Audiencia Nacional

Cable sobre la absolución en España de un español preso de Guantánamo

En 2006, la Embajada notifica la anulación, por parte del Supremo, de la sentencia contra el ceutí Hamed Abderrahaman Ahmed, acusado de terrorismo.

Date:2006-07-28 11:05:00
Source:Embassy Madrid
DE RUEHMD #1914/01 2091105
P 281105Z JUL 06

S E C R E T SECTION 01 OF 03 MADRID 001914



E.O. 12958: DECL: 07/25/2016

REF: A. 2005 MADRID 3528
B. TD-314/09169-05

MADRID 00001914 001.2 OF 003

Classified By: A/DCM Kathleen Fitzpatrick; reasons 1.4 (B) and (D)

1. (C) Summary. The Spanish Supreme Court announced July 24
that it had annulled the six-year prison sentence handed down
in September by Spain's National Court against accused
terrorist Hamed Abderrahaman Ahmed, known in the media as the
"Spanish Taliban." Abderrahaman, a Spanish national captured
in Afghanistan by U.S. forces and held at Guantanamo until
being turned over to Spanish authorities in February 2004,
was immediately released from prison. The Supreme Court
found that Spanish prosecutors could not use any evidence
collected during their interview with Abderrahaman while he
was being held at Guantanamo under conditions the Court
termed "impossible to explain, much less justify." The Court
threw out other evidence collected against Abderrahaman prior
to his capture in Afghanistan and determined that prosecutors
had skewed Abderrahaman's testimony to incriminate him. This
finding had an immediate effect on the case of Lahcen
Ikassrien, a Moroccan national and former Guantanamo detainee
tranferred to Spanish custody in July 2005. Prosecutors
announced their recommendation to release Ikassrien on bail
while awaiting trial on terrorism charges, while
Abderrahaman's attorney said he would sue the U.S. Government
for suffering allegedly suffered by Abderrahaman during his
incarceration in Guantanamo. Spanish officials involved in
the Abderrahaman case expressed disappointment in his
release, but also said that he was not particularly dangerous
and dismissed him as a threat. This ruling does not indicate
a reduction in counter-terrorism cooperation by Spanish law
enforcement officials, but the Supreme Court's decisions will
clearly have to be taken into account as we pursue improved
judicial cooperation with Spain. The Spanish judicial branch
carefully guards its hard-won indepence, meaning it will not
shy away from rulings that cut across Spanish Government (or
USG) objectives. End Summary.


2. (S) According to sentencing documents, Abderrahaman
established contacts with al-Qa'ida elements in the Spanish
enclave of Ceuta and, in August 2001, traveled to Afghanistan
for religious and military training in Kandahar. When the
U.S. invaded Afghanistan in the wake of the September 11
attacks, Abderrahaman fled to Pakistan, where he was
reportedly captured by the Pakistani military, who turned him
over to U.S. forces. Abderrahaman was transferred to
Guantanamo, where he was held until he was turned over to
Spanish authorities in February 2004 in response to a request
by magistrate Baltasar Garzon, who wanted to investigate
Abderrahaman in connection with the trial of al-Qa'ida cell
leader Imad Eddin Barakat Yarkas. Under the terms of that
transfer, Spanish authorities agreed to:

-- Be prepared to detain, investigate, and prosecute
Abderrahaman, while treating him humanely;

-- Share with USG authorities any information developed
during the investigation;

-- Provide reasonable notice of any decision to release or
transfer Abderrahaman;

-- Conduct surveillance of Abderrahaman following his
release, and share any relevant information with the U.S.;

-- Provide U.S. officials access to Abderrahaman if necessary.

