US embassy cable - 03THEHAGUE1453

UNCLAS SECTION 01 OF 02 THE HAGUE 001453 
 
SIPDIS 
 
Sensitive 
 
DEPT FOR S/CT, EB/ESC/ESP, EAP/PIMBS, EUR/ERA, EUR/UBI 
 
JUSTICE FOR DAAG SWARTZ AND OIA/JUDI FRIEDMAN 
BRUSSELS FOR KERBER, WONG, RICHARD 
 
E.O. 12958: N/A 
TAGS: PTER, ASEC, KCRM, PREL, CASC, ETTC, XG, NL, EUN 
SUBJECT: DUTCH COURT ACQUITS ISLAMIST TERRORIST SUSPECTS 
 
REF: 2002 THE HAGUE 03525 
 
1.  (SBU) Summary: On June 5, the District Court of 
Rotterdam acquitted all twelve suspects charged (under a 
variety of statutes) for offenses related to the provision 
of support to a terrorist organization.  This was the second 
such loss for the government before the same court, 
following the December 2002 acquittal of four men accused of 
providing support in a plot to attack the U.S. Embassy in 
Paris. In the new case, the presiding judge refused to allow 
"unverified" intelligence information to serve as evidence 
and disallowed the prosecution's use of "wartime" statutes 
in a peacetime terrorism case.  The prosecutor's office 
announced that it would appeal the decision because it 
disagreed with the court's ruling on the use of 
intelligence.  The outcome has strengthened political 
support in the Netherlands for new laws giving prosecutors 
new tools in terrorism cases.  Amb. Sobel has scheduled 
meetings with the Justice Minister and attorney general to 
accelerate existing bilateral cooperation aimed at 
strengthening Dutch counterterrorism laws.  End summary. 
 
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A Catch-all of Charges 
---------------------- 
2. (SBU) Twelve alleged Muslim extremists, including five 
Algerians, one Moroccan, one Mauritanian, one Iraqi, one 
Libyan, one Egyptian and two Dutch nationals of Turkish and 
Moroccan descent respectively, stood trial before the 
Rotterdam District Court, Judge S.J. Van Klaveren presiding, 
on May 12-20.  They were charged with participation in a 
criminal organization, providing assistance to the enemy at 
times of war, forging travel documents, people smuggling, 
drug trafficking, violation of the Dutch Arms and Ammunition 
Act, trafficking in identity documents, and forgery.  The 
prosecution accused them of belonging to radical Islamic 
networks and engaging in recruitment of young Muslims for 
"Jihad." 
 
3. (SBU) During the course of the trial, it became clear 
that most of the charges could not be proven.  Prosecutor Jo 
Valente was therefore obliged to take the unusual step of 
dropping most of the charges before the trial concluded.  He 
conceded that he could not prove most charges but that he 
had nonetheless persevered because of "the seriousness of 
the threat and impact of terrorist action on society."  He 
argued that it was virtually impossible to corroborate 
intelligence information as long as suspects do not carry 
out their plans and refuse to talk.  He called the existence 
of terrorist networks equally hard to prove, and complained 
about disappointing intelligence cooperation with such 
countries as France, Germany and Morocco.  There was no 
doubt that most suspects embraced anti-western views and had 
hardly any ties with Dutch society but the question was 
whether it could be proven that they actually committed 
criminal offenses. 
 
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Charges Not Proven 
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4. (SBU) The Judge had no trouble reaching the same 
conclusion - that most charges could not be proven.  The 
judge opined that, although it had been established that 
several defendants maintained contact with each other, it 
did not appear from either statements that were made by the 
defendants or intercepted telephone conversations or 
material found during house searches that they were part of 
a criminal organization.  Nor did he find compelling the 
prosecution's evidence that this was in fact a "network" 
organization.  He also dismissed the charge of "providing 
assistance or attempting to provide assistance to the enemy 
in time of war" because he said the Netherlands was not at 
war with Afghanistan, the Taliban, Al Qaeda and/or other pro- 
Taliban fighters during the period covered by the charges. 
 
5. (SBU) Consequently, he acquitted all suspects, with the 
exception of two convicted for the possession of forged 
documents, receiving prison sentences of two and four months 
respectively.  Four suspects had already been released from 
custody during the trial because they faced possible prison 
sentences shorter than the time they had spent in pre-trial 
detention.  The judge ordered the release of the others when 
he issued his verdict.  Several of them, however, were 
rearrested on charges of illegal immigration. 
 
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Limits on Intelligence in the Courtroom 
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6. (SBU) The case turned in large part on the admissibility 
of intelligence information. In a previous  case, the same 
court acquitted four suspects on December 18, 2002 (reftel) 
ruling the prosecutor had failed to corroborate intelligence 
information.  It therefore came as no surprise that the 
court again decided June 5 to acquit all suspects in light 
of the absence of any substantive evidence to corroborate 
intelligence information - the source of which the 
government declined to reveal in court.  Judge Van Klaveren 
explicitly ruled that intelligence information as such could 
not serve as evidence of any charge unless its origin and 
accuracy can be verified. 
 
7. (SBU) The prosecutor's office immediately announced that 
it would file an appeal against the District Court's 
decision because it disagreed with the court's ruling that 
intelligence cannot be used as evidence.   Spokesmen for the 
ruling Christian Democrat (CDA) and Liberal (VVD) parties as 
well as the opposition Labor and populist List Pim Fortuyn 
(LPF) parties opined that the law should be changed to 
permit the use of intelligence information as evidence under 
certain circumstances.  The party spokesmen also endorsed 
the opinion voiced during the trial by Chief Attorney 
General Joan de Wijkerslooth, in favor of making recruiting 
for the "Jihad" a specific criminal offense in the Dutch 
Criminal Code. 
 
8. (SBU) Comment:  Justice Minister Piet Hein Donner (who 
supports use of intelligence in court proceedings) has 
received his wake up call.  The outcome of the trial is 
already helping to galvanize governmental, parliamentary, 
and public support for new judicial tools to target 
terrorism.  Embassy is consulting with the Dutch on "best 
practices" - e.g., means of establishing a mechanism for the 
use of intelligence information in court; strengthening 
action on terrorist financing; expanding the nascent use of 
undercover infiltrants in terrorism cases. In the wake of 
this ruling, Amb. Sobel has scheduled meetings with Justice 
Minister Donner and Chief Attorney General De Wijkerlslooth 
to accelerate existing bilateral cooperation aimed at 
strengthening Dutch counterterrorism laws.   We will look to 
Washington agencies for support and expertise.  End Comment. 
 
Russel