ID:95857
    Date:2007-02-08 18:12:00
    Origin:07MADRID215
    Source:Embassy Madrid
    Classification:CONFIDENTIAL
    Dunno:06MADRID3013 07MADRID101 07MADRID141 07MADRID26 07MADRID82
    Destination:VZCZCXRO2262
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RUEHLA/AMCONSUL BARCELONA PRIORITY 2428
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C O N F I D E N T I A L SECTION 01 OF 04 MADRID 000215 
 
SIPDIS 
 
SIPDIS 
 
EUR/WE FOR ALLEGRONE, CLEMENTS, AND CERVETTI 
L/LEI FOR KEN PROPP AND MARK KULISH 
CA/OCS/CI 
 
E.O. 12958: DECL: 02/05/2017 
TAGS: PREL, MARR, CJAN, KJUS, SP 
SUBJECT: SPAIN/COUSO CASE: JUDGE THREATENS TO OBSTRUCT 
US-SPAIN JUDICICIAL COOPERATION 
 
REF: A. MADRID 141 
     B. MADRID 101 
     C. MADRID 82 
     D. MADRID 26 
     E. 2006 MADRID 3013 
 
MADRID 00000215  001.2 OF 004 
 
 
Classified By: DCM Hugo Llorens; reasons 1.4 (B) and (D) 
 
1. (U) Summary. Spanish media reported February 5 that 
National Court Examining Magistrate Santiago Pedraz has 
threatened to request the suspension of US-Spain judicial 
cooperation agreements because the USG has not responded to 
his out of channel January 22 request for "complete 
identifying information" for the three U.S. servicemen named 
in the Couso case (REF A).  The reports made clear that Judge 
Pedraz required specific identifying data in order to process 
international detention orders through Interpol.  Judge 
Pedraz instructed Spanish National Police and the Civil Guard 
to work with Interpol to determine the full identities of the 
accused servicemen.  In response to a media inquiry on Judge 
Pedraz's request, the Embassy Spokesperson stated that the 
USG had undertaken an investigation of the incident in 2003 
and that the results of that investigation had been shared 
with the appropriate Spanish authorities.  Separate news 
reports covered the February 5 meeting of the Couso family 
with Minister of Justice Aguilar, who promised to adhere to 
legal norms and to National Court orders related to the case. 
 The Couso family urged the Spanish Government to pressure 
the USG to respond to Mutual Legal Assistance (MLAT) requests 
related to the Couso investigation.  In a more positive 
development, Judge Pedraz agreed with a National Court 
prosecutor's report that USG assets in Spain could not/not be 
frozen as part of the civil component of the Couso family 
suit against the three U.S. servicemen. 
 
2. (C) Since regaining control of the investigation in 
December, Judge Pedraz has elected to draw as much media 
attention as possible to his actions in the case and appears 
determined to keep this matter on the front burner.  Our 
assessment is that Judge Pedraz is driven in part by his 
frustration with USG refusal to recognize his jurisdiction in 
the matter, and in part by his desire to avoid blame for his 
inability to successfully prosecute this case.  This 
assessment is bolstered by the comment of a "Reporters 
Without Borders" contact, who told the Embassy Media 
Relations Officer of rumors in the NGO community that Judge 
Pedraz had sent the request to the Embassy for the identities 
of the U.S. servicemen purely as a "publicity stunt." 
Although we are undergoing a period of tension with Spanish 
judicial authorities stemming from friction over unrelated 
judicial cooperation cases, we do not anticipate that Spanish 
officials will give any consideration Pedraz's suggestion to 
suspend bilateral cooperation.  In this message, we consider 
possible USG responses to developments in the Couso case and 
request the Department's guidance as to how the Mission 
should proceed with Spanish authorities on this issue.  End 
Summary. 
 
//JUDGE THREATENS TO OBSTRUCT JUDICIAL COOPERATION// 
 
3. (U) Spanish daily "El Pais" reported February 5 that the 
USG had "refused to provide the National Court the identities 
of the U.S. soldiers who killed (Spanish cameraman) Jose 
Couso."  The story indicated that, as a result of the USG's 
"refusal," Judge Pedraz intends to ask the Criminal Section 
of the National Court and the main administrative body of the 
Spanish courts to suspend implementation of Spain's bilateral 
Mutual Legal Assistance Treaty with the U.S.  The El Pais 
story confirmed earlier reports that Judge Pedraz required 
the "complete identities" of the three accused servicemen in 
order to obtain Interpol's approval of his international 
detention orders for the three servicemen.  The El Pais story 
reported that Judge Pedraz had issued a "written request" to 
the Embassy ten days earlier for the identities of the 
accused (REF A) and claimed that a clerk in Pedraz's court 
had followed up with a phone call to the Embassy on January 
31.  (COMMENT: Pedraz's "written request" did not come in the 
 
