C O N F I D E N T I A L SECTION 01 OF 06 BAGHDAD 003022

SIPDIS

E.O. 12958: DECL: 07/21/2025
TAGS: PGOV PHUM KDEM IZ
SUBJECT: A STATUS REPORT ON CONSTITUTION NEGOTIATIONS IN
THE WAKE OF THE ASSASSINATIONS

Classified By: Political Counselor Robert Ford.
Reasons 1.4 (B) and (D)


1. (C) SUMMARY: The assassination of two Sunni Arab
constitution committee representatives added urgency
to negotiations on July 19 and 20. By the end of the
day, Sunni Arab delegates had made clear to the Charge
that they intend to continue participating in the
drafting process. Key figures on all sides of the
negotiations also voiced a commitment to the August 15
deadline, but Constitution Committee Chairman Humam
al-Hamudi asked Charge for help in convening an
internal Iraqi political summit so that top leaders
can settle core disputes. The debate over federalism
continued to dominate the talks, with signs emerging
that Kurdish leaders are willing to cede ownership of
resources to the central government even as they push
for extra provincial authorities on resource
"management." Sunni Arab delegates told the Charge
that they were willing to make concessions on Kurdish
federalism in the north so long as they do not become
a blueprint or inspiration for a new regional entity
in the south.


2. (C) We see progress on the key federalism issue
but still wide gaps. Boiled down, we see three major
disagreements on federalism. First, the sides differ
on the point in time at which provinces should be
allowed to join into regions. The Shia and Kurds
would allow provinces to merge right after the
December 2005 elections. Sunni moderates, at least,
would put this off for years. Second, they differ
over how de-centralized the authorities at the
provincial or regional level should be. Finally, they
differ over whether the national authorities should
have a say in the merger of provinces into regions
even if the local populations have agreed to it.


3. (C) SUMMARY CONTINUED: SCIRI's Hamudi reviewed but
did not yet pass an incomplete draft text with the
Charge that showed considerable progress. Draft
provisions appear to settle disputes on presidential
authorities and the shape of the new government. But
the draft showed controversial judgments on Iraq's
Arab identity, the acknowledgement of "Persian"

rights, dual citizenship, women's rights, Kirkuk,
military restrictions, and the future of de-
Ba'athification. END SUMMARY.


4. (C) The Embassy is now in the midst of a full-
scale press on constitutional issues. Here follows a
snapshot of ongoing negotiations synthesizing meetings
between the Charge and Constitution Committee Chairman
Humam al-Hamudi and separately with leading Sunni Arab
delegates to the drafting committee. It also draws on
multiple meetings by Poloffs with a host of
constitution committee members.

--------------
Sunnis Angry But On Board
--------------


5. (C) Sunni Arab constitution committee member and
National Dialogue Council leader Salah Mutlak began
July 20 threatening to suspend participation in the
process but finished in a meeting with the Charge
discussing the way forward. The Sunnis Arabs are
angry but clearly still participating in the process.
Sunni Arab Shaykh Anwar al-Nada called Poloff the
evening of July 20 after the meeting with the Charge
and said he had spoken with the National Dialogue
Council after the meeting with the Charge and the
group said it had decided to stay engaged. Ayad al-
Samarrai, however, had already earlier that afternoon
failed to attend a regularly scheduled press
conference on the constitution drafting process. The
panel of committee members thus lacked a Sunni Arab
and included Chairman Humam al-Hamudi, KDP member
Sa'adi Barzinji, Iraqiya list member Qasim Daoud, and
Sadrist Secretary Baha al-Araji. All of them spoke
warmly of the slain members, described them as
productive partners, and condemned the attack.

--------------
Commitment to the Deadline,
But Wants USG to Facilitate Summit
--------------


6. (C) Key figures in the process on all sides
continued to voice commitment to the August 15
deadline in multiple meetings and contexts on July 19
and 20. Constitution Committee Chairman Humam al-
Hamudi announced at the July 20 press conference that
the deadline would be met despite ongoing conflict
over federalism and the assassinations. He said a
draft would be presented to the TNA by August 1, to be
followed by two weeks of discussion and necessary
amendments. Hamudi said the committee has held 80
conferences on constitutional issues via regional
offices so far and plans to distribute 5 million
copies of the TNA-approved constitution after August

15. He said, "There will be one for every home."
(See septel for detailed report on public outreach.)


7. (C) Hamudi told the Charge in private on July 19
that he could only make the deadline by holding a full
one-week summit of Iraq's main political leaders. He
repeatedly described the need to put them all in an
"operations center" to seal the deal. Negotiations
had reached the core conflicts, and none of the
members of the committee had the authority to make
compromises, he said. Even PUK leader Fuad Ma'asum
has reversed himself after contacts with Talabani,
Hamudi said. Plus, a culture that leads all sides to
put forward outlandish opening demands is delaying the
process of getting down to core compromises, he
lamented.


