C O N F I D E N T I A L SECTION 01 OF 03 MADRID 000173 SIPDIS SIPDIS E.O.

12958: DECL: 02/01/2017 TAGS: PREL PTER PINR SP SUBJECT: SPAIN/CIA FLIGHTS: JUDGE ORDERS DECLASSIFICATION OF INFO RELATED TO FLIGHTS REF: A. 2006 MADRID 3104 ¶B. 2006 MADRID 2657 ¶C. 2006 MADRID 2374 ¶D. 2006 MADRID 1799 MADRID 00000173 001.2 OF 003 Classified By: DCM Hugo Llorens; Reasons 1.4 (B) and (D) ¶1. (C) Summary. National Court Examining Magistrate Ismael Moreno requested on January 31 that the Spanish Ministry of Defense and the National Intelligence Center (CNI) declassify any information related to the transit of CIA aircraft through Spanish territory, as well as any information indicating whether Spanish airports were used for the transfer of detainees in other countries. In a related action, Judge Moreno denied a motion by the plaintiffs to require the current and former heads of the CNI to testify in the case, as well as a second motion by the plaintiffs to name as suspects the 13 U.S. persons listed in the investigation. In an unusual demonstration of bipartisan accord, both the ruling Socialist (PSOE) and opposition Popular Party (PP) Parliamentarians expressed support for the declassification of the requested documents. The National Court prosecutor handling the CIA flights case told Legat that the prosecutors would not seek to block the request for declassified information because it was understood by Spanish authorities that neither the CNI nor the MOD held any incriminating or sensitive information related to the flights. The prosecutor said that the release of the little information they did have would do no harm and said that the Spanish Government would not seek additional information from the USG related to this case. We are less concerned by the immediate importance of any declassified information from the CNI or MOD than by the apparent coordination between Judge Moreno in Spain and German investigators in the El Masri case. Spanish media reported January 31 and February 1 that German investigators used information from Spanish news sources and from the Spanish Civil Guard in ordering the detention of 13 "CIA members" on charges of abduction and bodily harm. The plaintiffs and extreme left political

parties will work together to keep this issue on the front burner in Spain. End Summary. //JUDGE REQUESTS DECLASSIFICATION OF OFFICIAL INFORMATION// ¶2. (U) Judge Moreno approved requests by the plaintiffs in the CIA flights case, the "Free Association of Attorneys" and a group of Mallorcan professionals, calling for the declassification of any information held by the CNI or the MOD related to the transit of alleged CIA aircraft through the airports of Tenerife, Barcelona, Malaga, Palma de Mallorca, and others. According to reports, the Spanish judicial investigation is focused on the following flights: - Algiers to Palma to Skopje on January 22, 2004 - Guantanamo to Tenerife to Constanza, Romania on April 12, 2004, and - Madrid to Luxor, Egypt on December 16, 2003. In his request to the MOD, Judge Moreno asks for a report on "whether Spanish airports were used in the alleged events described in Council of Europe Report 10957 of June 12, 2006" related to the detentions of 12 alleged terrorists: Jaled El Masri, Ahmed Agiza, Mohammed al Zary, Hasam Usama, Mustafa Nasr (Abu Omar), Bisher al Rawi, Yamil El Banna, Masher Arar, Mohamed Bashmila, Salah Ali Qaru, Mohammed Zammar, and Binyam Mohammed. ¶3. (U) Judge Moreno denied motions by the plaintiffs demanding that the 13 U.S. persons accused by the plaintiffs of abduction and torture (REF A) be formally named as suspects. Moreno said that he would not do so because the identities of the crew of the Boeing 737, tail number N313P, had not been firmly established. He also denied a plaintiff's motion requiring the testimony in the case of CNI Director Alberto Saiz as well as his predecessor Jorge Dezcallar (brother of MFA Director General for Foreign Policy Rafael Dezcallar). This request by the plaintiffs stems from a November 28, 2001 meeting between President Bush and then-President Aznar, after which Aznar reportedly declared that "all of the mechanisms for cooperation in intelligence operations" were in place. Shortly thereafter, on December 11, the first alleged CIA flight through Spanish territory MADRID 00000173 002.2 OF 003 took place. ¶4. (U) Judge Moreno also set aside a request by the plaintiffs for the testimony of the former Council of Europe

