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RUEHLA/AMCONSUL BARCELONA PRIORITY 2404
RUCNFB/FBI WASHDC PRIORITY
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RUEKJCS/SECDEF WASHDC PRIORITY

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