BOSNIA: PROSECUTOR'S CASE STRONG IN LOCAL

C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 002452

SIPDIS

SIPDIS

OSD FOR FLORY, NSC FOR BRAUN AND HINNEN, AFSOUTH FOR
CURRAN, DOJ FOR FBIHQ, DHS FOR ICE/OIA (SHEA, ALVAREZ),
VIENNA FOR DHS/ICE

E.O. 12958: DECL: 09/27/2011
TAGS: PTER PREL PGOV BK
SUBJECT: BOSNIA: PROSECUTOR'S CASE STRONG IN LOCAL
TERRORISM TRIAL

REF: SARAJEVO 732 AND PREVIOUS

Classified By: DCM Judith B. Cefkin. Reasons 1.4 (b) and (d).


1. (C) Summary: The BiH State Prosecutor continues to present
a strong evidentiary case in the terrorism trial of Mirsad
Bektasevic and Abdulkadir Cesur, particularly the former
(reftels). The defense so far has been largely ineffective.
The prosecutor is fairly confident he will get a terrorism
conviction for Bektasevic, although less certain about Cesur.
There is a slim, though genuine, possibility the Court will
rule the prosecution has not proved the requisite intent.
Bektasevic may also be angling for an insanity defense. The
case could be derailed by a mistrial in the so-far unlikely
event that the lead panel judge steps down for health
reasons. As the first terrorism trial under the new CT law,
this is a landmark case for Bosnia, and a major step toward
advancing USG CT goals here. End Summary.

Case Summary: Explosives and Threats
--------------


2. (C) On October 19, 2005, Bosnian law enforcement
authorities, acting on USG information, arrested in Ilidza (a
suburb of Sarajevo) Mirsad BEKTASEVIC (aka "Maximus") and
Abdulkadir CESUR (aka "Turkee"). On November 18, 2005, Bajro
IKANOVIC, Amir BAJRIC (aka "Cami") were arrested, also in
Sarajevo. On November 24, police apprehended Senad HASANOVIC
(aka "Senci"). Bektasevic, Ikanovic, Bajric and Hasanovic
are ethnic Bosniaks. Bektasevic holds Swedish citizenship.
Cesur is Turkish, but resides in Denmark. Ikanovic, Bajric
and Hasanovic are BiH nationals.


3. (U) Bektasevic and Cesur are charged with violating BiH
Criminal Code Article 201 by acquiring and possessing
explosive material, weapons and other items "with intent to
conduct an act of terrorism on the territory of Bosnia and
Herzegovina or on the territory of another European country."
Ikanovic, the go-between who procured the explosives from
Bajric and Hasanovic, is also charged with terrorism. Bajric
and Hasanovic were only charged with illegal possession of
explosives. Under a plea bargain worked out with the
prosecutor, Bajric got two years in jail for the illegal
possession charge in exchange for testifying against the
others. The trial in BiH State Court began on July 20. A
Bosnian heads the three-judge panel, assisted by another
Bosnian and a British judge.


4. (C) The Danish government has also brought terrorism
charges against Bektasevic and Cesur on the basis of alleged
connections with Abdulbasit, who faces trial with three other
men for plotting terrorism in Denmark. As a result, Danish
interest in this case is high, and a large number of Danish
reporters attend each session. Bektasevic is also connected
to a U.S. terrorism case underway in Atlanta, and linked to a
terrorism investigation in the U.K.


5. (U) Among the items confiscated in the raid on the safe
house in Ilidza were a semi-automatic pistol with an attached
suppresser/silencer, 19 kilos of explosive material and a
crudely fashioned suicide belt. Authorities also discovered
a video depicting masked men supposedly preparing for an
attack against unspecified European targets. The VHS
recording includes the men illustrating how to create a timed
detonator, while a voice-over is heard saying in English:
"Allahu Akbar. Here brothers are preparing for
attacks...(against) those who are killing our brothers and
Muslims in Iraq, Afghanistan, Shishan and many other
countries. These weapons will be used against Europe,
against those whose troops are in Iraq and
Afghanistan....These two brothers sold their lives to please
Allah...they are Muslims. Their time comes."


