US embassy cable - 05MADRID2082

C O N F I D E N T I A L SECTION 01 OF 02 MADRID 002082 
 
SIPDIS 
 
E.O. 12958: DECL: 05/30/2015 
TAGS: PTER, PREL, SP, Counterterrorism 
SUBJECT: DOJ COUNTERTERRORISM MEETINGS WITH SPANISH 
AUTHORITIES 
 
REF: A) MADRID 1584 B) MADRID 1989 
 
Classified By: Political Counselor Kathy Fitzpatrick; reason 1.4 (B) 
 
1. (C) Summary.  A USDOJ/FBI team led by DOJ Trial Attorneys 
Donald Ashley and Greg Sofer visited Madrid May 16-20 for 
meetings with Spanish prosecutors and judicial officials to 
discuss counterterrorism cooperation and to participate in 
the first official meeting of the U.S.-Spain Bilateral 
Counterterrorism Experts Working Group.  The DOJ team raised 
concerns regarding a pending Spanish Mutual Legal Assistance 
(MLAT) request for access to terrorist suspect Ramzi 
Binalshibh, whom the prosecution would like to depose as a 
witness in the Barakat Yarkas trial (ref A).  The lead 
prosecutor in the Barakat Yarkas case said that the 
Binalshibh MLAT was necessary in order for the prosecution to 
introduce relevant testimony from the U.S. 9/11 Commission 
report.  The prosecutor assured USG participants that the GOS 
understood the difficulties in making Binalshibh available 
and insisted that the GOS would not blame the USG for not 
allowing access to Binalshibh should the prosecutors fail to 
convict Barakat Yarkas.  Separately, the two sides exchanged 
views on possible mechanisms for the exchange of sensitive 
judicial information and discussed a terrorism financing case 
suggested by the Spanish authorities for joint investigation 
and prosecution.  The next meeting of the Working Group will 
take place in September or October in Washington.  End 
Summary. 
 
//BARAKAT YARKAS MLAT// 
 
2. (C) The DOJ team and Mission personnel attended a session 
of the ongoing Barakat Yarkas trial and met separately with 
the lead judge and the prosecutor to discuss the case.  In 
their meetings with lead prosecutor Pedro Rubira, Ashley and 
Sofer expressed concern regarding reports that prosecutors in 
the Barakat Yarkas case plan to submit an MLAT request to the 
USG for access to terrorist suspect Ramzi Binalshibh.  Ashley 
explained the problems encountered by the USG regarding 
similar requests by other countries and emphasized that the 
USG did not want to be portrayed as having impeded the 
conviction of Barakat Yarkas, particularly since the GOS had 
been aware throughout the investigation that Binalshibh would 
not be available to contribute to their case. 
 
3. (C) Rubira assured the DOJ team that Spanish prosecutors 
were not setting the stage to blame the USG should they fail 
to convict Barakat Yarkas.  He said that the GOS case against 
Barakat Yarkas did not hinge on Binalshibh's testimony and 
that the MLAT would be more a matter of procedure than 
substance.  Rubira explained that the MLAT request (which has 
not yet been submitted to the Embassy) came at the 
recommendation of the lead magistrate in the Barakat Yarkas 
case as a possible way for the prosecution to enter into 
evidence the U.S. 9/11 Commission Report's account of the 
July 2001 meeting in Spain between Binalshibh and Mohamed 
Atta.  Per Spanish trial guidelines, the court must request 
the presence of witnessess whose written accounts are 
introduced into the case.  Rubira suggested that it would be 
sufficient for his purposes for the MLAT to be submitted, 
regardless of whether the USG chose to respond before the 
trial ended.  The conclusion of the trial would obviate the 
need for Binalshibh's testimony or for a USG response to the 
MLAT.  After further discussion of this issue, the DOJ team 
and Spanish prosecutors agreed to share information on 
potentially sensitive MLAT requests prior to formally 
submitting them. 
 
