US embassy cable - 04KUWAIT2900

S E C R E T SECTION 01 OF 03 KUWAIT 002900 
 
SIPDIS 
 
NOFORN 
 
E.O. 12958: DECL: 09/01/2014 
TAGS: PTER, PREL, PHUM, PINR, KAWC, KJUS, KU 
SUBJECT: (SBU) AMB PROSPER DISCUSSES GTMO, SADDAM'S TRIAL 
WITH KUWAIT 
 
REF: A. STATE 172574 
     B. KUWAIT 2771 
     C. STATE 182533 
     D. KUWAIT 1904 
 
Classified By: Charge d'Affaires Matthew H. Tueller, Reasons 
1.4(a), (b) and (c) 
 
1.  SUMMARY.  Ambassador-at-Large for War Crimes Issues 
Pierre-Richard Prosper met with a Government of Kuwait (GOK) 
delegation on August 26 to discuss Kuwaiti detainees being 
held at Guantanamo Bay (GTMO) and the trial of Saddam 
Hussein.  The delegation acknowledged receipt of post's 
notification regarding the proposed transfer of detainee 
Nasser al-Mutairi (Ref A), and confirmed that the GOK would 
detain, investigate and prosecute al-Mutairi.  The Kuwaitis 
asked for clarification about what an enemy combatant 
designation means, having been notified that one of their 
nationals, Adel al-Zamel, had been deemed an enemy combatant. 
 Kuwait's Attorney General pointed out that al-Zamel has 
already been sentenced by a Kuwaiti court to two years in 
prison for previous charges, and would be jailed according to 
that ruling immediately upon his return to Kuwait, if he were 
to be transferred.  The Kuwaitis also discussed the recent 
USG decision to deny Kuwaiti attorney Abdul-Rahman 
Al-Haroun's request for access to GTMO detainees.  Amb. 
Prosper explained that there is a difference between allowing 
Al-Haroun to visit the detainees, and permitting him to 
review files containing classified intelligence information; 
the former might be possible, but the latter was extremely 
unlikely.  Concerning Iraq's war crimes investigations, the 
Kuwaitis expressed concern with Salem Chalabi's uncertain 
status and the lack of a designated GOI representative with 
whom they may work.  Finally, the GOK asked Amb. Prosper to 
clarify whether there was a Kuwaiti minor imprisoned in Abu 
Ghraib.  END SUMMARY. 
 
2.  (S) Ambassador-at-Large for War Crimes Issues 
Pierre-Richard Prosper met with a Government of Kuwait (GOK) 
delegation on August 26 to discuss Kuwaiti detainees being 
held at Guantanamo Bay (GTMO) and the trial of Saddam 
Hussein.  The delegation, led by Director Khalid Muqamis of 
the MFA's Coordination and Follow-Up Department, also 
included Deputy Attorney General Sultan Majed Bu-Jarwah, 
General Hamdi Qnai and Khalid Khoshnan from the Ministry of 
Interior and Abdulaziz Al-Qadfan, Muqamis's assistant. 
 
--------------------------------------------- ----- 
(S) TRANSFER OF KUWAITI DETAINEE AT GUANTANAMO BAY 
--------------------------------------------- ----- 
 
3.  (S) Muqamis acknowledged receipt of post's diplomatic 
note regarding the proposed transfer of detainee Nasser 
al-Mutairi (Ref A), and indicated that the GOK had sent a 
note (Ref B) accepting Ref A's transfer conditions.   Muqamis 
said that because of Kuwait's strong ties with the US, the 
GOK was also hoping for resolution of the remaining 
detainees' cases. Amb. Prosper thanked Muqamis for taking the 
time to meet him late on a weekend evening, and said he was 
pleased with the forward progress on al-Mutairi's case.   He 
further noted that Secretary Powell understands the necessity 
of resolving these cases. 
 
4.  (S) Amb. Prosper asked the delegation whether the GOK 
would detain, investigate and prosecute al-Mutairi upon his 
transfer to Kuwait.  Muqamis said that Kuwait had accepted 
all of the rules set forth in Ref A, as confirmed in their 
diplomatic note.  He assured Amb. Prosper that al-Mutairi 
would be put before the court as soon as he is handed over 
and tried according to Kuwaiti law.  According to the 
Attorney General, the law allows the GOK to detain him 
initially for 21 days and renew the detention every 15 days 
until he is put in front of a judge.  The court could then 
continue al-Mutairi's detention, or set bail.  The Attorney 
General stressed that in his experience, these types of 
detainees are held until sentencing.  However, because the 
courts are independent, he could not guarantee that the court 
would not set bail.  Amb. Prosper acknowledged that the USG 
understands this.  He then advised that when the time comes 
to transfer al-Mutairi, it would be quickest if GOK officials 
traveled to GTMO to pick up the detainee.  He added that this 
had a further advantage of allowing the GOK to visit its 
remaining nationals in GTMO once again. 
 
5.  (S) The Kuwaiti delegation inquired about a draft MOU, 
which would govern the transfer of all Kuwaiti detainees in 
Guantanamo.  (COMMENT.  We believe Muqamis was referring to a 
sample note governing transfer of detainees that was provided 
to the Kuwaiti Embassy in Washington for purposes of 
information only.  END COMMENT.)  Amb. Prosper said that for 
the time being, the USG was only prepared to go forward with 
the al-Mutairi case; however, this process could provide the 
framework for future transfers. 
 
