Wikileaks

Terrorismo islamista: muchos detenidos, poco presos

Cable que analiza las condenas de rebaja y absolución del Supremo

  • La embajada cree que España detiene a muchos terroristas, pero condena a pocos.
  • Los expertos consultados afirman que el Supremo debe buscar penas mas largas.
ID:
181029
Etiquetas:
PGOV, PINS, PTER, KJUS, SP
Fecha:
2008-12-02 17:39:00
RefID:
08MADRID1269
Origen:
Embassy Madrid
Clasificación:
CONFIDENTIAL
Destino:
08MADRID1214
Encabezado:
VZCZCXRO4147
RR RUEHFL RUEHKW RUEHLA RUEHNP RUEHROV RUEHSR
DE RUEHMD #1269/01 3371739
ZNY CCCCC ZZH
R 021739Z DEC 08
FM AMEMBASSY MADRID
TO RHEHNSC/NSC WASHDC
RUEAIIA/CIA WASHDC
RUEILB/NCTC WASHINGTON DC
RUCNFB/FBI WASHDC
RUEAWJA/DEPT OF JUSTICE WASHDC
RUEHC/SECSTATE WASHDC 5708
RUEAHLC/HOMELAND SECURITY CENTER WASHINGTON DC
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHLA/AMCONSUL BARCELONA 3687
C O N F I D E N T I A L SECTION 01 OF 03 MADRID 001269

SIPDIS

PASS TO ELIZABETH FARR OF NSC, MARC NORMAN OF S/CT AND
ELAINE SAMSON AND STACIE ZERDECKI OF EUR/WE, AND JANICE
BELL OF INR

E.O. 12958: DECL: 12/02/2018
TAGS: PGOV, PINS, PTER, KJUS, SP
SUBJECT: FURTHER THOUGHTS ON SPAIN'S COUNTER-TERRORISM
APPROACH

REF: MADRID 1214

MADRID 00001269 001.2 OF 003

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

1. (C) SUMMARY. This cable continues the discussion from
REFTEL, which examined recent Supreme Court acquittals of
lower court convictions of radical Islamic jihadists. Most
recently, the Supreme Court on October 7 overturned 14 of 20
convictions for a 2004 case known an Operation Nova; on
November 7 the Court issued its majority opinion which
justified the decision. Since coming to power in April 2004
in the aftermath of the Madrid train bombings, the Zapatero
government's security forces have carried out at least 28
operations against radical Islamists in Spain. They have
arrested 361 radical Islamists for a range of crimes;
however, only 23, or a little more than five percent, are
currently in prison. POLOFF held a range of further
discussions on the topic with judicial authorities,
journalists, GOS officials, CT experts, and academics whose
views span the political spectrum and whose analysis of the
current judicial and legal framework for Spanish
counter-terrorism (CT) and on the need for CT reform to adapt
to the concept of "preventative justice" varies dramatically.
Those in favor of the current Spanish CT legislative and
judicial framework at most concede that the system is flawed,
but they are adamant that the system works, that it enjoys
public support, and offer as proof the absence of additional
deaths in Spain at the hands of jihadists since the Madrid
train bombings. Critics allege that the system offers false
confidence. They argue in favor of seeking longer sentences
for those convicted and fewer acquittals on the part of the
Supreme Court. The GOS's recently announced CT reforms
appear to be a humble, if well meaning, step in the right
direction. END SUMMARY.

