SPAIN/COUSO CASE: JUDGE THREATENS TO OBSTRUCT US-SPAIN JUDICICIAL COOPERATION

C O N F I D E N T I A L SECTION 01 OF 04 MADRID 000215



SIPDIS



SIPDIS



EUR/WE FOR ALLEGRONE, CLEMENTS, AND CERVETTI

L/LEI FOR KEN PROPP AND MARK KULISH

CA/OCS/CI



E.O. 12958: DECL: 02/05/2017

TAGS: PREL, MARR, CJAN, KJUS, SP

SUBJECT: SPAIN/COUSO CASE: JUDGE THREATENS TO OBSTRUCT

US-SPAIN JUDICICIAL COOPERATION



REF: A. MADRID 141

B. MADRID 101

C. MADRID 82

D. MADRID 26

E. 2006 MADRID 3013



MADRID 00000215 001.2 OF 004





Classified By: DCM Hugo Llorens; reasons 1.4 (B) and (D)



1. (U) Summary. Spanish media reported February 5 that

National Court Examining Magistrate Santiago Pedraz has

threatened to request the suspension of US-Spain judicial

cooperation agreements because the USG has not responded to

his out of channel January 22 request for "complete

identifying information" for the three U.S. servicemen named

in the Couso case (REF A). The reports made clear that Judge

Pedraz required specific identifying data in order to process

international detention orders through Interpol. Judge

Pedraz instructed Spanish National Police and the Civil Guard

to work with Interpol to determine the full identities of the

accused servicemen. In response to a media inquiry on Judge

Pedraz's request, the Embassy Spokesperson stated that the

USG had undertaken an investigation of the incident in 2003

and that the results of that investigation had been shared

with the appropriate Spanish authorities. Separate news

reports covered the February 5 meeting of the Couso family

with Minister of Justice Aguilar, who promised to adhere to

legal norms and to National Court orders related to the case.

The Couso family urged the Spanish Government to pressure

the USG to respond to Mutual Legal Assistance (MLAT) requests

related to the Couso investigation. In a more positive

development, Judge Pedraz agreed with a National Court

prosecutor's report that USG assets in Spain could not/not be

frozen as part of the civil component of the Couso family

suit against the three U.S. servicemen.



2. (C) Since regaining control of the investigation in

December, Judge Pedraz has elected to draw as much media

attention as possible to his actions in the case and appears

determined to keep this matter on the front burner. Our

assessment is that Judge Pedraz is driven in part by his

frustration with USG refusal to recognize his jurisdiction in

the matter, and in part by his desire to avoid blame for his

inability to successfully prosecute this case. This

assessment is bolstered by the comment of a "Reporters

Without Borders" contact, who told the Embassy Media

Relations Officer of rumors in the NGO community that Judge

Pedraz had sent the request to the Embassy for the identities

of the U.S. servicemen purely as a "publicity stunt."

Although we are undergoing a period of tension with Spanish

judicial authorities stemming from friction over unrelated

judicial cooperation cases, we do not anticipate that Spanish

officials will give any consideration Pedraz's suggestion to

suspend bilateral cooperation. In this message, we consider

possible USG responses to developments in the Couso case and

request the Department's guidance as to how the Mission

should proceed with Spanish authorities on this issue. End

Summary.



//JUDGE THREATENS TO OBSTRUCT JUDICIAL COOPERATION//



3. (U) Spanish daily "El Pais" reported February 5 that the

USG had "refused to provide the National Court the identities

of the U.S. soldiers who killed (Spanish cameraman) Jose

Couso." The story indicated that, as a result of the USG's

"refusal," Judge Pedraz intends to ask the Criminal Section

of the National Court and the main administrative body of the

Spanish courts to suspend implementation of Spain's bilateral

Mutual Legal Assistance Treaty with the U.S. The El Pais

story confirmed earlier reports that Judge Pedraz required

the "complete identities" of the three accused servicemen in

order to obtain Interpol's approval of his international

detention orders for the three servicemen. The El Pais story

reported that Judge Pedraz had issued a "written request" to

the Embassy ten days earlier for the identities of the

accused (REF A) and claimed that a clerk in Pedraz's court

had followed up with a phone call to the Embassy on January

31. (COMMENT: Pedraz's "written request" did not come in the



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proper format for a judicial cooperation request, but rather

as an informal fax to the Consular Section. We have no

knowledge of a second contact by Pedraz's staff in relation

to this case. END COMMENT). Judge Pedraz also ordered the

National Police and the Civil Guard to work through Interpol

to obtain the identities of the U.S. servicemen, a strange

request given that Interpol asked Judge Pedraz to provide

that very same information. An El Pais reporter had

contacted the Embassy Media Relations Officer on January 31

to inquire about Judge Pedraz's request. Per previous

guidance in the Couso case, the Embassy Spokesperson

responded that the USG had undertaken an investigation of

Jose Couso's death in 2003, concluded that the U.S. personnel

involved had acted within the rules of engagement, and

conveyed its report on the incident to the appropriate

Spanish authorities.



