YEMEN: A TALE OF TWO (TERRORISM) TRIALS

C O N F I D E N T I A L SECTION 01 OF 03 SANAA 002021

SIPDIS

STATE FOR NEA/ARP AND OPS CENTER

E.O. 12958: DECL: 08/16/2014
TAGS: PTER PREL ASEC YM COUNTER TERRORISM
SUBJECT: YEMEN: A TALE OF TWO (TERRORISM) TRIALS

REF: A. SANAA 1636

B. 03 SANAA 2454

Classified By: Ambassador Thomas Krajeski for reasons 1.4 (b and d).


1. (C) Summary: Ongoing trials for 15 al-Qa'ida associates
(Trial One) and the USS Cole (Trial Two) defendants are
expected to end in the last week of August. While Trial One
has been chaotic and presided over by an ineffective judge,
the USS Cole trial exemplifies effective U.S.-Yemen
cooperation. U.S. presence and cooperation in the trial has
been conducted according to traditional Yemeni roles for
victims' families in the courts. Post expects both Judges to
issue their decisions by mid to late September. The appeals
process could take six to twelve months. Post will work with
PA and FBI to create appropriate press guidance and carefully
monitor the security situation closer to the announcement of
the sentences. End summary.

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Trial One: A Judge Overwhelmed
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2. (C) On the first day of the trial of 15 terror suspects
accused in the Limburg bombing and planning of attacks on
U.S. and other Western diplomats, Judge Ahmed al-Jarmouzi was
forced to appoint lawyers for the defendants, quell the
spirited responses of families and manage a courtroom
unsuited for a high-profile trial (ref A). While some
improvements were made in courtroom organization and
security, the trial remains disorganized. At times, the
defendants shouted in unison, "No God but God and Usama Bin
Laden is God's beloved," "America is the enemy of God," and
"We want bin Ladin as our only leader, no one else will
satisfy us." Al-Jarmouzi repeatedly ordered the defendants
to stop their shouting and leave the courtroom, but often
relented and kept the defendants in the courtroom. At one
point during Trial One, prosecutors Saeed Aql and Ali Samet
(who are also prosecuting the USS COLE trial) walked out of
the proceedings because al-Jarmouzi did not silence the
chants. Al-Jarmouzi also failed to effectively manage
defense attorneys who have left the proceedings three times
to protest the refusal of the judge to provide them with
photocopies of evidentiary files. According to Yemeni law,
defense attorneys may have access to, but not copies of
evidence. The Minister of Human Rights recently made
statements in support of the defense attorneys right to have
access to the files.


3. (U) The defendants are all believed to be al-Qa'ida
associates and are charged with involvement in:
-- the 9/02 explosion in an al-Qa'ida safehouse in the
al-Qadissiya neighborhood of Sanaa where 13 crates of
explosives were found;
-- the 10/02 M/V Limburg bombing;
-- the 11/02 Hunt Oil Company helicopter attack;
-- the al-Qa'ida cell rolled up in fall 2003 with plans to
target the U.S., British, French and Cuban Embassies.

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USS COLE Trial: Expanded Use of Evidence
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4. (C) In contrast to the chaotic atmosphere of Trial One,
Judge Nagib al Qadari quickly established order in the USS
COLE trial. Qadari is the same judge who sentenced Aden Abya
Islamic Army Chief, Abdul Hasan al-Mihdar, to death for the
1998 hostage taking that resulted in the deaths of three
western tourists. In July, Qadari fined the defense
attorneys 2,000 Riyals (21 USD) for repeatedly asking for
photocopies of the evidentiary files and claiming that they
could not proceed with the case without the information in
question. In what the Legatt's office characterized as a
fair decision, Judge Qadari ruled the he would provide
photocopies of the material on a case-by-case basis.
However, defense attorney al-Anisi still insists on receiving
complete copies of files and said he would appeal the case
based on the judge's ruling. Qadari dismissed al-Anisi from
the courtroom. To date, al-Anisi has not returned to the
trial.