//MEETING OF BILATERAL COUNTERTERRORISM EXPERTS GROUP// 
 
4. (C) The DOJ/FBI team, accompanied by Legat, the Consul 
General, and poloff, met on May 18 with GOS Chief Prosecutor 
Eduardo Fungairino, Elvira Tejeda of the Attorney General's 
office, and Deputy Chief Prosecutor Jesus Santos.  Pedro 
Rubira also attended the meeting.  It was the first official 
meeting of the "U.S.-Spain Bilateral Counterterrorism Experts 
Working Group" launched by Attorney General Gonzales and 
Spanish Justice Minister Aguilar during A/G Gonzales' March 
11 visit to Madrid.  The meeting began with a review of the 
bilateral exchange of information regarding each country's 
regulations on the protection of sensitive investigative 
information used for judicial purposes.  As in previous 
discussions on this issue, Spanish participants acknowledged 
that there was no mechanism in their system for safeguarding 
investigative data submitted as evidence in a trial; all such 
information could eventually emerge in the public domain. 
 
5. (C) Ashley reviewed the mechanisms available to U.S. 
judges to permit them to share information with both the 
prosecution and the defense, without revealing classified 
information.  Ashley noted that U.S. prosecutors had the 
benefit of weighing the value of classified evidence in the 
pre-trial phase and could determine what information to 
include in the trial and what to leave out in order to 
protect sources and methods.  Spanish prosecutors have no 
such advantage since the investigation is led by a magistrate 
who must automatically "judicialize" all available evidence, 
in effect making even the most sensitive information 
available to the public.  Ashley said that this factor 
complicated the USG's ability to assist Spanish prosecutors. 
 
6. (C) Spanish participants suggested that the USG provide 
sanitized versions of intelligence information as 
investigative leads.  In the Spanish system, USG 
investigative leads would not have judicial value, but they 
would give Spanish law enforcement an opportunity to develop 
evidence that could be used in court.  Sofer probed on this 
issue, asking whether the inclusion of even sanitized USG 
intelligence information could trigger a Spanish judge to 
demand the underlying information.  Sofer noted that, in a 
U.S. court, heavily sanitized intelligence information would 
have little value as evidence.  Jesus Santos acknowledged 
that the same was true in the Spanish system and said that a 
Spanish judge could insist on full disclosure on the 
background any information submitted as evidence in a trial. 
Santos said that any potentially useful intelligence 
information should be passed to Spanish law enforcement 
agencies rather than directly to prosecutors.  Ashley pointed 
out that the USG already provided a substantial amount of 
investigative information through law enforcement channels. 
Further discussion on this point did not yield mechanisms 
that represented an improvement over the existing 
law-enforcement-to-law-enforcement channels. 
 
//JOINT TERRORISM FINANCE INVESTIGATION// 
 
7. (C) Chief Prosecutor Fungairino said Spanish authorities 
wholeheartedly agreed with the recent suggestion by DOJ to 
Spanish prosecutors to conduct a joint terrorism financing 
investigation/prosecution in order to test bilateral judicial 
cooperation mechanisms.  Jesus Santos shared with meeting 
participants details of a newly-opened case the Spanish side 
proposed as the subject of this first test run.  The main 
target of the investigation is the Islamic Cultural Center, a 
prominent Islamic institution located in Madrid and 
affiliated with the M-30 Mosque, one of the largest Mosques 
in Europe.  According to the information provided by Santos, 
Spanish authorities believe that several million dollars that 
flowed through three accounts handled by the Islamic Cultural 
Center between 1998 and 2003 may have been diverted to 
persons suspected of supporting international jihadist 
activities.  Police believe the source of the payments, the 
"Muslim World League" based in Saudi Arabia, may have a 
record of supporting extremist groups.  Fungairino proposed 
initiating a joint investigation on this case immediately. 
 
8. (C) Ashley thanked the Spanish delegation for having 
produced a possible case, but said the USG would have to 
review the information to see whether there was a basis for 
judicial action in the U.S. as well as in Spain.  The USG was 
fully prepared to provide investigative support, but ideally 
the DOJ team wanted a case that could be tried in both 
countries as well.  FBI participants in the meeting agreed 
and said they would immediately begin investigating the 
information provided by Santos and would provide feedback as 
soon as possible.  If the FBI investigation produces grounds 
for legal action against the suspects in the Islamic Cultural 
Center case, DOJ and the Spanish authorities can coordinate 
judicial strategies and bring the case to trial in each 
country.  If there is no possibility of bringing charges in 
the U.S. in this case, the FBI will continue providing law 
enforcement support while searching for another case that 
could lead to indictments in both countries. 
 
9. (U) The next meeting of the Working Group will take place 
in Washington in September or October 2005. 
 
MANZANARES