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### Viewing cable 06MADRID1914, COURT FREES "SPANISH TALIBAN"

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
06MADRID1914 | 2006-07-28 11:11 | 2010-11-30 12:12 | SECRET | Embassy Madrid

`

    VZCZCXRO3816
    PP RUEHAG
    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
    RUCNFB/FBI WASHDC PRIORITY
    RUEKJCS/SECDEF WASHDC PRIORITY
    RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY
    RUEAIIA/CIA WASHDC PRIORITY

` `

    S 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

    MADRID 00001914 001.2 OF 003

    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

`