statements that former President Bush should be tried for war crimes.

¶10. (C) Zaragoza noted that Spain would not be able to claim jurisdiction in the case if the USG opened its own investigation, which he much preferred as the best way forward and described as “the only way out” for the USG. He cited the complaint against Israeli officials mentioned above and said he would request the investigating judge close that case once he had formal notice that the Israelis had opened their own investigation.

¶11. (C) On March 31 and April 1, the Acting DCM discussed the case separately with FM Moratinos' Chief of Staff Agustin Santos, and MOJ Director General for International Judicial Cooperation Aurora Mejia. Santos said the case was worrisome. He noted that the Spanish judiciary was independent, but he opined that these universal jurisdiction cases often sputtered out after the initial burst of publicity. He also noted that they tended to move very slowly through the system. Mejia also stressed that the judiciary was independent, and added that the MOJ had no official information regarding the case and knew nothing about it beyond what the media had reported. She said privately that the reaction to the complaint in the MOJ was “horror”. A/DCM stressed to both that this was a very serious matter for the USG and asked that the Embassy be kept informed of any developments.

Comment
-------

¶12. (C) Given Spain's reputation for liberally invoking universal jurisdiction, this may not be the last such case brought here (nor is it the first -- in 2007, a different Spanish NGO brought a complaint against former SECDEF Rumsfeld for crimes against humanity based on the Iraq war and Abu Ghraib. Zaragoza told us that case was quietly dismissed although he could not recall the grounds). The fact that this complaint targets former Administration legal officials may reflect a “stepping-stone” strategy designed to pave the way for complaints against even more senior officials. Both the media and Post's FSN Legal Advisor suspect the complaint was prepared with the assistance of lawyers outside Spain, perhaps in the U.S., and perhaps in collaboration with NGO's such as Human Rights Watch or Reprieve. It appears to have been drafted by someone who understands the U.S. legal system far better than the average Spanish lawyer. For all the publicity universal jurisdiction cases excite (Garzonâ's attempt to extradite Pinochet from the UK comes to mind), we only know of one case ever tried here (involving a former member of Argentina's military junta). Based on what Zaragoza told us, we suspect the case will eventually be referred to the National Court for investigation, although that step may not come for some time. Once it reaches the National Court, these cases seem to move slowly, periodically generating publicity as new evidence is taken (as with Moreno's investigation into so-called Guantanamo flights). Whether this case will end up with Garzon, Moreno, or some other judge, we cannot say. Garzon, despite his penchant for publicity and criticism of certain aspects of U.S. policy, has worked well with the U.S. on more routine criminal matters (although we think a direct approach to him on this case could well be counter-productive). Moreno, while his reputation as a judge stands higher among legal insiders, has been cooler in his dealings us. We suspect the Spanish Government, whatever its disagreements with the policies of the Bush Administration, will find this case inconvenient. Despite the pro forma public comment of First Vice President Fernandez de la Vega that the GOS would respect whatever decision the courts make in this matter, the timing could not be worse for President Zapatero as he tries to improve ties with the U.S. and get the Spanish public focused on the future of the relationship rather than the past. That said, we do not know if the government would be willing to take the risky step of trying behind the scenes to influence the prosecutor's recommendation on this case or what their reaction to such a request would be. CHACON

Olive Yao
09-01-11, 13:08
Politieke en diplomatieke reacties


Reference ID 09MADRID392 (http://213.251.145.96/cable/2009/04/09MADRID392.html)
Created 2009-04-17 06:06
Released 2010-12-01 23:11
Classification CONFIDENTIAL
Origin Embassy Madrid

