SPAIN: YARKAS TERRORIST TRIAL UPDATE

C O N F I D E N T I A L SECTION 01 OF 04 MADRID 002223

SIPDIS

DEPARTMENT PASS TO EUR/WE
L/LEI
S/CT

E.O. 12958: DECL: 06/10/2015
TAGS: PTER PGOV SP
SUBJECT: SPAIN: YARKAS TERRORIST TRIAL UPDATE

REF: MADRID 01584

Classified By: Classified by Political Counselor Kathy Fitzpatrick for
reasons 1.4 (B) and (D)


1. (C) SUMMARY: On April 22, judge Javier Gomez Bermudez of
the Spanish National Court initiated trial proceedings
against 24 defendants, mostly Syrian-born residents of Spain,
accused of belonging to a radical Islamic terrorist cell
linked to al-Qa'ida (Reftel). Three defendants, the main one
being alleged al-Qa'ida financier Barakat Yarkas, were also
charged with murder in connection with the September 11
attacks in the U.S. This trial is not directly linked to the
March 11, 2004, attacks in Madrid. Prosecutors are seeking
prison sentences of over 62,000 years in each of their cases,
a symbolic punishment since under Spanish law they can only
serve a maximum of 30 years. The defendants have adopted a
simple strategy of denying the charges against them and
claiming that their previous statements were extracted under
duress.


2. (C) The main government witness, police investigator Gomez
Menor, provided substantial details linking some of the
defendants to al-Qa'ida activities in Spain and abroad,
including recorded conversations, financial records, and
items seized from the defendants' residences (weapons,
diagrams, written correspondence, videos and photos). While
prosecutors are confident that they will win convictions
against some of the defendants on charges of belonging to a
terrorist organization, they acknowledge that the evidence in
support of the most serious charges appears weak and
circumstantial. The judge has released eight of the
defendants on bail since the start of the trial, indicating
his skepticism of the charges against them. This message is
intended as a broad overview of the progress of the trial to
supplement the daily trial updates provided by e-mail to the
Department and USDOJ. END SUMMARY


3. (U) On April 22, Spanish judge Javier Gomez Bermudez
opened the trial of 24 defendants accused of belonging to a
radical Islamic terrorist cell linked to al-Qa'ida (Reftel).
Three of the defendants (Imad Eddin Barakat Yarkas, Ghasoub
Al Abrash Ghayoun and Driss Chebli) are accused of having
connections to the September 11 attacks in the United States.
Prosecutors have charged these three defendants with murder
and are seeking sentences of over 62,000 years for each (a
symbolic figure since the maximum sentence in Spain is 30
years). The majority of the defendants face charges of
"membership in a terrorist organization," which carries a
nine-year prison sentence. The trial was originally
scheduled to last eight weeks, but at its current pace may
last significantly longer.

//DENY, DENY, DENY//


4. (SBU) The defendants appear to have adopted a simple
strategy - denying any involvement in terrorist activity and
claiming that any incriminating statements they made during
the investigative phase were extracted under duress.


5. (U) Much of the questioning by the three-judge panel led
by Gomez Bermudez has focused on foreign trips and alleged
recruitment activity by the defendants, the defendants'
possession of firearms, photographs and materials seized in
their apartments that seemed to link the defendants to
jihadist activities, and suspicious financial transactions.


6. (U) During the initial round of questioning, each of the
defendants steadfastly denied any involvement in al-Qa'ida
recruiting efforts. Defendants claimed that travel to
Indonesia, Bosnia, Lebanon, Afghanistan, Pakistan and Yemen
was for business or personal reasons and unconnected to
terrorist activity.


7. (U) Several of the defendants also claimed that weapons
found in their residences were non-functional and/or
decorative in nature. The defendants said that photos of
themselves in mujahidin garb were traditional photos taken as
souvenirs. Several defendants explained away questionable
financial transactions as an Arab custom of borrowing or
loaning money within their community. Many defendants
claimed that they couldn't remember specific dates or details
in response to the questioning. All of the defendants
claimed that they knew the other defendants through normal
social contacts, not membership in radical associations.


8. (U) Defendant Taysir Alony's testimony was of particular
interest for trial observers since he was the only defendant
who had had personal contact with Osama Bin Laden. Alony, an
Al Jazeera reporter, stated that he was able to interview Bin
Laden only after "Bin Laden's people" contacted him, as Al
Jazeera was the only news organization in Afghanistan in the
period immediately following the September 11 attacks. Alony
said that he was blindfolded and driven to the interview
site, where he was allowed to only ask approved questions,
and that did not have any further contact with Bin Laden. In
addition, Alony denied attending a terrorist training camp in
Afghanistan, stating that he only visited one military camp
in his capacity as a reporter, upon invitation from the
Taliban government. Alony acknowledged transferring several
thousand dollars to a jihadist fighter, but claimed he
believed he was just giving the fighter money from a relative.


