US embassy cable - 05PARIS3989

C O N F I D E N T I A L PARIS 003989 
 
SIPDIS 
 
STATE FOR EUR/WE, S/CT, L 
 
E.O. 12958: DECL: 06/07/2015 
TAGS: PREL, PGOV, FR, PTER, KJUS 
SUBJECT: FRENCH JUDICIARY TO INVESTIGATE GUANTANAMO 
IMPRISONMENT OF 2 EX-DETAINEES 
 
 
Classified By: POLITICAL MINISTER COUNSELOR JOSIAH ROSENBLATT, FOR REAS 
ONS 1.4 B/D 
 
1. (C) Summary: A Paris appeals court recently ordered two 
investigating judges, Sophie Clement and Nathalie Frydman, to 
investigate charges that ex-Guantanamo detainees Nizar Sassi 
and Mourad Benchellali (currently in pretrial detention in 
France) were "illegally arrested and arbitrarily detained" in 
the aftermath of their capture in Afghanistan.  Under French 
law, investigative judges have significant maneuvering room 
in the conduct of their investigations.  A French 
counter-terrorism investigating judge queried about this 
investigation said he believed Clement and Frydman were not 
favorably disposed to the U.S. and that he expected they 
would be aggressive in the pursuit of their investigation. 
End summary. 
 
2. (U) This case began with a civil suit filed by the 
families of Sassi and Benchellali while the two were being 
held in Guantanamo.  The families filed their civil suit in 
Lyon charging that the two men were illegally arrested by the 
U.S. and were being arbitrarily detained in Guantanamo.  An 
appeals court ruled on May 20, 2003, that the civil suit was 
without merit and ordered it denied without even a 
preliminary investigation.  In January 2005, the Cour de 
Cassation, France's highest court for criminal and civil 
matters, overruled the Lyon appeals court and ordered that a 
preliminary investigation be conducted.  In response, a Paris 
appeals court in May appointed Clement and Frydman to conduct 
the investigation.  Since their July 2004 return to French 
custody, Sassi and Benchellali have been formally charged 
with terrorism conspiracy, (which brings with it a maximum 
imprisonment of ten years) and are in detention pending trial. 
 
3. (C) On June 7, poloff spoke with anti-terrorism 
investigating judge Jean-Francois Ricard (strictly protect) 
about this case and his analysis of next steps.  Ricard said 
the case had the potential to be a problem.  As he noted in 
previous conversations, the decision by the Lyon appeals 
court to reject the civil suit did not conform with French 
law, and the Cour de Cassation was right to overturn it.  In 
French law, civil and criminal suits must be investigated by 
investigating judges, barring only certain exceptional 
circumstances.  In overturning the Lyon court's decision, the 
Cour de Cassation directly and publicly ordered an 
investigation, the high profile of which has given the civil 
suit more credibility, said Ricard.  If the Lyon court had 
simply approved a preliminary investigation of the civil 
suit, Ricard speculated that the matter would have been 
perfunctorily investigated and later, dropped. 
 
4. (C) Ricard said that with the direct intervention of the 
Cour de Cassation and the naming of the two investigation 
judges by a Paris appeals court, the families' civil suit has 
the potential to be problematic for the U.S., though he said 
he did not believe the suit would have any impact on the 
current pretrial detentions of the ex-Guantanamo detainees. 
Clement and Frydman, said Ricard, are "not among the (French 
judges) most favorable to the U.S."  Also, they have 
reputations as being media savvy and ambitious.  He expected 
that they would use all the tools at their disposal, possibly 
to include MLAT requests, to pursue their investigations of 
the civil suit.  In short, Ricard believed that the two 
judges would pursue their investigations of the civil suit 
"very far." 
WOLFF