MADRID 00000215  002.2 OF 004 
 
 
proper format for a judicial cooperation request, but rather 
as an informal fax to the Consular Section.  We have no 
knowledge of a second contact by Pedraz's staff in relation 
to this case.  END COMMENT).  Judge Pedraz also ordered the 
National Police and the Civil Guard to work through Interpol 
to obtain the identities of the U.S. servicemen, a strange 
request given that Interpol asked Judge Pedraz to provide 
that very same information.  An El Pais reporter had 
contacted the Embassy Media Relations Officer on January 31 
to inquire about Judge Pedraz's request.  Per previous 
guidance in the Couso case, the Embassy Spokesperson 
responded that the USG had undertaken an investigation of 
Jose Couso's death in 2003, concluded that the U.S. personnel 
involved had acted within the rules of engagement, and 
conveyed its report on the incident to the appropriate 
Spanish authorities. 
 
4. (SBU) Judge Pedraz told El Pais that, in the absence of a 
response from the USG, he would "study the possibility" of 
recommending to the National Court and to the administrative 
body that oversees the Spanish judicial system (Consejo 
General del Poder Judicial) that Spain suspend implementation 
of U.S.-Spain bilateral judicial cooperation agreements. 
However, Judge Pedraz subsequently told another news service 
that he did not intend to make such a recommendation "for the 
moment."  In the El Pais article, an unidentified Spanish 
judge asserted that Spanish judges "respond cordially and 
with alacrity" to "dozens" USG MLAT requests on issues 
ranging from narcotics traffickers to Nigerian fraud rings 
and that the lack of a USG response in this case was 
unacceptable.  (COMMENT: Legat has sought for some time, 
without success, to convince Judge Pedraz to treat the 
hundreds of ongoing Nigerian fraud cases involving Amcits as 
organized crimes cases rather than as individual cases of 
common crime, since it would simplify prosecution to treat 
fraud perpetrators as members of a crime ring.  END COMMENT). 
 
//"REPORTERS WITHOUT BORDERS" CLOSELY TRACKING COUSO CASE// 
 
5. (SBU) A representative of the NGO "Reporters Without 
Borders" (RSF) contacted the Embassy Media Relations Officer 
on February 7 to inquire about the El Pais story and about 
the direction of the Couso case.  The RSF representative 
pointedly asked whether Judge Pedraz had made his request to 
the Embassy for the identities of the three U.S. servicemen 
through the correct channels, or by some informal means.  She 
said, with a note of irritation, that it was RSF's 
understanding from unspecified sources that Judge Pedraz had 
sent the request to the Embassy as a "publicity stunt" and 
was not handling the Couso case as a serious judicial matter. 
 Emboff responded that we were not aware of any formal MLAT 
request for the full identities of the U.S. servicemen and 
added that bilateral judicial cooperation remained healthy 
and was working to the benefit of both countries. 
 
//JUDGE PEDRAZ DISCOUNTS FREEZING OF USG ASSETS// 
 
6. (U) In a separate decision, Judge Pedraz accepted the 
conclusions of a report he had commissioned from the National 
Court prosecutors regarding the viability of freezing U.S. 
Department of Defense assets in Spain as part of the civil 
component of the Couso case (REF B).  Pedraz agreed with the 
prosecutors that such assets "cannot be embargoed (frozen) 
because they are inextricably linked" to the USG's 
implementation of its foreign policy and that seeking to 
freeze these assets would constitute "interference in the 
sovereign actions of another state."  He cited the 
prosecutors' finding that U.S. diplomatic and consular assets 
in Spain were similarly immune from being embargoed.  Judge 
Pedraz added that the freezing of Department of Defense 
assets would also violate bilateral judicial assistance 
agreements between the U.S. and Spain. 
 
//PLAINTIFFS MEET WITH MINISTER OF JUSTICE// 
 
7. (U) Also on February 5, the family of Jose Couso met with 
outgoing Minister of Justice Juan Fernando Lopez Aguilar to 
 
MADRID 00000215  003.2 OF 004 
 
 
request a "firm gesture" on the part of the Spanish 
Government in response to the "attitude demonstrated by the 
U.S. Administration" regarding this case.  The Couso family 
suggested that the Spanish Government call in Ambassador 
Aguirre to demand an explanation of the USG's actions in this 
case.  Lopez Aguilar assured the family that the Spanish 
Government would "respect the law and any decisions rendered 
by the National Court."  In subsequent comments to the media, 
Javier Couso, brother of Jose Couso, said that the family 
took the Minister's response to indicate that the Spanish 
Government would support a bilateral extradition request to 
the U.S. for the three accused servicemen if such a request 
were submitted by a National Court judge.  Post previously 
inquired about the possibility of a bilateral extradition 
request in a meeting with the Chief Prosecutor of the 
National Court, who said the Spanish Government has not taken 
a position as yet regarding whether it would support a 
bilateral extradition request (REF B). 
 
