US embassy cable - 05BAGHDAD4936

S E C R E T SECTION 01 OF 04 BAGHDAD 004936 
 
SIPDIS 
 
E.O. 12958: DECL: 12/10/2015 
TAGS: PGOV, PHUM, KJUS, KCRM, KDEM, IZ, Ad Dujayl trial 
SUBJECT: SECOND AND THIRD DAYS OF AD DUJAYL TRIAL 
 
Classified By: DCM David M. Satterfield for reasons 1.4 (B) and (D). 
 
1. (U) SUMMARY: The second day of the Ad Dujayl trial 
commenced on November 28, 2005.  Despite fears that the 
defense lawyers would refuse to appear, most attended. The 
day was devoted largely to procedural issues although the 
Court did review a short video presentation and read the 
witness statement of Wadah al-Sheik, a deceased witness who 
testified in a special session at the Abu Ghraib hospital on 
October 23.  The third day of trial began on December 5.  The 
defense attorneys initially walked out of the proceedings 
after Judge Rizgar refused to hear oral arguments on the 
Iraqi High Tribunal's (IHT's) legitimacy and defense counsel 
security.  After a compromise was brokered between the IHT 
and the defense attorneys, trial resumed.  Two witnesses 
testified about the reprisals that the former regime 
inflicted upon them and the city of Ad Dujayl.  Although the 
trial is proceeding, there are significant political 
pressures on Judge Rizgar to maintain tighter control over 
the courtroom and Saddam Hussein.  Indeed, persons in the 
Iraqi Government have called for Judge Rizgar to be removed 
from his position.  In response, RCLO discussed the matter 
with President Jalal Talabani.  Talabani responded directly 
to Judge Rizgar and told him that he would provide Judge 
Rizgar with any necessary support.  (Days 4 and 5 of trial in 
septel.)  END SUMMARY. 
 
--------------------------------------------- --- 
Morning Trial Proceedings - Day 2 - November 28 
--------------------------------------------- --- 
 
2. (U) On November 28, the IHT commenced the second full day 
of trial in the Ad Dujayl matter.  The day began with Judge 
Rizgar attempting to establish that each defendant had legal 
representation.  He then offered condolences regarding the 
"martyrs" on the defense team who were killed on October 20, 
2005 (Sadoon Al-Janabi, an attorney for Awad Al Bander) and 
November 8, 2005 (Adel Al-Zubeidi-an attorney for Taha 
Ramadan and Barzan Al-Tikriti). 
 
3. (U) At this point, Saddam Hussein's principal Iraqi 
attorney of record, Kaleel al-Dolami, approached the Court to 
request that Ramsey Clark, Najib al-Nuaimi, and Issam 
al-Ghazzawi be allowed to assist in the defense of Saddam 
Hussein.  Before Saddam Hussein signed the relevant papers, 
he complained that he did not have a pen and that he had to 
walk four flights of stairs.  Judge Rizgar stated that he 
would alert authorities.  Saddam rebuked Judge Rizgar and 
stated: "I don't want you to alert them.  I want you to order 
them.  They are in our land.  You are an Iraqi, a sovereign 
person in charge of this court.  They are foreigners, 
invaders, occupiers." Ultimately Judge Rizgar ordered Saddam 
to sign the papers, and Saddam complied. 
 
4. (U) After the paperwork was submitted, Judge Rizgar 
presented a four-minute television presentation that showed 
Saddam Hussein in the immediate aftermath of the Ad Dujayl 
incident.  In the video, Saddam is speaking to local 
residents.  He then orders his officers to "separate them and 
interrogate them."  Judge Rizgar played the video three times 
before turning it off. 
 
5. (U) When the video ended, Judge Rizgar read the witness 
statement of Waddah al-Sheik.  Waddah al-Sheik's testimony 
was recorded via video camera on October 23, 2005 from a 
hospital in Baghdad.  Mr. al-Sheik was suffering from 
terminal cancer and died shortly after the IHT recorded his 
testimony.  He was the director of a Mukhabarat intelligence 
unit responsible for investigating the events of Ad Dujayl. 
His testimony implicated Saddam Hussein, Taha Ramadan, and 
Barzan al-Tikriti. 
 