9. (SBU) Barakat Yarkas' testimony was characterized by
denial of any involvement in terrorist activity and claims of
an inability to remember details of conversations, trips and
financial transactions.


10. (U) The prosecutor questioned Yarkas in regard to his
relationships with Abdelkader Hassan Abuj (reportedly
associated with Hamas),London-based radical cleric Abu
Qutada, and senior al-Qa'ida operatives Mustafa Setmarian,
Mohammad Atta, Ramzi Binalshibh, Abu Zubaida, Mohamed
Bahaiah, and Jayed Zaman. In all cases, Yarkas stated that
he knew them "socially", from either his mosque or through
mutual friends, and that he had no knowledge of their alleged
involvement in terrorist activity.


11. (U) In regard to his conversations with a suspected
terrorist known as "Shakur" (see paragraph 9),Yarkas stated
that Shakur was a "friend of a friend" whom Yarkas' brother
had helped with an immigration issue.


12. (U) Yarkas further claimed that he didn't know what
Shakur was talking about during the conversations leading up
to September 11. Finally, Yarkas stated that the various
financial transactions presented by the prosecution were
characteristic of Arab society and that he could not remember
the specifics details of the deals.


13. (U) On June 8, a witness, whose identity was protected,
testified that he saw Barakat Yarkas, Mohammed Atta and Ramzi
Binalshibh together on the Barcelona metro one morning in
early June 2001. The witness testified that he noticed the
three because they were wearing identical black leather
jackets, despite the hot weather at that time of the year.
He further stated that he didn't think anything of it at the
time, until he saw photographs of the individuals in the
press. The court showed the witness a number of photographs
and the witness correctly stated that Atta was not among
those pictured. The witness then accurately identified
Yarkas and Binalshibh in three pictures. According to the
press, Yarkas broke down in tears after the testimony by the
protected witness and the presiding judge entered the secured
area to comfort Yarkas.

//DEFENDANTS ALLEGE COERCION BY JUDGE GARZON//


14. (C) Defendants Kamal Hadid Chaar and Abdulla Khayata
Katan asserted that Investigating Magistrate Baltasar Garzon,
who led the GOS investigation of the Barakat Yarkas cell, had
coerced them into making false confessions of involvement in
terrorist activity. Embassy personnel who attended the trial
observed that tape recordings of the defendants' statements
had frequent unexplained gaps and that the officials
conducting the interrogation often did not note the start and
stop times of each recording. In conversations with Embassy
staff, prosecutors privately expressed frustration with
Garzon's preparation of the case. In particular, the poor
quality of the recordings left the defense attorneys a
credible opening to claim they had been forced to make
self-incriminating statements and to allege that Garzon had
selectively tape recorded their comments.

//AN 11-YEAR INVESTIGATION INTO BARAKAT YARKAS//


15. (U) The trial's first prosecution witness, police
investigator Rafael Gomez Menor, began testifying in the case
on May 17. Gomez, the lead investigator for the case,
testified that the investigation began in 1994, when the
Spanish police received a tip about a group called "Soldiers
of Allah", which was distributing radical literature in a
Madrid area mosque in support of mujahidin recruitment.
Gomez outlined the alleged ties of various defendants to
al-Qa'ida figures, recruitment and fundraising activities, as
well as trips taken by various cell members to wage jihad in
Bosnia, Lebanon, Chechnya, Indonesia and Afghanistan. The
majority of the evidence submitted to support Gomez's
testimony consisted of recorded conversations, weapons seized
in the defendants' homes, written and electronic
correspondence, financial records and other items seized in
searches.

16. (U) Of note, in Gomez' testimony, a number of telephone
calls allegedly connect defendant Yarkas with major al-Qa'ida
and radical Islamic figures in many different countries, to
include, among others, al-Qa'ida figures: Abu Zubaidah, Abu
Qutada, Jaled Fawat, Omar Mahmud Ohman, Abu Walid and Jamil
Abdulatif Albana. Specific telephone calls identified by the
witness outline alleged contact between Yarkas and members of
Tunisian, Algerian, Moroccan, Libyan and Bosnian Islamic
combat groups.


17. (U) In addition, a search of the residence of another key
cell member, Amer Azizi (not in custody),resulted in the
discovery of an e-mail address (SAFAR86@usa.net) identified
as belonging to an unidentified person living in the U.S. who
facilitated travel for Al Qaeda members and was in direct
contact with Abu Zubaida and Khalid Sheik Mohamed, the
organizer of the 9-11 attacks.


18. (U) Gomez outlined various defendants' alleged
involvement in the founding of a terrorist training camp in
Indonesia, which included trips to the region, financial
transactions to facilitate travel and recorded telephone
conversations during which gunfire was heard in the
background and statements were made about the ease of
obtaining identification documents.


