SECOND AND THIRD DAYS OF AD DUJAYL TRIAL

S E C R E T SECTION 01 OF 04 BAGHDAD 004936

SIPDIS

E.O. 12958: DECL: 12/10/2015
TAGS: PGOV PHUM KJUS KCRM KDEM IZ
SUBJECT: SECOND AND THIRD DAYS OF AD DUJAYL TRIAL

Classified By: DCM David M. Satterfield for reasons 1.4 (B) and (D).


1. (U) SUMMARY: The second day of the Ad Dujayl trial
commenced on November 28, 2005. Despite fears that the
defense lawyers would refuse to appear, most attended. The
day was devoted largely to procedural issues although the
Court did review a short video presentation and read the
witness statement of Wadah al-Sheik, a deceased witness who
testified in a special session at the Abu Ghraib hospital on
October 23. The third day of trial began on December 5. The
defense attorneys initially walked out of the proceedings
after Judge Rizgar refused to hear oral arguments on the
Iraqi High Tribunal's (IHT's) legitimacy and defense counsel
security. After a compromise was brokered between the IHT
and the defense attorneys, trial resumed. Two witnesses
testified about the reprisals that the former regime
inflicted upon them and the city of Ad Dujayl. Although the
trial is proceeding, there are significant political
pressures on Judge Rizgar to maintain tighter control over
the courtroom and Saddam Hussein. Indeed, persons in the
Iraqi Government have called for Judge Rizgar to be removed
from his position. In response, RCLO discussed the matter
with President Jalal Talabani. Talabani responded directly
to Judge Rizgar and told him that he would provide Judge
Rizgar with any necessary support. (Days 4 and 5 of trial in
septel.) END SUMMARY.

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Morning Trial Proceedings - Day 2 - November 28
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2. (U) On November 28, the IHT commenced the second full day
of trial in the Ad Dujayl matter. The day began with Judge
Rizgar attempting to establish that each defendant had legal
representation. He then offered condolences regarding the
"martyrs" on the defense team who were killed on October 20,
2005 (Sadoon Al-Janabi, an attorney for Awad Al Bander) and
November 8, 2005 (Adel Al-Zubeidi-an attorney for Taha
Ramadan and Barzan Al-Tikriti).


3. (U) At this point, Saddam Hussein's principal Iraqi
attorney of record, Kaleel al-Dolami, approached the Court to
request that Ramsey Clark, Najib al-Nuaimi, and Issam
al-Ghazzawi be allowed to assist in the defense of Saddam
Hussein. Before Saddam Hussein signed the relevant papers,
he complained that he did not have a pen and that he had to
walk four flights of stairs. Judge Rizgar stated that he
would alert authorities. Saddam rebuked Judge Rizgar and
stated: "I don't want you to alert them. I want you to order
them. They are in our land. You are an Iraqi, a sovereign
person in charge of this court. They are foreigners,
invaders, occupiers." Ultimately Judge Rizgar ordered Saddam
to sign the papers, and Saddam complied.


4. (U) After the paperwork was submitted, Judge Rizgar
presented a four-minute television presentation that showed
Saddam Hussein in the immediate aftermath of the Ad Dujayl
incident. In the video, Saddam is speaking to local
residents. He then orders his officers to "separate them and
interrogate them." Judge Rizgar played the video three times
before turning it off.


5. (U) When the video ended, Judge Rizgar read the witness
statement of Waddah al-Sheik. Waddah al-Sheik's testimony
was recorded via video camera on October 23, 2005 from a
hospital in Baghdad. Mr. al-Sheik was suffering from
terminal cancer and died shortly after the IHT recorded his
testimony. He was the director of a Mukhabarat intelligence
unit responsible for investigating the events of Ad Dujayl.
His testimony implicated Saddam Hussein, Taha Ramadan, and
Barzan al-Tikriti.


6. (U) After the testimony was read, several defense
attorneys (including Kaleel al-Dolami, Ramsey Clark, and
Najib al-Nauimi) sought to address the issues of defense
counsel security, the IHT's legitimacy, and the IHT's
jurisdiction. Judge Rizgar refused to entertain these
matters and directed the defense attorneys to submit written
papers on each issue so that he could consider them.

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Afternoon Trial Proceedings - Day 2
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7. (U) When trial proceedings resumed in the afternoon, Judge
Rizgar informed those defendants without counsel that they
could meet with replacement counsel. Taha Ramadan requested
additional time so that a defense attorney based in Beirut
could travel to Iraq and represent him. Chief Prosecutor
Ja'far requested that the Court immediately hear testimony
from the victims of Ad Dujayl who were present in Court that
day. Judge Rizgar refused. He stated that the Court would
adjourn until December 5 so that each defendant could find
adequate representation and/or meet with their attorneys.
The defense attorneys objected. They stated that the issues
before the Court were complex, that they were new to the
case, and that they needed at least 45 days to prepare.
After a brief recess, the Court reconvened and told the
defendants that the trial would resume on December 5.

