In what could be the first legal case to use filtered WikiLeaks documents as evidence, the family of a Spanish cameraman killed in 2003 by a US tank shell during the battle for Baghdad filed a complaint Monday. They seek to open an investigation into whether high-ranking officials here colluded with the US Embassy to stop charges being filed against three American soldiers, including a colonel.
José Couso of Telecinco, the Spanish cameraman, and Taras Protsyuk, a Ukranian cameraman working for Reuters, died April 8, 2003, when a shell fired by an M1 Abraham tank hit the 15th floor of the Palestine Hotel, which scores of foreign journalist were using as a base and Pentagon-approved safe haven. Two other media locations were hit that day, also killing Al Jazeera correspondent Tareq Ayyoub. Four others were injured, leading to broad condemnation and demands to protect reporters.
Couso’s family has been fighting an uphill battle as it presses for criminal charges against the US soldiers. The US and Spain are, after all, close allies, and the US has taken the position that its soldiers are not liable to foreign jurisdictions, particularly when carrying out their duties in war zones.
The case has been dismissed twice at the request of Spanish prosecutors, only to be reopened by the Spanish Supreme Court. Currently, the country’s National Court is awaiting Iraqi entry visas to investigate the involvement of a sergeant, a captain, and a colonel in the incident seven years ago.
What the WikiLeaks documents show
According to the WikiLeaks documents posted by El País newspaper, former US ambassador in Madrid Eduardo Aguirre wrote in May 2007 that “while we are careful to show our respect for the tragic death of Couso and for the independence of the Spanish judicial system, behind the scenes we have fought tooth and nail to make the charges disappear.”
A month later, according to the documents, Mr. Aguirre told former Secretary of State Condoleezza Rice that the Spanish government “has been helpful behind the scenes in getting the case appealed.”
Then in July 2007 another confidential embassy report summarized a lunch meeting between Aguirre and Attorney General Conde-Pumpido in which the Spanish official “said that he continues to do what he can to get the case dismissed, despite public pressure from the family, leftist group, and the press,” according to Aguirre.
The latest complaint from the family, filed at the Attorney General's office, asks that US diplomatic cables released by WikiLeaks be used as evidence that Spanish officials conspired to unduly influence prosecutors to dismiss the case. The accused include former Foreign Affairs Minister Miguel Ángel Moratinos, former Justice Minister Juan Fernando López Aguilar, Attorney General Cándido Conde-Pumpido, and National Court Chief Prosecutor Javier Zaragoza.
“The fundamental goal is to stop government meddling,” says Enrique Santiago, the Couso family's lawyer. “The family could have filed this with the courts directly, but it wanted to make sure that the rule of law still exists.” The Attorney General’s Office did not return calls for comment.
“It’s certainly going to increase the pressure on the government to play it straight,” says Reed Brody, a Brussels-based lawyer for Human Rights Watch. “The implication that top Spanish officials did bidding for the US is very damaging and I think even without the lawsuit it may cause them to try to rectify [the situation].”
“Those of us who are pushing the Obama administration to undertake serious investigations were always hoping that Spanish cases would cause the US to act,” Mr. Brody says. “Nobody expects [former Defense Secretary] Donald Rumsfeld in a court in Madrid, but it would be beneficial if these processes led to... answered questions at home.”
The Pentagon has publicly apologized for the deaths but found US troops acted within rules of engagement in the Palestine Hotel attack. US forces trying to capture Baghdad came under heavy sniper and rocket propelled grenade fire that day and intelligence suggested that a “spotter” was directing fire against US troops from the hotel, the US investigation said.
However, multiple journalists' accounts disagreed. Reporters on the scene said there was no fire coming from the hotel and that the location was a known refuge for foreign media. An investigation into the attack led by the New York-based Committee to Protect Journalists concluded that while the attack “was not deliberate, it could have been avoided and may have been caused by a breakdown in communication within the US Army chain of command.”
“The most disturbing thing of the revelations," says Brody, "is that the US was bullying other countries, not just Spain, to try to get officials to interfere with the judiciary. The US has built a wall of immunity and impunity for acts related to Iraq and Afghanistan and now it’s trying to get impunity extended abroad."
“It’s the first use of Wikileaks information in a court," he adds, "but I’m pretty sure it won’t be the last. It’s going to change the playing field.”
And even if the collusion complaint doesn’t prosper, few doubt Spanish public opinion will be a lot more vigilant now over the broader Couso case. “Spanish people get upset with interferences on their courts,” Brody said. “Part of this case is to hammer away at that point, that Spain should not be a lackey and should let the courts do its work.”