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DOCUMENTO Íntegro

Los jueces españoles buscan nuevas vías para usar la información de inteligencia que les da la CIA

ID: 245356
Date: 2010-01-25 16:58:00
Origin: 10MADRID81
Source: Embassy Madrid
Classification: CONFIDENTIAL
Dunno: 06MADRID1914 06MADRID2657 09MADRID505 10MADRID76 10MADRID79
Destination: VZCZCXRO7237
RR RUEHDBU RUEHFL RUEHKW RUEHLA RUEHNP RUEHROV RUEHSL RUEHSR
DE RUEHMD #0081/01 0251658
ZNY CCCCC ZZH
R 251658Z JAN 10
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC 1747
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHRO/AMEMBASSY ROME 2553
RUEHLA/AMCONSUL BARCELONA 4319
RUEAWJA/DEPT OF JUSTICE WASHDC
RUCNFB/FBI WASHDC
RUEAIIA/CIA WASHDC
RUEAHLC/HOMELAND SECURITY CENTER WASHINGTON DC
RUEILB/NCTC WASHINGTON DC

C O N F I D E N T I A L SECTION 01 OF 02 MADRID 000081

SIPDIS

DEPARTMENT FOR EUR/WE (ALEX MCKNIGHT AND STACIE ZERDECKI),
EUR/PGI (LONNI REASOR), S/CT (MARC NORMAN), INR/TNC (CHASE
HOGLE), INR/EUC (JANICE BELL),
DEPARTMENT PASS TO NSC (ELIZABETH FARR)
DEPARTMENT PASS TO JUSTICE (BRUCE SWARTZ, TODD HINNEN)
EUCOM FOR DEVONNA GRAHAM

E.O. 12958: DECL: 01/25/2020
TAGS: PGOV, PINS, PTER, KJUS, SP, KCRM, PINR
SUBJECT: SPAIN: PROBLEMS USING USG-PROVIDED EVIDENCE IN
TERRORIST TRIALS

REF: A. MADRID 76
B. MADRID 79
C. 09 MADRID 505
D. 06 MADRID 1914
E. 06 MADRID 2657

MADRID 00000081 001.2 OF 002


Classified By: DCM Arnold A. Chacon for reasons 1.4 (b) and (d)

1. (C) SUMMARY: National Court Prosecutor Dolores "Lola"
Delgado on January 13 vented to US DOJ officials on problems
she is encountering in trying to introduce evidence provided
by the USG - primarily from the US intelligence community -
in her prosecution of radical Islamist terrorists. She
delivered her remarks at a meeting of the US-Spain
Counter-Terrorism and Organized Crime Experts Working Group,
a prosecutor-to-prosecutor forum (Ref A). Delgado's comments
stemmed chiefly from her experiences in the trials for
terrorists arrested in Operations Chacal/Camaleon and Tigris
(Refs B and C, respectively). Citing the legal term "fruit
of the poisonous tree" to describe her predicament, she
framed her frustration in terms of "Lessons Learned" and her
desire to work more closely with the USG for a more
successful prosecutions in the future. DOJ officials thanked
Delgado for notifying them of her experiences, sympathized
with Spanish efforts to strike the right balance between
protecting sources and methods and the ability to forge a
stronger case in court, and offered to serve as interlocutors
in future instances in which Spanish prosecutors would like
to use US intelligence-based information as evidence. Both
delegations agreed that every trial is different and these
issues will need to be resolved on a case-by-case basis. END
SUMMARY.

2. (C) Delgado emphasized that she would like the USG and GOS
to ensure that the bilateral exchange of information in CT
cases is done in a way in which the information provided is
usable in a court of law rather than an exchange just for the
sake of cooperation. She emphasized that the way in which
the GOS receives information - through police, intelligence
or other channels - is "vital" from a legal point of view.
Delgado's boss, Chief Prosecutor Javier Zaragoza, supported
Delgado's comments, reiterating that an appropriate system
for the transfer of information has to be designed.

//Chacal/Camaleon//

3. (C) Delgado related how, in the trial of Chacal/Camaleon,
she had tried unsuccessfully to submit a confession by Abu
Omar Al Kurdi, whom she described as chief of suicide
operations for Al Qaida in the Land of the Two Rivers. She
related how - after Al Kurdi's capture by U.S. forces - Italy
asked the USG to interrogate him regarding the truck bombing
of the Italian military police headquarters in Nasiriyah,
Iraq in November 2003. She detailed how the questioning took
place via DVC attended by two prosecutors, a defender, a
judge, an interpreter, and represenatives of the Italian
military police and the U.S. military. Delgado added that al
Kurdi was informed of all his rights before the questioning
began and before he volunteered any answers. Delgado had
hoped to use Al Kurdi's statements as evidence, but the
judges in the Tigris trial ruled that Al Kurdi's statements
were inadmissible under international law because the
questioning took place in U.S. facilities in Iraq that
allegedly did not respect humanitarian law or even criminal
common law. Delgado regretted that, in the Chacal/Camaleon
case, what was acceptable in the Italian court system was
"radically rejected" by Spain's. Nevertheless, Zaragoza
asserted that the trouble introducing these bits of evidence
"did not contaminate the rest of the (Chacal/Camaleon)
sentence" and "did not nullify something positive."

//Tigris//

4. (C) Delgado's difficulties in using USG-provided evidence
in the Tigris case are detailed in Ref C. Delgado on January
13 reviewed this case and praised the USG for being very
agile in providing valuable realtime email evidence during

MADRID 00000081 002.2 OF 002


the Tigris investigation. She suggested that the problem
arose when Spanish prosecutors attempted to use the
information as evidence. She called the verdict in the
Tigris case "bittersweet" because while she was able to
convict 4 of 12 defendants, the other eight were acquitted
and the sentences could have been larger for those convicted
if the evidence in question had been deemed admissible.

//Two Examples of Guantanamo-Based Evidence Being Ruled
Inadmissible//

5. (C) Delgado also pointed out to the US delegation that
there are even earlier examples - in which she was not the
prosecutor - of the Spanish courts not accepting
USG-affiliated information in a CT case. She recounted how
the Supreme Court overturned the lower-court conviction of
Hamed Abderrahaman Ahmed, known in the media as "the Spanish
Taliban," by ruling in part that Spanish prosecutors could
not use any evidence collected during their interview with
Abderrahaman while he was being held at Guantanamo (GTMO)
under conditions the Court termed "impossible to explain,
much less justify." (Ref D). This ruling then led the
National Court to drop charges shortly thereafter against
Lahcen Ikassrien, a Moroccan national and former GTMO
detainee. (Ref E)

//USG Recommendations to Spanish Prosecutors//

6. (C) Todd Hinnen, Deputy Assistant Attorney General (DAAG)
for the National Security Division, offered three
recommendations based on what the DOJ is advising U.S.
prosecutors in similar situations: 1) engage with the USG as
early as possible to decide what can be used in a trial; 2)
in accordance with the Classified Information Protection Act,
consider early on how to protect the intelligence even if it
is used in trial; and 3) do not build your case around the
assumption that you will be able to use the intelligence as
evidence in the trial.
SOLOMONT