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06ULAANBAATAR232 2006-03-31 07:39:00 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Ulaanbaatar
Cable title:  

State Secrets Law: An Invitation to

Tags:   PHUM PGOV PREL ECON MG FR GM 
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TO RUEHC/SECSTATE WASHDC 9663
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RUEHUL/AMEMBASSY SEOUL 2131
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RUEHLMC/MILLENNIUM CHALLENGE CORP WASHINGTON DC 0185
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RUCPODC/USDOC WASHDC 0940
RUEKJCS/SECDEF WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
					  UNCLAS SECTION 01 OF 06 ULAANBAATAR 000232 

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SENSITIVE
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E.O. 12958: N/A
TAGS: PHUM PGOV PREL ECON MG FR GM
SUBJECT: State Secrets Law: An Invitation to
Corruption and a Blight on Mongolia's Human Rights
Record

REFS: (A) 2004 Ulaanbaatar 049 and previous, (B) 2004
Ulaanbaatar 0229, (C) 2004 Ulaanbaatar 037

Sensitive but unclassified -- not for Internet
distribution.



1. (SBU) SUMMARY AND COMMENT: The World Bank, civil
society and donors, including the U.S., have long
identified the lack of transparency and citizen access
to government information as a major invitation to
corruption and have encouraged the Government of
Mongolia and worked with civil society and legal
reformers to repeal or significantly amend the State
Secrets Law, to de-criminalize the offense of libel,

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and to implement a Freedom of Information Act. The
State Secrets Law is among the most restrictive and
punitive in any post-communist country. It extends the
definition of "state secret" to not only national
security interests but also to maps finer than a
1:200,000 scale, to statistics on the number of
prisoners, to basic economic and census data, to the
identity of shareholders in private companies, to
audits of state owned companies, to access by citizens
to state archives. On one level, it enables "petty"
corruption by handing bureaucrats the power to levy
fines on (i.e., solicit extra-legal fees from) citizens
and businesses without having to share with the victim
the text of the law or regulation allegedly violated.
On another level, however, it has been used to harass
and convict people whose views or activities were
considered by the government, or even by individual
ministers, to be inimical to its authority or
interests. Three persons, jailed in 2003 and 2004 for
"revealing state secrets," were released in recent
months; their stories are now coming to light and
provide insights into how the Law has been abused. One
was a lawyer who had gone to the media with his
client's allegations of torture and coercion to testify
falsely; another was his client, who had been abducted
by Mongolian intelligence agents from France; and the
third, a former head of the intelligence agency who
angered then Justice Minister (and current Speaker)
Nyamdorj by allegedly leaking material that proved the
minister was a "spy for China." Their experiences with
the legal and prison systems also serve to confirm the
conclusions of the UN Special Rapporteur on Torture's
visit to Mongolian in June 2005 and of the soon-to-be-
released report by the Mongolian National Human Rights
Commission (septel) that lack of due process, torture
and poor prison conditions continue to be human rights
concerns. END SUMMARY AND COMMENT.

State Secrets Law: Nothing Escapes


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





2. (U) In December 2004, historian and researcher
Sergey Radchenko wrote, "free access to information is
impeded in Mongolia by the existing legislation on
state secrets (the April 1995 Law on State Secrets and
the January 2004 List of State Secrets)which in sum set
up such far reaching restrictions on access to
government records in Mongolia as to make it possible
for virtually anything to be classified as 'secret' and
hidden from the public view for an indefinite period.
Existing restrictions contradict the spirit of the
Mongolian government's commitment to openness.
Unnecessary secrecy breeds irresponsibility on the part
of government officials. The lack of transparency
leads to corruption. Failure to open up past
government records speaks to the unwillingness of the
Mongolian government to face up to the former
policies." Radchenko compared the law's provisions to
state secrets legislation in twelve ex-Soviet Union
countries, and found Mongolia's to be the most
restrictive. (Comment and Note: Both laws were passed
by parliaments dominated at the time by the former
communist Mongolian Peoples Revolutionary Party (MPRP).

ULAANBAATA 00000232 002 OF 006


Radchenko was at the time of his study a visiting
faculty member at the National University of Mongolia;
he is currently a visiting professor of history at
Pittsburgh State University.)



3. (U) An August 2005 "Assessment of Corruption in
Mongolia" funded by USAID and endorsed by the
Ambassador, noted, "(T)he most critical shortcomings in
the environment for fighting corruption in Mongolia are
the lack of transparency surrounding nearly all
government activities and the near absence of the
public in substantive policy discussions and oversight
of government. ... Archaic secrecy laws still inhibit
and curtail implementation of laws that guarantee
freedom of speech, press and association. Authorities
remain fearful of information and, thus, reticent to
comply with citizens, media, or civil society
organizations' requests for information. ... There is
no easy access to government documents. Simple
records, such as parliamentary debates, are treated as
'secret,' and obtaining them becomes a complicated
operation."

