Cable en el que la embajada plantea volver a tratar el asunto con La Moncloa

Se plantea el compromiso de evitar la percepción pública de que EE UU está presionando al Gobierno para que interfiera en el proceso

ID:95857
Date:2007-02-08 18:12:00
Origin:07MADRID215
Source:Embassy Madrid
Classification:CONFIDENTIAL
Dunno:06MADRID3013 07MADRID101 07MADRID141 07MADRID26 07MADRID82
Destination:VZCZCXRO2262
PP RUEHAG RUEHROV
DE RUEHMD #0215/01 0391812
ZNY CCCCC ZZH
P 081812Z FEB 07
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC PRIORITY 1808
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY
RUEHGB/AMEMBASSY BAGHDAD PRIORITY 0140
RUEHLA/AMCONSUL BARCELONA PRIORITY 2428
RUEAIIA/CIA WASHDC PRIORITY
RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY
RUCNFB/FBI WASHDC PRIORITY
RUEKJCS/JOINT STAFF WASHDC PRIORITY
RHEHNSC/NSC WASHDC PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY
RHMFIUU/HQ USCENTCOM MACDILL AFB FL PRIORITY
RHMFISS/HQ USEUCOM VAIHINGEN GE PRIORITY

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

MADRID 00000215 002.2 OF 004


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

MADRID 00000215 003.2 OF 004


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

MADRID 00000215 004.2 OF 004


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
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