2. (C) On November 21, POLOFF discussed the Supreme Court's
November 7 majority opinion with Vicente Gonzalez Mota, the
prosecutor for the upcoming case against the cell detained in
January 2008 (as Operation Cantata) that allegedly sought to
attack the Barcelona subway system. Like a mantra, Gonzalez
Mota repeatedly asserted that the most important thing is
that, domestically, Spain has suffered no further deaths at
the hands of radical Islamic terrorists since the Madrid
train bombings. He argued that the system works, that it is
necessary to win the battle against terrorists "within the
law," and that the Spanish public supports the GOS approach
to CT. Asked if the Supreme Court ruling on the Operation
Nova case would make his prosecution of the Barcelona case
more difficult, Gonzalez Mota -- who was quoted in a March
2008 New York Times article as saying the evidence in the
case is weak -- diplomatically replied that abiding by a
Supreme Court ruling never makes his job more difficult.
Although he stated his unequivocal belief that those arrested
in Operation Cantata are guilty, Gonzalez Mota predicted that
they will go to trial in 2009, will have an appellate hearing
in 2010, and some may be released in 2011, which he argued
"is not bad" because it will have served to keep those
radicals off the Spanish streets for three years or more.

3. (C) Not everyone agrees with Gonzalez Mota's views. [eliminado por 20minutos.es], is a fierce critic of the current Spanish CT
approach. In a November 21 conversation with POLOFF and
Embassy Madrid's press attache, [eliminado por 20minutos.es] condemned the Supreme
Court's October 7 ruling as "an absolute disaster" and "a big
step backwards" that undermines public confidence in the
appropriateness of arrests by the Spanish security services.
He argued that the November 7 majority opinion requires "a
God-like prescience" on the part of the security forces to
know exactly when is the right time to act against radical
Islamists who cross the line between holding extremists
beliefs and acting on them. [eliminado por 20minutos.es] insisted that security
services cannot wait until jihadists put on a suicide vest
before they can be detained. Asked if the October 7 ruling
by the Supreme Court and its November 7 interpretation of the
law made the security forces' CT work more difficult, [eliminado por 20minutos.es]
replied, "Absolutely," and suggested that Spanish security
services are extremely worried about it. He suggested that
the November 7 majority opinion was sending mixed signals by

MADRID 00001269 002.2 OF 003

telling the security forces that they did the right thing by
arresting these suspects when they did, but then in the same
document the Supreme Court outlines the reasons why its
decision to overturn their convictions is correct. [eliminado por 20minutos.es]
said the Supreme Court needs to better support the security
services.

4. (C) POLOFF discussed the issue on November 24 with @ELIMINADO. [eliminado por 20minutos.es] is known to Embassy Madrid as
a CT expert who is not alarmist in his analysis. His
comments to POLOFF show that, in this debate, he more readily
sides with [eliminado por 20minutos.es] criticism than with Gonzalez Mota's
defense of the current CT framework. [eliminado por 20minutos.es] pointed out that
since coming to power in April 2004 in the aftermath of the
Madrid train bombings, the Zapatero government's security
forces have carried out at least 28 operations against
radical Islamists in Spain. Security forces have arrested
361 radical Islamists for a range of crimes; however, only
23, or a little more than five percent, are currently in
prison. Like [eliminado por 20minutos.es], [eliminado por 20minutos.es] suggested that the overturning
of lower-court convictions is negatively affecting the morale
and image of the Spanish security forces.

5. (SBU) The GOS has made some effort to reform its CT
legislation in recent weeks. The Council of Ministers on
November 14 approved a reform to the 1995 Penal Code that
offers tougher penalties for a range of offenses. On CT, the
reforms would make financing of terrorist activities
punishable by 5-10 years in jail and would authorize the
monitoring of terrorists convicted of murder or grievous
bodily injury for up to 20 years after they are released from
prison. (COMMENT: The CT component of these reforms was
largely influenced by the public uproar over the August 2008
release of Jose Ignacio Juana de Chaos, an unrepentant,
high-profile ETA member who was released from jail after
serving 21 years of a 3,000 year sentence for his part in
separate attacks in the 1980s that killed 25 people --
including American citizen Eugene Kent Brown, a bystander who
was an unintended victim of a 1985 carbomb. END COMMENT).

