TOP-SECRET – Khodorkovsky ‘will not be free while Putin is in power’

Wednesday, 18 April 2007, 07:48
C O N F I D E N T I A L SECTION 01 OF 03 MOSCOW 001770
SIPDIS
SIPDIS
DOJ OF OPDAT/ALEXANDRE, LEHMANN AND NEWCOMBE, OCRS/OHR AND
SHASKY, OIA/BURKE AND DITTOE
STATE FOR EUR/RUS
EO 12958 DECL: 04/17/2017
TAGS ECON, KCRM, KJUS, PGOV, PREL, RS
SUBJECT: RUSSIA: MEETING WITH XXXXXXXXXXXX
REF: A. MOSCOW 774 B. MOSCOW 697
Classified By: Ambassador William J. Burns for reasons 1.5 (b, d)

1. (C) Summary: Emboffs met with XXXXXXXXXXXX. He described the new embezzlement and money laundering charges — that Khodorkovskiy engaged in transfer pricing that harmed unwitting minority shareholders in Yukos’ three production subsidiaries — as a re-packaging of the charges in the first case. He claimed the defense has substantial evidence these shareholders were fully informed of these activities. Further, XXXXXXXXXXXX maintained that the charges are without legal or factual support and questioned the prosecution’s claim that the loss to the subsidiaries was USD 30 billion, a figure he said was about equal to the value of the oil produced by the three units during the period in question. XXXXXXXXXXXX said he was surprised that a Moscow court had agreed to change the venue of the trial from Chita to Moscow. He described two cases pending before the European Court of Human Rights (ECHR). The first case claims that Khodorkovskiy was arrested and held in pre-trial detention in violation of the European Convention on Human Rights (the Convention), while the second alleges violations of Khodorkovskiy’s right to a fair trial. XXXXXXXXXXXX maintained that the case against XXXXXXXXXXXX is politically motivated and being run out of the Kremlin, and does not foresee any change of status for Khodorkovskiy while the Putin Administration remains in office. End Summary.

The New Charges

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2. (C) On February 16, the General Procuracy charged Khodorkovskiy and Platon Lebedev with embezzlement and money laundering (Ref B). According to the indictment, Khodorkovskiy and Lebedev acquired controlling interests in three oil companies (Samaraneftegaz, Yuganskneftegaz, and Tomskneftegaz) and then caused these companies to sell oil at below-market prices to other companies that they controlled without disclosing to other shareholders their role in these transactions. They then allegedly re-sold the oil at market prices, which were approximately 3-4 times greater than the original purchase price. The alleged victims were the other shareholders of Samaraneftegaz, Yuganskneftegaz, and Tomskneftegaz, who were entitled to the benefit of an arms-length sale at market prices, but instead received only the artificially deflated prices allegedly set by Khodorkovskiy and Lebedev (Ref B).

3. (C) As an initial matter, XXXXXXXXXXXX said that the new charges are simply a re-packaging of the charges in the first case. According to XXXXXXXXXXXX in the first case, prosecutors relied on the very same transactions to charge Khodorkovskiy with tax evasion. However, he said, they were unsatisfied with Khodorkovskiy’s eight-year sentence and decided to bring new charges carrying potentially heavier sentences. The money laundering charges carry a maximum sentence of 15 years and the embezzlement charges carry a maximum sentence of 10 years. He said the defense will challenge them on the grounds that they violate Russian and international norms prohibiting double jeopardy. XXXXXXXXXXXX also suggested that the new charges may have been brought to prevent Khodorkovskiy from being released on parole before upcoming Duma and Presidential elections. (Note: Russian law provides that a prisoner is eligible for early release after he has served half of his sentence. Because Khodorkovskiy was arrested in October 2003 and was sentenced to eight years, he might have been eligible for early release in October 2007. However, his prison violations, which XXXXXXXXXXXX claims were provoked by authorities, would likely have prevented his early release in any event. End Note.)