1. (C) SUMMARY. On April 16, Candido Conde Pumpido, Spain's Attorney General (AG), publicly stated that prosecutors will "undoubtedly" not support a criminal complaint, filed by a Spanish NGO with the National Court, to investigate six former USG officials, including former AG Alberto Gonzalez, for creating a legal framework that allegedly permitted torture. During a Q&A session of a previously scheduled public address, Conde Pumpido responded to a question on the issue by stating that he will not support the criminal complaint because it is "fraudulent," and has been filed as a political statement to attack past USG policies. The AG noted that the GOS could not pursue a complaint that targeted USG advisors while a similar suit against the Defense Secretary Rumsfeld (see REF B) had failed. While Conde Pumpido defended the GOS's investigation of universal jurisdiction cases to defend human rights, he said that the policy will not be used as a toy or a tool to force the GOS into investigating the decisions of another government. The AG added that if there is evidence of criminal activity by USG officials, then a case should be filed in the United States. Addressing next steps, the AG's press chief subsequently told the media that the Prosecutor's office will deliver the AG's recommendation to the National Court, where it will be up to investigating judge Baltasar Garzon - an outspoken critic of the Guantanamo detention facility who has publicly stated that former President Bush should be tried for war crimes - to decide whether to pursue the case or not. As reported in REFTELs, Conde Pumpido's public announcement follows outreach to GOS officials to raise USG deep concerns on the implications of this case. END SUMMARY.

//BACKGROUND ON THE CASE//

2. (C) As reported in REF B, a Spanish NGO - Association for the Dignity of Spanish Prisoners - in March 2009 requested that the National Court indict six former U.S. officials for creating a legal framework that allegedly permitted torture. The six accused are: former AG Alberto Gonzales; David Addington, former chief of staff and legal adviser to the Vice President; William Haynes, former DOD General Counsel; Douglas Feith, former Under Secretary of Defense for Policy; Jay Bybee, former head of the DOJ Office of Legal Counsel; and John Yoo, a former member of Bybee's staff. The NGO claimed that Spain had a duty to open a "universal jurisdiction" case because five Guantanamo detainees are either Spanish citizens or were/are Spanish residents. Although he seemed displeased to have this dropped in his lap, Chief Prosecutor Javier Zaragoza on April 1 privately told Embassy officials the complaint - at first glance - appeared well-documented and in all likelihood he would have no option but to open a case.

//ANNOUNCEMENT FOLLOWS INTENSIVE USG OUTREACH//

3. (C) Following revelations by the Spanish press that the complaint had been filed, the Acting DCM on March 31 and April 1 phoned FM Moratinos' Chief of Staff Agustin Santos, and MOJ Director General for International Judicial Cooperation Aurora Mejia about the matter. Both expressed their concern at the case but stressed the independence of the Spanish judiciary. The A/DCM stressed to both that this was a very serious matter for the USG and asked that the Embassy be kept informed of any developments.

4. (C) As reported in REF A, Senator Judd Gregg, accompanied by the Charge d'Affaires, raised the issue with Luis Felipe Fernandez de la Pena, Director General Policy Director for North America and Europe during a visit to the Spanish MFA on April 13. Senator Gregg expressed his concern about the case. Fernandez de la Pena lamented this development, adding that judicial independence notwithstanding, the MFA disagreed with efforts to apply universal jurisdiction in such cases.

5. (C) Zaragoza on April 14 called Embassy Madrid's FSN Legal Adviser and informed her that a more thorough study had revealed that the complaint was targeted against legal advisors with no executive authority and that it was legally difficult to establish what type of offense the six had committed and the degree to which they participated in the alleged offenses. Zaragoza said the complaint lacked details and was directed against USG policy rather than a specific perpetrator. He said he would ask Conde Pumpido to review whether Spain has jurisdiction in this case and indicated that he hoped the Spanish AG would draft a clear set of rules on how and when Spain should prosecute universal jurisdiction complaints.

6. (C) As reported in SEPTEL, Senator Mel Martinez, accompanied by the Charge d'Affaires, met Acting FM Angel Lossada during a visit to the Spanish MFA on April 15. Martinez and the Charge underscored that the prosecutions would not be understood or accepted in the U.S. and would have an enormous impact on the bilateral relationship. The Senator also asked if the GOS had thoroughly considered the source of the material on which the allegations were based to ensure the charges were not based on misinformation or factually wrong statements. Lossada responded that the GOS recognized all of the complications presented by universal jurisdiction, but that the independence of the judiciary and the process must be respected. The GOS would use all appropriate legal tools in the matter. While it did not have much margin to operate, the GOS would advise Conde Pumpido that the official administration position was that the GOS was "not in accord with the National Court". Lossada reiterated to Martinez that the executive branch of government could not close any judicial investigation and urged that this case not affect the overall relationship, adding that our interests were much broader, and that the universal jurisdiction case should not be viewed as a reflection of the GOS position.

