SPAIN: PROSECUTOR WEIGHS GTMO CRIMINAL CASE VS.

C O N F I D E N T I A L SECTION 01 OF 04 MADRID 000346

SIPDIS

EUR/WE FOR ELAINE SAMSON AND STACIE ZERDECKI,
L/LEI FOR KEN PROPP AND CLIFF JOHNSON
CA/OCS FOR PPLATUKIS AND MBERNIER-TOTH
INR FOR JANICE BELL
S/CT FOR MARC NORMAN
EMBASSY ROME FOR MOLLY PHEE
PASS TO NSC'S TOBY BRADLEY
PASS TO DOJ'S BRUCE SWARTZ AND DOJ/OIA/PAT REEDY

E.O. 12958: DECL: 03/31/2019
TAGS: AORC PREL CASC CJAN PTER PGOV PHUM PINS SOCI
KCRM, KJUS, KISL, KLIG, SP
SUBJECT: SPAIN: PROSECUTOR WEIGHS GTMO CRIMINAL CASE VS.
FORMER USG OFFICIALS

REF: A. OSC EUP20090329950015

B. OSC EUP20090330950017

C. 06 MADRID 1914

D. 07 MADRID 2282

E. 08 MADRID 409

F. 07 MADRID 911

G. 07 MADRID 863

H. OSC EUP20080828085019

MADRID 00000346 001.2 OF 004


Classified By: ADCM William H. Duncan for reasons 1.4 (b),and (d)


1. (C) SUMMARY: A Spanish NGO has requested that the
National Court indict six Bush Administration officials for
creating a legal framework that allegedly permitted torture.
The NGO is attempting to have the case heard by Investigating
Judge Baltasar Garzon, internationally known for his dogged
pursuit of "universal jurisdiction" cases. Garzon has passed
the complaint to the prosecutor's office for them to
determine if there is a legitimate case. Although he seemed
displeased to have this dropped in his lap, Chief Prosecutor
Javier Zaragoza told us that in all likelihood he would have
no option but to open a case. He said he did not envision
indictments or arrest warrants in the near future. He will
also argue against the case being assigned to Garzon. MFA
and MOJ contacts have told us they are concerned about the
case, but have stressed the independence of the Spanish
judiciary. They too have suggested the case will move
slowly. END SUMMARY.

The Accused
--------------


2. (U) The six accused are: former Attorney General
Gonzales; David Addington, former chief of staff and legal
adviser to the Vice President; William Haynes, former DOD
General Counsel; Douglas Feith, former Under Secretary of
Defense for Policy; Jay Bybee, former head of the DOJ Office
of Legal Counsel; and John Yoo, a former member of Bybee's
staff.


3. (SBU) The NGO that filed the criminal complaint is the
Association for the Dignity of Spanish Prisoners. According
to Spanish press reports, a team of four lawyers worked on
the complaint. This team also brought a case for a different
Spanish NGO in January 2009 against Ehud Barak and six senior
Israeli military officials for alleged war crimes in Gaza in

2002. (Note: In early 2009, the press reported that FM
Moratinos had told the GOI Spain would revise its universal
jurisdiction laws to prevent such cases; we cannot
corroborate this. End note.) Gonzalo Boye Tucet is one of
the four lawyers behind the current lawsuit and is taking the
lead with the media. Open source material identifies Boye as
a Chilean-born lawyer who is a former member of the
International Revolutionary Movement. He served eight years
in a Spanish prison as part of a 14-year sentence he received
for his role in the 1988 kidnapping of a Spanish businessman,
a plot which reportedly was financed in part by ETA.


4. (C) The NGO is emphasizing that Spain has a duty to
investigate because five Guantanamo detainees are either
Spanish citizens or were/are Spanish residents. However, the
NGO does not claim to be representing these individuals.
Their names are: Hamed Abderrahman Ahmed (known in the media
as "The Spanish Taliban"); Lahcen Ikassrien (aka Chaj Hasan);
Reswad Abdulsam; Jamiel Abdul Latif al Bana (aka Abu Anas);
and Omar Deghayes.

MADRID 00000346 002.2 OF 004




5. (C) The NGO has attempted to steer this case directly to
National Court Investigating Judge Baltasar Garzon. For two
decades, Garzon has generated international headlines with
high profile cases involving Spanish politicians, ETA,
radical Islamic terrorists, and crimes against humanity.
Perhaps his most famous case was his attempt to bring to
trial in Spain former Chilean ruler Augustin Pinochet.
Garzon has a reputation for being more interested in
publicity than detail in his cases. The NGO's argument for
Garzon taking the case is that he investigated some of the
individuals named in paragraph four as part of an
investigation of al Qaeda cell in Spain. Garzon has passed
the NGO's complaint to the prosecutor's office for them to
determine if there is a legitimate case.
The Complaint
--------------


6. (U) Post has forwarded the 98-page complaint to L. In
sum, it alleges that the accused conspired with criminal
intent to construct a legal framework to permit interrogation
techniques and detentions in violation of international law.
The complaint describes a number of U.S. documents,
including: a December 28, 2001, memorandum regarding U.S.
courts' jurisdiction over Guantanamo detainees; a February 7,
2002, memorandum saying the detainees were not covered by the
Geneva Convention; a March 13, 2002, memorandum on new
interrogation techniques; an August 1, 2002, memorandum on
the definition of torture; a November 27, 2002, memorandum
recommending approval of 15 new interrogation techniques; and
a March 14, 2003, memorandum providing a legal justification
for new interrogation techniques. The complaint also cites a
2006 U.S. Supreme Court case which its says held the February
2002 memo violated international law and President Obama's
recent Executive Order on ensuring lawful interrogations.