8. (C) Hammudi said the first step would be bringing
together key coalition leaders from the TNA for two
days of meetings this week. If that fails, and Hamudi
expected it would, the representation would need to be
raised a notch. Hamudi said he would then need to
convene Abd al-Aziz al-Hakim, Ibrahim al-Ja'afari,
Jalal Talabani, Masoud Barzani, and Muhsin Abd al-
Hamid. Hamudi acknowledged that pulling this crowd
together would not be easy. He said Mustapha Barzani
had once been asked whether he planned to go to Mecca
for the Haj and responded, "Mecca can come to me."
Hamudi said he believed the Sunni Arab members of the
committee would feel comfortable allowing Iraqi
Islamic Party President Hamid to represent them at a
summit. (COMMENT: We find that doubtful and expect
further Sunni Arab representation would be necessary.
END COMMENT)

--------------
The Shape of the Federalism Showdown
--------------


9. (C) All sides have acknowledged that their
differences on federalism are the key obstacle to
completing the constitution. The key disputes and
emerging compromises and red lines on federalism are
breaking down as follows:

-- SIGNS OF KURDISH FLEXIBILITY AND SUNNI FEAR ON
RESOURCE OWNERSHIP: Regional authorities Sub-
Committee Chairman Sa'adi Barzinji, a KDP member, told
PolCouns July 19 that he was comfortable with language
stating resources belong to Iraq or the people of
Iraq. Hamudi was equally amenable to that language in
a subsequent meeting with the Charge, and both men
appear to have dropped the idea of provincial
ownership of resources. Barzinji is more concerned,
however, about provincial authorities on resource
development and exploitation. He said that allowing
the federal government "ownership" should not be a
step to putting all oil exploitation under government
direction, a socialist move that would stifle
development. Regional entities ought to be able to
make judgments on business ventures within their
boundaries. The Sunni Arab delegates warned the
Charge that regional resource ownership would mean
"civil war" and trigger a resource scamble in Iraq
that could lead Anbaris to dam the Euphrates while
others block the Tigris. They also complained that
the Kurdish drive for resource ownership is not
matched with a willingness to assume any debt burden.
They called for a clearer accounting of all of Iraq's
sources of revenue -- be they natural resources,
taxes, or tourism.

-- SUNNIS CALL SOUTHERN REGIONAL ENTITIES PREMATURE:
Multiple Sunni Arab delegates made clear in their
meeting with the Charge that a southern regional
entity would inevitably fall under Iranian sway and
potentially conduct ethnic cleansing. Such entities,
they said, could not be permitted to arise. Iraqi
Islamic Party leader Ayad al-Samarrai made clear that
his principal objection to southern federalism was the
"timing," particularly given the weakness of the
central government and high ethnic tensions. He said,
"It's OK for the future, but not now." Samarrai said
he felt that the provinces were still not mature
enough politically to be entrusted with such
authorities. Political immaturity has put them under
the sway of religious parties and liable to sectarian
extremism. Making a similar but more colorful point
on the need for a gradual approach to federalism,
Sunni Arab committee member Mahmud Mashhadani said,
"Federalism is like a pregnant woman trying to give
birth to a baby prematurely. If she does so she could
die with the baby."

-- SUNNIS PREPARED FOR A SPECIAL KURDISH CASE: The
Sunni Arab delegates made clear to the Charge that
they were prepared to offer the Kurds significantly
expanded authorities in the north, but they took pains
to ensure that this be considered an exception, not a
model for the rest of Iraq. Mutlak said the Kurds
needed to be reined in lest they achieve so much that
they inspire irredentism in the south. After all, he
and others observed, the Shia, with mass graves and a
history of suppression, see their story as analogous
to that of the Kurds. The Kurds, Mutlak said, are
currently making excessive demands on military rights,
and the right to pursue foreign treaties that he said
were over the top. Mutlak warned that Basra-based
Shia Constitution Committee member Wael Abd al-Latif,
an ardent federalism proponent, had already
threatened, "Whatever the Kurds get, we want."
(Comment: This extends well beyond Wael Abd al-Latif.
Sami al-Askari, an ambitious Sadr trend
parliamentarian on the committee told PolCouns on July
19 that the Shia must get the same regional
authorities that the Kurds get. End Comment.)
Mashhadani later pointed out that the Kurds want full
say over their own affairs along with wide influence
in the central government, an arrangement that doubles
their appropriate representation. The current health
minister in Baghdad has less authority nationally than
the Kurdish health minister in the Kurdistan, he
alleged.

