VZCZCXRO9939
PP RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV
DE RUEHMD #0800/01 1171955
ZNR UUUUU ZZH
P 271955Z APR 07
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC PRIORITY 2401
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY
RUEHGB/AMEMBASSY BAGHDAD PRIORITY 0161
RUEHLA/AMCONSUL BARCELONA PRIORITY 2660
RUCNFB/FBI WASHDC PRIORITY
RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY
RHMFIUU/HQ USCENTCOM MACDILL AFB FL PRIORITY
RHMFISS/HQ USEUCOM VAIHINGEN GE PRIORITY
RUEKJCS/JOINT STAFF WASHDC PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY

UNCLAS SECTION 01 OF 03 MADRID 000800 
 
SIPDIS 
 
SIPDIS 
SENSITIVE 
 
EUR/WE FOR ALLEGRONE, CLEMENTS, AND CERVETTI 
L/LEI FOR PROPP, KULISH, AND JOHNSON 
 
E.O. 12958: N/A 
TAGS: PREL MARR PGOV SP
SUBJECT: SPAIN/COUSO CASE: JUDGE CHARGES US SERVICEMEN WITH 
"CRIMES AGAINST INTERNATIONAL COMMUNITY" 
 
REF: A. MADRID 215 
     ¶B. MADRID 141 
     ¶C. MADRID 101 
     ¶D. MADRID 42 
     ¶E. MADRID 26 
 
MADRID 00000800  001.2 OF 003 
 
 
¶1. (SBU) Summary.  National Court Judge Santiago Pedraz 
issued formal charges of murder and "crimes against the 
international community" against the three US servicemen 
named in the legal case filed by family members of Spanish 
cameraman Jose Couso, who was killed by US fire during the 
capture of Baghdad in April 2003 (reftels).  The most serious 
charges are punishable by 10-15 year imprisonment.  According 
to press reports, Judge Pedraz transmitted a Mutual Legal 
Assistance (MLAT) Request to "US authorities" in connection 
with this charging document, with the MLAT evidently intended 
to advise the servicemen of these charges rather than 
requesting action on the part of the USG to extradite them to 
Spain.  The charging document indicates that if the three 
servicemen were brought before the court, they would be 
required to present a one million Euro bond to meet their 
potential civil liability in the case.  The National Court 
prosecutors have three working days to appeal the charges; if 
there is no appeal, the case will move forward.  The 
indictment is notable for the absence of any acknowledgement 
that there were ongoing military operations during the 
incident in Baghdad and for the use of alleged statements to 
the media by the defendants to justify the charges against 
them.  The DCM contacted Julio Perez Hernandez, Secretary of 
State for Justice (equivalent to an Undersecretary) to 
discuss Pedraz's presentation of charges, noting the USG's 
respect for Spanish judicial independence, but also the USG's 
disappointment with this development in light of the 
extensive USG report on the incident which was shared Spanish 
authorities.  Perez Hernandez said he would contact the 
National Court Chief Prosecutor to ascertain how the 
Prosecutor's Service would handle this case.  Spanish law 
does not permit trial in absentia, so it is possible that the 
case could be archived if the defendants do not appear in a 
Spanish court.  However, this is an unacceptable outcome 
since it will leave charges pending against the three 
servicemen; we will continue to press for dismissal of the 
charges.  End Summary. 
 
//THE CHARGES// 
 
¶2. (SBU) In a document filed by the National Court the 
afternoon of April 27 (immediately prior to a major Spanish 
holiday weekend), Judge Pedraz formally charged US servicemen 
Lt. Colonel Philip de Camp, Captain Philip Wolford, and 
Sergeant Thomas Gibson with "crimes against the international 
community" and "aggravated murder" in connection with the 
death of Spanish cameraman Jose Couso on April 8, 2003 during 
the US capture of Baghdad.  The indictment was broken down 
into three parts: a background of the case, a discussion of 
the judicial aspects of the case, and the Judge's 
presentation of charges against the three servicemen.  Post 
is preparing an informal translation of the indictment to be 
transmitted to the Department and to DOJ, but a summary of 
the document follows below: 
 
-- Background: 
Judge Pedraz discusses key elements of the invasion of Iraq 
and notes that the majority of the international media 
transferred from the "Rashid Hotel" to the "Palestine Hotel" 
at the recommendation of US forces.  He then describes the 
killing of Couso from the impact of a tank round fired by a 
US tank situated 1.5 kilometers from the Palestine Hotel. 
According to the indictment, Lt. Colonel Philip de Camp of 
the 64th Armored Regiment, 3rd Infantry Division ordered 
Captain Philip Wolford, commander of the unit that fired the 
tank round, to fire a round at the hotel.  The shot was 
allegedly fired by the third serviceman, Sergeant Thomas 
Gibson.  Judge Pedraz's charging document states that "The 
(US) military forces, including the three aforementioned 
individuals, knew that the Palestine Hotel was located in a 
civilian area, and that it was occupied by journalists. 
There is no evidence that a "sniper" nor of gunfire from any 
part of the Palestine Hotel against (US) forces." 
 
MADRID 00000800  002.2 OF 003 
 
 
 
-- Judicial Discussion: 
Judge Pedraz indicates that the events related in the summary 
could constitute a "violation against the international 
community," as described in Article 611.1 of the Spanish 
Penal Code, which mandates a 10-15 year prison term for those 
who, "without prejudice to the harm occasioned by their 
conduct, in the event of an armed conflict undertake or order 
to be undertaken indiscriminate or excessive attacks or make 
the civilian population the target of attacks, reprisals, or 
acts or threats of violence with the intent of generating 
terror."  Judge Pedraz cites Article 608.3 of the Penal Code, 
which describes protected persons as "the civilian population 
and persons protected under the IV Geneva Convention of 12 
August 1949 and by Additional Protocol I of 8 June 1977."  He 
then adds a charge of "aggravated murder" against the three 
servicemen and concludes that there exist "rational 
indicators" that the actions of the servicemen constituted 
criminal acts. 
 
