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Cablegate: Dutch Court Acquits Islamist Terrorist Suspects

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 02 THE HAGUE 001453

SIPDIS

Sensitive

DEPT FOR S/CT, EB/ESC/ESP, EAP/PIMBS, EUR/ERA, EUR/UBI

JUSTICE FOR DAAG SWARTZ AND OIA/JUDI FRIEDMAN
BRUSSELS FOR KERBER, WONG, RICHARD

E.O. 12958: N/A
TAGS: PTER ASEC KCRM PREL CASC ETTC XG NL EUN
SUBJECT: DUTCH COURT ACQUITS ISLAMIST TERRORIST SUSPECTS

REF: 2002 THE HAGUE 03525


1. (SBU) Summary: On June 5, the District Court of Rotterdam
acquitted all twelve suspects charged (under a variety of
statutes) for offenses related to the provision of support to
a terrorist organization. This was the second such loss for
the government before the same court, following the December
2002 acquittal of four men accused of providing support in a
plot to attack the U.S. Embassy in Paris. In the new case, the
presiding judge refused to allow "unverified" intelligence
information to serve as evidence and disallowed the
prosecution´s use of "wartime" statutes in a peacetime
terrorism case. The prosecutor´s office announced that it
would appeal the decision because it disagreed with the
court´s ruling on the use of intelligence. The outcome has
strengthened political support in the Netherlands for new laws
giving prosecutors new tools in terrorism cases. Amb. Sobel
has scheduled meetings with the Justice Minister and attorney
general to accelerate existing bilateral cooperation aimed at
strengthening Dutch counterterrorism laws. End summary.

----------------------
A Catch-all of Charges
----------------------

2. (SBU) Twelve alleged Muslim extremists, including five
Algerians, one Moroccan, one Mauritanian, one Iraqi, one
Libyan, one Egyptian and two Dutch nationals of Turkish and
Moroccan descent respectively, stood trial before the
Rotterdam District Court, Judge S.J. Van Klaveren presiding,
on May 12-20. They were charged with participation in a
criminal organization, providing assistance to the enemy at
times of war, forging travel documents, people smuggling, drug
trafficking, violation of the Dutch Arms and Ammunition Act,
trafficking in identity documents, and forgery. The
prosecution accused them of belonging to radical Islamic
networks and engaging in recruitment of young Muslims for
"Jihad."

3. (SBU) During the course of the trial, it became clear that
most of the charges could not be proven. Prosecutor Jo Valente
was therefore obliged to take the unusual step of dropping
most of the charges before the trial concluded. He conceded
that he could not prove most charges but that he had
nonetheless persevered because of "the seriousness of the
threat and impact of terrorist action on society." He argued
that it was virtually impossible to corroborate intelligence
information as long as suspects do not carry out their plans
and refuse to talk. He called the existence of terrorist
networks equally hard to prove, and complained about
disappointing intelligence cooperation with such countries as
France, Germany and Morocco. There was no doubt that most
suspects embraced anti-western views and had hardly any ties
with Dutch society but the question was whether it could be
proven that they actually committed criminal offenses.

------------------
Charges Not Proven
------------------

4. (SBU) The Judge had no trouble reaching the same conclusion
- that most charges could not be proven. The judge opined
that, although it had been established that several defendants
maintained contact with each other, it did not appear from
either statements that were made by the defendants or
intercepted telephone conversations or material found during
house searches that they were part of a criminal organization.
Nor did he find compelling the prosecution´s evidence that
this was in fact a "network" organization. He also dismissed
the charge of "providing assistance or attempting to provide
assistance to the enemy in time of war" because he said the
Netherlands was not at war with Afghanistan, the Taliban, Al
Qaeda and/or other pro-Taliban fighters during the period
covered by the charges.

5. (SBU) Consequently, he acquitted all suspects, with the
exception of two convicted for the possession of forged
documents, receiving prison sentences of two and four months
respectively. Four suspects had already been released from
custody during the trial because they faced possible prison
sentences shorter than the time they had spent in pre-trial
detention. The judge ordered the release of the others when he
issued his verdict. Several of them, however, were rearrested
on charges of illegal immigration.

---------------------------------------
Limits on Intelligence in the Courtroom
---------------------------------------

6. (SBU) The case turned in large part on the admissibility of
intelligence information. In a previous case, the same court
acquitted four suspects on December 18, 2002 (reftel) ruling
the prosecutor had failed to corroborate intelligence
information. It therefore came as no surprise that the court
again decided June 5 to acquit all suspects in light of the
absence of any substantive evidence to corroborate
intelligence information - the source of which the government
declined to reveal in court. Judge Van Klaveren explicitly
ruled that intelligence information as such could not serve as
evidence of any charge unless its origin and accuracy can be
verified.

7. (SBU) The prosecutor´s office immediately announced that it
would file an appeal against the District Court´s decision
because it disagreed with the court´s ruling that intelligence
cannot be used as evidence. Spokesmen for the ruling Christian
Democrat (CDA) and Liberal (VVD) parties as well as the
opposition Labor and populist List Pim Fortuyn (LPF) parties
opined that the law should be changed to permit the use of
intelligence information as evidence under certain
circumstances. The party spokesmen also endorsed the opinion
voiced during the trial by Chief Attorney General Joan de
Wijkerslooth, in favor of making recruiting for the "Jihad" a
specific criminal offense in the Dutch Criminal Code.

8. (SBU) Comment: Justice Minister Piet Hein Donner (who
supports use of intelligence in court proceedings) has
received his wake up call. The outcome of the trial is already
helping to galvanize governmental, parliamentary, and public
support for new judicial tools to target terrorism. Embassy is
consulting with the Dutch on "best practices" - e.g., means of
establishing a mechanism for the use of intelligence
information in court; strengthening action on terrorist
financing; expanding the nascent use of undercover infiltrants
in terrorism cases. In the wake of this ruling, Amb. Sobel has
scheduled meetings with Justice Minister Donner and Chief
Attorney General De Wijkerlslooth to accelerate existing
bilateral cooperation aimed at strengthening Dutch
counterterrorism laws. We will look to Washington agencies for
support and expertise. End Comment.

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