IRAQ: ITALIAN CRIMINAL INVESTIGATION REQUESTS -

S E C R E T ROME 001021 SIPDIS DEPT. FOR NEA AND EUR; OSD FOR BRZEZINSKI; CENTCOM FOR GEN. ABIZAID; BAGHDAD FOR RON NEUMANN AND BG VANGJEL E.O. 12958: DECL: 03/23/2015 TAGS: PREL MOPS KJUS IT IZ IRAQI FREEDOM SUBJECT: IRAQ: ITALIAN CRIMINAL INVESTIGATION REQUESTS - EMBASSY VIEWS ON NEXT STEPS REF: A. BAGHDAD 1198 ¶B. BAGHDAD 1186 ¶C. BAGHDAD 965 ¶D. ROME 858 Classified By: DCM Emil Skodon, reasons 1.4 b and d. ¶1. (S) Summary: Ref A requests that Embassy Rome, Department and OSD discuss whether the Italian criminal investigation team looking into the March 4 shooting by US forces of Italian intelligence officer Nicola Calipari should be supported based on the terms of reference (Ref D) or other arrangements in place with Italy. This message provides Embassy Rome views. We believe that Italian criminal investigators should only be welcomed to Baghdad, if at all, after the joint investigation is complete and its report released. We also recommend against providing information on this case through MLAT channels. End Summary. -------------- -------------- Background on Italian Magistrates - Very Independent Actors -------------- -------------- ¶2. (C) Italian magistrates are fiercely independent and are not answerable to any government authority/entity, including the Minister of Justice. Consequently, it is nearly impossible to prevent them from undertaking action in Italy that they wish to carry out. Attempts by the Italian government to influence them in any way are likely to have a negative effect. We have observed over the past years numerous instances of magistrates leaking to the press details of high profile cases and thereby influencing -- often overtly -- public policy and Italian politics. The involvement of an Italian magistrate in this case complicates our ability and that of the GOI to take sole responsibility for determining the facts and for steering how this case plays in the Italian press. -------------- Italian MLAT Precedents in Iraq -------------- ¶3. (C) Italian authorities have previously submitted requests under the Mutual Legal Assistance Treaty relating to matters in Iraq. To date, the US has not responded formally to any of those requests, largely because the US has yet to definitely resolve the issue of the MLAT's applicability to situations in Iraq. (For example, in the case of one such Italian MLAT request relating to Iraq, there had been previously submitted informal requests for the same information, and on the basis of the informal requests, Embassy officials established direct military-to-military and USG-GOI information channels to provide what Italy sought in the later-filed MLAT request.) On March 5, Embassy received an MLAT request for the names of US soldiers involved in the March 4 incident, the facts and circumstances surrounding the incident and any US reports on the events of March 4. On March 24, Embassy received a new Italian MLAT request seeking access to the vehicle involved in the March 4 incident. ¶4. (S) As we see it, legal issues aside, there are no substantive problems with allowing the Italian prosecutors/criminal investigators to see the vehicle: they will see it eventually anyway and already had photos of it in their press. There are, however, worrisome risks in allowing Italian investigators other than those working on the joint investigation to come to Baghdad until after the joint investigation is completed and its results released. If Italian carabinieri empowered by an Italian magistrate come to Baghdad and ask to interview Ragaglini and Campregher, for example, those two Italians may be compelled by Italian law to answer all questions, regardless of Ref D terms. We must be cautious that such criminal investigators may try to do more than examine the car, the site and speak with Italians involved. For example, they could try to interview US servicemen. Any of the above would seriously complicate our ability to manage public presentation of the joint investigation, could pre-empt its findings with contradictory ones, and would put the Rome magistrate in a position to publicly steer the issue. -------------- -------------- We Should Insist on Primacy of Joint Investigation -------------- -------------- ¶5. (S) Legally, the questions are whether we want to encourage Italy to pursue the criminal investigation via MLAT requests and how to answer the requests that are currently outstanding. Embassy's recommendation is that we not attempt to execute these Italian MLAT requests. Our position rests on both policy grounds (as with the ICC, we should not assist a foreign entity to gather evidence for possible use in potentially bringing criminal charges against our soldiers in a war zone) and on exceptions provided for in the MLAT (assistance is mandatory unless the offense is purely military or unless assistance would negatively affect our essential public interests). The fact that a joint investigation directed by the President of the United States and the Prime Minister of Italy is ongoing, and that both the GOI and USG agree that investigation has primacy (a point we should make publicly),argues strongly that a higher public good would be harmed by the intervention of another authority conducting another investigation before (and possibly even after) the conclusion of the Presidential/Prime Ministerial directed one. In addition, the MLAT itself allows the US to postpone execution of a request if the request would interfere with an ongoing US investigation. -------------- Provide Info After Joint Investigation Done -------------- ¶6. (S) Once the joint investigation is completed and its report released, Embassy recommends consideration be given to providing access to Italian criminal investigators on a discretionary basis, but not because of an obligation to render assistance made pursuant to the MLAT. Ref A recommended that the Italian prosecutor seek access to the vehicle through the MLAT, which he has now done. In the future, we should not encourage the Italians to use the MLAT on cases involving Iraq. In this case, we believe we should respond to the prosecutor (without mentioning any MLAT obligations) that we will consider granting access once the primary investigation concludes and its report is released. We urge Washington policy makers to take a decision on how to handle the Italian criminal investigation as soon as possible. We are seeing daily press stories about US foot-dragging on the Italian criminal requests. We would be well served to tell the Italian magistrate clearly now what he can and can't have access to and when, and under what parameters such access and information would be made available. ¶7. (S) Subject to approval in Washington, we will have our DOJ attache reply in writing to the MLAT request for access to the vehicle, assuring the Italians, as BG Vangjel did in his March 19 letter (Ref A),that once the joint investigation is complete we will immediately release the vehicle and that until then, it remains a critical part of the on-going joint investigation. The response will be phrased so as not to prejudice any eventual decision on how we reply officially to MLAT requests related to events in Iraq. ¶8. (U) Minimize considered. SEMBLER NNNN 2005ROME01021 - Classification: SECRET