Case Histories of Abuse of the State Secrets Law,
Lack of Due Process, and Torture


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



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





4. Three men were convicted in 2003-2004 under Article
87 of the Criminal Code, which provides up to eight
years imprisonment for someone who reveals state
secrets entrusted to them by virtue of their job. The

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first man was General J. Baatar, a head of the General
Intelligence Agency (GIA) during the Democratic
Coalition government period in the late 1990s.
Sentenced to seven years of "strict imprisonment" in
January 2004 for revealing state secrets, Baatar was
given a presidential pardon just before Mongolian New
Years holiday in late January 2006. He is now reported
to be in the Mongolian countryside. He has said that,
since his release, he has sent information about his
treatment to international human rights organizations.



5. (U) Baatar was convicted of providing a
confidential GIA dossier to L. Gundalai, one of the

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four non-MPRP members of parliament between 2000-2004.
On May 19, 2003, MP Gundalai held a press conference at
which he announced that he had "Top Secret" material,
provided by an unknown man, that alleged that then
Justice and Home Affairs Minister (and Speaker since
July 2005) Nyamdorj was a spy for the Chinese.
Gundalai himself was subsequently investigated by the
GIA and police for revealing state secrets. In January
2004, the parliament voted against a petition by the
State Prosecutor to waive MP Gundalai's immunity from
prosecution, but permitted the prosecutor to continue
the investigation (ref b). Gundalai was re-elected to
parliament in June 2004 and remains immune from
prosecution. (Comment: To our knowledge, there has
been no further attempt to pursue the case against him.
Gundalai became the minister of health in the new MPRP-
led government in January 2006. End comment.)



6. (U) In a newspaper interview published March 1,
2006, Baatar recalled that GIA agents -- headed by a
former subordinate he knew well -- broke into his house
the day after Gundalai's May 2003 press conference and
forcibly arrested him. After five days in prison, a
judge freed him because there had been no arrest
warrant. Baatar told the newspaper he had decided to
flee his apartment in the middle of the night soon
thereafter because he feared for his life. On
September 5, 2003, GIA agents arrested him while he was
in the apartment of a son-in-law of former president
Ochirbat. Until he was taken to trial in January 2004,
Baatar states he was kept in Tov Aimag prison in a
lightless, dank, bedless cement cell with no running
water. During that time, he was let outside twice, for

ULAANBAATA 00000232 003 OF 006


3-5 minutes. He was given two cupfuls of water a day.
The food was inedible bread and soup made from horse
offal. Conditions improved briefly during visits to
him by a member of the National Human Rights
Commission, then reverted after the commissioner left,
he states. Any criticisms about conditions made to the
commissioner resulted in beatings and additional
pressure. The former GIA head said he was allowed
almost no contact with his lawyer. Baatar told the
newspaper he was 165-176 pounds when he entered Tov
Aimag prison, and 134 pounds four months later. After
a closed trial in the Gants Hudag detention facility
near Ulaanbaatar, Baatar said he was sent to Zaisan
prison to serve his sentence. He shared a cell with a
dozen other prisoners. Among other problems, those in
the cell were given bathroom breaks lasting 30 seconds
to a minute, in a toilet with only two commodes.

Jailed: A Lawyer and His Client


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




7. In June 2005, the UN Special Rapporteur on Torture,
Manfred Nowak, visited Mongolia at the invitation of
the National Human Rights Commission. The excerpt
below from Nowak's December 2005 report describes the
cases of two men, L. Sanjaasuren and D. Enkhbat. Both
were convicted in November 2004 of revealing state
secrets. In August 2005, Sanjaasuren (who was regarded

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by Amnesty International as a prisoner of conscience)
was released from prison in accordance with standard
procedures for paroling prisoners who have served half
their sentences. In February 2006, Enkhbat was
released because of ill health, and is reported to be
in an Ulaanbaatar hospital.

Begin excerpt from the Special Rapporteur's report:

"On about 15 May 2003, Enkhbat Damiran, who was seeking
asylum in France at the time, was beaten by officers of
the General Intelligence Agency (GIA) of Mongolia
outside a restaurant in Paris, smuggled across the
French border in a Mongolian embassy vehicle to
Brussels, and then to the Mongolian embassy in Berlin.
He was held at the embassy for one night and was
tortured by Mongolian agents before he was drugged and
boarded in a wheelchair onto a Mongolian MIAT flight to
Ulaanbaatar on 18 May. His entry into Ulaanbaatar was
not registered by the border police and he was taken to
a secret location outside the capital. He was tortured,
unsuccessfully, to confess to the murder of the well-
known politician Zorig Sanjasuuren, a former Minister
of Infrastructure and a recognized champion of the
democracy movement (Embassy note: Zorig was murdered in
1998; the case remains unsolved). On 24 May he was
registered as a GIA informant and his entry into
Mongolia was subsequently registered by the police as
25 May.

