EXECUTION ORDERS FOR BALI BOMBERS SIGNED, BUT

C O N F I D E N T I A L SECTION 01 OF 03 JAKARTA 006393

SIPDIS

SIPDIS

DEPT FOR EAP/MTS AND S/CT
DOJ FOR CTS THORNTON, AAG SWARTZ, OPDAT ALEXANDRE
FBI FOR ETTIU/SSA ROTH

E.O. 12958: DECL: 05/19/2026
TAGS: PTER PREL PGOV KJUS KISL KVPR ASEC AS ID
SUBJECT: EXECUTION ORDERS FOR BALI BOMBERS SIGNED, BUT
TIMING UNCERTAIN

REF: A. JAKARTA 02848 AMROZI TESTIMONY

B. JAKARTA 04365 "POSO 3" CLEMENCY APPEAL REJECTED

C. 05 JAKARTA 16515 LAWYERS FOR BA'ASYIR CLAIM "NEW
EVIDENCE"

D. 05 JAKARTA 16215 BA'ASYIR SEEKS RELEASE

E. 04 JAKARTA 07567 IMPACT OF CONSTITUTIONAL COURT
RULING

Classified By: Political Officer Tim Hefner For Reasons 1.4 (b) and (d)

Summary
--------------


1. (C) Australian diplomats informed us that the GOI has
initiated execution procedures for 2002 Bali bombers Amrozi
bin Nurhasyim, Imam Samudra, and Ali Gufron alias Muklas;
however, the timing remains uncertain, as questions remain
regarding the final disposition of pardon requests, Judicial
Reviews, and an possible effort with the Constitutional
Court. According to Indonesian law, the executions should
take place 36 hours after the process begins, but past
practice has shown the process to take 3 to 7 days to
complete. We do not know the exact date and time when the
process began. It remains unclear whether all legal
procedures that would allow the executions to proceed have
been completed. Political factors will likely play a
prominent role on the timing of any execution. End Summary.

Execution Order Signed
--------------


2. (C) Australian diplomats informed us on May 17 that the
Attorney General's Office has begun the process for executing
convicted Bali bombers Amrozi bin Nurhasyim, Imam Samudra,
and Ali Gufron alias Muklas. Mohammad Salim, Special Staff
to the Attorney General, informed the Australians on May 16
that the AGO received notification that the Denpasar District
Attorney had signed the execution orders for the three death
row inmates. Salim did not specify the date the DA signed
the orders.

Procedure as Written
--------------


3. (U) According to Indonesian law, in order to carry out an
execution, the courts must first complete all stages of the
appeals process. Sequentially, a request for a judicial
review (ref D) is made first and then one for a pardon may
follow. Once these processes have finished, the District
Attorney with jurisdiction over the court of first instance
may begin the administrative procedure for the execution at
his discretion.


4. (U) Presidential Decree Number Two from 1964, the
regulation which still governs executions, states that the DA
initiates the process by sending a letter to the Attorney
General informing him of the pending execution. The DA then
coordinates with the local chief of police to select a firing
squad from Mobile Brigade personnel, a time, and a location
for the actual execution. They then isolate the death row
inmate for an unspecified period of time, informing him 36
hours before the execution of his fate. Defense attorneys
have the right to attend the actual execution, and the family
of the executed receives the body after the execution in
order to conduct burial rites.

Process in Practice
--------------


5. (C) Ramelan, retired Expert Staff to the Attorney General
and current criminal procedure law professor at Trisakti
University, explained that DA's informally seek approval from
the AG for any execution before initiating the process. Once
an execution order reaches the AGO, the DA and local police
chief will isolate the inmate for three to seven days. In
the case of the Bali bombers, police will most likely move
them from their current location at the Nusa Kembangan prison
to Denpasar, the original jurisdiction for their case, prior
to their isolation. During the isolation period, inmates
make their last requests, often informing their attorneys and
families of their situation. The DA and police chief do not

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inform an inmate of his execution time until twelve hours or
more before it takes place. Executions remain closed to
outside parties, but no execution takes place without the
President's knowledge.