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Behind the Scenes of Trial Day 2
--------------


8. (S) At the beginning of trial day 2, RCLO attorneys and
Howard Morrison (the IHT Legal Adviser from the UK) met with
the Trial Chamber judges. The Trial Chamber agreed to issue
a warning to the defense attorneys who deliberately refused
to appear, ordering the missing attorneys to come before the
IHT within 48 hours. Should they fail to appear, the IHT
agreed to replace them with public defense counsel from the
IHT Defense Office and adjourn until the newly appointed
defense counsel became conversant in the case. The Trial
Chamber also agreed to refrain from offering any testimony or
evidence until such time as competent counsel represented
each defendant.


9. (S) When trial began, however, Judge Rizgar did not follow
these recommendations. Indeed, he played the four-minute
video of Saddam Hussein in Ad-Dujayl and read the witness
testimony of Wadah al-Sheik even though attorneys for Barzan
al-Tikriti and Taha Ramadan were not present. At the lunch
recess, Judge Rizgar indicated that (despite vigorous
objections from the RCLO and Howard Morrison) he intended to
call witnesses. After discussion of the matter, Judge Rizgar
agreed to avoid calling witnesses to testify that afternoon.


10. (S) After Judge Rizgar announced the December 5, 2005
date to reconvene the court, he recessed and met again with
RCLO attorneys and Howard Morrison. Both the RCLO and Mr.
Morrison recommended that Judge Rizgar recant the December 5
date and issue a 48 hour warning to all missing defense
counsel. If they appeared, the trial could resume and the
Court could take testimony. If the missing attorneys failed
to appear, the Court would appoint new counsel and adjourn
for 45 days so that the newly appointed counsel could study
the case. Judge Rizgar did not accept this recommendation.
He stated that, because the December 5 date was announced in
open Court, he could not recant it. In response, RCLO
attorneys recommended that he keep the December 5 date but
hold only a status conference between the judges,
prosecutors, and defense counsel on that date. Such a
conference would permit the Court to resolve the defense
counsel issue without the pressure of the defendants and
witnesses being present. Judge Rizgar refused to do this.
He informed all present that the Court would reconvene on
December 5 and that he intended to call witnesses on that
date.


11. (S) Forgetting repeated warnings from the RCLO, Judge
Rizgar revealed in open court the names of each member of the
IHT's Defense Office and an RCLO FSN, Yaghdan Mahdi. Prior
to November 28, 2005, the IHT hired eight public defenders to
represent the various defendants in the event that their
privately retained defense attorneys did not appear. Upon
release of their names to the public, three IHT defense
attorneys resigned, leaving only five to staff the IHT
Defense Office. As for Mr. Mahdi, the RCLO has taken steps
to move him into secure housing. (COMMENT: Despite these
mistakes, RCLO believes Judge Rizgar to be a fair and
judicious leader of Trial Chamber 1 but recognizes that he
may be too lenient at times in terms of his control over the
proceedings. Unfortunately, he has come under tremendous
political and popular pressure for this. END COMMENT.)


12. (S) On November 2, 2005, Iraq's National Security
Adviser, Mowafak Rubaie, said he had come to the trial for
"healing." He asserted that Judge Rizgar was treating Saddam
Hussein with too much respect (i.e., by calling Saddam
Hussein "Mr. Hussein" instead of referring to him as "the
defendant"). Abdul Aziz al-Hakim, the political leader of
the Supreme Council for Islamic Revolution in Iraq, and
others expressed similar disdain for Judge Rizgar's polite
demeanor. Judge Rizgar informed RCLO attorneys on December 1
that many individuals in the Iraqi Government are
disappointed in him for failing to control the proceedings
and press forward despite the problems with defense counsel.
He complained that Iraqi government officials are trying to
influence his judgment while also trying to remove him from
the Court. Judge Rizgar stated that he is a man of principle
and will not tolerate such behavior. He stated further that,
if this interference continues, he will resign his position
so that his integrity does not become compromised.

-------------- -
Morning Trial Proceedings - Day 3 - December 5
-------------- -

13. (U) Day 3 commenced with IHT Judge Sae'eed Mussa agreeing
to appear on camera. Judge Rizgar confirmed that competent
counsel represented each defendant. Immediately thereafter,
Ramsey Clark and Najib al-Nuaimi sought to introduce motion
papers on two issues: (1) court security and (2) the
Tribunal's legitimacy. Judge Rizgar refused to permit the
attorneys to discuss these matters. He stated that only the
principal Iraqi attorney of record, Kaleel al-Dolami, could
address the court and submit papers. Judge Rizgar also
stated that the Tribunal was legitimate and that, if the
defendants disagreed, they could appeal. Matters escalated
quickly with Dr. Najib arguing that the Tribunal was afraid
to hear the defense attorneys' statements. Ramsey Clark
informed Judge Rizgar that, if he could not submit his motion
papers, he would walk out of the proceedings. Judge Rizgar
told Clark that he could not address the Tribunal in English
and that he would not accept his motion papers. As a result,
eight of twelve defense attorneys walked out of the room.
Only Hashem Fityan (the privately retained attorney for the
Roweeds) and three IHT Defense Office Attorneys remained in
the room.