6. (U) After the testimony was read, several defense 
attorneys (including Kaleel al-Dolami, Ramsey Clark, and 
Najib al-Nauimi) sought to address the issues of defense 
counsel security, the IHT's legitimacy, and the IHT's 
jurisdiction.  Judge Rizgar refused to entertain these 
matters and directed the defense attorneys to submit written 
papers on each issue so that he could consider them. 
 
----------------------------------- 
Afternoon Trial Proceedings - Day 2 
----------------------------------- 
 
7. (U) When trial proceedings resumed in the afternoon, Judge 
Rizgar informed those defendants without counsel that they 
could meet with replacement counsel.  Taha Ramadan requested 
additional time so that a defense attorney based in Beirut 
could travel to Iraq and represent him.  Chief Prosecutor 
Ja'far requested that the Court immediately hear testimony 
from the victims of Ad Dujayl who were present in Court that 
day.  Judge Rizgar refused.  He stated that the Court would 
adjourn until December 5 so that each defendant could find 
adequate representation and/or meet with their attorneys. 
The defense attorneys objected.  They stated that the issues 
before the Court were complex, that they were new to the 
case, and that they needed at least 45 days to prepare. 
After a brief recess, the Court reconvened and told the 
defendants that the trial would resume on December 5. 
 
-------------------------------- 
Behind the Scenes of Trial Day 2 
-------------------------------- 
 
8. (S) At the beginning of trial day 2, RCLO attorneys and 
Howard Morrison (the IHT Legal Adviser from the UK) met with 
the Trial Chamber judges.  The Trial Chamber agreed to issue 
a warning to the defense attorneys who deliberately refused 
to appear, ordering the missing attorneys to come before the 
IHT within 48 hours.  Should they fail to appear, the IHT 
agreed to replace them with public defense counsel from the 
IHT Defense Office and adjourn until the newly appointed 
defense counsel became conversant in the case.  The Trial 
Chamber also agreed to refrain from offering any testimony or 
evidence until such time as competent counsel represented 
each defendant. 
 
9. (S) When trial began, however, Judge Rizgar did not follow 
these recommendations.  Indeed, he played the four-minute 
video of Saddam Hussein in Ad-Dujayl and read the witness 
testimony of Wadah al-Sheik even though attorneys for Barzan 
al-Tikriti and Taha Ramadan were not present.  At the lunch 
recess, Judge Rizgar indicated that (despite vigorous 
objections from the RCLO and Howard Morrison) he intended to 
call witnesses.  After discussion of the matter, Judge Rizgar 
agreed to avoid calling witnesses to testify that afternoon. 
 
10. (S) After Judge Rizgar announced the December 5, 2005 
date to reconvene the court, he recessed and met again with 
RCLO attorneys and Howard Morrison.  Both the RCLO and Mr. 
Morrison recommended that Judge Rizgar recant the December 5 
date and issue a 48 hour warning to all missing defense 
counsel.  If they appeared, the trial could resume and the 
Court could take testimony.  If the missing attorneys failed 
to appear, the Court would appoint new counsel and adjourn 
for 45 days so that the newly appointed counsel could study 
the case.  Judge Rizgar did not accept this recommendation. 
He stated that, because the December 5 date was announced in 
open Court, he could not recant it.  In response, RCLO 
attorneys recommended that he keep the December 5 date but 
hold only a status conference between the judges, 
prosecutors, and defense counsel on that date.  Such a 
conference would permit the Court to resolve the defense 
counsel issue without the pressure of the defendants and 
witnesses being present.  Judge Rizgar refused to do this. 
He informed all present that the Court would reconvene on 
December 5 and that he intended to call witnesses on that 
date. 
 