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Strong Physical Evidence and Persuasive Testimony
-------------- --------------


6. (C) Owing to excellent cooperation among Bosnian law
enforcement agencies, as well as Danish and Swedish police,
New Scotland Yard and the FBI, the prosecutor's case rests on
a wealth of physical evidence, bolstered by police and expert
forensic testimony. The Danish Ministry of Justice also
provided evidence of the links between Bektasevic and Abdul
Basit. On September 25, an FBI video analyst and a British
audio analyst gave persuasive expert testimony tying
Bektasevic to the video tape found in the safe house. The
FBI analyst testified to the high probability that the video
was made with the camera that Bektasevic borrowed from his
aunt. The British analyst testified that it was "more than
likely" that it is Bektasevic's voice on the tape. Bajric's
testimony connected Ikanovic to the explosives.

The Insanity Defense?
--------------


7. (SBU) Defense counsel has eschewed the difficult task of
refuting the physical evidence, focusing instead on trying,
without much success, to rattle the expert or police
witnesses. The defense has also been largely unsuccessful in
efforts to discredit Bajric. Council is given to delivering
long monologues about why particular testimony or evidence is
inaccurate or inadequate, without directly questioning
witnesses about elements it contends are in dispute.


8. (C) Since the physical evidence points mostly to
Bektasevic, it may be that the defense believes Ikanovic and
Cesur's alibis ("I don't know anything; I was just in the
wrong place at the wrong time") will be sufficient. This
strategy could be successful, particularly if Bektasevic, who
is expected to take the stand, deliberately attempts through
his testimony to exonerate the others. Bektasevic's attorney
has requested a psychiatric examination for his client,
possibly setting up an "I did it, but I was crazy" defense.

Problem of Proving Intent
--------------


9. (C) This is the first case brought under the terrorism
statute (Article 201) of Bosnia's new 2003 Criminal Code. To
secure a conviction for terrorism, the prosecution must
demonstrate that the defendants not only acquired the means
to commit terrorism (objective intent),but also that the
defendants committed or prepared to commit a terrorist act
"with the aim of (inter alia) compelling the BiH authorities,
the government of another state or an international
organization to perform or abstain from performing any act"
(subjective intent). Because the investigation yielded no
information identifying a specific target, it cannot be
proven that the defendants took affirmative steps towards
attacking that particular target.


10. (C) Further, the voice on the video tape says the men are
preparing for attacks against members of the Coalition Forces
in Iraq and other countries. It does not explicitly say that
they hope to change Iraq policy in these countries. While
unlikely, the prosecutor has some concern that, given
Bosnia's formalistic legal culture, the Court might find that
the intent was simply to punish countries in the Coalition
Forces without hope or intent to alter their actions this
way. (Note: In contrast, the U.S. terrorism statute, 18 USC
2331 et. seq., holds the prosecution to a lower standard,
requiring only that it prove 'the appearance' of subjective
intent. End note.)

Lead Judge's Illness Could Cause Mistrial
--------------


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11. (SBU) Under Bosnia's Criminal Procedure Code, once a case
enters the trial phase, some proceeding must occur at least
once per month. Otherwise, an automatic mistrial on
procedural grounds is declared. The lead panel judge has a
heart condition, and was hospitalized briefly in early-mid
September. There is a possibility that his health may worsen
to the point were he is unable to attend a session before
October 24 (one calendar month after the latest session).
The prosecution would be forced to start the whole case again
before a new judicial panel. The judge appears extremely
motivated to keep this from happening, and even left his sick
bed to attend the latest sessions so that the one-month
requirement would be fulfilled and the foreign experts would
not have to be recalled. Nevertheless, a procedural
mistrial, although unlikely, remains a possibility.


12. (C) Comment: A top USG priority in Bosnia is
strengthening law enforcement and legal regimes to deter
would-be terrorists from seeking a safe haven or operational
staging ground here. The prosecutor and judges have
demonstrated a strong commitment to pursuing this landmark
case. Regardless of the outcome, its prosecution strengthens
domestic institutional capacity to combat terrorism, which
advances our CT goals here. The trial could have broader
implications as well for cases underway in the U.S., UK and
Denmark. End Summary and Comment.
MCELHANEY