VZCZCXRO5588
PP RUEHAG RUEHROV
DE RUEHMD #3104/01 3621401
ZNY CCCCC ZZH
P 281401Z DEC 06
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC PRIORITY 1521
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY
RUEHBUL/AMEMBASSY KABUL PRIORITY 0058
RUEHSQ/AMEMBASSY SKOPJE PRIORITY 0128
RUEHLA/AMCONSUL BARCELONA PRIORITY 2314

C O N F I D E N T I A L SECTION 01 OF 02 MADRID 003104

SIPDIS

SIPDIS

E.O. 12958: DECL: 12/27/2016
TAGS: PGOV PREL PTER SP
SUBJECT: SPAIN/CIA FLIGHTS: PLAINTIFFS DEMAND 13 USG
OFFICIALS BE NAMED AS SUSPECTS

REF: A. MADRID 02657
¶B. MADRID 02374
¶C. MADRID 01799

MADRID 00003104 001.2 OF 002


Classified By: DCM Hugo Llorens; reason 1.4 (D)

¶1. (U) The Mallorcan "Free Association of Attorneys" and a
group of Mallorcan professionals filed a motion calling upon
National Court Judge Ismael Moreno to name 13 presumed USG
officials as suspects in connection with the transit of a CIA
flight that stopped in Palma de Mallorca in January 2004.
The attorney's association and the Mallorcan professionals
are the plaintiffs in a suit alleging torture, kidnapping,
and illegal detention on the part of the CIA (Refs A, B, and
C). (NOTE: Under Spanish law, an association of individuals
can file charges against a defendant in a criminal case even
if they were not directly affected by the actions of the
defendant. For example, the "Association of Victims of
Terrorism" has routinely used this mechanism to press charges
against figures connected to ETA terrorist acts. END NOTE).

¶2. (U) The plaintiffs drew the names from a report prepared
by Spain's Civil Guard in 2005 regarding the occupants of a
Boeing 737 with tail number N313P. The Civil Guard
investigation was requested by the local court in Mallorca
where the plaintiffs originally filed their case. The
plaintiffs claim that this particular aircraft participated
in the extraordinary rendition of German national Khaled el
Masri in Macedonia after departing from Spanish territory.
The names of the alleged occupants include:

- James Fairing
- Jason Franklin
- Michael Grady
- Lyle Edgard Lumsden III
- Eric Fair
- Bryam Charles
- Kirk James Bird
- Walter Richard Gressbore
- Patricia Rilroy
- Jane Payne
- James O'Hale
- John Decker
- Hector Lorenzo

¶3. (U) Press reports indicate that at least five of the
persons named in the suit held U.S. diplomatic passports. In
order for the plaintiff's demand to proceed, it must be
supported by National Court Prosecutor Vicente Gonzalez Mota
and approved by Judge Moreno. Gonzalez has not yet indicated
whether he will support the plaintiff's request. He and
Judge Moreno previously denied plaintiff's demands that the
National Court request a report on the CIA flights from the
U.S. Embassy in Madrid or other USG authorities. However,
Judge Moreno has already entered into evidence the October 9
testimony of Khaled el Masri as well as telephone logs from
the Gran Melia Victoria hotel and the Marriot Son Antem in
Palma de Mallorca where the crew of the aircraft in question
stayed during their stopovers in Mallorca. (NOTE: el Masri
testified before the National Court that he was kidnapped and
tortured by the CIA for five months in 2004, but acknowledged
that could not identify the individuals who transported him
from Macedonia to Afghanistan, nor could he demonstrate that
the aircraft that transported him was the same the same
aircraft identified in the Mallorca suit. END NOTE). The
National Court has also requested the testimony of
prosecutors from Milan and Munich regarding the kidnapping of
el Masri in Macedonia and Egyptian national Abu Omar in
Italy.

//COMMENT//

¶4. (C) It is possible that this case could eventually result
in an official request to the USG by the National Court for
information related to this aircraft and the personnel on the
aircraft. While the Spanish Government has maintained that
no crimes were committed in Spanish territory, the Spanish
courts, including Judge Moreno, have asserted universal
jurisdiction in cases involving torture, including in third
countries. The National Court Prosecutor in this case,
Vicente Gonzalez, is well known to us as Spain's liaison to
the Embassy for the work of the Bilateral Counter Terrorism
Experts Working Group. We find him to be an engaging and
helpful colleague and anticipate that he will be sensitive to
the Spanish Government's preference that this case not
proceed. However, we have already seen in similar cases that
Spanish judges fiercely guard their independence and are
willing to break new ground on issues of jurisdiction. If
Judge Moreno were to determine that there was sufficient

MADRID 00003104 002.2 OF 002


evidence that a crime had been committed and that
perpetrators could be identified, he would forward the case
to a panel of trial judges. We will continue to track and
report on developments in this case.
AGUIRRE