7. (C) Meanwhile, the Embassy has been involved in DOJ-led talks to have Zaragoza - who attended the April 16 press conference - lead a four-person team of GOS officials to Washington for a possible meeting with U.S. Deputy AG David Ogden or AG Eric Holder during the week of May 18. Zaragoza's wife, who is Conde Pumpido's chief of staff, would reportedly be one of the four.

//COMMENT//

8. (C) Although not legally binding on the National Court, Conde Pumpido's announcement puts pressure on crusading judge Garzon, who has not yet accepted the case, not to proceed with the investigation. As described in REF B, Zaragoza has indicated to Post - and reconfirmed this in his April 14 phone call in Para 3 - that he would argue that the case should not be assigned to Garzon and instead would recommend that Garzon's colleague, Investigating Judge Ismael Moreno, should be assigned the case. Zaragoza said the case ties in with Moreno's ongoing investigations into alleged illegal "CIA flights" that have transited Spain carrying detainees to Guantanamo. Zaragoza acknowledges that Garzon has the "right of first refusal", but has told Post that if Garzon disregards his recommendation and takes the case, the prosecutor will appeal. When a judge disagrees with the prosecutor on how or what to investigate, then the prosecutor has the right to appeal to a higher court, in this case the National Court's Criminal Chamber, led by Javier Gomez Bermudez. During this period in which the jurisdiction of the case is in question, Garzon could still proceed with the case, including preparing MLATs to question to the accused, formally naming the accused as defendants, and issuing arrest warrants against them. Investigating judges in Spain, including and especially Garzon, have used this tactic frequently, particularly when these actions are popular with sizable segments of the Spanish population. This worst-case scenario remains a possibility at this point. Zaragoza has also told us that if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain. We intend to further explore this option with him informally (asking about format, timing, how much information he would need, etc.) while making it clear that the USG has not made a decision to follow this course of action. CHACON

Olive Yao
09-01-11, 13:12
Rechter van de zaak gehaald


Reference ID 09MADRID440 (http://213.251.145.96/cable/2009/05/09MADRID440.html)
Created 2009-05-05 15:03
Released 2010-12-01 23:11
Classification UNCLASSIFIED//FOR OFFICIAL USE ONLY
Origin Embassy Madrid

1. (SBU) Summary: Spanish National Court (Audiencia Nacional) investigating judge Baltasar Garzon has announced he will pursue an investigation into allegations the U.S. tortured terrorism detainees at Guantanamo. He has yet to name any targets of his investigation. This comes days after he was forced to give up a related complaint filed by an NGO against six Bush Administration officials (ref a). At the urging of Spanish prosecutors, the earlier case was reassigned to another National Court judge who now appears to be trying shelve the case. The Chief Prosecutor for the National Court tells us he will also fight Garzon's latest move. Nevertheless, we suspect Garzon will wring all the publicity he can from the case unless and until he is forced to give it up. End summary.

2. (U) Garzon bowed to arguments by Spanish prosecutors and April 17 forwarded to National Court docketing authorities a case recently filed against six Bush Administration officials (ref a). That case was duly assigned to investigating judge Eloy Velasco. We learned May 5 that Velasco has declined to process that case saying that before moving forward the USG should be asked if proceedings are underway in the U.S. He also offered to transfer the proceedings to the U.S. under the MLAT. We are waiting for a copy of Velasco's ruling and will advise further when we receive it. Meanwhile, Garzon announced April 29 that he was commencing a separate investigation into alleged U.S. torture of terrorism detainees.

3. (SBU) LEGATT and Embassy FSN Legal Advisor met May 4 with National Court Chief Prosecutor Javier Zaragoza (protect) to discuss Garzon's latest move. Zaragoza said he had challenged Garzon directly and personally on this latest case, asking if he was trying to drum up more speaking fees. Garzon replied he was doing it for the record only and would let it die. Zaragoza opined that Garzon, having gotten his headline, would soon drop the matter. In case he does not, Zaragoza has a strategy to force his hand. Zaragoza's strategy hinges on the older case in which Garzon investigated terrorism complaints against some Guantanamo detainees. In connection with those earlier investigations, Garzon ordered the Spanish police to visit Guantanamo and collect evidence against the suspected terrorists. Zaragoza reasons that he can use this fact to embarrass Garzon into dropping this latest case by suggesting Garzon in some sense condoned the U.S. approach to detainee issues circa 2004. Garzon took no action in 2004 when the suspects returned to Spain and reported to him their alleged mistreatment. Zaragoza said that if Garzon could not be shamed into dropping the case, then he would formally recommend Garzon do so and appeal if Garzon ignored him.

