US embassy cable - 05BAGHDAD2858

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 002858 
 
SIPDIS 
 
E.O. 12958: DECL: 07/06/2015 
TAGS: MOPS, PHUM, PINS, PTER, XF, Detainees, National Assembly, Reconstruction 
SUBJECT: ITG FACES STEEP LEARNING CURVE ON DETENTION 
TRANSITION PROPOSAL 
 
Classified By: Classified by Acting Political-Military 
Counselor Evan Reade for Reasons 1.4 (b) and (d) 
 
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SUMMARY 
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1.  (C) ITG detainee-transition point-of-contact 
Sharwan al-Waely met with Embassy and MNF-I 
representatives on June 5, 2005 to discuss ITG legal 
authorities to conduct security detentions (see 
reftel).  The conversation with al-Waely indicated that 
the ITG, despite the USG's repeated briefings to senior 
leadership, is unfamiliar with the scale, legal basis, 
and procedures of current Coalition detention 
operations, and thus faces a steep learning curve on 
this issue. 
 
2.  (C) Al-Waely did not appear ready to concede that 
security detentions (by MNF-I or, potentially, by the 
Iraqi government) play a necessary role in fighting 
the insurgency.  In our second meeting, to be held 
July 11, we plan to present a briefing on the 
demographics of and the security threat posed by the 
Coalition-held detainee population.  We will re-focus 
discussion on Iraq's legal authorities at a third 
meeting provisionally scheduled for July 18. 
 
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BACKGROUND 
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3.  (C) In reftel, the Department requested that the 
Embassy initiate discussions with the ITG to 
determine the legal basis for the ITG to play a 
greater role in detention operations in 2005 and 
beyond.  On May 28, the Charge d'Affaires raised this 
issue with PM Ja'afari; on several other occasions, 
PolMilCouns and MNF-I raised the issue informally 
with the PM. 
 
4.  (C) In response, on June 8, the PM's spokesman, 
Laith Kubba, informed PolMilCouns that the PM had 
designated Da'wa party member and TNA representative 
Sharwan al-Waely (also a member of the Constitutional 
Committee) as the ITG point of contact for this issue. 
We attempted to contact Mr. al-Waely immediately; 
however, he initially was unresponsive, and later left 
the country for ten days.  On his return, we set up a 
July 5 meeting. 
 
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JULY 5 DISCUSSIONS 
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5.  (C) Representatives of MNF-I Detainee Operations 
and Embassy Legal and Pol-Mil held their first meeting 
with Mr. al-Waely at the Baghdad Convention Center on 
July 5, 2005.  Mr. al-Waely attended the meeting 
alone, but indicated that he intends to increase the 
size of the ITG delegation for our next scheduled 
discussion.  He mentioned that he would assemble 
individuals who deal with legal, security, and 
political issues. 
 
6.  (C) Mr. al-Waely opened the meeting by noting that 
he was a lawyer as well as a TNA member; that the 
Prime Minister had authorized him to be in charge of 
this issue; and that he had headed a similar committee 
on Sadr detainees before the ITG was formed.  He 
quickly noted that detention operations were a 
sensitive issue "after the events of Abu Ghraib and 
Camp Bucca," and in view of recent accusations about 
abuses by the Ministry of Interior. 
 
7.  (C) He also requested that MNF-I present him with 
a list of all detainees in Coalition custody, indexed 
with each detainee's status before the Combined Review 
and Release Board (CRRB) and/or Central Criminal Court 
of Iraq (CCCI), to enable him to answer inquiries from 
"people missing loved ones." 
 
8.  (C) (NOTE: MNF-I provides this list every thirty 
days to the Iraqi Ministry of Justice on CD-ROM; the 
fact that PM Ja'afari's aide Bashar al-Naher also 
asked recently for the same list, equally unaware that 
the ITG already had a copy, is indicative of the 
apparent lack of information-sharing on Coalition 
detention issues within the ITG.) 
 
9.  (C) Mr. al-Waely posed a number of questions, 
apparently based on his impression that the size of 
the current detainee population was related to 
bureaucratic or otherwise unreasonable delays in 
detainee releases.  It was, he suggested, a violation 
of detainees' human rights to hold them for lengthy 
periods pending trial if the delay were due to the 
under-capacity of the Iraqi court or prison systems. 
 
10.  (C) At one point, Mr. al-Waely asked for the 
names of the CRRB members and appeared to be 
interested in a bulk release of detainees held in 
temporary divisional facilities to create political 
capital.  (PolMilOff explained that MNF-I does not 
"store up" these detainees for release, but rather 
releases them on a rolling basis, as and when it is 
determined that they do not pose an imperative threat 
to security.) 
 
11.  (C) Embassy Legal raised the impending need to 
consider how to deal with high-threat detainees who 
could not be prosecuted criminally but who Iraq and 
the Coalition would not want to see released when 
UNSCR 1546 authorities expire.  Mr. al-Waely was 
dismissive, saying that detainees were innocent until 
proven guilty, and that Iraqi law did not permit 
internment other than short periods of judicial 
detention pending court investigation. 
 
12. (C) Embassy Legal discussed the international 
practice of security internment, noting the existence 
in UK and Indian law of such emergency authorities, as 
well as the fact that those authorities provide a 
number of safeguards against arbitrary or unreviewed 
detentions.  Embassy Pol-MilOff offered concrete 
examples of high-risk security internees whose release 
would pose a significant threat to Iraqi security, 
especially if large numbers of releases were to occur 
simultaneously upon the expiration of UNSCR 1546. 
 
13.  (C) In response, Mr. al-Waely noted that this was 
"beautiful talk," but invited the USG delegation to 
look at it from a politician's point of view.  Media 
reports and investigations of abuses committed at Abu 
Ghraib, and "illegal things Coalition Forces are 
doing" elsewhere had made detention problematic "in 
the hearts and minds of Iraqis." 
 
14.  (C) Mr. al-Waely commented that while he realized 
there were many hardened criminals in the Coalition 
detainee population, there were also many who were 
innocent; some, he claimed, had been falsely accused 
or reported to MNF-I by their Iraqi neighbors. "That's 
why we need to put some sort of less complicated 
system in place," he said. 
 
15.  (C) Mr. al-Waely suggested that individual voting 
members of the CRRB attend the next meeting, 
apparently with an eye to discussing the members' 
(confidential) retain-or-release votes.  MNF-I and 
EmbOffssuggested that Mr. al-Waely contact the Deputy 
Ministers at the Board's ministerial components 
(Interior, Justice, and Human Rights) instead. 
 
16.  (C) In closing, Legal noted that the issue of 
high-threat security internees and their post-UNHCR- 
1546 status was a critical issue for both Iraq and the 
Coalition, and that it was important for discussions 
to begin earlier rather than later.  Somewhat 
surprisingly, Mr. al-Waely agreed with this statement, 
noting that the problem was one for both Iraq and the 
United States. 
 
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WAY AHEAD 
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16.   (C) At our second meeting, scheduled for July 
11, EmbOffs and MNF-I intend to brief an expanded 
Iraqi delegation on the size, characteristics, and 
threat level of the MNF-I detainee population, as 
well as on current Coalition legal authorities and 
procedural processes, with the intent of creating a 
common starting-place for our discussion of current 
(and possibly future) Iraqi legal authorities. 
 
17.  (C) At our third meeting, scheduled to take place 
on July 18, we hope to return to the issue of current 
and potential Iraqi authority to detain security 
internees.  We will report the results of each 
meeting. 
Satterfield