------------------------------- 
(C) ENEMY COMBATANT DESIGNATION 
------------------------------- 
 
6.  (C) Muqamis next turned to the case of Adel al-Zamel, 
another Guantanamo detainee who was recently designated as an 
enemy combatant (Ref C).  (NOTE.  The Attorney General 
revealed that al-Zamel had already been sentenced by a 
Kuwaiti court to two years in prison for previous charges, 
and therefore would be jailed according to that ruling 
immediately upon his return to Kuwait.  END NOTE.) Muqamis 
asked Amb. Prosper what that designation meant.  Amb. Prosper 
explained that the US Supreme Court had ruled that all 
detainees have a right of review to see if their detention 
was justified.  Therefore, the USG has convened tribunals to 
review each case (this is separate from a criminal process, 
he added).  He outlined the one-year review stipulation for 
those deemed enemy combatants, and the military-criminal 
prosecution process.  Amb. Prosper also clarified that 
individuals designated as enemy combattants are still 
eligible for repatriation 
 
7.  (S) The Attorney General asked when a civilian court 
would come into play for al-Zamel.  Amb. Prosper replied that 
al-Zamel can now ask for a civilian court to review whether 
his designation as an enemy combatant was fair or not.  He 
stressed that this would be a long process, because the 
losing side would undoubtedly appeal the decision.   He added 
that to his understanding, the Washington, DC law firm 
representing the Kuwaiti detainees was currently working on 
this case. 
 
-------------------- 
(U) ATTORNEY ACCESS 
-------------------- 
 
8. (C) Muqamis raised the recent USG decision to deny the 
access request submitted by Abdul-Rahman Al-Haroun, the 
Kuwaiti attorney appointed by Kuwait's GTMO detainees. 
Muqamis stressed that the GOK supports Al-Haroun's 
appointment, and said that it was important that Al-Haroun be 
permitted to visit to ensure that all detainees were in good 
condition.  Given the media coverage of alleged abuses, he 
noted, a visit to determine that no Kuwaiti detainees had 
been mistreated would benefit both governments.  Muqamis 
added that because the detainees have been imprisoned for a 
number of years by the USG, they probably would not trust 
American lawyers. 
 
9.  (C) Amb. Prosper said that he fully appreciated the 
GOK,s desire for Al-Haroun to gain access to GTMO, but added 
that the issue had become confused.  He explained that there 
is a difference between allowing Al-Haroun to visit the 
detainees and permitting him to review files containing 
classified intelligence information.  If the latter is 
desired, then a security clearance would be necessary.  But, 
Amb. Prosper warned, this would not be easy to obtain; 
instead, governments have retained American law firms with 
attorneys on staff who already have clearances and can review 
classified information. 
 
10. (C) On the other hand, Amb. Prosper said, if the GOK was 
asking for Al-Haroun to visit GTMO as a representative of the 
government, this could be simpler.  Muqamis asked if it would 
be possible for Al-Haroun to meet the detainees without being 
monitored,  emphasizing that the GOK is seeking an outcome 
that would provide a "good picture" to the Kuwaiti public. 
Amb. Prosper said that he would have to ask if this would be 
permitted.  Muqamis stressed that Al-Haroun would like to 
meet the detainees in his capacity as a lawyer, not as a 
Kuwaiti citizen.  Amb. Prosper cautioned that Al-Haroun would 
not be allowed to investigate and go through evidence.  Amb. 
Prosper also suggested that GOK officials might want to visit 
in advance of Al-Haroun to obtain any notes they might need, 
since the lawyer might "put ideas in the detainees' heads." 
(Amb. Prosper explained there were no complaints about 
mistreatment at Guantanamo before attorneys told other 
countries' detainees about abuses at Abu Ghraib.  The Kuwaiti 
Ministry of Interior representatives present confirmed that 
the Kuwaiti nationals in Guantanamo had not alleged abuse 
during MOI's two previous visits.) 
 
------------------- 
(U) TRIAL OF SADDAM 
------------------- 
 
11. (C) With regard to the trial of Saddam Hussein and his 
associates, the Kuwaitis expressed concern with Salem 
Chalabi's uncertain status.  Although the GOK has prepared a 
list of people who were involved in crimes against Kuwait, 
they are uncertain who in the GOI should receive this list. 
This is particularly sensitive, Muqamis said, because the 
Ba'athist rehabilitation process might allow some individuals 
who did not commit crimes in Iraq but did so in Kuwait to 
join the Iraqi government.   Muqamis urged Amb. Prosper to 
ask that the Iraqis formally notify the GOK by letter of the 
GOI representative with whom they should work.  Amb. Prosper 
said that he was traveling to Baghdad to get a clearer 
understanding of the war crimes process.  He said he would 
recommend that PM Allawi appoint an external relations 
officer to act as an official liaison with foreign 
governments. 
 
-------------------------------- 
(S/NF) KUWAITI MINOR IN ABU GHRAIB? 
-------------------------------- 
 
12.  (S/NF) Finally, Muqamis asked Amb. Prosper to clarify 
whether there was a Kuwaiti minor, Abdulrahman Al-Bathali, 
imprisoned in Abu Ghraib.  He said that the GOK had sent 
letters of inquiry to the Embassy and to the Red Cross, and 
that while the Red Cross responded to say that he is in Abu 
Ghraib, the Embassy had yet to reply.  Amb. Prosper said he 
would be visiting Abu Ghraib and would raise this with Gen. 
Miller.  (NOTE.  Kuwait State Security is aware through 
official liaison channel that Bathali is in USG custody and 
information regarding his detention is being conveyed via 
that channel.  END NOTE.) 
 
13.  (U) Ambassador Prosper cleared this cable. 
 
14.  (U) Baghdad minimize considered. 
TUELLER