US embassy cable - 05BAGHDAD2395

S E C R E T SECTION 01 OF 03 BAGHDAD 002395 
 
SIPDIS 
 
E.O. 12958: DECL: 06/04/2015 
TAGS: MOPS, PTER, PGOV, PHUM, XF, Detainees, Terrorism, Security 
SUBJECT: IST ISSUES WARRANTS FOR TWENTY HVDS APPROVED FOR 
RELEASE 
 
REF: BAGHDAD 2164 
 
Classified By: Political-Military Counselor Ronald Neumann 
for Reasons 1.4 (b) and (d) 
 
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SUMMARY 
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1. (S) The Iraqi Special Tribunal (IST) has issued arrest 
warrants for twenty High-Value Detainees (HVDs) whom the 
USG has approved for release, and against whom the IST 
had previously indicated it did not intend to pursue 
charges. Post remains concerned that political pressure 
may have influenced the IST's sudden issuance of warrants 
for these HVDs on the eve of their release. All twenty 
remain temporarily in USG custody pending resolution of 
this issue. 
 
2.  (S) In two cases, the IST has now shared new evidence 
of criminal activity that appears to constitute 
sufficient grounds for proceeding. The Regime Crimes 
Liaison Office (RCLO) will continue working closely with 
the IST to ensure that the remaining arrest warrants are 
supported by what the IST could reasonably consider "a 
reliable body of evidence that tends to show that the 
suspect committed a crime". The RCLO will also work with 
the IST to ensure that any arrests are in accordance 
with IST statutes and rules, fundamental due process, 
and US international law and treaty obligations. 
 
3. The IST's ability to meet this standard is seen as 
critical by Embassy Pol-Mil and MNF-I, as we have a 
strong interest in ensuring that the USG does not in 
future find itself in the awkward position of cooperating 
with Iraqi arrests of USG detainees that are or appear to 
be politically-motivated, or that suggest that these 
detainees may not receive impartial treatment by the 
tribunal. 
 
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BACKGROUND 
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4. (S) Twenty HVDs approved for release by the USG have 
seen their release dates delayed for as long as eight 
months at the repeated request of the Iraqi Government. 
PM Allawi argued in autumn and winter 2004-2005 that 
unacceptable political consequences would result from HVD 
releases during operations in Fallujah and the run-up to 
Iraqi elections. We acceded to Iraqi requests for delay, 
on the understanding that a unilateral USG release of high- 
profile former Ba'athists would likely have a significant 
impact on Iraqi pre-election politics. 
 
5.  (S) Post, aware that the continued detention of these 
individuals raised significant legal and ethical issues 
for MNF-I and the USG, approached the ITG on this subject 
as a matter of priority upon the seating of a new Iraqi 
government, and informed PM Ja'afari and the judges of the 
IST in mid-May that MNF-I intended to proceed with twenty 
HVD releases soon. In response, PM Ja'afari's office 
replied (see Reftel) that "all" HVDs are known to be 
guilty of war crimes, and that all will be arrested by 
Iraqi Police if released by MNF-I. 
 
6.  (S) On various occasions between July 31, 2004 and 
November 10, 2004, the RCLO had consulted the chief 
investigative judge of the IST as to whether the IST 
possessed evidence of crimes involving these twenty 
(and other) HVDs. Based on the IST's representation that 
it did not possess evidence against these twenty that 
would support the issuance of arrest warrants, RCLO 
recommended conditional release of thirteen HVDs in July 
2004, four in October 2004, and three in November 2004.) 
 
7.  (S) However, when MNF-I made known its intent to 
release these twenty HVDs known mid-May, a number of IST 
investigative judges objected on the grounds that they 
had either never been personally consulted or had not 
been consulted in recent months regarding these releases. 
(Note: the IST was formed between July and November 2004, 
and some judges had not yet begun investigations at the 
time these releases were approved.) 
 
8.  (S) Several IST judges reacted to the news of 
impending HVD releases by issuing arrest warrants, 
including fifteen warrants of particular concern issued 
by the judge investigating crimes of "Wasting the 
National Wealth" under Article 14 of the IST statute. 
RCLO informed the IST of MNF-I's concern as to whether 
these warrants are based on "a reliable body of 
evidence that tends to show that the suspect committed 
a crime". 
 