4. (SBU) Judge Pedraz told El Pais that, in the absence of a

response from the USG, he would "study the possibility" of

recommending to the National Court and to the administrative

body that oversees the Spanish judicial system (Consejo

General del Poder Judicial) that Spain suspend implementation

of U.S.-Spain bilateral judicial cooperation agreements.

However, Judge Pedraz subsequently told another news service

that he did not intend to make such a recommendation "for the

moment." In the El Pais article, an unidentified Spanish

judge asserted that Spanish judges "respond cordially and

with alacrity" to "dozens" USG MLAT requests on issues

ranging from narcotics traffickers to Nigerian fraud rings

and that the lack of a USG response in this case was

unacceptable. (COMMENT: Legat has sought for some time,

without success, to convince Judge Pedraz to treat the

hundreds of ongoing Nigerian fraud cases involving Amcits as

organized crimes cases rather than as individual cases of

common crime, since it would simplify prosecution to treat

fraud perpetrators as members of a crime ring. END COMMENT).



//"REPORTERS WITHOUT BORDERS" CLOSELY TRACKING COUSO CASE//



5. (SBU) A representative of the NGO "Reporters Without

Borders" (RSF) contacted the Embassy Media Relations Officer

on February 7 to inquire about the El Pais story and about

the direction of the Couso case. The RSF representative

pointedly asked whether Judge Pedraz had made his request to

the Embassy for the identities of the three U.S. servicemen

through the correct channels, or by some informal means. She

said, with a note of irritation, that it was RSF's

understanding from unspecified sources that Judge Pedraz had

sent the request to the Embassy as a "publicity stunt" and

was not handling the Couso case as a serious judicial matter.

Emboff responded that we were not aware of any formal MLAT

request for the full identities of the U.S. servicemen and

added that bilateral judicial cooperation remained healthy

and was working to the benefit of both countries.



//JUDGE PEDRAZ DISCOUNTS FREEZING OF USG ASSETS//



6. (U) In a separate decision, Judge Pedraz accepted the

conclusions of a report he had commissioned from the National

Court prosecutors regarding the viability of freezing U.S.

Department of Defense assets in Spain as part of the civil

component of the Couso case (REF B). Pedraz agreed with the

prosecutors that such assets "cannot be embargoed (frozen)

because they are inextricably linked" to the USG's

implementation of its foreign policy and that seeking to

freeze these assets would constitute "interference in the

sovereign actions of another state." He cited the

prosecutors' finding that U.S. diplomatic and consular assets

in Spain were similarly immune from being embargoed. Judge

Pedraz added that the freezing of Department of Defense

assets would also violate bilateral judicial assistance

agreements between the U.S. and Spain.



//PLAINTIFFS MEET WITH MINISTER OF JUSTICE//



7. (U) Also on February 5, the family of Jose Couso met with

outgoing Minister of Justice Juan Fernando Lopez Aguilar to



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request a "firm gesture" on the part of the Spanish

Government in response to the "attitude demonstrated by the

U.S. Administration" regarding this case. The Couso family

suggested that the Spanish Government call in Ambassador

Aguirre to demand an explanation of the USG's actions in this

case. Lopez Aguilar assured the family that the Spanish

Government would "respect the law and any decisions rendered

by the National Court." In subsequent comments to the media,

Javier Couso, brother of Jose Couso, said that the family

took the Minister's response to indicate that the Spanish

Government would support a bilateral extradition request to

the U.S. for the three accused servicemen if such a request

were submitted by a National Court judge. Post previously

inquired about the possibility of a bilateral extradition

request in a meeting with the Chief Prosecutor of the

National Court, who said the Spanish Government has not taken

a position as yet regarding whether it would support a

bilateral extradition request (REF B).



