Wikileaks -- SPANISH COURT FREES TALIBAN HELD IN GUANDANAMO- SUFFERING IN GUANDANAMO...

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DE RUEHMD #1914/01 2091105

ZNY SSSSS ZZH

P 281105Z JUL 06

FM AMEMBASSY MADRID

TO RUEHC/SECSTATE WASHDC PRIORITY 0384

INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY

RUEHLA/AMCONSUL BARCELONA PRIORITY 1994

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RUEAIIA/CIA WASHDC PRIORITYS E C R E T SECTION 01 OF 03 MADRID 001914



SIPDIS



SIPDIS



E.O. 12958: DECL: 07/25/2016

TAGS: PTER PGOV PREL SP

SUBJECT: COURT FREES "SPANISH TALIBAN"



REF: A. 2005 MADRID 3528

¶B. TD-314/09169-05



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Classified By: A/DCM Kathleen Fitzpatrick; reasons 1.4 (B) and (D)



¶1. (C) Summary. The Spanish Supreme Court announced July 24

that it had annulled the six-year prison sentence handed down

in September by Spain's National Court against accused

terrorist Hamed Abderrahaman Ahmed, known in the media as the

"Spanish Taliban." Abderrahaman, a Spanish national captured

in Afghanistan by U.S. forces and held at Guantanamo until

being turned over to Spanish authorities in February 2004,

was immediately released from prison. The Supreme Court

found that Spanish prosecutors could not use any evidence

collected during their interview with Abderrahaman while he

was being held at Guantanamo under conditions the Court

termed "impossible to explain, much less justify." The Court

threw out other evidence collected against Abderrahaman prior

to his capture in Afghanistan and determined that prosecutors

had skewed Abderrahaman's testimony to incriminate him. This

finding had an immediate effect on the case of Lahcen

Ikassrien, a Moroccan national and former Guantanamo detainee

tranferred to Spanish custody in July 2005. Prosecutors

announced their recommendation to release Ikassrien on bail

while awaiting trial on terrorism charges, while

Abderrahaman's attorney said he would sue the U.S. Government

for suffering allegedly suffered by Abderrahaman during his

incarceration in Guantanamo. Spanish officials involved in

the Abderrahaman case expressed disappointment in his

release, but also said that he was not particularly dangerous

and dismissed him as a threat. This ruling does not indicate

a reduction in counter-terrorism cooperation by Spanish law

enforcement officials, but the Supreme Court's decisions will

clearly have to be taken into account as we pursue improved

judicial cooperation with Spain. The Spanish judicial branch

carefully guards its hard-won indepence, meaning it will not

shy away from rulings that cut across Spanish Government (or

USG) objectives. End Summary.



//BACKGROUND//



¶2. (S) According to sentencing documents, Abderrahaman

established contacts with al-Qa'ida elements in the Spanish

enclave of Ceuta and, in August 2001, traveled to Afghanistan

for religious and military training in Kandahar. When the

U.S. invaded Afghanistan in the wake of the September 11

attacks, Abderrahaman fled to Pakistan, where he was

reportedly captured by the Pakistani military, who turned him

over to U.S. forces. Abderrahaman was transferred to

Guantanamo, where he was held until he was turned over to

Spanish authorities in February 2004 in response to a request

by magistrate Baltasar Garzon, who wanted to investigate

Abderrahaman in connection with the trial of al-Qa'ida cell

leader Imad Eddin Barakat Yarkas. Under the terms of that

transfer, Spanish authorities agreed to:



-- Be prepared to detain, investigate, and prosecute

Abderrahaman, while treating him humanely;



-- Share with USG authorities any information developed

during the investigation;



-- Provide reasonable notice of any decision to release or

transfer Abderrahaman;



-- Conduct surveillance of Abderrahaman following his

release, and share any relevant information with the U.S.;

and,



-- Provide U.S. officials access to Abderrahaman if necessary.