3. (S) Garzon released Abderrahaman on bail in July 2004,
finding that Spanish National Police interrogations of
Abderrahaman while he was being held in Guantanamo could not
be used as evidence. However, the National Police had
previous wiretap evidence linking Abderrahaman to Barakat
Yarkas as well as what they viewed as incriminating
statements by Abderrahaman to police investigators following
his release from Guantanamo. In early 2005, a confidential
police assessment shared with USG officials concluded that
Abderrahaman had the "mental maturity of a 12-year-old," was
"naive and foolish," and did not seem to comprehend the
gravity of his detention in Guantanamo. But the report also
noted Abderrahaman's consistent statements to Spanish police
that he wanted to "go fight with the Chechens and kill
Russians." (REF B). Police provided this information to
prosecutors and to the National Court, which found

MADRID 00001914 002.2 OF 003

Abderrahaman guilty in September 2005 of "membership in a
terrorist organization." The case was then automatically
transferred to the Supreme Court to either overturn or
confirm the sentence.


4. (U) The Supreme Court overturned Abderrahaman's conviction
on the basis that the National Court had allowed prosecutors
to use inadmissible evidence to establish Abderrahaman's
guilt and that prosecutors had improperly translated
Abderrahaman's incriminating testimony. Specifically, the
Supreme Court found that testimony obtained by Spanish police
investigators during the course of interviews of Abderrahaman
in Guantanamo could not be used in court because the
"interrogations, euphemistically called "interviews," took
place under unequal circumstances because (the defendant) was
in detention" at the time of the interrogations. Further,
the Supreme Court finding stated that "although it is not for
(this Court) to issue a pronouncement regarding the situation
of those held in indefinite detention, we must state that, as
Ahmed was held in detention under the authority of the U.S.
military since he was turned over (to the U.S.) on an
undetermined date, all information obtained under such
conditions must be declared totally null and nonexistent."
The Court did go on to pronounce its position on Guantanamo,
criticizing the detention of "hundreds of people, among them
Ahmed, without charges, without rights, without controls, and
without limits," a situation the Court termed "impossible to
explain, much less justify."

5. (U) Just as damaging to the prosecution's case was the
Court's decision to throw out telephone intercepts
incriminating Abderrahaman obtained during the course of the
Barakat Yarkas investigation and long before Abderrahaman's
detention in Afghanistan. The judges found that the
intercepts had been obtained improperly (NOTE: the Supreme
Court had already ruled against allowing the intercepts
during its review of the convictions of Barakat Yarkas cell
members). The Supreme Court also determined that prosecutors
had improperly translated Abderrahaman's statements and had
omitted exculpatory evidence, such as Abderrahaman's
declaration that he did not belong to al-Qa'ida and had not
received military training. The Court criticized prosecutors
for omitting a document "signed in Guantanamo by Abderrahaman
before being turned over to Spanish authorities," a document
in which U.S. authorities allegedly acknowledged that
Abderrahaman was not a member of al-Qa'ida. On this basis,
the Supreme Court found that the case against Abderrahaman
failed to meet the minimum standards established by the
European Court of Human Rights for a finding of "guilty
beyond a reasonable doubt."

6. (C) Legat contacted Eduardo Fungairino, currently the head
of an anti-terrorism office assigned to the Supreme Court and
formerly the chief of the National Prosecutor's office, on
July 25 for his insights into the Abderrahaman decision.
Fungairino (strictly protect) dismissed the Supreme Court
decision as "facile and populist." He said that while he
acknowledged errors on the part of National Court prosecutors
in the case (and the legal problems generated by the
circumstances at Guantanamo), in his view the Supreme Court
ignored evidence of Abderrahaman's terrorist training in
Pakistan and Afghanistan, activities that are clearly
criminal under Spanish law. Fungairino indicated that one
consolation, in his view, was that Abderrahaman did not
represent a serious threat, echoing police assessments that
Abderrahaman was a pawn in events beyond his understanding
(see para 3).