19. (U) Gomez testified in regard to three defendants'
specific connections to 9/11. The first defendant, Barakat
Yarkas, reportedly received telephonic updates from a
September 11 conspirator called "Shakur" (whose real identity
may be Farhid Hilali) to discuss the progress of the group's
preparations for the attack. Gomez cited several phone
calls, received by Yarkas during August and September of
2001, in which Shakur made statements such as "we have
entered the field of aviation" and advising Yarkas that "the
bird's neck" would soon be cut.


20. (U) Shakur reportedly stated that the group was taking
very good classes and would need approximately one month to
complete its work.


21. (U) Prosecutors describe these conversations as evidence
that Yarkas knew significant details of planning for the 9/11
attacks and was therefore a co-conspirator. This is the
foundation of the murder charges against him.


22. (U) In addition to the telephone calls, Yarkas' phone
number was found among the effects of Mamoun Darkanzali, a
member of the Atta cell in Germany. Gomez also stated that
Yarkas facilitated the formation of the Atta group by
introducing various cell members to each other.


23. (U) Gomez also testified regarding his investigation of
the other two defendants facing murder charges. He said
Driss Chebli had close ties to Mohamed Atta's cell in
Hamburg, Germany, to include providing assistance to Mohamed
Belfatmi and Ramzi Binalshibh.


24. (U) Regarding the third defendant, Ghasoub Al Abrash
Ghayoun, prosecutors assert that he was linked to the attacks
by a videotape that he made during a trip to the U.S. Gomez
displayed Ghayoun's videotape, which contained images of
airplanes in hangars and of the support structures of the
Golden Gate Bridge. In one segment of the video, Ghayoun is
heard commenting that if a particular pillar were to come
down, the whole bridge would collapse.


25. (U) Ghayoun also filmed the World Trade Center (WTC) from
the roof of one of the towers and made other videos of the
towers from different vantage points. In earlier testimony,
Ghayoun claimed that the video was made at the request of
architect friend, a claim that the architect has consistently
denied. Despite the suspicious nature of the video, Gomez
acknowledged that there was no evidence that the video filmed
by Ghayoun was ever transmitted to al-Qa'ida.

//EIGHT DEFENDANTS RELEASED FROM DETENTION//


26. (C) The apparent circumstantial nature of the evidence
collected by the Spanish authorities has proven a significant
challenge for the prosecutors. A total of eight defendants
have been released, six on bail and two for health reasons,
after the judge determined that they did not pose a flight
risk. This implies that the judge does not believe that the
defendants in question will be convicted of serious charges.
All of the released defendants must report to the police on a
daily basis and appear in court for the trial.


27. (U) Defendant Taysir Alony Kate, the Al- Jazeera
reporter, was released before the trial due to a medical
condition. A second defendant, Jamal Hussein Hussein, was
released on the second day of trial, also due to a medical
condition. The third defendant, Ghasoub Al Abrash Ghayoun,
was released on May 23rd on EUR 50,000 ($65,000) bail
following a judicial review of the videotape in evidence,
which was the basis of the murder charge against him.


28. (U) The judge released five additional defendants
(Boudjlela, Al Saqqa, Satut, Waheed Kelani and Ahmad Kelani)
on June 1st, stating that the risk of absconding was
"considerably reduced" for those five individuals.

//PROSECUTORS CONFIDENT LESSER CHARGES WILL STICK//


29. (C) In the early stages of the trial, lead prosecutor
Pedro Rubira expressed confidence to Embassy officers that he
would be able to win convictions of most of the defendants,
at least on the less serious charge of "membership in a
terrorist organization" (with a jail term of up to nine
years). Rubira said it was his sense that, in the wake of
the March 11 attacks, the judges would be loathe to acquit
defendants when the weight of the evidence pointed to their
involvement in a broad conspiracy to recruit fighters for the
international jihad.

//COMMENT//


30. (C) Rubira may be correct with respect to the lesser
charges, but media sources speculate that it seems unlikely
that Yarkas or any other defendant will be convicted on
murder charges related to the 9/11 attacks. The evidence
that Yarkas had foreknowledge or contributed to the attacks
is apparently seen by the judges as too tenuous. The judges
also appear skeptical of the overall strength of the
prosecution's case, commenting at one point that police
witnesses were using small portions of recorded conversations
as evidence and that these were being presented out of
context. Both the prosecutors and the judges are aware that
the Yarkas trial is being followed closely by other EU
countries and that it represents a test of whether European
justice systems can respond effectively to the international
terrorist threat.


31. (U) Note: Post based the spelling of various Arabic names
on the "best guess" of embassy personnel present at the trial
and open source articles appearing in the press. All
spellings may not be correct and different variations may be
present in USG databases. End Note.

MANZANARES