ID:208341
    Date:2009-05-22 13:16:00
    Origin:09MADRID496
    Source:Embassy Madrid
    Classification:UNCLASSIFIED//FOR OFFICIAL USE ONLY
    Dunno:08MADRID542
    Destination:VZCZCXRO1069
PP RUEHAG RUEHAST RUEHDA RUEHDBU RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA
RUEHLN RUEHLZ RUEHNP RUEHPOD RUEHROV RUEHSK RUEHSR RUEHVK RUEHYG
DE RUEHMD #0496 1421316
ZNR UUUUU ZZH
P 221316Z MAY 09
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC PRIORITY 0665
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHLA/AMCONSUL BARCELONA 3990
RHEHNSC/NSC WASHDC
RUEAWJA/DEPT OF JUSTICE WASHDC
RUEKJCS/SECDEF WASHDC
    
UNCLAS MADRID 000496 
 
SENSITIVE 
SIPDIS 
 
STATE FOR L/DL, L/LEI AND EUR/WE, DOJ FOR DOJ/OFL PATRICIA 
REEDY, OSD FOR MAGGIE SADOWSKA, NSC FOR TOBIN BRADLEY 
 
E.O. 12958: N/A 
TAGS: KLIG, PREL, SP, CJAN 
SUBJECT: COUSO CASE: JUDGE REINSTATES CHARGES AGAINST U.S. 
SOLDIERS 
 
REF: 08MADRID542 
 
1. (SBU) SUMMARY: May 21 Spanish National Court Judge 
Santiago Pedraz issued new indictments against three U.S. 
soldiers in connection with the death in Iraq of Spanish 
journalist Jose Couso in 2003.  The charging document 
introduces new, recently obtained evidence, including 
statements from former Minister of Defense Frederico Trillo 
and former Foreign Minister Ana Palacio.  Judge Pedraz argues 
that the new evidence contradicts the U.S. position that the 
soldiers were responding to hostile fire when their tank shot 
at the hotel in Baghdad.  Issuance of international arrest 
warrants is probable.  END SUMMARY. 
 
2. (SBU) Background: Jose Couso died in April 2003 when a 
U.S. tank fired on the Palestine Hotel in Baghdad. In May 
2003 the Couso family presented a criminal complaint before 
the Spanish National Court against members of the Third 
Infantry Division of the U.S. Army, accusing them of murder 
and war crimes.  The case was dismissed by the Criminal 
Division of the National Court on May 13, 2008 (reftel).  The 
court agreed with the National Prosecutor's Office that the 
investigating judge had not presented sufficient evidence to 
support the allegations.  This ruling, however, did not close 
the case, but rather left open the option for additional 
evidence to be obtained. 
 
3. (SBU) New Evidence: In the charging document, 
significantly better drafted than the original complaint 
according to post's legal advisor, Judge Pedraz provides the 
following new evidence: expert opinion testimony from a 
Guardia Civil General on humanitarian law, testimony from 
former Minister of Defense Trillo, testimony from former 
Foreign Minister Palacio, additional testimony from three 
journalists present at the Palestine Hotel the day of the 
incident, testimony of former U.S. military intelligence 
officer Adrienne Kinne obtained during a May 13, 2009, 
interview with the television program "Democracy Now," 
Spanish military expert opinion on the use of arms and tanks, 
and aerial photographs of the hotel and surrounding area. 
Pedraz has not been successful in obtaining permission to 
travel to Baghdad or the testimony of foreign reporters at 
the Al Jazeera and Abu Dhabi television buildings in Baghdad 
also hit the same day allegedly by U.S. fire. 
 
4. (SBU)  Allegations: The judge charges the three soldiers 
with murder and crimes against humanity.  In the charging 
document, Judge Pedraz argues that the accused violated 
Geneva Convention provisions, failing to use appropriate care 
in distinguishing between military and civilian targets.  He 
states that based upon his evidence, the U.S.military knew 
that the hotel was where many foreign journalists were 
staying.  Pedraz argues that according to other journalists 
in the hotel at the time, the tank had not come under fire 
before shooting at the Palestine Hotel.  Judge Pedraz also 
points out that he has not received sufficient information 
from the USG on the U.S. investigation into the matter. 
 
5. (SBU) Comment: The case continues to generate significant 
media interest.  According to post's Spanish legal advisor, 
the National Prosecutor's Office is likely to appeal the 
indictment, as it did in 2005, arguing that the evidence is 
insufficient to support the charges.  Judge Pedraz, 
reportedly close to the Couso family and passionate about the 
case, may be waiting then for the charges to be confirmed by 
the Criminal Division of the National Court before issuing 
arrest warrants.  Given the efforts apparently made to 
present more compelling evidence and legal arguments, 
however, it is likely that arrest warrants are imminent. 
This is another subject Washington might wish to raise with 
National Court Prosecutor Zaragoza during his upcoming visit 
there. 
DUNCAN