6. (C) But some say the reforms are insufficient. [eliminado por 20minutos.es]
acknowledged that the proposed CT reforms -- which still need
approval in the Spanish parliament to take effect -- would
apply to both domestic terrorists from the Basque Fatherland
and Liberty (ETA) terrorist group as well as to radical
Islamic terrorists, however he argued that the proposed
reform is flawed. For example, he highlighted to POLOFF that
it would not apply to Imad Eddin Barakat Yarkas, aka Abu
Dahdah, the leader of the Al Qaeda cell in Spain who was
detained in November 2001 in the aftermath of 9/11, because
Yarkas did not personally kill or injure anyone. [eliminado por 20minutos.es]
further noted that, with the Supreme Court's acquittal in
2006 of Yarkas's 15-year sentence for involvement in helping
to plan 9/11, he is currently scheduled to be released in
2013, when he completes his 12-year sentence for belonging to
a terrorist organization.

7. (C) [eliminado por 20minutos.es] and his colleague, [eliminado por 20minutos.es], a fellow member
of Athena Intelligence and a professor of international
public law at the University of Valencia, described to POLOFF
different proposals for further CT reforms that would create
a new type of prosecutable offense. One would involve
tweaking the "universal jurisdiction" basis for "Crimes
Against Humanity" which the GOS has used for more than a
decade in cases where the accused, such as former Chilean
dictator Gen. Augusto Pinochet or the generals and security
forces of Argentina's military dictatorship, committed crimes
outside Spain. [eliminado por 20minutos.es] argued that the legal basis is there,
but it would need to be reinterpreted to enable the GOS to go
after terrorists who commit "war crimes" abroad. In theory,
this new law would enable the GOS to prosecute terrorists who
fought or undertook jihadist training in Iraq, Afghanistan,
or elsewhere. However, [eliminado por 20minutos.es] admitted that this
proposal is really just an idea at this point and would need
someone to champion it; they suggested someone as
high-profile and as respected on CT issues as investigating
judge Baltasar Garzon, who made his name in part by going
after Pinochet and the others for "Crimes Against Humanity."

MADRID 00001269 003 OF 003

[eliminado por 20minutos.es] acknowledged that this proposal would be very sensitive
because it involved making a political judgment about the
nature of the conflict involving radical jihadists. She
suggested that the proposal might have a chance at becoming
law, if the public opinion supported it, but correctly
recognized that this would imply a "considerable change" in
the mentality of the Spanish public.

8. (C) At present the prospects for the proposal described by
[eliminado por 20minutos.es] appear slim, judging from prepared remarks by
Antonio Camacho, the Secretary of State for Security (the
number-two official in the Ministry of Interior), on November
19 as part of a CT conference in Madrid co-sponsored by the
US Embassy, among others. Camacho publicly asserted that it
is counterproductive and sensationalist to suggest that there
is a War Against Terrorism, which would preempt the idea of
considering "war crimes" as a way to go after terrorists. He
made the case that the West is in a fight -- not a war --
against delinquents, who nevertheless enjoy a panoply of
rights. Camacho said we have to "advance beyond" the idea
that we are at war and suggested that Europe ought to have an
influential voice in the debate on the nature of the jihadist
threat. He argued that the debate between using hard or soft
power is the wrong conceptual approach and asserted that the
best way to respond to the threat was with an integrated
solution of police, judicial, socio-economic, cultural and
international cooperation.

9. (C) COMMENT: Those in favor of the current Spanish CT
legislative and judicial framework at most concede that the
system is not perfect, but they are adamant that it works and
that it enjoys public support. They offer as proof the
absence of additional deaths in Spain at the hands of
jihadists since the Madrid train bombings. However, as
Spanish CT expert [eliminado por 20minutos.es] told POLOFF in October,
how would Spanish public opinion have responded if the
Barcelona cell in Operation Cantata had been successful in
its alleged plot? Critics allege that the system offers
false comfort. They argue in favor of seeking longer
sentences for those convicted and fewer acquittals on the
part of the Supreme Court. The GOS's recently announced CT
reforms appear to be a humble, if well meaning, step in the
right direction. END COMMENT.
AGUIRRE;"