4. (C) XXXXXXXXXXXX also said that the new charges are without merit since this transfer pricing technique was not only legal but engaged in by “thousands of firms.” He noted that the business groups and industrial firms emerging from privatization during the 1990s were generally organized to take maximum advantage of benefits the GOR provided via “internal offshore” zones. The headquarters and some operating units of a group or firm were typically located in identified havens and conducted most of the transactions, thus allowing for tax optimization. According to XXXXXXXXXXXX this structure facilitated and encouraged the widespread practice of transfer pricing, whereby one part of a company

MOSCOW 00001770 002 OF 003

purchased the output made by another part of the company at below-market prices before selling the same output at a market price.

5. (C) XXXXXXXXXXXX defense would present substantial documentary evidence, including records of corporate meetings, proving that the minority shareholders of Samaraneftegaz, Yuganskneftegaz, and Tomskneftegaz were fully informed of all relevant aspects of the subject transactions. XXXXXXXXXXXX also claimed that if the minority shareholders had actually been defrauded, as prosecutors claim, they would have filed civil suits, which they did not do. Finally, XXXXXXXXXXXX said that the prosecution’s claim of a USD 30 billion loss to the shareholders is &absurd8 because the sum would represent the total value of all the oil produced by the subject companies during the relevant time period rather than the difference between what the minority shareholders actually received and what they would have received in arms-length transactions, which, he said, would have been much a more sensible way to measure the alleged loss.

The Trial: Where and When?

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6. (C) The Procuracy filed the new charges in Chita, where Khodorkovskiy is presently incarcerated, and sought to conduct the preliminary investigation and trial there (Ref B). Shortly after the new charges were filed, the defense filed a motion seeking a change of venue to Moscow, claiming that the majority of witnesses and evidence are located there. On March 20, the Basmanny Court in Moscow granted the defense motion. The Procuracy appealed this decision and the appeal was heard on April 16 in the Moscow City Court. This Court upheld the Basmanny Court’s decision transferring the case to Moscow. XXXXXXXXXXXX Russian law provides that the preliminary investigation should be conducted in the place where the crime was allegedly committed, but may be conducted in the place where the defendant is located to ensure &completeness, objectivity and compliance with procedural norms.”

7. (C) XXXXXXXXXXXX claimed that the Procuracy chose Chita to make it difficult for the defense team to meet with their clients and prepare their defense. Specifically, he said, Chita is difficult to reach and lacks the copying machines and other office equipment the defense needs to prepare its case. XXXXXXXXXXXX said that although the Procuracy’s decision was clearly wrong as a matter of law, he was surprised by the Basmanny Court’s decision because the same court had consistently ruled against Khodorkovskiy in the first case. He claimed that the ruling was an indication of a general recognition that the Procuracy had “gone too far.”

8. (C) XXXXXXXXXXXX also said that he did not know when the trial on the new charges would take place. He said that the prosecution had sought to start the trial in June so that it would be completed before the elections, but noted that the case materials consist of 127 volumes and said that the XXXXXXXXXXXX said that the prosecutors will likely move to cut off the defense’s review of the case file in May, but said that the defense would challenge such a motion. Under Russian law, the prosecution can seek to limit the time that the defense has to review the case file if there are grounds to believe that the defense is engaging in unreasonable delay. XXXXXXXXXXXX also said that a trial date could not be set until the location of the trial had been determined. Therefore, because of ongoing litigation regarding the venue of the trial and the voluminous nature of the case file, it is not clear when the case will proceed to trial.

The European Court of Human Rights

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9. (C) XXXXXXXXXXXX also said that Khodorkovskiy has filed two complaints to the ECHR in Strasbourg alleging violations of his rights under the Convention in the first case. The ECHR in Strasbourg adjudicates claims brought under the Convention. As a result of Russia’s ratification of the Convention in 1998, Russia is bound by the Convention and any ECHR decisions interpreting it. The first complaint, he said,

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alleges that Khodorkovskiy was arrested and held in pre-trial detention in violation of the Convention. XXXXXXXXXXXX said that the ECHR had agreed to hear this case on an accelerated timetable, but had not yet set a date.

