US embassy cable - 05BAGHDAD2985

S E C R E T SECTION 01 OF 02 BAGHDAD 002985 
 
SIPDIS 
 
E.O. 12958: DECL: 07/19/2015 
TAGS: PGOV, PHUM, KJUS, PREL, XF, IZ, Ba'ath 
SUBJECT: EXECUTIVE PRESSURE ON IRAQI SPECIAL TRIBUNAL 
INTENSIFIES 
 
REF: BAGHDAD 2395 
 
Classified By: Charge d' Affaires David M. Satterfield for Reasons 1.4 
(b) and (d) 
 
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SUMMARY 
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1.  (S) Political pressure on the judges of the Iraqi 
Special Tribunal (IST) heightened recently with the 
attempt - quashed for now - of Deputy Prime Minister 
Ahmed Chalabi's supporters on the De-Ba'athification 
Committee to remove thirteen IST judges. The referral 
of the IST's first criminal case on June 17th 
(reported septel) may ease pressure on the IST from 
the Prime Minister's office, which has complained 
repeatedly about delays, but the intensely politicized 
atmosphere surrounding the court's operations is 
unlikely to dissipate soon. 
 
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DE-BA'ATHIFICATION AT THE IST 
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2.  (S) On June 10th, the Regime Crimes Liaison Office 
(RCLO) was notified by an advisor with close contacts 
in the office of Deputy Prime Minister Ahmed Chalabi 
that the National De-Ba'athifcation Committee had 
drafted a letter demanding the removal of thirteen 
of the fifty-four judges of the Iraq Special Tribunal, 
as well as an assortment of administrative staff, due 
to their former membership of the Ba'ath Party which 
is listed as a disqualification for service in the 
IST statute. 
 
3.  (S) In practice, this requirement has been 
disregarded. Ba'ath membership was required of all 
practicing judges under Saddam's regime; most IST 
judges, including IST Chief Investigative Judge 
Ra'ad, held the lowest level of party membership, 
which is not considered a disqualification in any 
other branch of Iraqi government. IST judges were 
interviewed and cleared for service by the De- 
Ba'athification Committee prior to their appointment 
to the Tribunal. 
 
4.  (S) NOTE: RCLO believes it unclear that the De- 
Ba'athification Committee is authorized to remove 
IST judges even should they be disqualified from 
service by former Ba'ath membership, given provisions 
in the TAL stating that the judiciary shall "in no 
way be administered by the executive authority" and 
that removal of a judge must be accomplished through 
a complex procedure initiated by the Higher Juridical 
Council. END NOTE 
 
5. (S) More directly, the TAL states that the IST 
statute "exclusively defines" the IST's jurisdiction 
and procedures, notwithstanding any other part of 
the TAL, and provides that the judges of the IST 
"shall be appointed in accordance with the 
provisions of its founding statute". The TAL thus 
establishes the IST statute as the exclusive legal 
document governing the IST's judicial appointments 
and procedures. Post does not believe the CPA Order 
establishing the De-Ba'athification Committee should 
be read to trump the TAL. End note.) 
 
6.  (S) In conversations with DPM Chalabi and other 
senior IST leaders, Embassy noted that the abrupt and 
politicized removal of key IST judges, including Judge 
Ra'ad, would slow the course of upcoming trials and 
ongoing investigations, including the ad-Dujail case, 
and would likely result in the withdrawal of RCLO 
investigative, advisory, and administrative support. 
 
7.  (S) While no judges have yet been removed, it is 
unclear whether we have successfully dampened Chalabi's 
enthusiasm for tinkering with the court's makeup: on 
July 17, RCLO learned that the IST Administrative 
Director and other high-level non-judicial staff named 
in the letter had been removed. Other ITG officials 
continue to express unhappiness at the IST's pace, with 
PM aide Bashar al-Naher blaming an unlikely collusion 
between Ba'athist IST judges and "the Americans" 
for preventing the timely appearance of Saddam and 
other former regime leaders at trial. 
7.  (S) Threats to the IST's independence may also 
come from the Transitional National Assembly, which 
plans on July 20 to debate legislation amending the 
IST's charter to bring the Tribunal under the 
control of the Iraqi Higher Juridical Council. Many 
IST judges feel - realistically or not - that any 
such move will result in the replacement of independent 
IST judges with hand-picked Chalabi supporters. 
 
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HIGH-VALUE DETAINEE DISPOSITION 
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8.  (S) Under the circumstances, RCLO continues to 
monitor the IST's bringing of charges against High- 
Value Detainees (HVDs) in MNF-I custody closely. Using 
new evidence, the IST has provided reasonable grounds 
on which to proceed with investigative hearings on 
several HVDs previously approved by MNF-I for release 
(see reftel); in several other cases, RCLO expects the 
IST to vacate arrest warrants issued in the panic 
caused by Embassy and MNF-I's June announcement of 
impending HVD releases. 
 
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COMMENT 
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9.  (S) DPM Chalabi has a complicated history with the 
IST, which was originally headed by his nephew, Salem 
Chalabi, before the younger Chalabi's August 2004 
replacement following the issuance of an arrest 
warrant implicating him in murder. DPM Chalabi's ties 
to the Sadr Bureau may have created antipathy towards 
Judge Ra'ad, who issued the arrest warrant linking 
Moqtada al-Sadr with the killing of Abdul Majid al- 
Khoei. PM aide al-Naher's suggestion that the ITG 
might be satisfied with the removal of Judge Ra'ad 
alone (sparing the other twelve judges) may support to 
this conjecture. 
 
10.  (S) Moreover, ITG leadership is keenly aware of 
the optics involved in the public trial of Saddam and 
other former senior regime leaders, and seems 
frustrated at ITG inability to "manage" the IST's 
independent judicial processes. The referral of the 
ad-Dujail case may ease pressure on the IST 
temporarily, but executive and legislative attempts at 
interference and influence are likely to continue. 
Satterfield