//FRICTION ON OTHER CASES// 
 
8. (C) We do not believe Spanish officials will contemplate 
disrupting bilateral judicial cooperation over the Couso 
matter, but note that this threat is being raised in the 
context of Spanish Ministry of Justice displeasure regarding 
a perceived lack of USG cooperation on recent unrelated 
Spanish judicial assistance requests.  In the Carrascosa 
parental abduction case, in which a Spanish citizen mother is 
being held on contempt charges by a New Jersey state court, 
Spanish judicial authorities believe U.S. and New Jersey 
court officials have not given sufficient weight to a 
determination in the case by a Spanish judge.  Separately, 
MOJ officials believe the USG was not helpful in responding 
to detention requests in the case of former Guatemalan 
Interior Minister Donaldo Alvarez, who resided illegally in 
the U.S. for several years and who faces criminal charges in 
Spain.  While delays and miscommunications on judicial 
cooperation cases are caused primarily by differences in the 
Spanish and U.S. legal systems, delayed U.S. responses on 
MLAT requests or rejection of MLAT requests on technical 
grounds generates a sense among Spanish officials that the 
USG is not fully committed to a reciprocal cooperative 
relationship. 
 
9. (C) These factors are not directly relevant to the Couso 
case, in which we do not recognize the Spanish court's 
jurisdiction, but they do color public discussion of the 
Couso case, where the absence of a USG response to the 
Spanish court is portrayed as a case of U.S. disrespect for 
the Spanish legal system.  Complicating the issue further is 
the intense disapproval by the Spanish public of the U.S. 
invasion of Iraq, which for some makes the indictment of the 
three U.S. servicemen in the Couso case an indictment of the 
"illegal" war itself.  The plaintiff's attorneys are aware of 
this dynamic and charge that the lack of a USG response to 
judicial requests is a further indication of USG "arrogance," 
requiring a strong official response by Spanish authorities. 
The challenge for the Spanish Government and the prosecutors 
is to appear both responsive to the plaintiffs and Judge 
Pedraz (and respectful of the victim, Jose Couso) while 
avoiding a confrontation with the USG over a case that has a 
very weak legal basis. 
 
//NEXT STEPS// 
 
10. (C) As noted in previous reporting, the Mission's goal is 
dismissal of this case to ensure that the three U.S. 
servicemen are not negatively affected by ongoing Spanish 
judicial actions.  A mere suspension of the case in the 
absence of the accused (a politically palatable solution for 
both the judges and the Government) would be insufficient as 
it would leave the servicemen open to future legal action in 
Spain or internationally.  We would appreciate the 
Department's views on the following range of options for USG 
actions in this case: 
 
- We could continue to ignore requests from Judge Pedraz, and 
 
MADRID 00000215  004.2 OF 004 
 
 
refuse to recognize his fax of January 22 requesting 
assistance in identifying the three servicemen. 
 
- The Embassy could respond to Judge Pedraz with a fax from 
the Embassy, stating either that any judicial assistance 
request should go through official channels, or referring 
Pedraz to the Ministry of Justice for the official USG 
response on this case.  We are aware that informing Judge 
Pedraz to present requests through normal channels could 
trigger a formal MLAT requesting the identities of the three 
U.S. servicemen; the Ambassador has made clear to the 
Attorney General that we would not welcome such an MLAT 
request. 
 
- The Ambassador could raise this to higher political levels 
(Minister of Justice and/or Vice President Maria Teresa 
Fernandez de la Vega) and reiterate that no further USG 
response will be forthcoming.  As in past communications on 
this issue with Spanish authorities, we would engage on an 
informal basis to avoid any public perception that we are 
exerting pressure on the Zapatero Government on this issue or 
encouraging them to interfere in the judicial process. 
 
- The Department could raise this case in Washington with the 
Spanish Embassy to convey concern regarding the press reports 
that Judge Pedraz is threatening to recommend the suspension 
of legal cooperation with the USG over this matter. 
 
11. (C) A final alternative is to do nothing for the moment 
and await further developments.  The Spanish Government is 
aware of our position and we do not believe that the courts 
or the Government would seriously consider disrupting 
judicial cooperation over this matter.  However, as noted 
above, Judge Pedraz appears motivated to keep this case in 
the public eye -- or at least to avoid blame for the eventual 
failure of the case to progress -- so we anticipate further 
efforts by him to force a USG response to his requests. 
Among the next logical steps would be a bilateral request by 
Judge Pedraz for the extradition of the three accused 
servicemen, at which point the National Court prosecutors 
would have to choose between processing the extradition 
requests and risking a dispute with the USG, or appealing the 
extradition requests at the cost of accusations that they 
were acting to protect USG interests.  The Criminal Section 
of the National Court dismissed the Couso case in March 2006 
on jurisdictional grounds and expressed skepticism regarding 
the merits of the case, but there is no guarantee that they 
would render a favorable verdict again if the case is 
appealed for their determination. 
Aguirre