During his torture, Enkhbat Damiran was, among other
things, forced to sit on a stool for hours, beaten on
the liver with a pistol, and was subjected to mock
executions. In June 2003, Lodoisambuu Sanjaasuren , a
58-year-old lawyer, was retained by Enkhbat Damiran. In
the course of his representation, Lodoisambuu
Sanjaasuren videotaped a 36-minute interview of Enkhbat
Damiran describing the details of his abduction and
torture by the GIA. On 27 September, Channel 25, a
Mongolian television station, broadcast the video.

This led to criminal charges against Lodoisambuu
Sanjaasuren, a former intelligence agent, and Enkhbat
Damiran under article 87(1) of the Criminal Code for
revealing State secrets. In November 2004, Lodoisambuu
Sanjaasuren was sentenced to 18 months' imprisonment
and served his sentence in Prison No. 421 (Amgalan), an
ordinary regime facility. The Special Rapporteur
visited him in the medical ward on 7 June 2005, where
he was under doctors' care for a serious heart

ULAANBAATA 00000232 004 OF 006


condition. He alleged that he did not receive
specialist medical care and the necessary medication
for his condition.

On 8 June 2005, the Special Rapporteur visited Enkhbat
Damiran, who is currently detained in Prison No. 413
(Zuunkharaa), a strict regime facility, and is serving
a three-year sentence for having revealed State
secrets. The murder charges had been dropped as they

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obviously had been fabricated. At the time of the
visit, Enkhbat Damiran was examined by an independent
doctor. It was apparent that he was in very poor
health, had difficulty breathing and was suffering from
cirrhosis and bleeding in his urine, among other
things, and that he was in need of immediate medical
treatment, including appropriate medication. Although
he has been sent to the Zaisan Prison Hospital, he
receives only cursory treatment there and is repeatedly
sent back to Prison No. 413 despite his deteriorating
health."

End excerpt from Special Rapporteur's report



8. (SBU) When the case hit the local press decrying
the violation of human rights and international law,
Mongolian authorities publicly claimed that the arrest
had been conducted with the permission of local law
enforcement and INTERPOL, and that no laws or human
rights standards were broken. According to French and
German authorities, however, the Mongolian agents acted
without notifying or obtaining permission from local
authorities. In fact, the Governments of France and
Germany lodged formal protests with the Mongolian
Government, demanding, in both cases, the recall of the
Mongolian ambassador. Mongolia eventually recalled its
third secretary from Paris and its ambassador
(Terbishdagvaa, now minister of agriculture and food)
from Berlin (ref c). This incident contributed to the
European Union's concerted pressure on Mongolia
following the conviction of Enkhbat's lawyer on State
Secrets Act charges. In late 2004, the Ambassador also

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twice expressed concern to former Prime Minister
Elbegdorj about Sanjaasuren's conviction, and received
a promise to look into the case without further
response. The head of Mongolia's National Human Rights
Commission told Poloff in February 2006 that it had
twice formally raised Sanjaasuren's case with the
government, but had never received any response.



9. (SBU) Poloff met with Sanjaasuren on March 28. The
60-year old lawyer noted that he had joined Mongolia's
intelligence service in 1966; the oath of secrecy he
had signed then had twice been used against him in
court on State Secrets Act cases, in 1994 and 2004. By
1989, Sanjaasuren had risen to Vice Minister of
Justice, then was forced to resign as public pressure
mounted on the Communist government (Sanjaasuren said
that his reformist inclinations were well known, and
that "Communist" elements used the public pressure to
maneuver him out). In 1993, Sanjaasuren again began to
work for GIA. He told Poloff that superiors ignored
his information about corruption by senior officials in
the MPRP government. In December 1993, he held the
first of several press conferences publicly airing the
charges and naming names. He was convicted under the
State Secrets Act in May 1994 and sentenced to three
years imprisonment, which was reduced on appeal to 70
days. During the Democratic Coalition government from
1996-2000, he became head of the prison administration
and worked to bring about improvements in the dire
conditions. (Comment: Despite the sub-standard
conditions in prisons, Sanjaasuren is credited by
observers with implementing significant improvements
over the even worse situation that prevailed when he
took charge.) After the MPRP regained power in 2000,
Sanjaasuren said he was dismissed by "the communists."
He then became a criminal defense attorney.

