(SBU) AMB PROSPER DISCUSSES GTMO, SADDAM'S TRIAL

S E C R E T SECTION 01 OF 03 KUWAIT 002900

SIPDIS

NOFORN

E.O. 12958: DECL: 09/01/2014
TAGS: PTER PREL PHUM PINR KAWC KJUS KU
SUBJECT: (SBU) AMB PROSPER DISCUSSES GTMO, SADDAM'S TRIAL
WITH KUWAIT

REF: A. STATE 172574

B. KUWAIT 2771

C. STATE 182533

D. KUWAIT 1904

Classified By: Charge d'Affaires Matthew H. Tueller, Reasons
1.4(a),(b) and (c)


1. SUMMARY. Ambassador-at-Large for War Crimes Issues
Pierre-Richard Prosper met with a Government of Kuwait (GOK)
delegation on August 26 to discuss Kuwaiti detainees being
held at Guantanamo Bay (GTMO) and the trial of Saddam
Hussein. The delegation acknowledged receipt of post's
notification regarding the proposed transfer of detainee
Nasser al-Mutairi (Ref A),and confirmed that the GOK would
detain, investigate and prosecute al-Mutairi. The Kuwaitis
asked for clarification about what an enemy combatant
designation means, having been notified that one of their
nationals, Adel al-Zamel, had been deemed an enemy combatant.
Kuwait's Attorney General pointed out that al-Zamel has
already been sentenced by a Kuwaiti court to two years in
prison for previous charges, and would be jailed according to
that ruling immediately upon his return to Kuwait, if he were
to be transferred. The Kuwaitis also discussed the recent
USG decision to deny Kuwaiti attorney Abdul-Rahman
Al-Haroun's request for access to GTMO detainees. Amb.
Prosper explained that there is a difference between allowing
Al-Haroun to visit the detainees, and permitting him to
review files containing classified intelligence information;
the former might be possible, but the latter was extremely
unlikely. Concerning Iraq's war crimes investigations, the
Kuwaitis expressed concern with Salem Chalabi's uncertain
status and the lack of a designated GOI representative with
whom they may work. Finally, the GOK asked Amb. Prosper to
clarify whether there was a Kuwaiti minor imprisoned in Abu
Ghraib. END SUMMARY.


2. (S) Ambassador-at-Large for War Crimes Issues
Pierre-Richard Prosper met with a Government of Kuwait (GOK)
delegation on August 26 to discuss Kuwaiti detainees being
held at Guantanamo Bay (GTMO) and the trial of Saddam
Hussein. The delegation, led by Director Khalid Muqamis of
the MFA's Coordination and Follow-Up Department, also
included Deputy Attorney General Sultan Majed Bu-Jarwah,
General Hamdi Qnai and Khalid Khoshnan from the Ministry of
Interior and Abdulaziz Al-Qadfan, Muqamis's assistant.

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(S) TRANSFER OF KUWAITI DETAINEE AT GUANTANAMO BAY
-------------- --------------


3. (S) Muqamis acknowledged receipt of post's diplomatic
note regarding the proposed transfer of detainee Nasser
al-Mutairi (Ref A),and indicated that the GOK had sent a
note (Ref B) accepting Ref A's transfer conditions. Muqamis
said that because of Kuwait's strong ties with the US, the
GOK was also hoping for resolution of the remaining
detainees' cases. Amb. Prosper thanked Muqamis for taking the
time to meet him late on a weekend evening, and said he was
pleased with the forward progress on al-Mutairi's case. He
further noted that Secretary Powell understands the necessity
of resolving these cases.


4. (S) Amb. Prosper asked the delegation whether the GOK
would detain, investigate and prosecute al-Mutairi upon his
transfer to Kuwait. Muqamis said that Kuwait had accepted
all of the rules set forth in Ref A, as confirmed in their
diplomatic note. He assured Amb. Prosper that al-Mutairi
would be put before the court as soon as he is handed over
and tried according to Kuwaiti law. According to the
Attorney General, the law allows the GOK to detain him
initially for 21 days and renew the detention every 15 days
until he is put in front of a judge. The court could then
continue al-Mutairi's detention, or set bail. The Attorney
General stressed that in his experience, these types of
detainees are held until sentencing. However, because the
courts are independent, he could not guarantee that the court
would not set bail. Amb. Prosper acknowledged that the USG
understands this. He then advised that when the time comes
to transfer al-Mutairi, it would be quickest if GOK officials
traveled to GTMO to pick up the detainee. He added that this
had a further advantage of allowing the GOK to visit its
remaining nationals in GTMO once again.


5. (S) The Kuwaiti delegation inquired about a draft MOU,
which would govern the transfer of all Kuwaiti detainees in
Guantanamo. (COMMENT. We believe Muqamis was referring to a
sample note governing transfer of detainees that was provided
to the Kuwaiti Embassy in Washington for purposes of
information only. END COMMENT.) Amb. Prosper said that for
the time being, the USG was only prepared to go forward with
the al-Mutairi case; however, this process could provide the
framework for future transfers.