14. (U) Following the walk-out, Judge Rizgar threatened to
appoint immediately IHT defense attorneys for each defendant.
The defendants argued loudly that such action violated their
rights. Both Saddam Hussein and Barzan Al-Tikriti yelled at
Judge Rizgar until Judge Rizgar adjourned so that he could
contemplate how best to move forward.


15. (S) During the 90 minute recess, Howard Morrison sat with
the IHT Trial Chamber and told them that they had to
compromise with the defense attorneys. Mr. Morrison went so
far as to tell the Trial Chamber that, if they did not follow
his advice, he would cease to serve as the international law
adviser to the IHT. While Mr. Morrison was consulting with
the IHT, Hashem Fityan approached RCLO, seeking to speak with
Judge Rizgar in order to broker a compromise. Judge Rizgar
agreed to this, and a compromise between the Trial Chamber
and Mr. Fityan was reached. The defense attorneys agreed to
return to the courtroom so long as Mr. Ramsey Clark could
receive five minutes of court time to address the issue of
defense counsel security. In addition, the Tribunal granted
Dr. Najib fifteen minutes of court time to address the issue
of court legitimacy.

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Afternoon Trial Proceedings - Day 3
--------------


16. (U) Proceedings resumed with Dr. Clark arguing that the
Tribunal needed to do more to provide security for defense
counsel. Dr. Najib then traced the history of the Tribunal's
establishment and argued that, because it was formed during
the Coalition's occupation of Iraq, it was illegitimate.


17. (U) Then, the first complainant (Ahmad Hassan Muhammad)
testified. Mr. Muhammad testified openly and on camera. He
described in detail the deaths of family members following
the events at Ad Dujayl and the torture which was inflicted
upon him during his imprisonment. He described how Ba'ath
Party officials hurled a young boy out a window and said he
had seen a meat grinder with human hair and blood on it. Mr.
Muhammad also provided the names, identities, and birthdates
of friends and relatives who were arrested and disappeared.
Although Mr. Muhammad did not link Saddam Hussein directly to
the events in Ad Dujayl he did state that he witnessed Barzan
Al-Tikriti in the area.


18. (U) The second witness to testify, Jawad Abdul Azziz
Jawad, described how helicopters attacked the city of Ad
Dujayl following the failed assassination attempt against
Saddam. He also stated that bulldozers were brought into the
area to destroy farmer's fields. Mr. Jawad testified further
that Iraqi security forces killed three of his brothers, one
before the assassination attempt, and two afterward.


19. (U) At various points of Mr. Muhammad's and Mr. Jawad's
testimony, Saddam Hussein and Barzan Al-Tikriti interjected.
Barzan Al-Tikriti admitted at one point that he was the head
of Iraq's Intelligence services at the time the reprisals
were inflicted upon Ad Dujayl. Saddam Hussein also conceded
at several points that command responsibility flowed through
him. These concessions are important as the IHT must show
that Saddam Hussein and Barzan Al-Tikriti knew or should have
known about the atrocities in order for a conviction for
crimes against humanity.


20. (S) At one point during the proceedings, Amer Alkuzai,
Iraq's Deputy Minister of Health began to make threatening
gestures from the public gallery to Kaleel al-Dolami. In
particular, Mr. Alkuzai gestured as if to slit his throat
with his finger to indicate that Mr. al-Dolami would suffer a
similar fate. Kaleel al-Dolami immediately objected and
demanded that Judge Rizgar remove Mr. Alkuzai from the Court.
Judge Rizgar agreed, ordered Mr. Alkuzai removed, and
demanded that a full investigation into the matter occur.
When this occurred, Mr. Alkuzai began spitting at the window
of the public gallery. IHT security staff and United States
Marshals removed Mr. Alkuzai from the building.


21. (U) At the end of Mr. Jawad's testimony, the court
adjourned to the following day.


22. (S) COMMENT: IHT International Adviser Howard Morrison
and RCLO attorney advisers played a significant role during
the lead up to testimony as well as during the testimony
itself, advising the court on legal and practical issues.
The court holds Mr. Morrison in high regard and defers to his
opinion on matters of law. However, the court does not yet
defer to him on matters of courtroom management, although
significant progress has been made in this regard. END
COMMENT.
KHALILZAD