IST ISSUES WARRANTS FOR TWENTY HVDS APPROVED FOR

S E C R E T SECTION 01 OF 03 BAGHDAD 002395

SIPDIS

E.O. 12958: DECL: 06/04/2015
TAGS: MOPS PTER PGOV PHUM XF
SUBJECT: IST ISSUES WARRANTS FOR TWENTY HVDS APPROVED FOR
RELEASE

REF: BAGHDAD 2164

Classified By: Political-Military Counselor Ronald Neumann
for Reasons 1.4 (b) and (d)

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SUMMARY
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1. (S) The Iraqi Special Tribunal (IST) has issued arrest
warrants for twenty High-Value Detainees (HVDs) whom the
USG has approved for release, and against whom the IST
had previously indicated it did not intend to pursue
charges. Post remains concerned that political pressure
may have influenced the IST's sudden issuance of warrants
for these HVDs on the eve of their release. All twenty
remain temporarily in USG custody pending resolution of
this issue.


2. (S) In two cases, the IST has now shared new evidence
of criminal activity that appears to constitute
sufficient grounds for proceeding. The Regime Crimes
Liaison Office (RCLO) will continue working closely with
the IST to ensure that the remaining arrest warrants are
supported by what the IST could reasonably consider "a
reliable body of evidence that tends to show that the
suspect committed a crime". The RCLO will also work with
the IST to ensure that any arrests are in accordance
with IST statutes and rules, fundamental due process,
and US international law and treaty obligations.


3. The IST's ability to meet this standard is seen as
critical by Embassy Pol-Mil and MNF-I, as we have a
strong interest in ensuring that the USG does not in
future find itself in the awkward position of cooperating
with Iraqi arrests of USG detainees that are or appear to
be politically-motivated, or that suggest that these
detainees may not receive impartial treatment by the
tribunal.

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BACKGROUND
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4. (S) Twenty HVDs approved for release by the USG have
seen their release dates delayed for as long as eight
months at the repeated request of the Iraqi Government.
PM Allawi argued in autumn and winter 2004-2005 that
unacceptable political consequences would result from HVD
releases during operations in Fallujah and the run-up to
Iraqi elections. We acceded to Iraqi requests for delay,
on the understanding that a unilateral USG release of high-
profile former Ba'athists would likely have a significant
impact on Iraqi pre-election politics.


5. (S) Post, aware that the continued detention of these
individuals raised significant legal and ethical issues
for MNF-I and the USG, approached the ITG on this subject
as a matter of priority upon the seating of a new Iraqi
government, and informed PM Ja'afari and the judges of the
IST in mid-May that MNF-I intended to proceed with twenty
HVD releases soon. In response, PM Ja'afari's office
replied (see Reftel) that "all" HVDs are known to be
guilty of war crimes, and that all will be arrested by
Iraqi Police if released by MNF-I.


6. (S) On various occasions between July 31, 2004 and
November 10, 2004, the RCLO had consulted the chief
investigative judge of the IST as to whether the IST
possessed evidence of crimes involving these twenty
(and other) HVDs. Based on the IST's representation that
it did not possess evidence against these twenty that
would support the issuance of arrest warrants, RCLO
recommended conditional release of thirteen HVDs in July
2004, four in October 2004, and three in November 2004.)


7. (S) However, when MNF-I made known its intent to
release these twenty HVDs known mid-May, a number of IST
investigative judges objected on the grounds that they
had either never been personally consulted or had not
been consulted in recent months regarding these releases.
(Note: the IST was formed between July and November 2004,
and some judges had not yet begun investigations at the
time these releases were approved.)


8. (S) Several IST judges reacted to the news of
impending HVD releases by issuing arrest warrants,
including fifteen warrants of particular concern issued
by the judge investigating crimes of "Wasting the
National Wealth" under Article 14 of the IST statute.
RCLO informed the IST of MNF-I's concern as to whether
these warrants are based on "a reliable body of
evidence that tends to show that the suspect committed
a crime".