11. (S) Forgetting repeated warnings from the RCLO, Judge 
Rizgar revealed in open court the names of each member of the 
IHT's Defense Office and an RCLO FSN, Yaghdan Mahdi.  Prior 
to November 28, 2005, the IHT hired eight public defenders to 
represent the various defendants in the event that their 
privately retained defense attorneys did not appear.  Upon 
release of their names to the public, three IHT defense 
attorneys resigned, leaving only five to staff the IHT 
Defense Office.  As for Mr. Mahdi, the RCLO has taken steps 
to move him into secure housing.  (COMMENT:  Despite these 
mistakes, RCLO believes Judge Rizgar to be a fair and 
judicious leader of Trial Chamber 1 but recognizes that he 
may be too lenient at times in terms of his control over the 
proceedings.  Unfortunately, he has come under tremendous 
political and popular pressure for this.  END COMMENT.) 
 
12.  (S) On November 2, 2005, Iraq's National Security 
Adviser, Mowafak Rubaie, said he had come to the trial for 
"healing."  He asserted that Judge Rizgar was treating Saddam 
Hussein with too much respect (i.e., by calling Saddam 
Hussein "Mr. Hussein" instead of referring to him as "the 
defendant").  Abdul Aziz al-Hakim, the political leader of 
the Supreme Council for Islamic Revolution in Iraq, and 
others expressed similar disdain for Judge Rizgar's polite 
demeanor.  Judge Rizgar informed RCLO attorneys on December 1 
that many individuals in the Iraqi Government are 
disappointed in him for failing to control the proceedings 
and press forward despite the problems with defense counsel. 
He complained that Iraqi government officials are trying to 
influence his judgment while also trying to remove him from 
the Court.  Judge Rizgar stated that he is a man of principle 
and will not tolerate such behavior.  He stated further that, 
if this interference continues, he will resign his position 
so that his integrity does not become compromised. 
 
--------------------------------------------- - 
Morning Trial Proceedings - Day 3 - December 5 
--------------------------------------------- - 
13. (U) Day 3 commenced with IHT Judge Sae'eed Mussa agreeing 
to appear on camera.  Judge Rizgar confirmed that competent 
counsel represented each defendant. Immediately thereafter, 
Ramsey Clark and Najib al-Nuaimi sought to introduce motion 
papers on two issues: (1) court security and (2) the 
Tribunal's legitimacy.  Judge Rizgar refused to permit the 
attorneys to discuss these matters.  He stated that only the 
principal Iraqi attorney of record, Kaleel al-Dolami, could 
address the court and submit papers.  Judge Rizgar also 
stated that the Tribunal was legitimate and that, if the 
defendants disagreed, they could appeal.  Matters escalated 
quickly with Dr. Najib arguing that the Tribunal was afraid 
to hear the defense attorneys' statements.  Ramsey Clark 
informed Judge Rizgar that, if he could not submit his motion 
papers, he would walk out of the proceedings.  Judge Rizgar 
told Clark that he could not address the Tribunal in English 
and that he would not accept his motion papers.  As a result, 
eight of twelve defense attorneys walked out of the room. 
Only Hashem Fityan (the privately retained attorney for the 
Roweeds) and three IHT Defense Office Attorneys remained in 
the room. 
 
14. (U) Following the walk-out, Judge Rizgar threatened to 
appoint immediately IHT defense attorneys for each defendant. 
 The defendants argued loudly that such action violated their 
rights.  Both Saddam Hussein and Barzan Al-Tikriti yelled at 
Judge Rizgar until Judge Rizgar adjourned so that he could 
contemplate how best to move forward. 
 
