GARZON OPENS SECOND INVESTIGATION INTO ALLEGED

UNCLAS SECTION 01 OF 02 MADRID 000440

SENSITIVE
SIPDIS

FOR EUR/WE, ALSO FOR L/LEI AND CA/OCS, DOJ FOR BRUCE SWARTZ
AND PAT REEDY

E.O. 12958: N/A
TAGS: AORC PREL CASC CJAN PTER PGOV PHUM PINS SOCI
KCRM, KJUS, SP
SUBJECT: GARZON OPENS SECOND INVESTIGATION INTO ALLEGED
U.S. TORTURE OF TERRORISM DETAINEES

REF: A. MADRID 392

B. MADRID 393

C. 08 MADRID 1280

MADRID 00000440 001.2 OF 002



1. (SBU) Summary: Spanish National Court (Audiencia
Nacional) investigating judge Baltasar Garzon has announced
he will pursue an investigation into allegations the U.S.
tortured terrorism detainees at Guantanamo. He has yet to
name any targets of his investigation. This comes days after
he was forced to give up a related complaint filed by an NGO
against six Bush Administration officials (ref a). At the
urging of Spanish prosecutors, the earlier case was
reassigned to another National Court judge who now appears to
be trying shelve the case. The Chief Prosecutor for the
National Court tells us he will also fight Garzon's latest
move. Nevertheless, we suspect Garzon will wring all the
publicity he can from the case unless and until he is forced
to give it up. End summary.


2. (U) Garzon bowed to arguments by Spanish prosecutors and
April 17 forwarded to National Court docketing authorities a
case recently filed against six Bush Administration officials
(ref a). That case was duly assigned to investigating judge
Eloy Velasco. We learned May 5 that Velasco has declined to
process that case saying that before moving forward the USG
should be asked if proceedings are underway in the U.S. He
also offered to transfer the proceedings to the U.S. under
the MLAT. We are waiting for a copy of Velasco's ruling and
will advise further when we receive it. Meanwhile, Garzon
announced April 29 that he was commencing a separate
investigation into alleged U.S. torture of terrorism
detainees.


3. (SBU) LEGATT and Embassy FSN Legal Advisor met May 4 with
National Court Chief Prosecutor Javier Zaragoza (protect) to
discuss Garzon's latest move. Zaragoza said he had
challenged Garzon directly and personally on this latest
case, asking if he was trying to drum up more speaking fees.
Garzon replied he was doing it for the record only and would
let it die. Zaragoza opined that Garzon, having gotten his
headline, would soon drop the matter. In case he does not,
Zaragoza has a strategy to force his hand. Zaragoza's
strategy hinges on the older case in which Garzon
investigated terrorism complaints against some Guantanamo
detainees. In connection with those earlier investigations,
Garzon ordered the Spanish police to visit Guantanamo and
collect evidence against the suspected terrorists. Zaragoza
reasons that he can use this fact to embarrass Garzon into
dropping this latest case by suggesting Garzon in some sense
condoned the U.S. approach to detainee issues circa 2004.
Garzon took no action in 2004 when the suspects returned to
Spain and reported to him their alleged mistreatment.
Zaragoza said that if Garzon could not be shamed into
dropping the case, then he would formally recommend Garzon do
so and appeal if Garzon ignored him.


4. (SBU) Key to Zaragoza's plans is the fact that there is
yet another Guantanamo-related case underway in the National
Court. That case relates to so-called CIA flights carrying
detainees to Guantanamo via Spain and is being heard by
investigating Judge Ismael Moreno (ref c). The police
officers whom Garzon sent to Guantanamo years ago are
expected to testify before Moreno this month, and Zaragoza
hopes their testimony will put on record Garzon's role in the
earlier cases. (Note: In opening his most recent Guantanamo
investigation, Garzon asked that Moreno turn his detainee
flights case over to him; Zaragoza thought there was no
chance Moreno would agree to do so. End note.) Zaragoza is
also banking on the fact that Garzon is already in hot water
over his excessive zeal in another case. A few months ago,
Garzon opened an investigation into Spanish civil war
atrocities. Garzon persisted in his investigation in the
face of all advice to the contrary from prosecutors. The
case was finally wrestled away from Garzon, but there is now
a criminal complaint against him in the Supreme Court,
alleging abuse of authority. That complaint has the support
of Spanish prosecutors. Zaragoza doubts Garzon will risk a
second such complaint.


5. (SBU) As we have reported, with respect to the earlier
complaint against six Bush Administration officials, Zaragoza
has repeatedly suggested that a USG affirmation that the U.S.
is investigating the torture issue could help dispose of

MADRID 00000440 002.2 OF 002


Spanish judicial inquires into the subject. In that regard,
the Spanish press reported today that National Court
investigating judge Fernando Andreu, who is handling a case
against Israeli officials accused of war crimes in Gaza in
2002, has refused to drop the case despite a request from
prosecutors. The prosecutors had argued that Israel was
investigating the matter. In refusing to close the case,
Andreu argued that Gaza was not part of Israel and thus
Israeli authorities were not the ones who should be
investigating crimes allegedly committed there. The press
reports that the President of the Supreme Court and Spain's
Judicial Council (Consejo General del Poder Judicial),Carlos
Divar, is arguing for reforming the jurisdiction of the
National Court to avoid having it turned into the "judicial
police of the world." Zaragoza has commented to us that
while many talk about limiting Spain's universal jurisdiction
rules, it is unlikely politicians will act to do so.

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


4. (SBU) We believe Zaragoza is acting in good faith and
playing a constructive role. Certainly he knows Garzon
better than we do, having sparred with him before.
Nevertheless, we do not share his optimism that this problem
will go away anytime soon. Having started, it is hard for us
to see why the publicity-loving Garzon would shut off his
headline-generating machine unless forced to do so. And
forcing him to do so could take months. We also fear Garzon
-- far from being deterred by threats of disciplinary action
-- may welcome the chance for martyrdom, knowing the case
will attract worldwide attention. In any event, we will
probably be dealing with this issue for some time to come.
Zaragoza will be in Washington in early June for
LEGATT-organized consultations on CT cooperation. L and DOJ
may wish take that opportunity to discuss these cases with
him directly at that time.
CHACON