¶3. (S) Garzon released Abderrahaman on bail in July 2004,

finding that Spanish National Police interrogations of

Abderrahaman while he was being held in Guantanamo could not

be used as evidence. However, the National Police had

previous wiretap evidence linking Abderrahaman to Barakat

Yarkas as well as what they viewed as incriminating

statements by Abderrahaman to police investigators following

his release from Guantanamo. In early 2005, a confidential

police assessment shared with USG officials concluded that

Abderrahaman had the "mental maturity of a 12-year-old," was

"naive and foolish," and did not seem to comprehend the

gravity of his detention in Guantanamo. But the report also

noted Abderrahaman's consistent statements to Spanish police

that he wanted to "go fight with the Chechens and kill

Russians." (REF B). Police provided this information to

prosecutors and to the National Court, which found



MADRID 00001914 002.2 OF 003





Abderrahaman guilty in September 2005 of "membership in a

terrorist organization." The case was then automatically

transferred to the Supreme Court to either overturn or

confirm the sentence.



//SUPREME COURT THROWS OUT CONVICTION//



¶4. (U) The Supreme Court overturned Abderrahaman's conviction

on the basis that the National Court had allowed prosecutors

to use inadmissible evidence to establish Abderrahaman's

guilt and that prosecutors had improperly translated

Abderrahaman's incriminating testimony. Specifically, the

Supreme Court found that testimony obtained by Spanish police

investigators during the course of interviews of Abderrahaman

in Guantanamo could not be used in court because the

"interrogations, euphemistically called "interviews," took

place under unequal circumstances because (the defendant) was

in detention" at the time of the interrogations. Further,

the Supreme Court finding stated that "although it is not for

(this Court) to issue a pronouncement regarding the situation

of those held in indefinite detention, we must state that, as

Ahmed was held in detention under the authority of the U.S.

military since he was turned over (to the U.S.) on an

undetermined date, all information obtained under such

conditions must be declared totally null and nonexistent."

The Court did go on to pronounce its position on Guantanamo,

criticizing the detention of "hundreds of people, among them

Ahmed, without charges, without rights, without controls, and

without limits," a situation the Court termed "impossible to

explain, much less justify."



¶5. (U) Just as damaging to the prosecution's case was the

Court's decision to throw out telephone intercepts

incriminating Abderrahaman obtained during the course of the

Barakat Yarkas investigation and long before Abderrahaman's

detention in Afghanistan. The judges found that the

intercepts had been obtained improperly (NOTE: the Supreme

Court had already ruled against allowing the intercepts

during its review of the convictions of Barakat Yarkas cell

members). The Supreme Court also determined that prosecutors

had improperly translated Abderrahaman's statements and had

omitted exculpatory evidence, such as Abderrahaman's

declaration that he did not belong to al-Qa'ida and had not

received military training. The Court criticized prosecutors

for omitting a document "signed in Guantanamo by Abderrahaman

before being turned over to Spanish authorities," a document

in which U.S. authorities allegedly acknowledged that

Abderrahaman was not a member of al-Qa'ida. On this basis,

the Supreme Court found that the case against Abderrahaman

failed to meet the minimum standards established by the

European Court of Human Rights for a finding of "guilty

beyond a reasonable doubt."



¶6. (C) Legat contacted Eduardo Fungairino, currently the head

of an anti-terrorism office assigned to the Supreme Court and

formerly the chief of the National Prosecutor's office, on

July 25 for his insights into the Abderrahaman decision.

Fungairino (strictly protect) dismissed the Supreme Court

decision as "facile and populist." He said that while he

acknowledged errors on the part of National Court prosecutors

in the case (and the legal problems generated by the

circumstances at Guantanamo), in his view the Supreme Court

ignored evidence of Abderrahaman's terrorist training in

Pakistan and Afghanistan, activities that are clearly

criminal under Spanish law. Fungairino indicated that one

consolation, in his view, was that Abderrahaman did not

represent a serious threat, echoing police assessments that

Abderrahaman was a pawn in events beyond his understanding

(see para 3).