7. (U) In a July 25 press conference organized by
Abderrahaman attorney Marcos Garcia Montes, Abderrahaman told
reporters that he hoped to gain employment as a truck driver
and claimed that his vision had degraded so much during his
detention in Guantanamo that he was unfit for other
employment. Garcia Montes said that he planned to file a
"multimillion dollar suit" against the U.S. Government for
damages, including post-traumatic stress and vision loss on
the part of his client. The attorney told reporters that
Abderrahaman's suffering had been such that he could no
longer recall specific elements of his detention in
Guantanamo, nor of his time in Pakistan and Afghanistan.
Abderrahaman roundly denied ever having been a terrorist and
insisted that his prior references to himself as a "martyr"
referred to his treatment in detention. Prompted by his

MADRID 00001914 003.2 OF 003

attorney, Abderrahaman related his alleged mistreatment in
U.S. detention, including the presence of a powerful
lightbulb in his cell that impeded sleep and threats that he
would never see his family again. Abderrahaman said he
planned to write a book about his experiences.

8. (U) Following the Supreme Court decision in the
Abderrahaman case, National Court prosecutors announced that
they would support the release on bail of Moroccan national
Lahcen Ikassrien, who was transferred to Spain from
Guantanamo in July 2005 and held in preventive detention
since his arrival. This comes less than a month after
prosecutors filed formal charges against Ikassrien, seeking
an eight-year prison term on charges of membership in a
terrorist organization. The case against Ikassrien is based
on three police interviews with him when he was being held at
Guantanamo (by the same investigators who interviewed
Abderrahaman) and on telephone intercepts developed in the
course of the Barakat Yarkas investigation, the same evidence
thrown out in the Abderrahaman case. (NOTE: According to
press reports, the Spanish police intercepts place Ikassrien
in Istanbul, Turkey in November 2000 along with suspected
terrorists Amer Azizi and Said Berraj. In a separate
intercept, Ikassrien requested assistance with documentation
from al-Qa'ida cell leader Barakat Yarkas). Prosecutors have
maintained that Ikassrien's own testimony since his transfer
from Guantanamo incriminates him since he has acknowledged
traveling to Afghanistan to "collaborate with the Islamist
regime." That is disputed by court observers who say that
Ikassrien's statements to the National Court have been
substantially less incriminating than those of Abderrahaman

9. (U) Ikassrien's attorney has already homed in on
Guantanamo as key to his client's defense, focusing on
Ikassrien's alleged mistreatment while in US custody. The
attorney's request claims that "while Ikassrien was in
Guantanamo, he was gassed, beaten, mistreated, and insulted,
and subject to repeated inspections, during which the
military officials undertaking the inspections would damage
or destroy (Ikassrien's) books, especially the Koran."
Ikassrien's attorney also alleges that his client was
forcibly injected with a substance that led to severe itching
that continues to affect him.


10. (C) Spanish counter-terrorism legislation was designed
over three decades to combat ETA, a group with a defined
structure, doctrine, and modus operandi. Police,
prosecutors, and magistrates working on investigations of the
far more amorphous cells of Islamist extremist have struggled
to develop evidence sufficient to meet the high threshhold
set by the Spanish Supreme Court. This was reflected in an
earlier decision by the Supreme Court to reverse the
convictions of several Barakat Yarkas cell members and to
reduce Barakat Yarkas' sentence on the basis that prosecutors
had not proved his connection to the September 11 attacks in
the U.S. (USG observers of the trial noted that the evidence
on the September 11 connection was indeed weak). Clearly, in
the Abderrahaman case the Supreme Court was also eager to use
this case as a platform to criticize U.S. detainee policies
in Guantanamo. While this sentiment has not influenced
Spanish police to reduce their close collaboration with the
U.S. in fighting terrorism, we must take it into account as
we pursue increased judicial cooperation with Spain in
terrorism cases. The Spanish judiciary carefully guards its
independence (a major achievement of the post-Franco era) and
has not shied from taking decisions that cut across the
obectives of the Spanish Government.
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