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

Contenido

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@, is a fierce critic of the current Spanish CT

approach. In a November 21 conversation with POLOFF and

Embassy Madrid's press attache, @ELIMINADO@ 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@ 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@

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@

said the Supreme Court needs to better support the security

services.

4. (C) POLOFF discussed the issue on November 24 with @ELIMINADO. @ELIMINADO@ 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@ criticism than with Gonzalez Mota's

defense of the current CT framework. @ELIMINADO@ 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@, @ELIMINADO@ 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@

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@

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@ and his colleague, @ELIMINADO@, 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@ 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@ 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@ 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@ 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@ 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;"