10. (C) The second complaint, he said, alleges violations of Khodorkovskiy’s right to a fair trial. XXXXXXXXXXXX explained that before adjudicating a case, the ECHR typically sends a list of specific questions about the movant’s claims to the respondent government. According to XXXXXXXXXXXX the Russian government has not yet responded to the ECHR’s questions regarding the second complaint and it is therefore not clear when this case will be considered. XXXXXXXXXXXX also said that the second complaint is “more interesting” than the first because, if successful, it could result in a reversal of Khodorkovskiy’s conviction. By contrast, the first claim could only result in an award of monetary damages. XXXXXXXXXXXX also noted that the French Embassy in Moscow and German Bundestag have shown interest in this case.

No Changes Expected

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11. (C) In his final remarks, XXXXXXXXXXXX claimed that the new charges against Khodorkovskiy are politically motivated and said that the case is being orchestrated entirely by the Kremlin. Although he stated confidently that the charges are without legal or evidentiary support, he concluded by saying that Khodorkovskiy would likely remain in prison as long as the Putin Administration is in power. BURNS

TOP-SECRET: Israel sees Iran’s uranium enrichment as ‘point of no return’

Thursday, 17 March 2005, 14:58
S E C R E T SECTION 01 OF 03 TEL AVIV 001593
SIPDIS
EO 12958 DECL: 03/14/2015
TAGS PARM, PREL, MNUC, KNNP, EU, IR, IS, GOI EXTERNAL
SUBJECT: C-NE4-01083: ISRAELI INTENTIONS REGARDING THE
IRANIAN NUCLEAR PROGRAM
REF: STATE 26053
Classified By: Ambassador Daniel C. Kurtzer; Reasons: 1.4 (B) and (D).

Summary
  1. Israel urges international pressure on Tehran but worries US may move towards a less tough EU position. Israel is aware that it will be harder to destroy Iranian nuclear sites than it was Iraq’s reactor in 1981. Expects Iran to hit back at coalition forces in Iraq and the Gulf and launch terrorist attacks. Key passage highlighted in yellow.
  2. Read related article

1. (S) SUMMARY: Israel sees Iran as the primary threat to its security and sees the enrichment cycle as the “point of no return” for Tehran’s nuclear weapons program. The GOI believes that diplomatic pressure with teeth, such as sanctions, can affect Iranian behavior, and is lobbying the EU-3 and IAEA on details of a permanent suspension agreement. The Israelis support a unified international front but are concerned that the USG may move toward the EU position. Despite the GOI‘s focus on the diplomatic track, public and private speculation about possible Israeli air strikes continues. In weighing the military options, the GOI is aware of significant differences from its successful strike against Iraq’s nuclear program in 1981, including an uncertain and dispersed target set, the presence of coalition forces in Iraq and the Gulf, Iranian capabilities to retaliate through Hizballah and terrorism, and the changed strategic environment. END SUMMARY.

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The Iranian Threat, “Point of No Return,” and Timelines

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2. (S) PM Sharon calls Iran “the main threat to Israel” and has recently expressed concern that some states are “getting used to” the idea of Iran obtaining nuclear weapons. Other senior Israeli officials echo this, cautioning that Tehran’s nuclear weapons program poses what Mossad Chief Meir Dagan calls an “existential threat” that alters the strategic balance in the region.

3. (C) In a meeting with congressional visitors in December, Defense Minister Shaul Mofaz described operation of the enrichment cycle as the “point of no return” for the Iranian program, a view shared by many senior GOI officials. Mossad Chief Dagan went a step further, saying that the Iranian program will be unstoppable once it no longer requires outside assistance to complete the enrichment process. At the technical level, the director for external affairs at the Israel Atomic Energy Commission (IAEC) told poloff that the critical step would be Iran’s operation of a centrifuge enrichment cascade.

4. (S) GOI officials have given different timelines for when they believe Iran will have full enrichment capability. In February, PM Sharon told the Secretary that he believes there is still time remaining to pressure Iran, but that the window of opportunity is closing quickly. DefMin Mofaz cautioned that Iran is “less than one year away,” while the head of research in military intelligence estimated that Iran would reach this point by early 2007. Technical experts at the IAEC predicted that Iran would have enrichment capability within six months of the end of the suspension agreement. A few GOI officials admitted informally that these estimates need to be taken with caution. The head of the MFA’s strategic affairs division recalled that GOI assessments from 1993 predicted that Iran would possess an atomic bomb by 1998 at the latest.