9.  (S) One investigative judge has also issued 
eighty-four detention orders covering most HVDs as well 
as some individuals not in USG custody. RCLO has 
expressed concerns to the IST about whether these 
detention orders comply with the IST statutes and rules. 
The IST chief prosecutor has said he will appeal these 
detention orders prior to service, and that he is 
reasonably confident they will be overturned on appeal 
and dismissed. 
 
10.  (S) In addition, the IST has issued an arrest warrant 
for former HVD Ghazi al-Ubaydi (Blacklist #51), released by 
MNF-I with the permission of PM Allawi on humanitarian 
grounds in April 2005 due to his impending death from colon 
cancer.  The PM's spokesman, Laith Kubba, has informed the 
press that Ghazi's release was a "mistake in the justice 
system". 
 
11.  (S) The IST has asked RCLO to schedule initial 
appearances for a number of HVDs, including the twenty now 
approved for release by the USG.  At these initial 
hearings,the IST would normally serve an arrest warrant 
and inform the HVD in question of his or her rights; after 
reviewing the HVD's file, the judge would be in a position 
to issue detention orders which would result in the 
"transfer" of an HVD from USG to Iraqi legal custody. Once 
this occurs, MNF-I is no longer in a position to effect 
these detainees' legal release. 
 
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CURRENT ASSESSMENT 
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12.  (S) In response to queries from RCLO, the IST has 
shared evidence against two HVDs whose initial appearances 
had been scheduled for mid-June, Hikmat al-Azzawi 
(Blacklist #28) and Issam Rashid Huaish (Blacklist #237), 
on charges of "Wasting the Wealth of the State".  The 
evidence centers on string of memos authorizing Huaish 
(the manager of the Central Bank of Iraq) to transfer $920 
million USD and 90 million Euros from the bank's vaults to 
al-Azzawi (the Deputy Prime Minister) on March 19, 2003. 
The IST believes that the documents are genuine; this is a 
fact to be established at trial. Based on this evidence, 
the investigative hearing will go forward. 
 
13.  (S) The RCLO has also inquired about the evidence 
against Fadil Sulfaij Muhammad al-Azawi (Blacklist #100) 
on charges of "Crimes against Humanity"; Mr. al-Azawi was 
also scheduled for initial hearing in mid-June. The IST has 
not produced a similar quality of evidence related to these 
charges. (The IST has noted that Mr. al-Azawi served as the 
head of the Iraqi Intelligence Service in the 1980s, and 
that allegations have been made that he directed political 
assassinations; however, it has not presented specifics.) 
Mr. al-Azawi's hearing has been postponed. RCLO will work 
with the IST to identify additional evidence in Mr. 
al-Azawi's and similar cases, if such evidence exists. 
 
14.  (S) While the standard of evidence required under 
Iraqi law for arrest or pre-trial detention is relatively 
low by US standards, the USG has significant legal and 
policy equities in assuring itself that any Iraqi arrest 
and detention of HVDs in USG custody is based on 
sufficient evidence and is consistent with Iraqi law and 
international standards. 
 
15.  (S) Embassy Pol-Mil and MNF-I also feel that we have a 
clear interest in establishing that Iraqi decisions 
regarding arrest in individual HVD cases are not influenced 
by the hothouse political climate surrounding the trial and 
rehabilitation of former Ba'athists and relatives and 
associates of Saddam's regime. 
 
16.  (S) RCLO believes that in most cases, the appropriate 
way to deal with an arrest warrant or detention order that 
may not be based on sufficient evidence is through the due 
process afforded under the statute and rules of the IST. 
If, at an HVDs initial appearance, the investigative judge 
orders the HVD detained, the prosecutor, defense counsel, 
or the defendant may file a motion with the appellate 
chamber of the IST challenging the sufficiency of the 
evidence To date, we have seen no evidence that the 
appellate chamber will be fair and impartial. 
 
17.  (S) Nevertheless, should we find ourselves in a 
situation in which an IST investigative judge insists on 
proceeding with the service of an arrest warrant and an 
initial appearance for a HVD under circumstances in which 
it does not seem objectively reasonable to conclude that 
the warrant is based on "a reliable body of evidence that 
tends to show that a suspect committed a crime", we will 
have to decide to what extent this affects our willingness 
to cooperate with the IST in that case. 
Satterfield