-- FRAMEWORK FOR FUTURE ENTITY FORMATION: Hamudi
indicated to the Charge that the constitution would
allow governorates to merge with the approval of their
respective populations or provincial councils. He
said the central government and national assembly
would not have any authority to limit this process.
Samarrai made clear separately to the Charge that he
thought such a framework was far too liberal and that
the right offered to the provinces would be far too
absolute given the impact their decisions would have
on Iraq as a whole.

--------------
Other Ongoing Constitutional
Controversies
--------------


10. (C) Several other ongoing constitutional
controversies continue to generate heat, although none
at the level of the federalism debate. They break
down as follows:

-- IRAQ'S ARAB IDENTITY: Hamudi told the Charge that
Sunni Arab delegates are still insisting that all of
Iraq, not merely its Arab majority, be cited as part
of the "Arab ummah," a provision that marginalizes
Kurds unacceptably.

-- ACKNOWLEDGING "PERSIAN" IRAQIS AND OFFICIALIZING
SHIA ISLAM: The committee's minority rights advocates
may have achieved too much success in their efforts to
ensure that all of Iraq's minorities are listed by
name. A current draft goes so far as to list
"Persians" as one protected part of the Iraqi mosaic.
Sunni Arabs told the Charge that they see this
provision as nothing less than a legitimization of the
very community they see as a fifth column. Sunni
hard-liner Khalaf Al-Ayan told us he rejected
altogether the legitimization of "Persians" as Iraqi
citizens when such people were clearly Iranian
infiltrators. Iraqi Islamic Party leader Ayad al-
Samarai also claimed to the Charge that the Shia were
seeking to enshrine the "marja'iya" in the
constitution as a "guiding force" and outline
administration of key holy sites. (COMMENT: We have
seen no evidence that Samarrai's claims have a basis
in the text. END COMMENT).

-- DUAL CITIZENSHIP: Hamudi told the Charge that he
expected the constitution to allow dual citizenship
but require candidates for senior government positions
to relinquish all but their Iraqi citizenship. The
Sunni Arab delegates said they objected to the concept
of dual-citizenship because they believed it would
lead to a plethora of Iranian citizens in Iraq.

-- WOMEN'S RIGHTS: Hamudi downplayed concerns raised
on women's rights provisions in the document in his
meeting with the Charge. He acknowledged that the
document bounded rights by the Sharia but said that it
also guaranteed equal rights for all Iraqis
irrespective of their gender. He said he was ready to
make that provision even clearer if need be. When one
journalist during the July 20 press conference asked
whether the document would limit women's legal rights
and ability to represent themselves on personal status
issues, Hamudi said the document never addressed that
issue beyond guaranteeing equal rights for all Iraqis.
He said he did not consider the rest be a
constitutional issue. (See septel on women's rights
questions in the emerging - but hardly final - text.)

-- THE PRESIDENT'S AUTHORITIES: Hamudi said that the
powers now allotted to the presidency council would be
concentrated in the president alone under the new
constitution. The country may still have two vice
presidents, but they would not share the president's
authorities.

-- CARRYING OVER ARTICLE 58: Hamudi said he intends
for the constitution to carry over the compromise
formula on Kirkuk outlined in Article 58, potentially
by simply restating the provision. One Sunni Arab
delegate, expert consultant Hassan Zaydan, denounced
the entire TAL as illegitimate in the meeting with the
Charge and appeared unprepared to accept the carry-
over of any TAL provision.

-- RESTRICTIONS ON MILITARY ACTIVITY: Hamudi told the
Charge that the constitution would put the Iraqi
military firmly under civilian control, but he
acknowledged an ongoing debate with Kurds seeking
further limits on the force. The Kurds want regional
entities to control the entry or exit of national
forces from their borders. Samarrai warned that the
Kurds want to pass language that gives special
privileges to "militias that fought the former
regime," which he said was a by-word for the Pesh
Merga and Badr Corps. He said that scores of militia
members have already infiltrated the Iraqi armed
forces. He questioned how the U.S. could watch that
take place without allowing the Sunnis to form their
own militia force.