ULAANBAATA 00000232 005 OF 006





10. (SBU) Sanjaasuren told Poloff he was permitted to
meet with Enkhbat only three times, but made a 36-
minute tape of Enkhbat's allegations of torture and
coercion to testify falsely during one of the visits.
In July 2003, the lawyer first told Mongolian news
media about Enkhbat's claims, but did not reveal the
existence of the tape. He said he made multiple copies
of the videotape and sent them to then Prime Minister
Enkhbayar, then Justice and Home Affairs Minister
Nyamdorj, the Prosecutor General, the Supreme Court,
and Civil Will MP S. Oyun (Zorig's sister). One month
later, after receiving no reaction from any of these,
he paid TV 25 $450 to air the tape; Sanjaasuren wryly
noted that this used up almost all of the $500 retainer
Enkhbat had paid him. After airing the allegations,
Sanjaasuren said, he was surveilled by GIA agents and
his travel was restricted. In September 2004 (note: as
the Coalition government was being formed), the case
was transferred to the prosecutor's office. In
November 2004, a two-day closed trial of Sanjaasuren
and Enkhbat was held in Gants Hudag detention center.
Sanjaasuren, who acted as his own defense attorney,
said the charges were confusing and contradictory --
and were premised on Enkhbat's alleged enrollment as a
GIA agent in May 2003, which made disclosure of the
allegations an offense under Article 87 of the Criminal
Code. Sanjaasuren told Poloff the trial seemed pre-
scripted, and said he had heard from sources just
before the trial that he would be sentenced to three
years imprisonment, which turned out to be the verdict.



11. (SBU) Echoing statements he made in a March 2006
press interview, Sanjaasuren linked Enkhbat's abduction
from France to an MPRP effort to link then Democratic
Party head M. Enkhsaikhan to Zorig's murder in advance
of the 2004 elections. Enkhbat's claim is that the GIA
tried to get him to testify falsely that he had been
ordered to murder Zorig by a DP-linked businessman who
is a childhood friend of Enkhsaikhan. (Comment: As it
turned out, the fallout from Enkhbat's abduction, along
with the outcry over criminal libel cases brought by
then Justice Minister Nyamdorj against Gundalai and
another prominent DP politician (ref b), helped to
energize opposition voters, and was one reason the MPRP
suffered sharp losses in the June 2004 parliamentary
elections.)



12. (SBU) Asked about his imprisonment, Sanjaasuren
said he had benefited from the esteem with which both
guards and prisoners held him in, due to the reforms he
had implemented during his time as head of the prison
administration. Sanjaasuren said he had not had to
share a cell, and he had been permitted to cook his own
meals using food sent by his family. He was not beaten
or otherwise abused, although medical care was
inadequate. Since his release in August 2005,
Sanjaasuren said he had been unable to find work; he is
no longer legally able to work as a lawyer. Companies
he has approached have shied away from him due to his
past. However, he said, he had been retained two days
previously as a consultant by a Mongolian filmmaker who
plans a film on Chinggis Khan. Sanjaasuren said he
believes at least three of his children have suffered
because of his case, including a son who is a prison
guard and was transferred to a remote prison, and
another son who is a bank official who was accused of
failure to cooperate with police in a bank fraud case,
and was arrested for two days in early March and
beaten.

What the Embassy Has Done and Will Do


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





13. (SBU) The Embassy has long called publicly and
privately for reform of the State Secrets Act, a key
step in ensuring transparency in Mongolian governance.

ULAANBAATA 00000232 006 OF 006


Along with other donors, the Embassy prioritized the
issue during the GOM-External Partners "technical
meeting" in early March (ref c). Amendment of the
State Secrets Act figures prominently in our lobbying
package prepared for the forthcoming session of the
State Great Hural, a package which lists measures and
actions that the government and parliament should take
in order to demonstrate their commitment to fighting
corruption. We have also urged new legislation to
create a Freedom of Information Act regime and the
repeal of the criminal libel offense, which is used to
intimidate , and sometimes imprison, journalists and
other government critics (2004 and 2005 State
Department Country Report on Human Rights Practices in
Mongolia). All these reforms also figured prominently
in the anti-corruption action plan initiated by former
PM Elbegdorj. It remains to be seen if the new
government will follow through. Post intends to
continue to encourage democratic reform, by advocating
with the government and working with civil society. In
this regard, we are soliciting proposals (for funding
from our Democracy Small Grants fund) from civil
society for projects to call public attention to the
need, and to outline an approach, to revise the State
Secrets Law.

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Slutz