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Focus on Diplomacy and Concern with the EU-3

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5. (S) In the near term, Israel is focused on maintaining diplomatic pressure on Iran to cooperate with the IAEA and EU-3. Sharon defines diplomatic pressure to include UNSC sanctions, e.g. on Iran’s airlines and trade, as noted below. President Katsav has said that Tehran is “very conscious of international opinion.” Other MFA and NSC officials point to the current suspension and to Iranian reaction to the Mykonos case as proof that diplomatic pressure can affect decision-making in Tehran.

6. (S) The Israelis often express disappointment with EU-3 efforts, but see no real alternative at this time. PM Sharon told reporters on March 10 that Iran uses the negotiations to “play for time.” In private, Sharon, his Cabinet, and military leaders have all complained that the Europeans are “too soft.” Similarly, President Katsav has cautioned that Iran will “cheat” on any commitments it makes. MFA staff told poloff that they do not believe that the EU-3 effort will be successful in obtaining a permanent suspension or that the Europeans will support effective sanctions against Iran.

7. (C) GOI technical experts said they have been lobbying the Europeans and IAEA on several issues. First, the GOI would like a clearer and more detailed listing of all activities covered by the suspension, along with timelines for each step. Second, they want more robust verification measures and greater focus on Iran’s denial of access to IAEA inspectors. Third, the Israelis insist that any final agreement must be endorsed by the UNSC to ensure that noncompliance will be dealt with at an appropriate level. Fourth, Israel is pushing the EU-3 to define benchmarks that would signal a failure of the process, and to identify the concrete consequences of such failure.

8. (C) According to the IAEC, the GOI has urged the Europeans to examine bilateral or EU sanctions with small, but noticeable, economic impacts. After telling the press on March 10 that “it would probably not be advisable to impose an oil embargo on Iran,” PM Sharon advocated trade and flight restrictions. Lower-level GOI officials said these steps could include restrictions on Iranians studying in Europe, limitations on travel by Iranian scientific personnel, and suspension of landing privileges for Iranian airlines within the EU. The goal, according to the deputy NSA for foreign affairs, is unified pressure from the EU, Russia, and U.S. for a “complete, full, verifiable cessation of the fuel cycle program.” In the short term, this means a full suspension of all enrichment, reprocessing, heavy-water-reactor construction, and related R&D activities.

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Israeli Preference for USG and UNSC Involvement

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9. (C) In light of their uneasiness with EU-3 efforts, the Israelis are hoping for robust U.S. involvement and action by the UNSC. PM Sharon has urged the EU-3 to continue its efforts, but also stressed the importance of preparing to take Iran to the UNSC. In a meeting with a CoDel on December 12, DefMin Mofaz pushed for the U.S. to take the lead with the Europeans and pursue all diplomatic solutions, including sanctions. President Katsav asked the Secretary not to “wait for the Europeans.”

10. (C) This desire for U.S. activity is amplified by the extremely limited options open to Israel on the diplomatic front. The IAEC’s director for non-proliferation admitted that the GOI sees “little we can do” to increase pressure on Iran as long as Tehran abides by the suspension agreement. The MFA’s office director for the Gulf states said that Israel would maintain its low-profile diplomatic activities, such as supplying IAEA members with intelligence material related to the Iranian program. She said the MFA believes that any overt Israeli pressure would backfire, leading to a surge of Arab support for Iran and focusing attention on Israel’s own nuclear activities.

11. (C) Following the recent announcements on Iran by the President and the Secretary, several Israeli officials asked if the USG is shifting its policy on Iran. The deputy NSA for foreign affairs acknowledged that the U.S. move is probably necessary to build international consensus for taking Iran to the UNSC. At the same time, he expressed concern that the USG would be influenced by what he called the EU’s habit of granting concessions to Iran prior to full compliance. Mid-level staffers at the NSC and IAEC were also disquieted by U.S. press reports claiming that the USG is re-examining its position on Hizballah.