7. (C) The complaint asserts Spanish jurisdiction by claiming
that the alleged crimes committed at Guantanamo violated the
1949 Geneva Convention and its Additional Protocols of 1977,
the 1984 Convention Against Torture or Other Cruel, Unusual
or Degrading Treatment or Punishment, and the 1998 Rome
Statute. The GOS is a signatory to all three instruments.
The complaint cites Article 7 of the 1984 Convention Against
Torture, which states that if a person accused of torture is
not extradited to the nation that is bringing a case against
him or her, then the competent authorities in the country
where the person is should bring a case against him or her.
There is media speculation that one of the NGO's goals may be
to encourage the U.S. to begin judicial proceedings on this
matter.


8. (U) The complaint does not specifically call for arrest
warrants. Rather, it ends with a call for the Spanish courts
to take statements from the accused and to request
information from the USG about the various internal documents
cited in the complaint (declassification dates and
authorities, an official report about the legal nature of
memoranda such as the ones cited in the complaint, and an
official report on the legal nature and binding force of
Executive Orders).

Contacts with Spanish Authorities
--------------


9. (C) On April 1, POLOFF and Embassy FSN Legal Adviser met
National Court Chief Prosecutor Javier Zaragoza, who said

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that he personally will decide whether to open a criminal
case. There is no statutory timeframe for his decision.
Zaragoza said the complaint appears well-documented and in
all likelihood he will have no option but to open a case (the
evidence was on his desk in four red folders a foot tall).
Visibly displeased with this having been dropped in his lap,
Zaragoza said he was in no rush to proceed with the case and
in any event will argue that the case should not be assigned
to Garzon. Zaragoza acknowledged that Garzon has the "right
of first refusal," but said he will recommend that Garzon's
colleague, Investigating Judge Ismael Moreno, should be
assigned the case. Zaragoza said the case ties in with
Moreno's ongoing investigations into alleged illegal "CIA
flights" that have transited Spain carrying detainees to
Guantanamo. Zaragoza said that if Garzon disregards his
recommendation and takes the case, he will appeal. Zaragoza
added that Garzon's impartiality was very suspect, given his
public criticism of Guantanamo and the U.S. war on terror (we
note that, among other things, Garzon narrated a documentary
in 2008 that was extremely critical of the U.S. involvement
in Iraq and Afghanistan and its approach to fighting
terrorism) and his August 2008 public statements that former
President Bush should be tried for war crimes.


10. (C) Zaragoza noted that Spain would not be able to claim
jurisdiction in the case if the USG opened its own
investigation, which he much preferred as the best way
forward and described as "the only way out" for the USG. He
cited the complaint against Israeli officials mentioned above
and said he would request the investigating judge close that
case once he had formal notice that the Israelis had opened
their own investigation.


11. (C) On March 31 and April 1, the Acting DCM discussed the
case separately with FM Moratinos' Chief of Staff Agustin
Santos, and MOJ Director General for International Judicial
Cooperation Aurora Mejia. Santos said the case was
worrisome. He noted that the Spanish judiciary was
independent, but he opined that these universal jurisdiction
cases often sputtered out after the initial burst of
publicity. He also noted that they tended to move very
slowly through the system. Mejia also stressed that the
judiciary was independent, and added that the MOJ had no
official information regarding the case and knew nothing
about it beyond what the media had reported. She said
privately that the reaction to the complaint in the MOJ was
"horror." A/DCM stressed to both that this was a very
serious matter for the USG and asked that the Embassy be kept
informed of any developments.

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


12. (C) Given Spain's reputation for liberally invoking
universal jurisdiction, this may not be the last such case
brought here (nor is it the first -- in 2007, a different
Spanish NGO brought a complaint against former SECDEF
Rumsfeld for crimes against humanity based on the Iraq war
and Abu Ghraib. Zaragoza told us that case was quietly
dismissed although he could not recall the grounds). The
fact that this complaint targets former Administration legal
officials may reflect a "stepping-stone" strategy designed to
pave the way for complaints against even more senior
officials. Both the media and Post's FSN Legal Advisor
suspect the complaint was prepared with the assistance of
lawyers outside Spain, perhaps in the U.S., and perhaps in

MADRID 00000346 004.2 OF 004


collaboration with NGO's such as Human Rights Watch or
Reprieve. It appears to have been drafted by someone who
understands the U.S. legal system far better than the average
Spanish lawyer. For all the publicity universal jurisdiction
cases excite (Garzon's attempt to extradite Pinochet from the
UK comes to mind),we only know of one case ever tried here
(involving a former member of Argentina's military junta).
Based on what Zaragoza told us, we suspect the case will
eventually be referred to the National Court for
investigation, although that step may not come for some time.
Once it reaches the National Court, these cases seem to move
slowly, periodically generating publicity as new evidence is
taken (as with Moreno's investigation into so-called
Guantanamo flights). Whether this case will end up with
Garzon, Moreno, or some other judge, we cannot say. Garzon,
despite his penchant for publicity and criticism of certain
aspects of U.S. policy, has worked well with the U.S. on more
routine criminal matters (although we think a direct approach
to him on this case could well be counter-productive).
Moreno, while his reputation as a judge stands higher among
legal insiders, has been cooler in his dealings us. We
suspect the Spanish Government, whatever its disagreements
with the policies of the Bush Administration, will find this
case inconvenient. Despite the pro forma public comment of
First Vice President Fernandez de la Vega that the GOS would
respect whatever decision the courts make in this matter, the
timing could not be worse for President Zapatero as he tries
to improve ties with the U.S. and get the Spanish public
focused on the future of the relationship rather than the
past. That said, we do not know if the government would be
willing to take the risky step of trying behind the scenes to
influence the prosecutor's recommendation on this case or
what their reaction to such a request would be.
CHACON