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(C) ENEMY COMBATANT DESIGNATION
--------------


6. (C) Muqamis next turned to the case of Adel al-Zamel,
another Guantanamo detainee who was recently designated as an
enemy combatant (Ref C). (NOTE. The Attorney General
revealed that al-Zamel had already been sentenced by a
Kuwaiti court to two years in prison for previous charges,
and therefore would be jailed according to that ruling
immediately upon his return to Kuwait. END NOTE.) Muqamis
asked Amb. Prosper what that designation meant. Amb. Prosper
explained that the US Supreme Court had ruled that all
detainees have a right of review to see if their detention
was justified. Therefore, the USG has convened tribunals to
review each case (this is separate from a criminal process,
he added). He outlined the one-year review stipulation for
those deemed enemy combatants, and the military-criminal
prosecution process. Amb. Prosper also clarified that
individuals designated as enemy combattants are still
eligible for repatriation


7. (S) The Attorney General asked when a civilian court
would come into play for al-Zamel. Amb. Prosper replied that
al-Zamel can now ask for a civilian court to review whether
his designation as an enemy combatant was fair or not. He
stressed that this would be a long process, because the
losing side would undoubtedly appeal the decision. He added
that to his understanding, the Washington, DC law firm
representing the Kuwaiti detainees was currently working on
this case.

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(U) ATTORNEY ACCESS
--------------


8. (C) Muqamis raised the recent USG decision to deny the
access request submitted by Abdul-Rahman Al-Haroun, the
Kuwaiti attorney appointed by Kuwait's GTMO detainees.
Muqamis stressed that the GOK supports Al-Haroun's
appointment, and said that it was important that Al-Haroun be
permitted to visit to ensure that all detainees were in good
condition. Given the media coverage of alleged abuses, he
noted, a visit to determine that no Kuwaiti detainees had
been mistreated would benefit both governments. Muqamis
added that because the detainees have been imprisoned for a
number of years by the USG, they probably would not trust
American lawyers.


9. (C) Amb. Prosper said that he fully appreciated the
GOK,s desire for Al-Haroun to gain access to GTMO, but added
that the issue had become confused. He explained that there
is a difference between allowing Al-Haroun to visit the
detainees and permitting him to review files containing
classified intelligence information. If the latter is
desired, then a security clearance would be necessary. But,
Amb. Prosper warned, this would not be easy to obtain;
instead, governments have retained American law firms with
attorneys on staff who already have clearances and can review
classified information.


10. (C) On the other hand, Amb. Prosper said, if the GOK was
asking for Al-Haroun to visit GTMO as a representative of the
government, this could be simpler. Muqamis asked if it would
be possible for Al-Haroun to meet the detainees without being
monitored, emphasizing that the GOK is seeking an outcome
that would provide a "good picture" to the Kuwaiti public.
Amb. Prosper said that he would have to ask if this would be
permitted. Muqamis stressed that Al-Haroun would like to
meet the detainees in his capacity as a lawyer, not as a
Kuwaiti citizen. Amb. Prosper cautioned that Al-Haroun would
not be allowed to investigate and go through evidence. Amb.
Prosper also suggested that GOK officials might want to visit
in advance of Al-Haroun to obtain any notes they might need,
since the lawyer might "put ideas in the detainees' heads."
(Amb. Prosper explained there were no complaints about
mistreatment at Guantanamo before attorneys told other
countries' detainees about abuses at Abu Ghraib. The Kuwaiti
Ministry of Interior representatives present confirmed that
the Kuwaiti nationals in Guantanamo had not alleged abuse
during MOI's two previous visits.)

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(U) TRIAL OF SADDAM
--------------


11. (C) With regard to the trial of Saddam Hussein and his
associates, the Kuwaitis expressed concern with Salem
Chalabi's uncertain status. Although the GOK has prepared a
list of people who were involved in crimes against Kuwait,
they are uncertain who in the GOI should receive this list.
This is particularly sensitive, Muqamis said, because the
Ba'athist rehabilitation process might allow some individuals
who did not commit crimes in Iraq but did so in Kuwait to
join the Iraqi government. Muqamis urged Amb. Prosper to
ask that the Iraqis formally notify the GOK by letter of the
GOI representative with whom they should work. Amb. Prosper
said that he was traveling to Baghdad to get a clearer
understanding of the war crimes process. He said he would
recommend that PM Allawi appoint an external relations
officer to act as an official liaison with foreign
governments.

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(S/NF) KUWAITI MINOR IN ABU GHRAIB?
--------------


12. (S/NF) Finally, Muqamis asked Amb. Prosper to clarify
whether there was a Kuwaiti minor, Abdulrahman Al-Bathali,
imprisoned in Abu Ghraib. He said that the GOK had sent
letters of inquiry to the Embassy and to the Red Cross, and
that while the Red Cross responded to say that he is in Abu
Ghraib, the Embassy had yet to reply. Amb. Prosper said he
would be visiting Abu Ghraib and would raise this with Gen.
Miller. (NOTE. Kuwait State Security is aware through
official liaison channel that Bathali is in USG custody and
information regarding his detention is being conveyed via
that channel. END NOTE.)


13. (U) Ambassador Prosper cleared this cable.


14. (U) Baghdad minimize considered.
TUELLER