BARAKAT YARKAS TERRORISM TRIAL: PROSECUTION BLAMES

C O N F I D E N T I A L SECTION 01 OF 02 MADRID 002537

SIPDIS

DEPARTMENT FOR EUR/WE AND S/CT
DOJ FOR DONALD ASHLEY AND GREG SOFER

E.O. 12958: DECL: 06/27/2015
TAGS: PTER PREL SP
SUBJECT: BARAKAT YARKAS TERRORISM TRIAL: PROSECUTION BLAMES
USG FOR LACK OF ACCESS TO BINALSHIBH

REF: A. A) MADRID 2082

B. B) MADRID 2223

Classified By: DCM Bob Manzanares; reasons 1.4 (B) and (D)


1. (C) Summary. Embassy officials met with the Chief
Prosecutor of Spain's National Court Eduardo Fungarino on
July 1 to express concern regarding press reports quoting the
lead prosecutor in the Barakat Yarkas terrorism trial
complaining about the lack of access to USG detainee Ramzi
Binalshibh. Emboffs reminded Fungarino that such statements
were contrary to assurances by Fungarino and the prosecutor
in question to a visiting USDOJ team in May that Binalshibh's
testimony was not vital to their case and that Spanish
officials would not criticize the lack of access to
Binalshibh. Fungarino suggested that the prosecutor's
statements had been misrepresented in the press stories and
reaffirmed his position that the prosecution's request for
access to Binalshibh was simply a technical means to
introduce relevant testimony by Binalshibh from the U.S. 9/11
Commission Report. We hope, but cannot be certain, that this
meeting with Fungarino will dissuade the prosecutor from
blaming the USG should he fail to convict Barakat Yarkas of
murder when the trial comes to a close in the next several
weeks. End Summary.


2. (C) In a June 25 story in the International Herald
Tribune, Pedro Rubira, lead prosecutor in the ongoing trial
of al-Qa'ida cell leader Imad Eddin Barakat Yarkas and 23
others, is quoted as criticizing the lack of access to USG
detainee Ramzi Binalshibh. In the press story, Rubira
allegedly claims that Binalshibh's testimony was crucial in
order for the prosecution to be able to prove that Barakat
Yarkas and co-defendant Driss Chebli were guilty of murder
charges for having organized meetings in Spain for September
11 hijacker Mohamed Atta in July 2001. Trial observers say
the three-judge panel in the case has seemed skeptical of the
murder charges since the prosecution has not demonstrated
convincingly that Barakat Yarkas or Chebli were present at
the July 2001 meetings or knew of Atta's plans to carry out
attacks in the U.S. Rubira is quoted by Herald Tribune
saying that "an interview with Binalshibh would change
everything" and turn the case in favor of the prosecution.
He is also reported as adding that the USG had otherwise
cooperated closely in the case, but that he "could not wait
much longer (to interview Binalshibh)" and might have to
release one of the suspects. Rubira said he had last
requested access to Binalshibh three months ago, but had yet
to receive an answer from the USG.


3. (U) Rubira followed this on June 27 during his summation
of the case, urging the judges to convict the defendants and
sentence them to the maximum penalties in order to
demonstrate that the fight against terrorism "does not
require wars or detention centers," alluding to USG military
actions and to the detention center in Guantanamo. According
to Spanish daily "El Mundo," Rubira "defended the European
model (in the fight against terrorism) compared to the U.S.
model," and said what was needed were "trials like this which
strengthen the rule of law." A June 28 editorial in El Mundo
criticized Rubira for "politicizing" the Barakat Yarkas case
in order to distract attention from the prosecution's lack of
evidence to substantiate murder charges against Yarkas and
Chebli.


4. (C) Rubira's statements to the Herald Tribune directly
contradict his assertion in mid-May to a visiting USDOJ team
that Binalshibh's testimony was not crucial to his case and
his assurances that he would not criticize the USG for not
making Binalshibh available (REF A). Moreover, despite
Rubira's claim to have requested access to Binalshibh three
months ago, the Embassy is not aware of any such Mutual Legal
Assistance (MLAT) request having been formally submitted by
Spanish authorities.


5. (C) Embassy legal adviser shared a copy of the Herald
Tribune story with Rubira's supervisor and Chief Prosecutor
for Spain's National Court Eduardo Fungarino. Fungarino had
participated in REF A meeting during which Rubira had told
DOJ and Embassy staff that he would submit a MLAT request for
the USG to make Binalshibh available as a witness with the
sole purpose of using that request to introduce Binalshibh's
statements taken from the U.S. 9/11 Commission Report.
Fungarino expressed surprise that Rubira had spoken to the
press and suggested that the reporter may have used earlier
statements in publishing the June 25 story. He promised to
investigate the issue with Rubira and meet with the Embassy
again after doing so.


6. (C) Fungarino met with poloff and Embassy legal adviser on
July 1 to provide a readout of his discussions with Rubira on
this issue. Fungarino said Rubira acknowledged having spoken
to the journalist, but insisted that he had only discussed
the USG's good cooperation and his need to hear from the USG
regarding access to Binalshibh before the trial ended in
July. Fungarino asserted that Rubira had not told the
journalist that access to Binalshibh constituted a vital
element for the prosecution's case.


7. (C) Poloff and legal adviser told Fungarino that it was
unfortunate that Rubira's discussion with the journalist had
made it seem that the USG could be responsible for the
failure of Rubira's case against Barakat Yarkas. It was
especially frustrating for the USG since the Embassy and DOJ
had discussed this issue at length with Rubira in May and had
been assured both that Binalshibh's testimony was not vital
to the Spanish case and that prosecutors would not blame the
USG for lack of access to Binalshibh. This episode
undermined the trust and confidence necessary for the success
of the newly-launched Bilateral Counterterrorism Experts
Working Group, which the USG sees as an important vehicle for
deepening counterterrorism cooperation. Poloff also
clarified that the USG had no record of a formal Spanish
request under the MLAT for access to Binalshibh, nor did we
recommend that such an MLAT request be made at such a late
date in the trial. Fungarino said he understood how the USG
might take away a negative message from the Herald Tribune
story, but said the official GOS position remained that
discussed with the USG team in May: access to Binalshibh
would be desirable, but not critical to the success of the
Barakat Yarkas prosecution.

//COMMENT//


8. (C) Our sense is that Fungarino was embarrassed by
Rubira's interview, but felt obligated to support his
subordinate. We hope, but cannot be sure, that this
expression of the USG's displeasure with Rubira's statements
will restrain Rubira from blaming the USG should the court
absolve Barakat Yarkas of murder charges. At a minimum,
Fungarino understands the sensitivity of this issue for the
USG and our strong desire that Rubira avoid such unhelpful
statements in the future.
AGUIRRE