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 JAKARTA 00006393 002 OF 003 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 JAKARTA 00006393 003 OF 003 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