human rights commissioner Alvaro Gil-Robles (on the grounds that Gil-Robles' reports on a detention center in Kosovo had not led to any conclusive police investigations) and the testimony of "El Pais" journalist Jose Maria Irujo, who has followed the CIA flights case as well as Islamic extremism in Spain. Judge Moreno indicated that his decisions on all of these issues (the naming of the 13 persons as suspects, requiring the testimony of CNI directors, and calling of additional witnesses) could be revisited by him or by a panel of trial judges if new information emerged to support the plaintiffs' case. //BIPARTISAN POLITICAL SUPPORT FOR DECLASSIFICATION// ¶5. (U) Politicians weighed in quickly on the decision, with ruling center-left PSOE and opposition center-right PP Parliamentarians voicing their support for the declassification of the relevant MOD and CNI records. PSOE Foreign Relations Commission Spokesperson Fatima Aburto said all documents should be declassified that pointed to any "illegal act that may have taken place in Spain." Aburto said that the focus should be on whether the aircraft in question had "illegally detained persons" aboard and said that the Zapatero Government would review its files to determine whether any such incriminating information was available that could assist in the investigation. Aburto said that documents that information indicating that a USG aircraft had made a stopover in Spain and then participated in an illegal act in a third country "should not be declassified, because such actions would not constitute the commission of an illegal act in Spain." She stressed the PSOE's dedication to deal with this issue in a transparent manner and said that the results of Spanish Government inquiries to the USG on this matter did not indicate that any crime had been committed. ¶6. (U) PP Foreign Relations Commission Spokesperson Gustavo Aristegui said that he supported the declassification of any relevant documents if they demonstrated the commission of an illegal act and if their release did not undermine the counter-terrorist operations. Aristegui said that democratic countries could not "resort to any type of illegal methods in the fight against terrorism" since this would only strengthen the terrorists. He pointed to Guantanamo and Abu Ghraib as "errors that should not be repeated." //PROSECUTOR DISCUSSES CIA FLIGHTS CASE WITH LEGAT// ¶7. (C) The National Court prosecutor handling the CIA flights case, Vicente Gonzalez Mota (strictly protect), indicated to Legat that the prosecutors do not intend to request information on this case from the Embassy or from the USG in general. He said that the National Court prosecutors did not

impede Judge Moreno's request to declassify the MOD or CNI records because it was clear that those records did not contain any incriminating or even particularly sensitive information. (NOTE: Vicente Gonzalez Mota is also the principal liaison to the Embassy for the Bilateral Counter Terrorism Experts Working Group. END NOTE). A January 31 news report indicates that Gonzalez Mota filed a judcicial assistance request to Swiss authorities for any information (NFI) gathered by prosecutors in Bern that might have a bearing on the Spanish CIA flights investigation. //CONFLUENCE OF SPANISH-GERMAN INVESTIGATIONS// ¶8. (C) Spanish media reported widely on the detention order filed by German prosecutor Christian Schmidt-Sommerfeld against "13 alleged CIA members" for involvement in the "abduction and bodily harm" of German citizen Haled El Masri. Press reports indicate that German investigators obtained the 13 names from the Spanish Civil Guard on September 27, 2006 during a visit to Spain by Munich prosecutor Martin Hoffman. The names had been included in a 2005 report ordered by a prosecutor in Palma de Mallorca. Some press reports indicated that while the names were presumed to be false, the Civil Guard had obtained photographs of at least three of the individuals from hotel records in Palma. It appears that Spanish daily "El Pais" also shared some of the names and other information it had gathered with German MADRID 00000173 003.2 OF 003 investigators. //COMMENT// ¶9. (C) Despite the absence of evidence of a crime, or even of a clear direction in the National Court's CIA flights investigation, it is clear that the plaintiffs (which in Spain now include attorneys from the extreme left wing United Left) plan to keep this issue on the front burner. However, the most worrisome element of this episode is the joint timing of the announcemnts by the German prosecutors and Examining Magistrate in the Spanish CIA flights investigation, timing that suggests that they are coordinating to advance the cases in their respective jurisdictions. This coordination among independent investigators will complicate our efforts to manage this case at a discreet government-to-government level. With regard to the internal political dynamics on this issue, both major parties will be at pains to demonstrate their commitment to the rule of law. In spite of its general pro-U.S. orientation, our experience suggests that the PP will not hesitate to capitalize on any indication that the Zapatero

Government tolerated or deliberately ignored USG actions that could be interpreted as possible human rights violations, even if these revelations reflect badly on the USG. Aguirre