-- THE RIGHT OF SECESSION: KDPer Barzinji was still
clearly peddling more expansive version of Kurdish
rights than his colleagues during the constitution
committee's July 20 the press conference. When a
reporter asked if any regional entities would have the
rght o secede, Barzinji said that the Kurds would be
able to request such a thing. He offered though that
the first two elections, which he expected to come
over 8 years, would tell the tale of the
constitution's effectiveness for all Iraqis.

-- STYLE OF THE NEXT ELECTIONS: This issue is not
likely to be set in the constitution, but uncertainty
over it is influencing the constitution debate.
Hamudi said Shia and Sunni Arab delegates and others
support a multiple-district election with slots for
provinces divided in accordance with food ration
system population data. He acknowledged that the
Kurds are uncertain over this idea because they think
it will depress their representation. He claimed that
Masoud Barzani had given him private assurances that
he was interested in multiple-district elections.
Meanwhile, Sunni Arab delegates told the Charge that
they will not feel comfortable with the next elections
unless the "politicized" IECI is replaced or
overhauled.

-- THE FUTURE OF DE-BA'ATHIFICATION: Hamudi was still
working out the wording of the future mandate of the
de-Ba'athification commission, but he confirmed that
the new constitution would include a wide ban on the
Ba'ath Party, "Ba'athist thought," and any sectarian,
chauvinistic groups. Mutlak warned the Charge that he
did not even consider the issue of the Ba'ath Party to
be an appropriate subject for treatment in the
constitution.

-- OTHER OUTSTANDING POINTS: Hamudi said he was still
putting together a unified draft on the role of Iraq's
special tribunal and needed to determine provisions on
amending the constitution.

--------------
COMMENT: Refereeing the Debate
While Keeping the Sunnis On Board
--------------


11. (C) Charge is traveling to Irbil July 21 to push
for the summit Hamudi says he needs to produce a final
compact. We will keep pushing all sides to stay in
the negotiating room and make their complaints and
proposals specific as we approach the wire. All sides
realize that Kurdish rights will have to be expansive,
and all sides realize that drawing a new internal map
is more than they are currently capable of. What
remains is determining the framework for the future
and the interim authorities for the present. We have
heard the Sunnis speak openly of decentralization.
They will not go so far as to speak of "political
authority" in non-Kurdish areas. We see progress,
therefore, but still wide gaps. Boiled down, we see
three major issues on federalism. First, the point in
time at which provinces should be allowed to join into
regions. Hamudi (and the Kurds) would allow provinces
to merge right after the December 2005 elections. The
Sunni moderates, at least, would put this off for
years. Second, they differ over how de-centralized
the authorities at the provincial or regional level
should be. Finally, they differ over whether the
national authorities should have a say in the merger
of provinces into regions even if the local
populations have agreed to it. (The Shia and Kurds
want no national authority intervention; the Sunnis
when they countenance federalism insist on this
condition.)


12. (C) Keeping the Sunnis on board will require
close attention to several issues, from the mundane to
the profound:

-- WATCHING THAT SECURITY PACKAGES ARE PROVIDED: TNA
Speaker Hachim al-Hasani agreed July 20 to offer a
security package to the Sunni Arab members as a step
toward keeping them on board. We have to push him to
come through on this immediately, especially since
Mutlak is convinced that there is an Iranian
intelligence plan to liquidate all Sunni Arab
constitution committee delegates. We are also working
to make sure that all new Sunni Arab members are
quickly badged and facilitated in exit and entry to
the International Zone, particularly as the
assassinated members are replaced.

-- ENSURING AN INVESTIGATION TAKES PLACE: The Sunnis
need to see the Iraqi government investigate this
assassination, if only to prove the government was not
complicit. Mutlak claims that he previously submitted
a report and request for the Iraqi government to
investigate the threats to these members and the
request was unanswered. All of the Sunni Arab
delegates are convinced that government counter-
terrorism efforts are a mask for an anti-Sunni
campaign. An investigation will not end the paranoia,
but it will apply a salve.

-- SENDING A MESSAGE OF U.S. ENGAGEMENT: More than
anything else, the Sunni Arab delegates made it clear
that U.S. engagement was a key condition of their
engagement. They urged a firm U.S. hand to keep all
the parties to the deadline and away from extremist
proposals on federalism that would threaten Iraq's
unity.


13. (U) REO HILLA, REO BASRA, REO MOSUL, and REO
KIRKUK, minimize considered.


Satterfield