ID

178837

Etiquetas

PGOV, PINS, PTER, KJUS, SP

Fecha

2008-11-18 12:51:00

RefID

08MADRID1214

Origen

Embassy Madrid

Clasificación

SECRET

Destino

07MADRID1914

08MADRID73

Encabezado

VZCZCXRO3616

RR RUEHFL RUEHKW RUEHLA RUEHNP RUEHROV

DE RUEHMD #1214/01 3231251

ZNY SSSSS ZZH

R 181251Z NOV 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 5594

RUEAHLC/HOMELAND SECURITY CENTER WASHINGTON DC

INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE

RUEHLA/AMCONSUL BARCELONA 3663

Contenido

S E C R E T SECTION 01 OF 03 MADRID 001214

SIPDIS

PASS TO ELIZABETH FARR OF NSC, RAYMOND R. PARMER OF

DHS/ICE/OFFICE OF INTERNATIONAL AFFAIRS, MARC NORMAN OF

S/CT AND ELAINE SAMSON OF EUR/WE

E.O. 12958: DECL: 11/18/2018

TAGS: PGOV, PINS, PTER, KJUS, SP

SUBJECT: CALLS FOR REFORM OF SPAIN'S COUNTER-TERRORISM LAWS

REF: A. MADRID 73

B. 2007 MADRID 1914

MADRID 00001214 001.2 OF 003

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

1. (C) SUMMARY: Spain's counter-terrorism (CT) laws were

designed with the domestic terrorist group ETA - Basque

Fatherland and Liberty - in mind, but a number of recent

rulings and actions by the Spanish judiciary and law

enforcement forces in recent weeks have brought into focus

Spain's need to update its judicial framework to better

confront the threat posed by radical Islamic terrorism.

These events provide an interesting case study on the Spanish

judicial system's approach to this issue. While Spanish

security forces have ample discretion to detain terrorist

suspects, the bar for their conviction in court remains

fairly high and convictions are frequently overturned by the

Supreme Court upon appeal. A renowned Spanish CT expert and

the daily newspaper of record, among others, are calling for

reforms. Embassy Madrid notes that several CT arrests in

October are just the latest in a string of detentions in the

Catalonia region, the site of more than a dozen high-profile

raids on suspected radical Islamists since 9/11, and

underscore the need for the increased USG presence in

Barcelona in the form of the multi-agency,

jointly-coordinated counterterrorism, anti-crime, and

intelligence center currently being established at the

Consulate General. END SUMMARY.

2. (SBU) The Spanish Supreme Court on October 7 acquitted on

appeal 14 of the 20 people sentenced in February 2008 for

membership in an Islamic terrorist group. The cell,

dismantled in late 2004 as part of Operation Nova, planned to

truckbomb the National Court, a symbolic target whose judges

have been instrumental in the detention of radical Islamists

in Spain following 9/11. Ensuing press coverage noted that

the final tally for Operation Nova meant that of the 45

people arrested, 30 were charged, which led to 20

convictions, six of which were upheld following the Supreme

Court's appellate ruling, although the sentences of four were

reduced, leaving the convictions of only two individuals

untouched. Spanish media coverage also recalled that the

Supreme Court in July 2008 had overturned four of the 21

convictions in the Madrid train bombers' case.

3. (SBU) The Supreme Court released a report on November 7

which justified its October 7 decision, in part, because

being sympathetic to radical jihadist views is not a crime;

actions are criminal, not beliefs. Press reports cited

Justice Jose Antonio Martin Pallin as the author of the

majority opinion, which reads in part, "The law of the land

never punishes someone for ill will alone," emphasizing that

actions are punishable while thoughts are not. Nevertheless,

the Supreme Court ruling praised the Spanish security

services for acting when they did, to prevent the plot from

reaching fruition and thereby saving lives.

4. (C) POLOFF met on October 29 with @ELIMINADO@,

about the significance of the Supreme Court's October 7

ruling. He judged that the Supreme Court is undertaking "a

very dangerous, risky" strategy by overturning lower-court

rulings and releasing convicted radical Islamists. He

described a GOS security forces strategy that effectively

seeks to disrupt any known terrorist cells to eliminate any

present risks, accepting that at a later point Spain may face

attacks by those same jihadists if they are later freed or

exonerated by the judicial process (such as what almost

happened in Operation Nova, whose cell leader had previously

served time in a Spanish jail). @ELIMINADO@ also noted that the

Supreme Court's acquittal for those involved in Operation

Nova will become a legal precedent for future cases,

including the case that investigating judge Ismael Moreno of

the National Court is preparing against the cell disrupted in

Barcelona on January 19, 2008 (see REFTEL A) as part of

Operation Cantata. That case, which involved a plot to

attack the Barcelona metro system, could go to trial in

February 2009.

MADRID 00001214 002.2 OF 003

5. (S) A week after the Supreme Court overturned the

Operation Nova convictions, the Spanish National Police (SNP)

on October 16 conducted a nationwide raid -- codenamed

Operation Amat -- that detained radical Islamists who

allegedly were involved in terrorist financing, terrorist

recruiting activities and facilitating the escape of five

people involved in the 2004 Madrid train bombings. The SNP

had been following these suspects for years (Operation Amat

was a follow-on to Operation Tigris that detained suspects in

2005 for recruiting radical Islamists to go fight in Iraq).