15. (S) During the 90 minute recess, Howard Morrison sat with 
the IHT Trial Chamber and told them that they had to 
compromise with the defense attorneys.  Mr. Morrison went so 
far as to tell the Trial Chamber that, if they did not follow 
his advice, he would cease to serve as the international law 
adviser to the IHT.  While Mr. Morrison was consulting with 
the IHT, Hashem Fityan approached RCLO, seeking to speak with 
Judge Rizgar in order to broker a compromise.  Judge Rizgar 
agreed to this, and a compromise between the Trial Chamber 
and Mr. Fityan was reached.  The defense attorneys agreed to 
return to the courtroom so long as Mr. Ramsey Clark could 
receive five minutes of court time to address the issue of 
defense counsel security.  In addition, the Tribunal granted 
Dr. Najib fifteen minutes of court time to address the issue 
of court legitimacy. 
 
----------------------------------- 
Afternoon Trial Proceedings - Day 3 
----------------------------------- 
 
16. (U) Proceedings resumed with Dr. Clark arguing that the 
Tribunal needed to do more to provide security for defense 
counsel.  Dr. Najib then traced the history of the Tribunal's 
establishment and argued that, because it was formed during 
the Coalition's occupation of Iraq, it was illegitimate. 
 
17. (U) Then, the first complainant (Ahmad Hassan Muhammad) 
testified.  Mr. Muhammad testified openly and on camera.  He 
described in detail the deaths of family members following 
the events at Ad Dujayl and the torture which was inflicted 
upon him during his imprisonment.  He described how Ba'ath 
Party officials hurled a young boy out a window and said he 
had seen a meat grinder with human hair and blood on it.  Mr. 
Muhammad also provided the names, identities, and birthdates 
of friends and relatives who were arrested and disappeared. 
Although Mr. Muhammad did not link Saddam Hussein directly to 
the events in Ad Dujayl he did state that he witnessed Barzan 
Al-Tikriti in the area. 
 
18.   (U) The second witness to testify, Jawad Abdul Azziz 
Jawad, described how helicopters attacked the city of Ad 
Dujayl following the failed assassination attempt against 
Saddam.  He also stated that bulldozers were brought into the 
area to destroy farmer's fields.  Mr. Jawad testified further 
that Iraqi security forces killed three of his brothers, one 
before the assassination attempt, and two afterward. 
 
19. (U) At various points of Mr. Muhammad's and Mr. Jawad's 
testimony, Saddam Hussein and Barzan Al-Tikriti interjected. 
Barzan Al-Tikriti admitted at one point that he was the head 
of Iraq's Intelligence services at the time the reprisals 
were inflicted upon Ad Dujayl.  Saddam Hussein also conceded 
at several points that command responsibility flowed through 
him.  These concessions are important as the IHT must show 
that Saddam Hussein and Barzan Al-Tikriti knew or should have 
known about the atrocities in order for a conviction for 
crimes against humanity. 
 
20. (S) At one point during the proceedings, Amer Alkuzai, 
Iraq's Deputy Minister of Health began to make threatening 
gestures from the public gallery to Kaleel al-Dolami.  In 
particular, Mr. Alkuzai gestured as if to slit his throat 
with his finger to indicate that Mr. al-Dolami would suffer a 
similar fate.  Kaleel al-Dolami immediately objected and 
demanded that Judge Rizgar remove Mr. Alkuzai from the Court. 
 Judge Rizgar agreed, ordered Mr. Alkuzai removed, and 
demanded that a full investigation into the matter occur. 
When this occurred, Mr. Alkuzai began spitting at the window 
of the public gallery.  IHT security staff and United States 
Marshals removed Mr. Alkuzai from the building. 
 
21. (U) At the end of Mr. Jawad's testimony, the court 
adjourned to the following day. 
 
22. (S) COMMENT: IHT International Adviser Howard Morrison 
and RCLO attorney advisers played a significant role during 
the lead up to testimony as well as during the testimony 
itself, advising the court on legal and practical issues. 
The court holds Mr. Morrison in high regard and defers to his 
opinion on matters of law.  However, the court does not yet 
defer to him on matters of courtroom management, although 
significant progress has been made in this regard.  END 
COMMENT. 
KHALILZAD