//FRICTION ON OTHER CASES//



8. (C) We do not believe Spanish officials will contemplate

disrupting bilateral judicial cooperation over the Couso

matter, but note that this threat is being raised in the

context of Spanish Ministry of Justice displeasure regarding

a perceived lack of USG cooperation on recent unrelated

Spanish judicial assistance requests. In the Carrascosa

parental abduction case, in which a Spanish citizen mother is

being held on contempt charges by a New Jersey state court,

Spanish judicial authorities believe U.S. and New Jersey

court officials have not given sufficient weight to a

determination in the case by a Spanish judge. Separately,

MOJ officials believe the USG was not helpful in responding

to detention requests in the case of former Guatemalan

Interior Minister Donaldo Alvarez, who resided illegally in

the U.S. for several years and who faces criminal charges in

Spain. While delays and miscommunications on judicial

cooperation cases are caused primarily by differences in the

Spanish and U.S. legal systems, delayed U.S. responses on

MLAT requests or rejection of MLAT requests on technical

grounds generates a sense among Spanish officials that the

USG is not fully committed to a reciprocal cooperative

relationship.



9. (C) These factors are not directly relevant to the Couso

case, in which we do not recognize the Spanish court's

jurisdiction, but they do color public discussion of the

Couso case, where the absence of a USG response to the

Spanish court is portrayed as a case of U.S. disrespect for

the Spanish legal system. Complicating the issue further is

the intense disapproval by the Spanish public of the U.S.

invasion of Iraq, which for some makes the indictment of the

three U.S. servicemen in the Couso case an indictment of the

"illegal" war itself. The plaintiff's attorneys are aware of

this dynamic and charge that the lack of a USG response to

judicial requests is a further indication of USG "arrogance,"

requiring a strong official response by Spanish authorities.

The challenge for the Spanish Government and the prosecutors

is to appear both responsive to the plaintiffs and Judge

Pedraz (and respectful of the victim, Jose Couso) while

avoiding a confrontation with the USG over a case that has a

very weak legal basis.



//NEXT STEPS//



10. (C) As noted in previous reporting, the Mission's goal is

dismissal of this case to ensure that the three U.S.

servicemen are not negatively affected by ongoing Spanish

judicial actions. A mere suspension of the case in the

absence of the accused (a politically palatable solution for

both the judges and the Government) would be insufficient as

it would leave the servicemen open to future legal action in

Spain or internationally. We would appreciate the

Department's views on the following range of options for USG

actions in this case:



- We could continue to ignore requests from Judge Pedraz, and



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refuse to recognize his fax of January 22 requesting

assistance in identifying the three servicemen.



- The Embassy could respond to Judge Pedraz with a fax from

the Embassy, stating either that any judicial assistance

request should go through official channels, or referring

Pedraz to the Ministry of Justice for the official USG

response on this case. We are aware that informing Judge

Pedraz to present requests through normal channels could

trigger a formal MLAT requesting the identities of the three

U.S. servicemen; the Ambassador has made clear to the

Attorney General that we would not welcome such an MLAT

request.



- The Ambassador could raise this to higher political levels

(Minister of Justice and/or Vice President Maria Teresa

Fernandez de la Vega) and reiterate that no further USG

response will be forthcoming. As in past communications on

this issue with Spanish authorities, we would engage on an

informal basis to avoid any public perception that we are

exerting pressure on the Zapatero Government on this issue or

encouraging them to interfere in the judicial process.



- The Department could raise this case in Washington with the

Spanish Embassy to convey concern regarding the press reports

that Judge Pedraz is threatening to recommend the suspension

of legal cooperation with the USG over this matter.



11. (C) A final alternative is to do nothing for the moment

and await further developments. The Spanish Government is

aware of our position and we do not believe that the courts

or the Government would seriously consider disrupting

judicial cooperation over this matter. However, as noted

above, Judge Pedraz appears motivated to keep this case in

the public eye -- or at least to avoid blame for the eventual

failure of the case to progress -- so we anticipate further

efforts by him to force a USG response to his requests.

Among the next logical steps would be a bilateral request by

Judge Pedraz for the extradition of the three accused

servicemen, at which point the National Court prosecutors

would have to choose between processing the extradition

requests and risking a dispute with the USG, or appealing the

extradition requests at the cost of accusations that they

were acting to protect USG interests. The Criminal Section

of the National Court dismissed the Couso case in March 2006

on jurisdictional grounds and expressed skepticism regarding

the merits of the case, but there is no guarantee that they

would render a favorable verdict again if the case is

appealed for their determination.

Aguirre