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S E C R E T SECTION 01 OF 03 MADRID 001914 

SIPDIS 

SIPDIS 

E.O. 12958: DECL: 07/25/2016 
TAGS: PTER PGOV PREL SP
SUBJECT: COURT FREES "SPANISH TALIBAN" 

REF: A. 2005 MADRID 3528 
¶B. TD-314/09169-05 

MADRID 00001914 001.2 OF 003 


Classified By: A/DCM Kathleen Fitzpatrick; reasons 1.4 (B) and (D) 

¶1. (C) Summary. The Spanish Supreme Court announced July 24 
that it had annulled the six-year prison sentence handed down 
in September by Spain's National Court against accused 
terrorist Hamed Abderrahaman Ahmed, known in the media as the 
"Spanish Taliban." Abderrahaman, a Spanish national captured 
in Afghanistan by U.S. forces and held at Guantanamo until 
being turned over to Spanish authorities in February 2004, 
was immediately released from prison. The Supreme Court 
found that Spanish prosecutors could not use any evidence 
collected during their interview with Abderrahaman while he 
was being held at Guantanamo under conditions the Court 
termed "impossible to explain, much less justify." The Court 
threw out other evidence collected against Abderrahaman prior 
to his capture in Afghanistan and determined that prosecutors 
had skewed Abderrahaman's testimony to incriminate him. This 
finding had an immediate effect on the case of Lahcen 
Ikassrien, a Moroccan national and former Guantanamo detainee 
tranferred to Spanish custody in July 2005. Prosecutors 
announced their recommendation to release Ikassrien on bail 
while awaiting trial on terrorism charges, while 
Abderrahaman's attorney said he would sue the U.S. Government 
for suffering allegedly suffered by Abderrahaman during his 
incarceration in Guantanamo. Spanish officials involved in 
the Abderrahaman case expressed disappointment in his 
release, but also said that he was not particularly dangerous 
and dismissed him as a threat. This ruling does not indicate 
a reduction in counter-terrorism cooperation by Spanish law 
enforcement officials, but the Supreme Court's decisions will 
clearly have to be taken into account as we pursue improved 
judicial cooperation with Spain. The Spanish judicial branch 
carefully guards its hard-won indepence, meaning it will not 
shy away from rulings that cut across Spanish Government (or 
USG) objectives. End Summary. 

//BACKGROUND// 

¶2. (S) According to sentencing documents, Abderrahaman 
established contacts with al-Qa'ida elements in the Spanish 
enclave of Ceuta and, in August 2001, traveled to Afghanistan 
for religious and military training in Kandahar. When the 
U.S. invaded Afghanistan in the wake of the September 11 
attacks, Abderrahaman fled to Pakistan, where he was 
reportedly captured by the Pakistani military, who turned him 
over to U.S. forces. Abderrahaman was transferred to 
Guantanamo, where he was held until he was turned over to 
Spanish authorities in February 2004 in response to a request 
by magistrate Baltasar Garzon, who wanted to investigate 
Abderrahaman in connection with the trial of al-Qa'ida cell 
leader Imad Eddin Barakat Yarkas. Under the terms of that 
transfer, Spanish authorities agreed to: 

-- Be prepared to detain, investigate, and prosecute 
Abderrahaman, while treating him humanely; 

-- Share with USG authorities any information developed 
during the investigation; 

-- Provide reasonable notice of any decision to release or 
transfer Abderrahaman; 

-- Conduct surveillance of Abderrahaman following his 
release, and share any relevant information with the U.S.; 
and, 

-- Provide U.S. officials access to Abderrahaman if necessary. 

