US embassy cable - 05BAGHDAD4938

S E C R E T SECTION 01 OF 04 BAGHDAD 004938 
 
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 Dujal incidet.  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, Iraqs 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