4. (SBU) Key to Zaragoza's plans is the fact that there is yet another Guantanamo-related case underway in the National Court. That case relates to so-called CIA flights carrying detainees to Guantanamo via Spain and is being heard by investigating Judge Ismael Moreno (ref c). The police officers whom Garzon sent to Guantanamo years ago are expected to testify before Moreno this month, and Zaragoza hopes their testimony will put on record Garzon's role in the earlier cases. (Note: In opening his most recent Guantanamo investigation, Garzon asked that Moreno turn his detainee flights case over to him; Zaragoza thought there was no chance Moreno would agree to do so. End note.) Zaragoza is also banking on the fact that Garzon is already in hot water over his excessive zeal in another case. A few months ago, Garzon opened an investigation into Spanish civil war atrocities. Garzon persisted in his investigation in the face of all advice to the contrary from prosecutors. The case was finally wrestled away from Garzon, but there is now a criminal complaint against him in the Supreme Court, alleging abuse of authority. That complaint has the support of Spanish prosecutors. Zaragoza doubts Garzon will risk a second such complaint.

5. (SBU) As we have reported, with respect to the earlier complaint against six Bush Administration officials, Zaragoza has repeatedly suggested that a USG affirmation that the U.S. is investigating the torture issue could help dispose of Spanish judicial inquires into the subject. In that regard, the Spanish press reported today that National Court investigating judge Fernando Andreu, who is handling a case against Israeli officials accused of war crimes in Gaza in 2002, has refused to drop the case despite a request from prosecutors. The prosecutors had argued that Israel was investigating the matter. In refusing to close the case, Andreu argued that Gaza was not part of Israel and thus Israeli authorities were not the ones who should be investigating crimes allegedly committed there. The press reports that the President of the Supreme Court and Spain's Judicial Council (Consejo General del Poder Judicial), Carlos Divar, is arguing for reforming the jurisdiction of the National Court to avoid having it turned into the "judicial police of the world." Zaragoza has commented to us that while many talk about limiting Spain's universal jurisdiction rules, it is unlikely politicians will act to do so.

Comment
-------

4. (SBU) We believe Zaragoza is acting in good faith and playing a constructive role. Certainly he knows Garzon better than we do, having sparred with him before. Nevertheless, we do not share his optimism that this problem will go away anytime soon. Having started, it is hard for us to see why the publicity-loving Garzon would shut off his headline-generating machine unless forced to do so. And forcing him to do so could take months. We also fear Garzon -- far from being deterred by threats of disciplinary action -- may welcome the chance for martyrdom, knowing the case will attract worldwide attention. In any event, we will probably be dealing with this issue for some time to come. Zaragoza will be in Washington in early June for LEGATT-organized consultations on CT cooperation. L and DOJ may wish take that opportunity to discuss these cases with him directly at that time. CHACON

Olive Yao
09-01-11, 20:54
CENTER FOR CONSTITUTIONAL RIGHTS

About CCR
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.


THE SPANISH INVESTIGATION INTO U.S. TORTURE (http://ccrjustice.org/ourcases/current-cases/spanish-investigation-us-torture)

Synopsis
Seeking a venue in which to hold former high-ranking U.S. officials accountable for their individual roles in directing, implementing or planning the U.S. torture program, victims and human rights advocates filed criminal complaints in Spain in 2009.

Status
Currently, there are two investigations related to the U.S. torture program pending in the National Court of Spain. The Center for Constitutional Rights has made filings in both, in an effort to ensure that victims have their day in court and that the individuals behind the program that tortured and otherwise seriously abused detainees are prosecuted.

(...)

On April 27, 2010, the Center for Constitution Rights filed a motion to join the current investigation as a party (acusación popular). (...)

(...)

On December 14, 2010, CCR and ECCHR submitted a Supplemental Joint Expert Opinion, advising the Court of recent factual developments in relation to the US torture program, defendants and actions by U.S. officials to interfere with these proceedings, as revealed through the recently released State Department cables.

(...)