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The Military Option: Bushehr is not Osirak

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12. (S) Despite frustrations with diplomatic efforts, Israeli officials are understandably reluctant to discuss possible military options. In public, PM Sharon has stressed the importance of the “political and economic” track. During a recent discussion with a visiting USG official, IDF Deputy Chief of Staff (and CoS-designate) Major General Dani Haloutz similarly said “we don’t want to go there.” In February, President Katsav told the Secretary that “the military option is not necessary — bring the issue to the Security Council.”

13. (S) Public speculation about possible military strikes usually focuses on the differences from the Israeli Air Force’s attack on Iraq’s Osirak reactor in 1981. In private, GOI officials have acknowledged that several factors would make any attack against Iran a much more difficult mission. A senior military intelligence official told the Embassy that the GOI does not know where all of the targets are located and said that any attack would only delay, not end, the Iranian program. The MFA’s office director for the Gulf states noted that potential target sites are well dispersed throughout the country, with several located in built-up civilian areas. The IAEC stressed the importance of Russian assistance in restraining Iran’s nuclear ambitions and said that any attack on Bushehr would likely result in Russian casualties and endanger Moscow’s cooperation.

14. (C) MFA contacts said that the distance to the targets and the presence of U.S. forces in Iraq and the Gulf raise additional complications. An Israeli assault would necessitate prior coordination with coalition forces in Iraq, they maintained, leaving the USG open to retaliation throughout the Islamic world, especially in Iraq. MFA and NSC officials acknowledged that any attack would also elicit a strong response from Arab states and the Palestinians, effectively freezing the peace process.

15. (C) The Israelis realize that Iran would use any military strike as an excuse to cease cooperation with the EU-3 and the IAEA. In addition, the GOI is acutely aware of Iran’s ability to retaliate, both militarily and through attacks by its regional surrogates. PM Sharon has claimed that Hizballah has 11,000 rockets (and possibly UAVs) capable of reaching Israel from launching sites in Lebanon. The MFA’s office director for the Gulf states said that she believed that Iran would retaliate by inciting terrorist groups in Israel and the Occupied Territories.

16. (C) Current USG, EU-3, and IAEA focus on Iran also creates a situation that differs from 1981, when the Israelis felt that the international community was ignoring the Iraqi threat. Israelis hope that the others will solve the Iranian problem for them, or as Vice PM Shimon Peres has said, “I do not think that the matter of Iran needs to be turned into an Israeli problem — it is a matter of concern for the whole world.”

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Comment: Diplomatic Solution Preferred, but …

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17. (S) COMMENT: The Israelis are focusing on diplomatic channels in the IAEA and EU-3, and appear to have very real concerns about the feasibility of military strikes against the Iranian nuclear program. Nevertheless, the GOI has shown time and again that it will act militarily if it believes that its security is threatened, and the IDF is most certainly keeping contingency plans up to date. The Israeli press reported that in February PM Sharon’s Security Cabinet had given “initial authorization” for an attack on Iran. The press reports cited an unnamed “Israeli security source,” who claimed that the USG would “authorize” an Israeli attack. Post notes that it may not be possible to detect preparations for any military strike. Air defense operations would pose nearly perfect cover for civil defense and Air Force activities preceding any attack. Due to both the extreme sensitivity of the issue and the GOI‘s near inability to prevent leaks, any attack order would be closely held, probably even from many members of PM Sharon’s Cabinet.

18. (C) COMMENT CONTINUED: The GOI knows that we share its interest in preventing Iran from obtaining nuclear weapons. Nevertheless, we should expect continued Israeli lobbying at the highest levels urging the USG to ensure that the EU-3 effort is on track and backed by a solid international front. We will also hear Israeli concerns that the U.S. position may move toward the EU stance. At the same time, we should recognize that Israeli intelligence briefings will understandably focus on worst-case scenarios and may not match current USG assessments.

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