Embassy Madrid learned from GOS sources that one of the

suspects in Operation Amat was preparing to travel to

Morocco, so the SNP decided it would be better to apprehend

him before he left the country, and then, if they were going

to do that, they might as well arrest all of the suspects at

the same time. However, on October 20 judge Baltasar Garzon,

Moreno's colleague on the National Court, released the 10

suspects who appeared before his court, a move that @ELIMINADO@

interpreted as a reaction against the Supreme Court's recent

decision on the Operation Nova verdicts. @ELIMINADO@ assessed

that Garzon -- arguably the most high-profile and media-savvy

judge in the Spain judiciary who is also its most experienced

on the CT issue -- was effectively sending a message to the

Supreme Court that he was not going to dedicate his time and

energy to prepare a case that will later be overturned.

6. (C) @ELIMINADO@ argued that the judicial framework for

combating radical Islamic terrorism needs to be changed. He

identified three problems with the current Spanish legal

framework related to prosecuting radical Islamic CT cases:

I) The current Spanish CT legislation was formulated with ETA

in mind. Under the current system, an act of terrorism is

something very concrete and involves very specific details

about planned attacks, with dates, times, and locations

provided. Furthermore, the current law envisions a very well

organized, hierarchical group that is undertaking the

terrorist act. This understanding does not take into account

generic preparations before a cell becomes operational.

II) The majority opinion among the judges in the Supreme

Court's Criminal Chamber is that conspiracy and collaboration

by radical Islamists to prepare an attack do not constitute a

crime under their interpretation of the existing laws.

@ELIMINADO@ notes that there were no legislative changes in

Spain after the 3/11 attacks and argues that -- because the

current scenario does not match the ETA template -- those

judges do not understand that suspects in small cells, such

as the one disrupted in Operation Cantata, are part of a

larger, formal organization.

III) @ELIMINADO@ says that in Spain there is a culture of

"garantismo juridico" -- guaranteed jurdiical rights -- that

emphasizes the protection of civil rights and frequently

makes police work and prosecutions difficult.

7. (SBU) Several press reports have also called for reforms

of the penal code regarding Islamic terrorism. For example,

a November 9 editorial in El Pais, the left-of-center

newspaper of record in Spain, echoed @ELIMINADO@ concerns about

the need for reforming Spain's judicial framework to address

the differences that Spanish security forces are encountering

in radical Islamic terrorism vice Basque terrorism. The

editorial said the Supreme Court ruling in the Nova case

highlights a difference in the criteria used by the National

Court and the Supreme Court over at what point one commits a

crime for belonging to an armed group devoted to jihadist

terrorism and the evaluation of the relative proof of that

crime. The editorial observed that the former court tends to

attribute membership in a terrorist cell not only to the

leadership and the most active members, but also to those in

concentric circles to that core group while the latter court

tends to disavow direct membership for those whose role does

not extend beyond sharing radical ideological views.

8. (C) COMMENT: The Spanish, having experienced the tragedy

of the Madrid train bombings, are understandably reluctant to

let suspects cross the line between holding extreme Islamic

views and going operational to conduct attacks in support of

those beliefs. Consequently, Spanish security forces have

considerable latitude to keep terrorists off the streets and,

MADRID 00001214 003.2 OF 003

according to Embassy Madrid's Legal Attache, Spanish judges

are similarly forward-leaning in authorizing wire-taps on

terrorist suspects. The LEGAT assesses that the current

Spanish CT approach is very effective in disrupting cells,

although admittedly not in securing long sentences for those

arrested. As a comparison, the LEGAT also notes that it

would be very difficult in the United States to hold

terrorist suspects in jail without a trial for as long as

they are held in Spain. Vicente Gonzalez Mota, the

prosecutor on the National Court who will be trying the

Operation Cantata case, pointed out to POLOFF on November 10

that Spain has arrested more radical Islamic terrorist

suspects than the United States since 9/11 and has more

convicted radical Islamist terrorists in jail than the United

States does. However, Garzon's decision to release the

Operation Amat suspects appears to set the stage either for a

power play within the Spanish judiciary on how to interpret

the existing law on when a crime has been committed or for

reform of the Penal Code as it relates to radical Islamic

terrorism.

9. (C) COMMENT (CONTINUED): Embassy Madrid notes that the

arrests in Operation Amat -- more than a dozen of which

occurred within the province of Barcelona -- are just the

latest in a string of detentions in the Catalonia region, the

site of more than a dozen high-profile raids on suspected

radical Islamists since 9/11. This track record and the

recent arrests of more suspects underscores the need for the

increased USG presence in Barcelona in the form of the

multi-agency, jointly-coordinated counterterrorism,

anti-crime, and intelligence center currently being

established at the Consulate General, which Embassy Madrid

originally proposed in REFTEL B. Inter-agency commitments to

support the Hub have taken shape throughout 2008. The first

of the new personnel have arrived and are up and running.

More are expected soon. END COMMENT.

AGUIRRE;"