¶3. (S) Garzon released Abderrahaman on bail in July 2004, 
finding that Spanish National Police interrogations of 
Abderrahaman while he was being held in Guantanamo could not 
be used as evidence. However, the National Police had 
previous wiretap evidence linking Abderrahaman to Barakat 
Yarkas as well as what they viewed as incriminating 
statements by Abderrahaman to police investigators following 
his release from Guantanamo. In early 2005, a confidential 
police assessment shared with USG officials concluded that 
Abderrahaman had the "mental maturity of a 12-year-old," was 
"naive and foolish," and did not seem to comprehend the 
gravity of his detention in Guantanamo. But the report also 
noted Abderrahaman's consistent statements to Spanish police 
that he wanted to "go fight with the Chechens and kill 
Russians." (REF B). Police provided this information to 
prosecutors and to the National Court, which found 

MADRID 00001914 002.2 OF 003 


Abderrahaman guilty in September 2005 of "membership in a 
terrorist organization." The case was then automatically 
transferred to the Supreme Court to either overturn or 
confirm the sentence. 

//SUPREME COURT THROWS OUT CONVICTION// 

¶4. (U) The Supreme Court overturned Abderrahaman's conviction 
on the basis that the National Court had allowed prosecutors 
to use inadmissible evidence to establish Abderrahaman's 
guilt and that prosecutors had improperly translated 
Abderrahaman's incriminating testimony. Specifically, the 
Supreme Court found that testimony obtained by Spanish police 
investigators during the course of interviews of Abderrahaman 
in Guantanamo could not be used in court because the 
"interrogations, euphemistically called "interviews," took 
place under unequal circumstances because (the defendant) was 
in detention" at the time of the interrogations. Further, 
the Supreme Court finding stated that "although it is not for 
(this Court) to issue a pronouncement regarding the situation 
of those held in indefinite detention, we must state that, as 
Ahmed was held in detention under the authority of the U.S. 
military since he was turned over (to the U.S.) on an 
undetermined date, all information obtained under such 
conditions must be declared totally null and nonexistent." 
The Court did go on to pronounce its position on Guantanamo, 
criticizing the detention of "hundreds of people, among them 
Ahmed, without charges, without rights, without controls, and 
without limits," a situation the Court termed "impossible to 
explain, much less justify." 

¶5. (U) Just as damaging to the prosecution's case was the 
Court's decision to throw out telephone intercepts 
incriminating Abderrahaman obtained during the course of the 
Barakat Yarkas investigation and long before Abderrahaman's 
detention in Afghanistan. The judges found that the 
intercepts had been obtained improperly (NOTE: the Supreme 
Court had already ruled against allowing the intercepts 
during its review of the convictions of Barakat Yarkas cell 
members). The Supreme Court also determined that prosecutors 
had improperly translated Abderrahaman's statements and had 
omitted exculpatory evidence, such as Abderrahaman's 
declaration that he did not belong to al-Qa'ida and had not 
received military training. The Court criticized prosecutors 
for omitting a document "signed in Guantanamo by Abderrahaman 
before being turned over to Spanish authorities," a document 
in which U.S. authorities allegedly acknowledged that 
Abderrahaman was not a member of al-Qa'ida. On this basis, 
the Supreme Court found that the case against Abderrahaman 
failed to meet the minimum standards established by the 
European Court of Human Rights for a finding of "guilty 
beyond a reasonable doubt." 

¶6. (C) Legat contacted Eduardo Fungairino, currently the head 
of an anti-terrorism office assigned to the Supreme Court and 
formerly the chief of the National Prosecutor's office, on 
July 25 for his insights into the Abderrahaman decision. 
Fungairino (strictly protect) dismissed the Supreme Court 
decision as "facile and populist." He said that while he 
acknowledged errors on the part of National Court prosecutors 
in the case (and the legal problems generated by the 
circumstances at Guantanamo), in his view the Supreme Court 
ignored evidence of Abderrahaman's terrorist training in 
Pakistan and Afghanistan, activities that are clearly 
criminal under Spanish law. Fungairino indicated that one 
consolation, in his view, was that Abderrahaman did not 
represent a serious threat, echoing police assessments that 
Abderrahaman was a pawn in events beyond his understanding 
(see para 3). 

