US embassy cable - 05ROME1021

S E C R E T  ROME 001021 
 
SIPDIS 
 
 
DEPT. FOR NEA AND EUR; 
OSD FOR BRZEZINSKI; 
CENTCOM FOR GEN. ABIZAID; 
BAGHDAD FOR RON NEUMANN AND BG VANGJEL 
 
E.O. 12958: DECL: 03/23/2015 
TAGS: PREL, MOPS, KJUS, IT, IZ, IRAQI FREEDOM 
SUBJECT: IRAQ: ITALIAN CRIMINAL INVESTIGATION REQUESTS - 
EMBASSY VIEWS ON NEXT STEPS 
 
REF: A. BAGHDAD 1198 
     B. BAGHDAD 1186 
     C. BAGHDAD 965 
     D. ROME 858 
 
Classified By: DCM Emil Skodon, reasons 1.4 b and d. 
 
1. (S) Summary: Ref A requests that Embassy Rome, Department 
and OSD discuss whether the Italian criminal investigation 
team looking into the March 4 shooting by US forces of 
Italian intelligence officer Nicola Calipari should be 
supported based on the terms of reference (Ref D) or other 
arrangements in place with Italy.  This message provides 
Embassy Rome views.  We believe that Italian criminal 
investigators should only be welcomed to Baghdad, if at all, 
after the joint investigation is complete and its report 
released.  We also recommend against providing information on 
this case through MLAT channels. End Summary. 
 
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Background on Italian Magistrates - Very Independent Actors 
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2. (C) Italian magistrates are fiercely independent and are 
not answerable to any government authority/entity, including 
the Minister of Justice.  Consequently, it is nearly 
impossible to prevent them from undertaking action in Italy 
that they wish to carry out.  Attempts by the Italian 
government to influence them in any way are likely to have a 
negative effect.  We have observed over the past years 
numerous instances of magistrates leaking to the press 
details of high profile cases and thereby influencing  -- 
often overtly -- public policy and Italian politics.  The 
involvement of an Italian magistrate in this case complicates 
our ability and that of the GOI to take sole responsibility 
for determining the facts and for steering how this case 
plays in the Italian press. 
 
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Italian MLAT Precedents in Iraq 
------------------------------- 
 
3. (C) Italian authorities have previously submitted requests 
under the Mutual Legal Assistance Treaty relating to matters 
in Iraq.  To date, the US has not responded formally to any 
of those requests, largely because the US has yet to 
definitely resolve the issue of the MLAT's applicability to 
situations in Iraq.  (For example, in the case of one such 
Italian MLAT request relating to Iraq, there had been 
previously submitted informal requests for the same 
information, and on the basis of the informal requests, 
Embassy officials established direct military-to-military and 
USG-GOI information channels to provide what Italy sought in 
the later-filed MLAT request.)  On March 5, Embassy received 
an MLAT request for the names of US soldiers involved in the 
March 4 incident, the facts and circumstances surrounding the 
incident and any US reports on the events of March 4.  On 
March 24, Embassy received a new Italian MLAT request seeking 
access to the vehicle involved in the March 4 incident. 
 
4. (S) As we see it, legal issues aside, there are no 
substantive problems with allowing the Italian 
prosecutors/criminal investigators to see the vehicle: they 
will see it eventually anyway and already had photos of it in 
their press.  There are, however, worrisome risks in allowing 
Italian investigators other than those working on the joint 
investigation to come to Baghdad until after the joint 
investigation is completed and its results released.  If 
Italian carabinieri empowered by an Italian magistrate come 
to Baghdad and ask to interview Ragaglini and Campregher, for 
example, those two Italians may be compelled by Italian law 
to answer all questions, regardless of Ref D terms.  We must 
be cautious that such criminal investigators may try to do 
more than examine the car, the site and speak with Italians 
involved.  For example, they could try to interview US 
servicemen.  Any of the above would seriously complicate our 
ability to manage public presentation of the joint 
investigation, could pre-empt its findings with contradictory 
ones, and would put the Rome magistrate in a position to 
publicly steer the issue. 
 
 
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We Should Insist on Primacy of Joint Investigation 
--------------------------------------------- ----- 
 
5. (S) Legally, the questions are whether we want to 
encourage Italy to pursue the criminal investigation via MLAT 
requests and how to answer the requests that are currently 
outstanding.  Embassy's recommendation is that we not attempt 
to execute these Italian MLAT requests.  Our position rests 
on both policy grounds (as with the ICC, we should not assist 
a foreign entity to gather evidence for possible use in 
potentially bringing criminal charges against our soldiers in 
a war zone) and on exceptions provided for in the MLAT 
(assistance is mandatory unless the offense is purely 
military or unless assistance would negatively affect our 
essential public interests).  The fact that a joint 
investigation directed by the President of the United States 
and the Prime Minister of Italy is ongoing, and that both the 
GOI and USG agree that investigation has primacy (a point we 
should make publicly), argues strongly that a higher public 
good would be harmed by the intervention of another authority 
conducting another investigation before (and possibly even 
after) the conclusion of the Presidential/Prime Ministerial 
directed one.  In addition, the MLAT itself allows the US to 
postpone execution of a request if the request would 
interfere with an ongoing US investigation. 
 
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Provide Info After Joint Investigation Done 
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6. (S) Once the joint investigation is completed and its 
report released, Embassy recommends consideration be given to 
providing access to Italian criminal investigators on a 
discretionary basis, but not because of an obligation to 
render assistance made pursuant to the MLAT.  Ref A 
recommended that the Italian prosecutor seek access to the 
vehicle through the MLAT, which he has now done.  In the 
future, we should not encourage the Italians to use the MLAT 
on cases involving Iraq.  In this case, we believe we should 
respond to the prosecutor (without mentioning any MLAT 
obligations) that we will consider granting access once the 
primary investigation concludes and its report is released. 
We urge Washington policy makers to take a decision on how to 
handle the Italian criminal investigation as soon as 
possible.  We are seeing daily press stories about US 
foot-dragging on the Italian criminal requests.  We would be 
well served to tell the Italian magistrate clearly now what 
he can and can't have access to and when, and under what 
parameters such access and information would be made 
available. 
 
7. (S) Subject to approval in Washington, we will have our 
DOJ attache reply in writing to the MLAT request for access 
to the vehicle, assuring the Italians, as BG Vangjel did in 
his March 19 letter (Ref A), that once the joint 
investigation is complete we will immediately release the 
vehicle and that until then, it remains a critical part of 
the on-going joint investigation.  The response will be 
phrased so as not to prejudice any eventual decision on how 
we reply officially to MLAT requests related to events in 
Iraq. 
 
8. (U) Minimize considered. 
 
 
SEMBLER 
 
 
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	2005ROME01021 - Classification: SECRET