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Cable sobre el supuesto esfuerzo de Justicia por archivar la causa

La embajada asegura en abril de 2007 se seguirá contactando con el Gobierno para lograr que se retiren los cargos

ID: 106159
Date: 2007-04-27 19:55:00
Origin: 07MADRID800
Source: Embassy Madrid
Classification: UNCLASSIFIED//FOR OFFICIAL USE ONLY
Dunno: 07MADRID101 07MADRID141 07MADRID215 07MADRID26 07MADRID42
Destination: VZCZCXRO9939
PP RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV
DE RUEHMD #0800/01 1171955
ZNR UUUUU ZZH
P 271955Z APR 07
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC PRIORITY 2401
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY
RUEHGB/AMEMBASSY BAGHDAD PRIORITY 0161
RUEHLA/AMCONSUL BARCELONA PRIORITY 2660
RUCNFB/FBI WASHDC PRIORITY
RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY
RHMFIUU/HQ USCENTCOM MACDILL AFB FL PRIORITY
RHMFISS/HQ USEUCOM VAIHINGEN GE PRIORITY
RUEKJCS/JOINT STAFF WASHDC PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY

UNCLAS SECTION 01 OF 03 MADRID 000800

SIPDIS

SIPDIS
SENSITIVE

EUR/WE FOR ALLEGRONE, CLEMENTS, AND CERVETTI
L/LEI FOR PROPP, KULISH, AND JOHNSON

E.O. 12958: N/A
TAGS: PREL, MARR, PGOV, SP
SUBJECT: SPAIN/COUSO CASE: JUDGE CHARGES US SERVICEMEN WITH
"CRIMES AGAINST INTERNATIONAL COMMUNITY"

REF: A. MADRID 215
B. MADRID 141
C. MADRID 101
D. MADRID 42
E. MADRID 26

MADRID 00000800 001.2 OF 003


1. (SBU) Summary. National Court Judge Santiago Pedraz
issued formal charges of murder and "crimes against the
international community" against the three US servicemen
named in the legal case filed by family members of Spanish
cameraman Jose Couso, who was killed by US fire during the
capture of Baghdad in April 2003 (reftels). The most serious
charges are punishable by 10-15 year imprisonment. According
to press reports, Judge Pedraz transmitted a Mutual Legal
Assistance (MLAT) Request to "US authorities" in connection
with this charging document, with the MLAT evidently intended
to advise the servicemen of these charges rather than
requesting action on the part of the USG to extradite them to
Spain. The charging document indicates that if the three
servicemen were brought before the court, they would be
required to present a one million Euro bond to meet their
potential civil liability in the case. The National Court
prosecutors have three working days to appeal the charges; if
there is no appeal, the case will move forward. The
indictment is notable for the absence of any acknowledgement
that there were ongoing military operations during the
incident in Baghdad and for the use of alleged statements to
the media by the defendants to justify the charges against
them. The DCM contacted Julio Perez Hernandez, Secretary of
State for Justice (equivalent to an Undersecretary) to
discuss Pedraz's presentation of charges, noting the USG's
respect for Spanish judicial independence, but also the USG's
disappointment with this development in light of the
extensive USG report on the incident which was shared Spanish
authorities. Perez Hernandez said he would contact the
National Court Chief Prosecutor to ascertain how the
Prosecutor's Service would handle this case. Spanish law
does not permit trial in absentia, so it is possible that the
case could be archived if the defendants do not appear in a
Spanish court. However, this is an unacceptable outcome
since it will leave charges pending against the three
servicemen; we will continue to press for dismissal of the
charges. End Summary.

//THE CHARGES//

2. (SBU) In a document filed by the National Court the
afternoon of April 27 (immediately prior to a major Spanish
holiday weekend), Judge Pedraz formally charged US servicemen
Lt. Colonel Philip de Camp, Captain Philip Wolford, and
Sergeant Thomas Gibson with "crimes against the international
community" and "aggravated murder" in connection with the
death of Spanish cameraman Jose Couso on April 8, 2003 during
the US capture of Baghdad. The indictment was broken down
into three parts: a background of the case, a discussion of
the judicial aspects of the case, and the Judge's
presentation of charges against the three servicemen. Post
is preparing an informal translation of the indictment to be
transmitted to the Department and to DOJ, but a summary of
the document follows below:

-- Background:
Judge Pedraz discusses key elements of the invasion of Iraq
and notes that the majority of the international media
transferred from the "Rashid Hotel" to the "Palestine Hotel"
at the recommendation of US forces. He then describes the
killing of Couso from the impact of a tank round fired by a
US tank situated 1.5 kilometers from the Palestine Hotel.
According to the indictment, Lt. Colonel Philip de Camp of
the 64th Armored Regiment, 3rd Infantry Division ordered
Captain Philip Wolford, commander of the unit that fired the
tank round, to fire a round at the hotel. The shot was
allegedly fired by the third serviceman, Sergeant Thomas
Gibson. Judge Pedraz's charging document states that "The
(US) military forces, including the three aforementioned
individuals, knew that the Palestine Hotel was located in a
civilian area, and that it was occupied by journalists.
There is no evidence that a "sniper" nor of gunfire from any
part of the Palestine Hotel against (US) forces."