//ABDERRAHAMAN PLANS TO SUE USG// 

¶7. (U) In a July 25 press conference organized by 
Abderrahaman attorney Marcos Garcia Montes, Abderrahaman told 
reporters that he hoped to gain employment as a truck driver 
and claimed that his vision had degraded so much during his 
detention in Guantanamo that he was unfit for other 
employment. Garcia Montes said that he planned to file a 
"multimillion dollar suit" against the U.S. Government for 
damages, including post-traumatic stress and vision loss on 
the part of his client. The attorney told reporters that 
Abderrahaman's suffering had been such that he could no 
longer recall specific elements of his detention in 
Guantanamo, nor of his time in Pakistan and Afghanistan. 
Abderrahaman roundly denied ever having been a terrorist and 
insisted that his prior references to himself as a "martyr" 
referred to his treatment in detention. Prompted by his 

MADRID 00001914 003.2 OF 003 


attorney, Abderrahaman related his alleged mistreatment in 
U.S. detention, including the presence of a powerful 
lightbulb in his cell that impeded sleep and threats that he 
would never see his family again. Abderrahaman said he 
planned to write a book about his experiences. 
//IKASSRIEN ALSO TO BE RELEASED// 

¶8. (U) Following the Supreme Court decision in the 
Abderrahaman case, National Court prosecutors announced that 
they would support the release on bail of Moroccan national 
Lahcen Ikassrien, who was transferred to Spain from 
Guantanamo in July 2005 and held in preventive detention 
since his arrival. This comes less than a month after 
prosecutors filed formal charges against Ikassrien, seeking 
an eight-year prison term on charges of membership in a 
terrorist organization. The case against Ikassrien is based 
on three police interviews with him when he was being held at 
Guantanamo (by the same investigators who interviewed 
Abderrahaman) and on telephone intercepts developed in the 
course of the Barakat Yarkas investigation, the same evidence 
thrown out in the Abderrahaman case. (NOTE: According to 
press reports, the Spanish police intercepts place Ikassrien 
in Istanbul, Turkey in November 2000 along with suspected 
terrorists Amer Azizi and Said Berraj. In a separate 
intercept, Ikassrien requested assistance with documentation 
from al-Qa'ida cell leader Barakat Yarkas). Prosecutors have 
maintained that Ikassrien's own testimony since his transfer 
from Guantanamo incriminates him since he has acknowledged 
traveling to Afghanistan to "collaborate with the Islamist 
regime." That is disputed by court observers who say that 
Ikassrien's statements to the National Court have been 
substantially less incriminating than those of Abderrahaman 

¶9. (U) Ikassrien's attorney has already homed in on 
Guantanamo as key to his client's defense, focusing on 
Ikassrien's alleged mistreatment while in US custody. The 
attorney's request claims that "while Ikassrien was in 
Guantanamo, he was gassed, beaten, mistreated, and insulted, 
and subject to repeated inspections, during which the 
military officials undertaking the inspections would damage 
or destroy (Ikassrien's) books, especially the Koran." 
Ikassrien's attorney also alleges that his client was 
forcibly injected with a substance that led to severe itching 
that continues to affect him. 

//COMMENT// 

¶10. (C) Spanish counter-terrorism legislation was designed 
over three decades to combat ETA, a group with a defined 
structure, doctrine, and modus operandi. Police, 
prosecutors, and magistrates working on investigations of the 
far more amorphous cells of Islamist extremist have struggled 
to develop evidence sufficient to meet the high threshhold 
set by the Spanish Supreme Court. This was reflected in an 
earlier decision by the Supreme Court to reverse the 
convictions of several Barakat Yarkas cell members and to 
reduce Barakat Yarkas' sentence on the basis that prosecutors 
had not proved his connection to the September 11 attacks in 
the U.S. (USG observers of the trial noted that the evidence 
on the September 11 connection was indeed weak). Clearly, in 
the Abderrahaman case the Supreme Court was also eager to use 
this case as a platform to criticize U.S. detainee policies 
in Guantanamo. While this sentiment has not influenced 
Spanish police to reduce their close collaboration with the 
U.S. in fighting terrorism, we must take it into account as 
we pursue increased judicial cooperation with Spain in 
terrorism cases. The Spanish judiciary carefully guards its 
independence (a major achievement of the post-Franco era) and 
has not shied from taking decisions that cut across the 
obectives of the Spanish Government. 
AGUIRRE