Wikileaks

Terrorismo islamista: muchos detenidos, poco presos

La embajada cree que España debe mejorar su marco jurídico en la lucha contra el terrorismo

  • Estados Unidos critica que el Tribunal Supremo no considere delito  ser simpatizante yihadista.
  • Operación amat: Garzón dejo sin cargos a los 12 detenidos.
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
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 por 20minutos.es],
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 por 20minutos.es] 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 por 20minutos.es]
interpreted as a reaction against the Supreme Court's recent
decision on the Operation Nova verdicts. [eliminado por 20minutos.es] 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 por 20minutos.es] 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 por 20minutos.es] 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 por 20minutos.es] 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 por 20minutos.es] 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;"