S E C R E T SECTION 01 OF 02 BAGHDAD 002985

SIPDIS

E.O. 12958: DECL: 07/19/2015
TAGS: PGOV PHUM KJUS PREL XF IZ
SUBJECT: EXECUTIVE PRESSURE ON IRAQI SPECIAL TRIBUNAL
INTENSIFIES

REF: BAGHDAD 2395

Classified By: Charge d' Affaires David M. Satterfield for Reasons 1.4
(b) and (d)

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SUMMARY
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1. (S) Political pressure on the judges of the Iraqi
Special Tribunal (IST) heightened recently with the
attempt - quashed for now - of Deputy Prime Minister
Ahmed Chalabi's supporters on the De-Ba'athification
Committee to remove thirteen IST judges. The referral
of the IST's first criminal case on June 17th
(reported septel) may ease pressure on the IST from
the Prime Minister's office, which has complained
repeatedly about delays, but the intensely politicized
atmosphere surrounding the court's operations is
unlikely to dissipate soon.

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DE-BA'ATHIFICATION AT THE IST
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2. (S) On June 10th, the Regime Crimes Liaison Office
(RCLO) was notified by an advisor with close contacts
in the office of Deputy Prime Minister Ahmed Chalabi
that the National De-Ba'athifcation Committee had
drafted a letter demanding the removal of thirteen
of the fifty-four judges of the Iraq Special Tribunal,
as well as an assortment of administrative staff, due
to their former membership of the Ba'ath Party which
is listed as a disqualification for service in the
IST statute.


3. (S) In practice, this requirement has been
disregarded. Ba'ath membership was required of all
practicing judges under Saddam's regime; most IST
judges, including IST Chief Investigative Judge
Ra'ad, held the lowest level of party membership,
which is not considered a disqualification in any
other branch of Iraqi government. IST judges were
interviewed and cleared for service by the De-
Ba'athification Committee prior to their appointment
to the Tribunal.


4. (S) NOTE: RCLO believes it unclear that the De-
Ba'athification Committee is authorized to remove
IST judges even should they be disqualified from
service by former Ba'ath membership, given provisions
in the TAL stating that the judiciary shall "in no

way be administered by the executive authority" and
that removal of a judge must be accomplished through
a complex procedure initiated by the Higher Juridical
Council. END NOTE


5. (S) More directly, the TAL states that the IST
statute "exclusively defines" the IST's jurisdiction
and procedures, notwithstanding any other part of
the TAL, and provides that the judges of the IST
"shall be appointed in accordance with the
provisions of its founding statute". The TAL thus
establishes the IST statute as the exclusive legal
document governing the IST's judicial appointments
and procedures. Post does not believe the CPA Order
establishing the De-Ba'athification Committee should
be read to trump the TAL. End note.)


6. (S) In conversations with DPM Chalabi and other
senior IST leaders, Embassy noted that the abrupt and
politicized removal of key IST judges, including Judge
Ra'ad, would slow the course of upcoming trials and
ongoing investigations, including the ad-Dujail case,
and would likely result in the withdrawal of RCLO
investigative, advisory, and administrative support.


7. (S) While no judges have yet been removed, it is
unclear whether we have successfully dampened Chalabi's
enthusiasm for tinkering with the court's makeup: on
July 17, RCLO learned that the IST Administrative
Director and other high-level non-judicial staff named
in the letter had been removed. Other ITG officials
continue to express unhappiness at the IST's pace, with
PM aide Bashar al-Naher blaming an unlikely collusion
between Ba'athist IST judges and "the Americans"
for preventing the timely appearance of Saddam and
other former regime leaders at trial.

7. (S) Threats to the IST's independence may also
come from the Transitional National Assembly, which
plans on July 20 to debate legislation amending the
IST's charter to bring the Tribunal under the
control of the Iraqi Higher Juridical Council. Many
IST judges feel - realistically or not - that any
such move will result in the replacement of independent
IST judges with hand-picked Chalabi supporters.

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HIGH-VALUE DETAINEE DISPOSITION
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8. (S) Under the circumstances, RCLO continues to
monitor the IST's bringing of charges against High-
Value Detainees (HVDs) in MNF-I custody closely. Using
new evidence, the IST has provided reasonable grounds
on which to proceed with investigative hearings on
several HVDs previously approved by MNF-I for release
(see reftel); in several other cases, RCLO expects the
IST to vacate arrest warrants issued in the panic
caused by Embassy and MNF-I's June announcement of
impending HVD releases.

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COMMENT
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9. (S) DPM Chalabi has a complicated history with the
IST, which was originally headed by his nephew, Salem
Chalabi, before the younger Chalabi's August 2004
replacement following the issuance of an arrest
warrant implicating him in murder. DPM Chalabi's ties
to the Sadr Bureau may have created antipathy towards
Judge Ra'ad, who issued the arrest warrant linking
Moqtada al-Sadr with the killing of Abdul Majid al-
Khoei. PM aide al-Naher's suggestion that the ITG
might be satisfied with the removal of Judge Ra'ad
alone (sparing the other twelve judges) may support to
this conjecture.


10. (S) Moreover, ITG leadership is keenly aware of
the optics involved in the public trial of Saddam and
other former senior regime leaders, and seems
frustrated at ITG inability to "manage" the IST's
independent judicial processes. The referral of the
ad-Dujail case may ease pressure on the IST
temporarily, but executive and legislative attempts at
interference and influence are likely to continue.
Satterfield