SECOND AND THIRD DAYS OF AD DUJAYL TRIAL

S E C R E T SECTION 01 OF 04 BAGHDAD 004938

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.

-------------- --
Morning Trial Proceedings - Day 2 - November 28
-------------- --


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 Dujal incidet. 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.

--------------
Afternoon Trial Proceedings - Day 2
--------------


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.

--------------
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, Iraqs 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.

--------------
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