C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 002858

SIPDIS

E.O. 12958: DECL: 07/06/2015
TAGS: MOPS PHUM PINS PTER XF
SUBJECT: ITG FACES STEEP LEARNING CURVE ON DETENTION
TRANSITION PROPOSAL

Classified By: Classified by Acting Political-Military
Counselor Evan Reade for Reasons 1.4 (b) and (d)

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SUMMARY
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1. (C) ITG detainee-transition point-of-contact
Sharwan al-Waely met with Embassy and MNF-I
representatives on June 5, 2005 to discuss ITG legal
authorities to conduct security detentions (see
reftel). The conversation with al-Waely indicated that
the ITG, despite the USG's repeated briefings to senior
leadership, is unfamiliar with the scale, legal basis,
and procedures of current Coalition detention
operations, and thus faces a steep learning curve on
this issue.


2. (C) Al-Waely did not appear ready to concede that
security detentions (by MNF-I or, potentially, by the
Iraqi government) play a necessary role in fighting
the insurgency. In our second meeting, to be held
July 11, we plan to present a briefing on the
demographics of and the security threat posed by the
Coalition-held detainee population. We will re-focus
discussion on Iraq's legal authorities at a third
meeting provisionally scheduled for July 18.

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BACKGROUND
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3. (C) In reftel, the Department requested that the
Embassy initiate discussions with the ITG to
determine the legal basis for the ITG to play a
greater role in detention operations in 2005 and
beyond. On May 28, the Charge d'Affaires raised this
issue with PM Ja'afari; on several other occasions,
PolMilCouns and MNF-I raised the issue informally
with the PM.


4. (C) In response, on June 8, the PM's spokesman,
Laith Kubba, informed PolMilCouns that the PM had
designated Da'wa party member and TNA representative
Sharwan al-Waely (also a member of the Constitutional
Committee) as the ITG point of contact for this issue.
We attempted to contact Mr. al-Waely immediately;
however, he initially was unresponsive, and later left
the country for ten days. On his return, we set up a
July 5 meeting.

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JULY 5 DISCUSSIONS
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5. (C) Representatives of MNF-I Detainee Operations
and Embassy Legal and Pol-Mil held their first meeting
with Mr. al-Waely at the Baghdad Convention Center on
July 5, 2005. Mr. al-Waely attended the meeting
alone, but indicated that he intends to increase the
size of the ITG delegation for our next scheduled
discussion. He mentioned that he would assemble
individuals who deal with legal, security, and
political issues.


6. (C) Mr. al-Waely opened the meeting by noting that
he was a lawyer as well as a TNA member; that the
Prime Minister had authorized him to be in charge of
this issue; and that he had headed a similar committee
on Sadr detainees before the ITG was formed. He
quickly noted that detention operations were a
sensitive issue "after the events of Abu Ghraib and
Camp Bucca," and in view of recent accusations about
abuses by the Ministry of Interior.


7. (C) He also requested that MNF-I present him with
a list of all detainees in Coalition custody, indexed
with each detainee's status before the Combined Review
and Release Board (CRRB) and/or Central Criminal Court
of Iraq (CCCI), to enable him to answer inquiries from
"people missing loved ones."


8. (C) (NOTE: MNF-I provides this list every thirty
days to the Iraqi Ministry of Justice on CD-ROM; the
fact that PM Ja'afari's aide Bashar al-Naher also
asked recently for the same list, equally unaware that
the ITG already had a copy, is indicative of the
apparent lack of information-sharing on Coalition
detention issues within the ITG.)


9. (C) Mr. al-Waely posed a number of questions,
apparently based on his impression that the size of
the current detainee population was related to
bureaucratic or otherwise unreasonable delays in
detainee releases. It was, he suggested, a violation
of detainees' human rights to hold them for lengthy
periods pending trial if the delay were due to the
under-capacity of the Iraqi court or prison systems.


10. (C) At one point, Mr. al-Waely asked for the
names of the CRRB members and appeared to be
interested in a bulk release of detainees held in
temporary divisional facilities to create political
capital. (PolMilOff explained that MNF-I does not
"store up" these detainees for release, but rather
releases them on a rolling basis, as and when it is
determined that they do not pose an imperative threat
to security.)


11. (C) Embassy Legal raised the impending need to
consider how to deal with high-threat detainees who
could not be prosecuted criminally but who Iraq and
the Coalition would not want to see released when
UNSCR 1546 authorities expire. Mr. al-Waely was
dismissive, saying that detainees were innocent until
proven guilty, and that Iraqi law did not permit
internment other than short periods of judicial
detention pending court investigation.


12. (C) Embassy Legal discussed the international
practice of security internment, noting the existence
in UK and Indian law of such emergency authorities, as
well as the fact that those authorities provide a
number of safeguards against arbitrary or unreviewed
detentions. Embassy Pol-MilOff offered concrete
examples of high-risk security internees whose release
would pose a significant threat to Iraqi security,
especially if large numbers of releases were to occur
simultaneously upon the expiration of UNSCR 1546.


13. (C) In response, Mr. al-Waely noted that this was
"beautiful talk," but invited the USG delegation to
look at it from a politician's point of view. Media
reports and investigations of abuses committed at Abu
Ghraib, and "illegal things Coalition Forces are
doing" elsewhere had made detention problematic "in
the hearts and minds of Iraqis."


14. (C) Mr. al-Waely commented that while he realized
there were many hardened criminals in the Coalition
detainee population, there were also many who were
innocent; some, he claimed, had been falsely accused
or reported to MNF-I by their Iraqi neighbors. "That's
why we need to put some sort of less complicated
system in place," he said.


15. (C) Mr. al-Waely suggested that individual voting
members of the CRRB attend the next meeting,
apparently with an eye to discussing the members'
(confidential) retain-or-release votes. MNF-I and
EmbOffssuggested that Mr. al-Waely contact the Deputy
Ministers at the Board's ministerial components
(Interior, Justice, and Human Rights) instead.


16. (C) In closing, Legal noted that the issue of
high-threat security internees and their post-UNHCR-
1546 status was a critical issue for both Iraq and the
Coalition, and that it was important for discussions
to begin earlier rather than later. Somewhat
surprisingly, Mr. al-Waely agreed with this statement,
noting that the problem was one for both Iraq and the
United States.

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WAY AHEAD
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16. (C) At our second meeting, scheduled for July
11, EmbOffs and MNF-I intend to brief an expanded
Iraqi delegation on the size, characteristics, and
threat level of the MNF-I detainee population, as
well as on current Coalition legal authorities and
procedural processes, with the intent of creating a
common starting-place for our discussion of current
(and possibly future) Iraqi legal authorities.


17. (C) At our third meeting, scheduled to take place
on July 18, we hope to return to the issue of current
and potential Iraqi authority to detain security
internees. We will report the results of each
meeting.
Satterfield