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