US embassy cable - 05MADRID2537

C O N F I D E N T I A L SECTION 01 OF 02 MADRID 002537 
 
SIPDIS 
 
DEPARTMENT FOR EUR/WE AND S/CT 
DOJ FOR DONALD ASHLEY AND GREG SOFER 
 
E.O. 12958: DECL: 06/27/2015 
TAGS: PTER, PREL, SP, Counterterrorism 
SUBJECT: BARAKAT YARKAS TERRORISM TRIAL: PROSECUTION BLAMES 
USG FOR LACK OF ACCESS TO BINALSHIBH 
 
REF: A. A) MADRID 2082 
     B. B) MADRID 2223 
 
Classified By: DCM Bob Manzanares; reasons 1.4 (B) and (D) 
 
1. (C) Summary.  Embassy officials met with the Chief 
Prosecutor of Spain's National Court Eduardo Fungarino on 
July 1 to express concern regarding press reports quoting the 
lead prosecutor in the Barakat Yarkas terrorism trial 
complaining about the lack of access to USG detainee Ramzi 
Binalshibh.  Emboffs reminded Fungarino that such statements 
were contrary to assurances by Fungarino and the prosecutor 
in question to a visiting USDOJ team in May that Binalshibh's 
testimony was not vital to their case and that Spanish 
officials would not criticize the lack of access to 
Binalshibh.  Fungarino suggested that the prosecutor's 
statements had been misrepresented in the press stories and 
reaffirmed his position that the prosecution's request for 
access to Binalshibh was simply a technical means to 
introduce relevant testimony by Binalshibh from the U.S. 9/11 
Commission Report.  We hope, but cannot be certain, that this 
meeting with Fungarino will dissuade the prosecutor from 
blaming the USG should he fail to convict Barakat Yarkas of 
murder when the trial comes to a close in the next several 
weeks.  End Summary. 
 
2. (C) In a June 25 story in the International Herald 
Tribune, Pedro Rubira, lead prosecutor in the ongoing trial 
of al-Qa'ida cell leader Imad Eddin Barakat Yarkas and 23 
others, is quoted as criticizing the lack of access to USG 
detainee Ramzi Binalshibh.  In the press story, Rubira 
allegedly claims that Binalshibh's testimony was crucial in 
order for the prosecution to be able to prove that Barakat 
Yarkas and co-defendant Driss Chebli were guilty of murder 
charges for having organized meetings in Spain for September 
11 hijacker Mohamed Atta in July 2001.  Trial observers say 
the three-judge panel in the case has seemed skeptical of the 
murder charges since the prosecution has not demonstrated 
convincingly that Barakat Yarkas or Chebli were present at 
the July 2001 meetings or knew of Atta's plans to carry out 
attacks in the U.S.  Rubira is quoted by Herald Tribune 
saying that "an interview with Binalshibh would change 
everything" and turn the case in favor of the prosecution. 
He is also reported as adding that the USG had otherwise 
cooperated closely in the case, but that he "could not wait 
much longer (to interview Binalshibh)" and might have to 
release one of the suspects.  Rubira said he had last 
requested access to Binalshibh three months ago, but had yet 
to receive an answer from the USG. 
 
3. (U) Rubira followed this on June 27 during his summation 
of the case, urging the judges to convict the defendants and 
sentence them to the maximum penalties in order to 
demonstrate that the fight against terrorism "does not 
require wars or detention centers," alluding to USG military 
actions and to the detention center in Guantanamo.  According 
to Spanish daily "El Mundo," Rubira "defended the European 
model (in the fight against terrorism) compared to the U.S. 
model," and said what was needed were "trials like this which 
strengthen the rule of law."  A June 28 editorial in El Mundo 
criticized Rubira for "politicizing" the Barakat Yarkas case 
in order to distract attention from the prosecution's lack of 
evidence to substantiate murder charges against Yarkas and 
Chebli. 
 
4. (C) Rubira's statements to the Herald Tribune directly 
contradict his assertion in mid-May to a visiting USDOJ team 
that Binalshibh's testimony was not crucial to his case and 
his assurances that he would not criticize the USG for not 
making Binalshibh available (REF A).  Moreover, despite 
Rubira's claim to have requested access to Binalshibh three 
months ago, the Embassy is not aware of any such Mutual Legal 
Assistance (MLAT) request having been formally submitted by 
Spanish authorities. 
 
5. (C) Embassy legal adviser shared a copy of the Herald 
Tribune story with Rubira's supervisor and Chief Prosecutor 
for Spain's National Court Eduardo Fungarino.  Fungarino had 
participated in REF A meeting during which Rubira had told 
DOJ and Embassy staff that he would submit a MLAT request for 
the USG to make Binalshibh available as a witness with the 
sole purpose of using that request to introduce Binalshibh's 
statements taken from the U.S. 9/11 Commission Report. 
Fungarino expressed surprise that Rubira had spoken to the 
press and suggested that the reporter may have used earlier 
statements in publishing the June 25 story.  He promised to 
investigate the issue with Rubira and meet with the Embassy 
again after doing so. 
 
6. (C) Fungarino met with poloff and Embassy legal adviser on 
July 1 to provide a readout of his discussions with Rubira on 
this issue.  Fungarino said Rubira acknowledged having spoken 
to the journalist, but insisted that he had only discussed 
the USG's good cooperation and his need to hear from the USG 
regarding access to Binalshibh before the trial ended in 
July.  Fungarino asserted that Rubira had not told the 
journalist that access to Binalshibh constituted a vital 
element for the prosecution's case. 
 
7. (C) Poloff and legal adviser told Fungarino that it was 
unfortunate that Rubira's discussion with the journalist had 
made it seem that the USG could be responsible for the 
failure of Rubira's case against Barakat Yarkas.  It was 
especially frustrating for the USG since the Embassy and DOJ 
had discussed this issue at length with Rubira in May and had 
been assured both that Binalshibh's testimony was not vital 
to the Spanish case and that prosecutors would not blame the 
USG for lack of access to Binalshibh.  This episode 
undermined the trust and confidence necessary for the success 
of the newly-launched Bilateral Counterterrorism Experts 
Working Group, which the USG sees as an important vehicle for 
deepening counterterrorism cooperation.  Poloff also 
clarified that the USG had no record of a formal Spanish 
request under the MLAT for access to Binalshibh, nor did we 
recommend that such an MLAT request be made at such a late 
date in the trial.  Fungarino said he understood how the USG 
might take away a negative message from the Herald Tribune 
story, but said the official GOS position remained that 
discussed with the USG team in May: access to Binalshibh 
would be desirable, but not critical to the success of the 
Barakat Yarkas prosecution. 
 
//COMMENT// 
 
8. (C) Our sense is that Fungarino was embarrassed by 
Rubira's interview, but felt obligated to support his 
subordinate.  We hope, but cannot be sure, that this 
expression of the USG's displeasure with Rubira's statements 
will restrain Rubira from blaming the USG should the court 
absolve Barakat Yarkas of murder charges.  At a minimum, 
Fungarino understands the sensitivity of this issue for the 
USG and our strong desire that Rubira avoid such unhelpful 
statements in the future. 
AGUIRRE