Possible Complications: Pardons
--------------


6. (SBU) Indonesian laws and regulations do not address
situations where death row inmates refuse to request judicial
reviews or pardons. Through their Muslim Defense Team (TPM)
attorneys, the three convicts have stated publicly they will
not seek pardons for their crimes. If true, the DA needs
written proof from the bombers and their families that they
refuse to make these requests. Without such documents, the
DA stands on tenuous legal grounds. Also, if true, TPM has
not followed proper procedures. The courts should decide
upon judicial reviews before they address pardons. However,
no recourse exists in Indonesian law regarding this error.


7. (SBU) Ramelan noted that if a pardon request has been
denied, after two years, the guilty party may request another
pardon and may do so again every two years thereafter.
However, by not requesting a pardon, a death row convict
could hold off their execution indefinitely by not allowing
the GOI to close the book on their case. The Bali bombers
could in theory stave off execution by never requesting and
never refusing to request pardons.

Possible Complications: Judicial Review
--------------


8. (C) Our embassy-contracted court monitor (protect -- our
court monitor's relationship with the embassy is not publicly
acknowledged) told us TPM has been actively pursuing possible
judicial review requests for the three Bali bombers. We have
not learned whether such documents have yet been submitted.
Any such requests would pass to the Denpasar District Court
in Bali, the same jurisdiction for the executions. We have
draft documents of the review requests for Amrozi and Samudra
dated December 2005. The partially-completed documents cited
the same letter and same "new evidence" used by TPM for
Ba'asyir's Review request (ref C). A request for a judicial
review at this stage should signal to the District Court that
all legal avenues have not been exhausted, thus halting the
executions. However, it is unclear how the DA could have
signed execution orders without having evidence that Judicial
Review requests would not take place.

Ba'asyir Judicial Review Request
--------------


9. (C) TPM had worked to complete the draft judicial review
documents over several weeks prior to Amrozi's testimony in
the Cilacap District Court for Jemaah Islamiyah Emir Abu
Bakar Ba'asyir (ref A). Prosecutors handling Ba'asyir's own
review request noted that the laws governing judicial reviews
and executions are mutually exclusive. They do not prevent
executions for witnesses involved in other judicial reviews,
such as Amrozi. The courts most likely view Amrozi's role in
Ba'asyir's review as finished. The South Jakarta District
Court recently held its final review request session, and the
court will submit all documents related to the request along
with opinions from the prosecution, defense, and the panel of
judges to the Supreme Court. No time limit exists for the
Supreme Court to rule on the Judicial Review request. A
pending decision on Ba'asyir's review has no legal
ramification on the executions. Ramelan and several contacts
within the AGO have speculated that the Supreme Court will
not rule on Ba'asyir's review until after his release from
prison next month.

Constitutional Court Fatwa?
--------------


10. (C) Our court monitor also recently provided us with a
TPM draft document to the Constitutional Court requesting a
ruling on the convictions of the Bali bombers. TPM has
announced publicly their intention to submit a "fatwa" to the
Court on behalf of the Bali bombers, but we do not know if in
fact they followed through on their stated intent. In the

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document, TPM cites the Constitutional Court's 2004 decision
annulling the use of retroactivity of the 2003 Anti-Terrorism
Law to convict the bombers as the basis for their request.
The Constitutional Court does not have the authority to
reverse Supreme Court decisions, but a favorable ruling could
be utilized in a judicial review (ref E). However,
retroactivity did not factor into the draft judicial review
request documents provided to us. A ruling from the
Constitutional Court would have little legal weight.

Comment
--------------


11. (C) Contacts within the AGO admitted that politics play a
significant role in the timing of executions. Given that
DA's seek advanced guidance from the AG prior to beginning
the process, Jakarta should continue to dictate the timing of
any forward motion to execute. The pending execution of
three Christian militants convicted of leading communal
violence in Poso (ref B) may also play into the GOI's
calculations as it considers the process and timing for
executing the three Muslims on death row for the 2002 Bali
bombings.
PASCOE