MADRID 00000800 002.2 OF 003



-- Judicial Discussion:
Judge Pedraz indicates that the events related in the summary
could constitute a "violation against the international
community," as described in Article 611.1 of the Spanish
Penal Code, which mandates a 10-15 year prison term for those
who, "without prejudice to the harm occasioned by their
conduct, in the event of an armed conflict undertake or order
to be undertaken indiscriminate or excessive attacks or make
the civilian population the target of attacks, reprisals, or
acts or threats of violence with the intent of generating
terror." Judge Pedraz cites Article 608.3 of the Penal Code,
which describes protected persons as "the civilian population
and persons protected under the IV Geneva Convention of 12
August 1949 and by Additional Protocol I of 8 June 1977." He
then adds a charge of "aggravated murder" against the three
servicemen and concludes that there exist "rational
indicators" that the actions of the servicemen constituted
criminal acts.

-- Judge Pedraz asserts that (unspecified) comments in the
media by one of the accused of the circumstances of the
incident confirmed the existence of "an order, authorization
of that order, and the firing of a tank round," a sequence
Judge Pedraz says was further supported by the USG "report"
(Judge Pedraz's quotes) on the incident. Judge Pedraz then
discusses the recommendation by "the Pentagon" for foreign
journalists to move to the Palestine Hotel, indicates that
the "media" reported to "Embassies, the Pentagon, and
Washington" the GPS coordinates of the Hotel, indicates that
US military forces were advised not to target the Palestine
Hotel, and claims that "Secretary of State Colin Powell
acknowledged that it was known that the Palestine Hotel was
full of journalists."

-- Pedraz disputes the conclusion of the USG investigation
that the servicemen responded appropriately and within the
rules of engagement to the suspected threat of a sniper or
enemy spotter at the Palestine Hotel, because USG forces
should have known that the Palestine Hotel was a civilian
facility and that the "flash" seen by USG forces could have
been the reflection of a camera lens or a camera flash.
Judge Pedraz further notes attacks by US aircraft against
Al-Jazeera and other media facilities near the Palestine
Hotel, implying that USG forces were deliberately targeting
the international media. Pedraz alleges that there is
sufficient evidence to warrant charges the shot fired by the
US tank that killed Couso, "without evidence of any threat
whatsoever... constitutes an "attack, reprisal, act, or
threat of violence with the objective of terrorizing"
journalists, as indicated by the attacks the same day against
Al Jazeera and Abu Dhabi TV." On this basis, Judge Pedraz
orders the "provisional arrest" of the named US servicemen.

Charges:
Judge Pedraz orders the indictment of the three US servicemen
and instructs the notification of the three defendants via an
MLAT to US authorities. Further Judge Pedraz indicates that
"once the (subjects) are at the disposition of (Spanish
courts)," they should provide a bond of one million Euros
($1.37 million) to cover potential civil liability as a
result of the criminal investigation and trial. Under
Spanish law, the National Court prosecutor has three working
days to present an appeal to Judge Pedraz's indictment.

//DCM CONTACTS MINISTRY OF JUSTICE//

3. (SBU) The DCM contacted Secretary of State for Justice
(Undersecretary equivalent) Julio Perez Hernandez on April 27
to draw his attention to the USG's concerns regarding this
case. The DCM noted the USG's respect for the independence
of the Spanish judiciary but emphasized our disappointment
with the issuance of this indictment after the USG had
provided a comprehensive report demonstrating that we had
already fully investigated the circumstances of Couso's
death. Perez Hernandez (who only recently assumed his
position) said that he knew the general outlines of the Couso
case but was unaware of both this indictment and of the
latest actions by Judge Pedraz. However, Perez Hernandez

MADRID 00000800 003.2 OF 003


said that he would try to make contact with National Court
Chief Prosecutor Javier Zaragoza to determine how the
prosecutors intended to respond.

4. (SBU) Shortly after the DCM's conversation with Perez
Hernandez, MOJ Director General for International Relations
Cristina Latorre called him to say report that the MOJ had
been unable to contact Chief Prosecutor Zaragoza. Latorre
said that Judge Pedraz's actions had come as a complete
surprise to the MOJ, noting that she agreed that there were
no grounds for war crimes or murder charges and had worked
with prosecutors in 2006 to get the case dismissed.

//MEDIA INQUIRIES//

5. (SBU) This is a major development in the Spanish context
and we expect to receive many questions from local media
regarding the USG response. As we have throughout this case,
the Embassy will deploy the previously approved guidance
below, last used in response to media inquiries on January
16, 2007:

"On behalf of the Government of the United States, we
reiterate our profound sympathy for the death of the Spanish
journalist and of the Reuters correspondent Taras Protsyuk in
the Palestine Hotel in Baghdad. The US authorities undertook
a detailed investigation of the incident. We shared the
results of the investigation with Spanish authorities. The
investigation concluded that US military forces acted within
the rules of engagement in that zone of armed conflict."

//COMMENT//

6. (SBU) Legat confirmed with DOJ that DOJ has not received
the MLAT which Judge Pedraz instructed be delivered in
connection with this indictment. It is our understanding
that transmittal of the MLAT will take several weeks to make
its way from the Spanish Ministry of Justice to DOJ. If the
USG does not acknowledge a Spanish MLAT or otherwise
cooperate in this case, it is possible that the case could be
suspended or archived, since Spanish law does not provide for
trial in absentia. However, this would leave the charges
against the US servicemen pending. Respected figures in the
Ministry of Justice and Interior and within the Zapatero
Administration have told us that they agree with the USG view
on the legal validity of this case and have assured us that
the case was so weak that it would eventually crumble.
Clearly Judge Pedraz (considered a difficult judge in the
judicial community) is of another mind and intends to
aggressively pursue this case. We will continue to engage at
a high level with Spanish Government officials to press the
case for the dismissal of the charges against the US
servicemen.



Aguirre