9. (S) One investigative judge has also issued
eighty-four detention orders covering most HVDs as well
as some individuals not in USG custody. RCLO has
expressed concerns to the IST about whether these
detention orders comply with the IST statutes and rules.
The IST chief prosecutor has said he will appeal these
detention orders prior to service, and that he is
reasonably confident they will be overturned on appeal
and dismissed.


10. (S) In addition, the IST has issued an arrest warrant
for former HVD Ghazi al-Ubaydi (Blacklist #51),released by
MNF-I with the permission of PM Allawi on humanitarian
grounds in April 2005 due to his impending death from colon
cancer. The PM's spokesman, Laith Kubba, has informed the
press that Ghazi's release was a "mistake in the justice
system".


11. (S) The IST has asked RCLO to schedule initial
appearances for a number of HVDs, including the twenty now
approved for release by the USG. At these initial
hearings,the IST would normally serve an arrest warrant
and inform the HVD in question of his or her rights; after
reviewing the HVD's file, the judge would be in a position
to issue detention orders which would result in the
"transfer" of an HVD from USG to Iraqi legal custody. Once
this occurs, MNF-I is no longer in a position to effect
these detainees' legal release.

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CURRENT ASSESSMENT
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12. (S) In response to queries from RCLO, the IST has
shared evidence against two HVDs whose initial appearances
had been scheduled for mid-June, Hikmat al-Azzawi
(Blacklist #28) and Issam Rashid Huaish (Blacklist #237),
on charges of "Wasting the Wealth of the State". The
evidence centers on string of memos authorizing Huaish
(the manager of the Central Bank of Iraq) to transfer $920
million USD and 90 million Euros from the bank's vaults to
al-Azzawi (the Deputy Prime Minister) on March 19, 2003.
The IST believes that the documents are genuine; this is a
fact to be established at trial. Based on this evidence,
the investigative hearing will go forward.


13. (S) The RCLO has also inquired about the evidence
against Fadil Sulfaij Muhammad al-Azawi (Blacklist #100)
on charges of "Crimes against Humanity"; Mr. al-Azawi was
also scheduled for initial hearing in mid-June. The IST has
not produced a similar quality of evidence related to these
charges. (The IST has noted that Mr. al-Azawi served as the
head of the Iraqi Intelligence Service in the 1980s, and
that allegations have been made that he directed political
assassinations; however, it has not presented specifics.)
Mr. al-Azawi's hearing has been postponed. RCLO will work
with the IST to identify additional evidence in Mr.
al-Azawi's and similar cases, if such evidence exists.


14. (S) While the standard of evidence required under
Iraqi law for arrest or pre-trial detention is relatively
low by US standards, the USG has significant legal and
policy equities in assuring itself that any Iraqi arrest
and detention of HVDs in USG custody is based on
sufficient evidence and is consistent with Iraqi law and
international standards.


15. (S) Embassy Pol-Mil and MNF-I also feel that we have a
clear interest in establishing that Iraqi decisions
regarding arrest in individual HVD cases are not influenced
by the hothouse political climate surrounding the trial and
rehabilitation of former Ba'athists and relatives and
associates of Saddam's regime.


16. (S) RCLO believes that in most cases, the appropriate
way to deal with an arrest warrant or detention order that
may not be based on sufficient evidence is through the due
process afforded under the statute and rules of the IST.
If, at an HVDs initial appearance, the investigative judge
orders the HVD detained, the prosecutor, defense counsel,
or the defendant may file a motion with the appellate
chamber of the IST challenging the sufficiency of the
evidence To date, we have seen no evidence that the
appellate chamber will be fair and impartial.


17. (S) Nevertheless, should we find ourselves in a
situation in which an IST investigative judge insists on
proceeding with the service of an arrest warrant and an
initial appearance for a HVD under circumstances in which
it does not seem objectively reasonable to conclude that
the warrant is based on "a reliable body of evidence that
tends to show that a suspect committed a crime", we will
have to decide to what extent this affects our willingness
to cooperate with the IST in that case.
Satterfield