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The Defense: Conspiracy, Emotion and Little Proof
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5. (C) Defense attorneys al-Anisi, al-Samawi and al-Alawi are
the primary defense attorneys for both trials. Basing his
cases on emotion, al-Anisi often directs arguments towards
the journalists rather than refuting state's evidence.
(Note: President Saleh appointed al-Anisi as Sheikh Mohammed
al-Moayed's defense attorney. In November 03, al-Moayed was
extradited from Germany to the United States and presently is
awaiting trial on charges of supporting al-Qa'ida. Al-Anisi
received his visa on 8/18 and is making preparations for
travel to the U.S. End note). Al-Samawi, who spent 33 years
in Parliament, uses conspiracy theories involving other
alleged perpetrators in an attempt to prove the innocence of
his clients.


6. (C) In Trial One the three defense attorneys have offered
no rebuttal and instead focused on their claims for full
access to evidence. Their USS COLE defense can best be
summarized as follows:
-- How could Yemenis blow up a huge, powerful American ship?
-- The explosives used in the operation (RDX/TNT) are only
made in Israel and America, therefore Yemenis could not be
responsible.
-- Taliban/al-Qa'ida forbid the use of video cameras on
religious grounds, therefore Yemenis trained in Afghanistan
by al-Qa'ida could not have video taped an operation. (This
defense argument received laughter in the courtroom).
-- The ROYG is prosecuting these suspects because they are
unable to produce the real culprit.

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The Prosecution: A Barrage of Evidence
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7. (C) Lead prosecutor Aqel and his deputy Samet are
prosecuting methodically built cases based on evidence from
investigations, lab reports and confession statements. Samet
gained experience in terrorist cases prosecuting al-Mihdar
under Judge Qadari. While both cases are gaining positive
reviews in the official press, al-Aqel and Samet have
received threats and are under 24/7 surveillance. Near the
end of June, a grenade was thrown at Aqel's house burning his
car. Steady, but at times uneven, cooperation between Legatt
and ROYG greatly contributed to what one local newspaper
called the prosecution's "barrage of evidence" implicating
the USS COLE suspects.

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Justice, Yemeni Style
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8. (C) Prior to these two trials, terrorism cases were
investigated by the Political Security Organization (PSO),
who either handed defendants over to Supreme Court Judge
al-Hitar for dialogue (ref A),or were turned over to the
Prosecutor General for trial. If the case went to trial, the
prosecution initiated a new investigation. Since the
prosecution rarely had access to PSO files and could not
conduct new investigations, government efforts usually relied
on confessions for conviction. In the ongoing terrorism
trials, FBI representatives helped the prosecution develop
stronger indictments and provided support in understanding
ways to link evidence producing tighter cases. Legatt
believes the USS COLE trial is the first time DNA evidence
will be used in a Yemen court of law. At times, FBI
cooperation helped ROYG investigators identify connections
and develop new leads as Yemeni investigators had little
experience building evidentiary based cases.


9. (C) American presence at the trials is based on the
traditional role of the victim's families in the Yemeni
Judicial system. Justice Department representatives have
acted as family spokespersons and made clear that any
assistance provided to the ROYG falls under their role as
advocates for the family. Legatt advises that future
cooperation in Yemeni terrorism trials be characterized in
this manner.


10. (C) Attorney General al-Olafy asked Legatt, as
representatives for the families, to stand in court and
recommend a sentence for the USS COLE trial. In order to
avoid the public exposure of Americans speaking at trial, the
judge and prosecutor agreed that the Legatt's office could
reply via letter. The letter expressed the following:

-- The Legatt office is present at the trials to represent
the families of the victims.
-- The USG expects the defendants to be tried under Yemeni
law.
-- If the defendants are found guilty, the USG asks that they
be punished to the full extent of Yemeni laws.

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What Happens Next?
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11. (C) Both trials are expected to conclude by the last week
in August. Most observers believe that the judges will issue
their decisions by the end of September. Defense attorney
al-Anisi has repeatedly claimed that based on Qadari's
decision concerning evidence in the USS COLE trial, he will
appeal. Appeals are also likely in Trial One. The appeals
could take six-twelve months.

12. (C) Comment: Post expects all defendants to be found
guilty. Sentences may vary from capital punishment in one or
two cases, to a range of prison terms for the rest. Post
anticipates increased anti-American sentiment around the time
the verdicts and sentences are announced. In preparation,
post is developing press guidance and will closely monitor
any increased threats. End comment.
KRAJESKI