//ABDERRAHAMAN PLANS TO SUE USG//



¶7. (U) In a July 25 press conference organized by

Abderrahaman attorney Marcos Garcia Montes, Abderrahaman told

reporters that he hoped to gain employment as a truck driver

and claimed that his vision had degraded so much during his

detention in Guantanamo that he was unfit for other

employment. Garcia Montes said that he planned to file a

"multimillion dollar suit" against the U.S. Government for

damages, including post-traumatic stress and vision loss on

the part of his client. The attorney told reporters that

Abderrahaman's suffering had been such that he could no

longer recall specific elements of his detention in

Guantanamo, nor of his time in Pakistan and Afghanistan.

Abderrahaman roundly denied ever having been a terrorist and

insisted that his prior references to himself as a "martyr"

referred to his treatment in detention. Prompted by his



MADRID 00001914 003.2 OF 003





attorney, Abderrahaman related his alleged mistreatment in

U.S. detention, including the presence of a powerful

lightbulb in his cell that impeded sleep and threats that he

would never see his family again. Abderrahaman said he

planned to write a book about his experiences.

//IKASSRIEN ALSO TO BE RELEASED//



¶8. (U) Following the Supreme Court decision in the

Abderrahaman case, National Court prosecutors announced that

they would support the release on bail of Moroccan national

Lahcen Ikassrien, who was transferred to Spain from

Guantanamo in July 2005 and held in preventive detention

since his arrival. This comes less than a month after

prosecutors filed formal charges against Ikassrien, seeking

an eight-year prison term on charges of membership in a

terrorist organization. The case against Ikassrien is based

on three police interviews with him when he was being held at

Guantanamo (by the same investigators who interviewed

Abderrahaman) and on telephone intercepts developed in the

course of the Barakat Yarkas investigation, the same evidence

thrown out in the Abderrahaman case. (NOTE: According to

press reports, the Spanish police intercepts place Ikassrien

in Istanbul, Turkey in November 2000 along with suspected

terrorists Amer Azizi and Said Berraj. In a separate

intercept, Ikassrien requested assistance with documentation

from al-Qa'ida cell leader Barakat Yarkas). Prosecutors have

maintained that Ikassrien's own testimony since his transfer

from Guantanamo incriminates him since he has acknowledged

traveling to Afghanistan to "collaborate with the Islamist

regime." That is disputed by court observers who say that

Ikassrien's statements to the National Court have been

substantially less incriminating than those of Abderrahaman



¶9. (U) Ikassrien's attorney has already homed in on

Guantanamo as key to his client's defense, focusing on

Ikassrien's alleged mistreatment while in US custody. The

attorney's request claims that "while Ikassrien was in

Guantanamo, he was gassed, beaten, mistreated, and insulted,

and subject to repeated inspections, during which the

military officials undertaking the inspections would damage

or destroy (Ikassrien's) books, especially the Koran."

Ikassrien's attorney also alleges that his client was

forcibly injected with a substance that led to severe itching

that continues to affect him.



//COMMENT//



¶10. (C) Spanish counter-terrorism legislation was designed

over three decades to combat ETA, a group with a defined

structure, doctrine, and modus operandi. Police,

prosecutors, and magistrates working on investigations of the

far more amorphous cells of Islamist extremist have struggled

to develop evidence sufficient to meet the high threshhold

set by the Spanish Supreme Court. This was reflected in an

earlier decision by the Supreme Court to reverse the

convictions of several Barakat Yarkas cell members and to

reduce Barakat Yarkas' sentence on the basis that prosecutors

had not proved his connection to the September 11 attacks in

the U.S. (USG observers of the trial noted that the evidence

on the September 11 connection was indeed weak). Clearly, in

the Abderrahaman case the Supreme Court was also eager to use

this case as a platform to criticize U.S. detainee policies

in Guantanamo. While this sentiment has not influenced

Spanish police to reduce their close collaboration with the

U.S. in fighting terrorism, we must take it into account as

we pursue increased judicial cooperation with Spain in

terrorism cases. The Spanish judiciary carefully guards its

independence (a major achievement of the post-Franco era) and

has not shied from taking decisions that cut across the

obectives of the Spanish Government.

AGUIRRE