-- Judge Pedraz asserts that (unspecified) comments in the 
media by one of the accused of the circumstances of the 
incident confirmed the existence of "an order, authorization 
of that order, and the firing of a tank round," a sequence 
Judge Pedraz says was further supported by the USG "report" 
(Judge Pedraz's quotes) on the incident.  Judge Pedraz then 
discusses the recommendation by "the Pentagon" for foreign 
journalists to move to the Palestine Hotel, indicates that 
the "media" reported to "Embassies, the Pentagon, and 
Washington" the GPS coordinates of the Hotel, indicates that 
US military forces were advised not to target the Palestine 
Hotel, and claims that "Secretary of State Colin Powell 
acknowledged that it was known that the Palestine Hotel was 
full of journalists." 
 
-- Pedraz disputes the conclusion of the USG investigation 
that the servicemen responded appropriately and within the 
rules of engagement to the suspected threat of a sniper or 
enemy spotter at the Palestine Hotel, because USG forces 
should have known that the Palestine Hotel was a civilian 
facility and that the "flash" seen by USG forces could have 
been the reflection of a camera lens or a camera flash. 
Judge Pedraz further notes attacks by US aircraft against 
Al-Jazeera and other media facilities near the Palestine 
Hotel, implying that USG forces were deliberately targeting 
the international media.  Pedraz alleges that there is 
sufficient evidence to warrant charges the shot fired by the 
US tank that killed Couso, "without evidence of any threat 
whatsoever... constitutes an "attack, reprisal, act, or 
threat of violence with the objective of terrorizing" 
journalists, as indicated by the attacks the same day against 
Al Jazeera and Abu Dhabi TV."  On this basis, Judge Pedraz 
orders the "provisional arrest" of the named US servicemen. 
 
Charges: 
Judge Pedraz orders the indictment of the three US servicemen 
and instructs the notification of the three defendants via an 
MLAT to US authorities.  Further Judge Pedraz indicates that 
"once the (subjects) are at the disposition of (Spanish 
courts)," they should provide a bond of one million Euros 
($1.37 million) to cover potential civil liability as a 
result of the criminal investigation and trial.  Under 
Spanish law, the National Court prosecutor has three working 
days to present an appeal to Judge Pedraz's indictment. 
 
//DCM CONTACTS MINISTRY OF JUSTICE// 
 
¶3. (SBU) The DCM contacted Secretary of State for Justice 
(Undersecretary equivalent) Julio Perez Hernandez on April 27 
to draw his attention to the USG's concerns regarding this 
case.  The DCM noted the USG's respect for the independence 
of the Spanish judiciary but emphasized our disappointment 
with the issuance of this indictment after the USG had 
provided a comprehensive report demonstrating that we had 
already fully investigated the circumstances of Couso's 
death.  Perez Hernandez (who only recently assumed his 
position) said that he knew the general outlines of the Couso 
case but was unaware of both this indictment and of the 
latest actions by Judge Pedraz.  However, Perez Hernandez 
 
MADRID 00000800  003.2 OF 003 
 
 
said that he would try to make contact with National Court 
Chief Prosecutor Javier Zaragoza to determine how the 
prosecutors intended to respond. 
 
¶4. (SBU) Shortly after the DCM's conversation with Perez 
Hernandez, MOJ Director General for International Relations 
Cristina Latorre called him to say report that the MOJ had 
been unable to contact Chief Prosecutor Zaragoza.  Latorre 
said that Judge Pedraz's actions had come as a complete 
surprise to the MOJ, noting that she agreed that there were 
no grounds for war crimes or murder charges and had worked 
with prosecutors in 2006 to get the case dismissed. 
 
//MEDIA INQUIRIES// 
 
¶5. (SBU) This is a major development in the Spanish context 
and we expect to receive many questions from local media 
regarding the USG response.  As we have throughout this case, 
the Embassy will deploy the previously approved guidance 
below, last used in response to media inquiries on January 
16, 2007: 
 
"On behalf of the Government of the United States, we 
reiterate our profound sympathy for the death of the Spanish 
journalist and of the Reuters correspondent Taras Protsyuk in 
the Palestine Hotel in Baghdad.  The US authorities undertook 
a detailed investigation of the incident.  We shared the 
results of the investigation with Spanish authorities.  The 
investigation concluded that US military forces acted within 
the rules of engagement in that zone of armed conflict." 
 
//COMMENT// 
 
¶6. (SBU) Legat confirmed with DOJ that DOJ has not received 
the MLAT which Judge Pedraz instructed be delivered in 
connection with this indictment.  It is our understanding 
that transmittal of the MLAT will take several weeks to make 
its way from the Spanish Ministry of Justice to DOJ.  If the 
USG does not acknowledge a Spanish MLAT or otherwise 
cooperate in this case, it is possible that the case could be 
suspended or archived, since Spanish law does not provide for 
trial in absentia.  However, this would leave the charges 
against the US servicemen pending.  Respected figures in the 
Ministry of Justice and Interior and within the Zapatero 
Administration have told us that they agree with the USG view 
on the legal validity of this case and have assured us that 
the case was so weak that it would eventually crumble. 
Clearly Judge Pedraz (considered a difficult judge in the 
judicial community) is of another mind and intends to 
aggressively pursue this case.  We will continue to engage at 
a high level with Spanish Government officials to press the 
case for the dismissal of the charges against the US 
servicemen. 
 
 
 
Aguirre