The government of José Luis Rodríguez Zapatero and the US Embassy in Madrid were both taken aback when news broke that the CIA had used Spain for stopovers during its secret rendition flights. The administration and Embassy officials agreed on two things: public opinion had to be soothed and a judicial investigation had to be avoided. Any court inquiry would worsen the already soured relations between Spain and the United States.
US Ambassador Eduardo Aguirre wrote to his superiors in Washington that then-Deputy Prime Minister María Teresa Fernández de la Vega had "emphasized that Spain had no objection to United States government intelligence flights through Spanish territory."
"They simply wanted to be kept informed and, if necessary, to be able to demonstrate that they were exercising proper oversight of foreign aircraft passing through Spain," he wrote in a June 9, 2006 cable.
Just the day before, the Council of Europe issued a report that the Spanish government had "permitted or failed to investigate" the use of Mallorca as a staging point for the "illegal" transfer of individuals by the CIA. It also accused a dozen European governments of conspiring with the US government in similar actions that the council said could be seen as contributing to human rights violations.
"Regarding the CIA flights issue, [...] De la Vega said Spain's inclusion in the Council of Europe report had caught the Zapatero government totally off guard and she insisted Spain had nothing to hide on the issue," wrote Aguirre, who met with her the following day to discuss a range of issues including developments in Peru, Bolivia, Iran, Syria and North Africa.
The deputy prime minister told the US ambassador that "Spain was prepared to deal with this issue, but wanted to be certain that it had all the information available regarding the flights to avoid being caught unprepared." In this respect, Aguirre wrote that he told her "that we too had an interest in preserving our credibility and were careful to share whatever information we had and to avoid any actions that might create problems for the Spanish authorities."
It was not the first time US diplomats and Spanish authorities had touched on the issue. Aguirre said that then-Foreign Minister Miguel Ángel Moratinos had forewarned him "recently" that High Court Judge Ismael Moreno had opened an investigation into the matter based on a lawsuit filed by a group of lawyers in Mallorca. "Moratinos indicated the Spanish Government's desire to give this issue as low a profile as possible, though, as a judicial case, the government had a limited capacity to influence the direction of the case," reads the cable. "De la Vega said she was aware of FM Moratinos' communication on this issue and expressed confidence that the Zapatero Government could manage it with little difficulty."
The decision to put a damper on the judicial inquiry into the CIA was made with, according to the US Embassy, the collaboration of High Court prosecutor Vicente González Mota, who US officials said they knew well because he served as the Spanish representative in the Embassy's Bilateral Counter Terrorism Experts Working Group. "We find him to be an engaging and helpful colleague and anticipate that he will be sensitive to the Spanish government's preference that this case not proceed," wrote Hugo Llorens, the then-deputy chief of mission and now US Ambassador to Honduras, on December 28, 2006.
Nevertheless, Llorens added that Spanish judges "fiercely guard their independence and are willing to break new ground on issues of jurisdiction."
"If Judge Moreno were to determine that there was sufficient evidence that a crime had been committed and that perpetrators could be identified, he would forward the case to a panel of trial judges," Llorens said.
The plaintiffs in the case - the Mallorcan Free Association of Attorneys and a group of professionals - asked Moreno to charge 13 US government individuals who made a stopover at the Balearic island airport in January 2004. It was on this flight that the 13 allegedly participated in the plucking of German national Khaled el Masri from Macedonia and his transport to Afghanistan, the lawsuit stated.
In January 2007, González told the US Embassy that he would not try to block Judge Moreno's subpoenas for the Defense Ministry and the National Intelligence Agency (CNI) to declassify information in their files related to the flights. The prosecutor assured Llorens that "it was clear that those records did not contain any incriminating or even particularly sensitive information." On February 9, the Cabinet approved the declassification of the records, which added nothing new to the ongoing investigation.
Before the Cabinet's approval, Aguirre told US Secretary of State Condoleezza Rice in a confidential cable that he was less worried about the information Spanish authorities were planning on making public but more concerned about the collaboration between Spanish and German prosecutors in the case. German authorities had used the information that the Civil Guard had compiled on the supposed identities of the 13 US officials to issue arrest warrants against them for allegedly plucking El Masri, who spent five years in a secret jail in Afghanistan. El Masri told the High Court that he was kidnapped and tortured for five months in 2004, allegedly by the CIA, but he couldn't identify the individuals who transported him from Macedonia to Afghanistan. He also could not say if he was on that same aircraft that had landed in Mallorca and was identified in the lawsuit.
The investigation into the CIA rendition flights grew stronger in December 2006 when press reports stated that US Air Force planes, also used in the clandestine trips, made stopovers at Spanish air bases in Morón de la Frontera, near Seville, and Rota, outside Cádiz.
On February 13, Llorens met with Francisco Pardo, the Spanish secretary of state for defense, to assure him that the military flights did not break any clauses in their country's bilateral treaty. But the affair was a delicate matter because the treaty prohibits the US from transporting material or passengers that could be deemed "controversial" into Spanish territory.
The Embassy, which continued to tell the press that no laws were broken, had hoped the judicial investigation into the rendition flights would go away. But it didn't.
In May 2010, the High Court issued arrest warrants for the 13 passengers that were allegedly on board the plane that transported El Masri. They have been charged with presenting false documents to Spanish authorities. Reprieve, a British NGO, reportedly has their real identities in its possession. Judge Moreno has asked for the information.