LEGAL AMBIGUITY IN BAGHDAD GOVERNANCE STRUCTURES

C O N F I D E N T I A L BAGHDAD 002040


E.O. 12958: DECL: 06/12/2017
TAGS: PGOV PINS PINR ASEC KDEM IZ
SUBJECT: LEGAL AMBIGUITY IN BAGHDAD GOVERNANCE STRUCTURES
AND POLITICAL VIOLENCE

Classified By: DEPUTY POLCOUNS ROBERT GILCHRIST FOR REASONS 1.4 (B) AND
(D).



1. (C) SUMMARY: Baghdad is ruled by political elements
seeking to maximize their influence in an environment of
legal and institutional uncertainty. Provincial powers
legislation that defines the authority of a provincial
government, and legislation that specifically describes
Baghdad's status as the Capital of Iraq according to Article
124 of the Constitution are needed to alleviate the
environment of ambiguity that permits political forces
connected to militia groups to openly vie for authority over
national, provincial and local government institutions in
Baghdad. Without a definitive legal framework, political
entrepreneurs vested in various governmental institutions
work to expand their authority and entrench their influence,
beyond the scope of any traditional or recently defined
jurisdictions. At the highest levels of government, this
means political maneuvering and deal-brokering. In the
streets of Baghdad, this can mean murder, extortion and
intimidation in nearly every office of government service
delivery. A conflicted and overlapping governance structure,
partly based on traditional Iraqi institutions and partly
involving innovations since 2003, exacerbates sectarian
tension in the capital through the inefficient and unequal
distribution of services and resources to Baghdad's
residents.


2. (C) This is part of a series of cables from post and
Baghdad PRT on the structure and challenges of Baghdad
governance. This is the second in a series of cables from
Post and Baghdad PRT that examine how formal institutional
arrangements are connected to the day-to-day violence on the
streets of Baghdad. In this cable we talk about the major
components of government in Baghdad, touching on national,
provincial and local institutions. We then describe how an
unclear legal framework sets the stage for extremists to
pursue their criminal or sectarian agendas. END SUMMARY.

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Starting with a simple question: What is Baghdad?
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3. (C) Let's start with a fundamental question: Is Baghdad a
city, a province or a capital? It is a city; home to nearly
6 million people. It is a province; the city and several
outlying suburban areas were incorporated as a province under
the former regime. And it is the historical capital of Iraq,
home to the seat of a centralized national government. This
question is not merely an academic one. In May of 2005, the
City Council of Baghdad was forcibly removed from its offices
in the Amanat (City Hall) by militia members tied to leaders
of the Baghdad Provincial Council, which cited CPA Order 71
as their legal justification. In August of 2005, then-Mayor
of Baghdad City al-Tamimi received a tip not to show up to
work one day; he fled the country before he had a chance to
be 'replaced' by the Provincial Council. In April of 2007,
after nearly two years in office, current Mayor of Baghdad
Saber al-Esawi was finally confirmed in his position by the
Council of Ministers. He now holds the rank of Minister;
this means he outranks the Governor of Baghdad Province (who
only merits Deputy Minister status according to Iraqi law).
If you ask some Baghdadis, they will say that the Governor
has no authority within the city limits; however, if you ask
the Governor himself, he'll beg to disagree. Historically,
Baghdad was directly governed by officials of the national
government; CPA Order 71, broadly defining the authorities of
provincial government, gave power to several new institutions
in Baghdad. Debates over drafts of the new provincial powers
legislation (currently before the Council of Representatives)
and arguments posed over Article 124 of the Constitution
indicate that the question posed above is not a trivial one;
many people's lives and livelihoods may depend upon the
answer.


4. (C) In fact, this question may even be fundamental to the
future of Iraq. A member of the disbanded Baghdad City
Council told PRToff that the Badr militia members who threw
him out of the Amanat were doing much more than serving their
masters in the Provincial Council. The conflict between the
City Council and the Provincial Council went far beyond
differing interpretations of CPA Order 71, he said. By
removing a key component of Baghdad's city government and
launching the process of bringing the Amanat directly under
provincial control, the parties dominating the Provincial
Council achieved a step in a long term strategy to rob
Baghdad of its unique status as the capital of Iraq.
According to this member, the real objective of these Shia
parties and their supporters in Tehran is to forever change
the capital of Iraq from Baghdad to the holy Shia city of
Najaf. Supporting legislation that defines Baghdad's
provincial government as identical to all other provinces is
one way to make this process easier, he said. He claimed
that fostering a climate of sectarian violence that makes
Baghdad unlivable, as Tehran seems to be doing, is also part
of this strategy.

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Baghdad's many government institutions vie for authority
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5. (C) Baghdad's governance structure is a web of national,
provincial and local institutions. Disputes over
institutional authority plague nearly any government system;
in Baghdad the problem happens to be particularly acute. The
sectarian nature of Iraqi politics ensures that institutions
tend to express the sectarian prejudices of those in charge;
however, we see conflict arising in Baghdad for many other
reasons. In an environment of legal ambiguity, and where the
political will to enforce any existing legal framework is
lacking, extremists are permitted to more easily use
legitimate government institutions to pursue their sectarian
and criminal agendas.

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Conflicts in the wake of the 2005 elections
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6. (C) Shortly after the party-list provincial elections in
January 2005 (held in conjunction with the vote for the
Transitional National Assembly),the new Provincial Council
claimed that it was the only legitimate governing body in the
province, based on being elected during an official,
UN-sanctioned vote. The Provincial Council clashed with the
Baghdad City Council, the Baghdad Regional Council and the
local councils created under CPA rules. Citing the fact that
neither the City Council nor the Regional Council were
expressly written into Order 71, the partisan members of the
Provincial Council expanded their authority at the expense of
those bodies, including seizing the salaries for the members
of those councils. When City Council members questioned the
actions of the Provincial Council, citing the historical
separation between what was the 'city' of Baghdad and what
was the 'province' of Baghdad, the PC voted to dissolve the
City Council. Refusing to obey this directive, the City
Council soon found itself forcibly removed from the Amanat by
armed militia members.


7. (C) The City Council brought suit against the Provincial
Council in the Iraqi Administrative Court, and won their
case. CPA Order 71 says that the PC has the authority to
create councils, but does not expressly state that it may
dissolve a council. This was the key issue the case rested
on. Despite this victory, the City Council has never
returned to power in the Amanat. The PC appealed the
decision to the Federal Court; the Court claimed it was a
political issue and should be decided by the Council of
Representatives (CoR). The CoR refused to weigh in on the
issue and sent it back to the Court. The national government
seems to lack the political will to enforce CPA law in this
case, instead waiting for future legislation to sweep this
problem under the rug.

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National leaders unable or unwilling to settle disputes
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8. (C) After dissolving the City Council, the Provincial
Council turned on Mayor Tamimi. Again citing Order 71, the
PC declared their authority over the position and fired
Tamimi. He refused to leave, claiming that the city's
special status as the capital made him impervious to their
demands. Political reality tempered his position.
Reportedly responding to a tip-off from a PC member, Tamimi
fled the country while the Governor of Baghdad Hussein
al-Tahan (Badr) took office as the acting Mayor of Baghdad,
accompanied by his Badr associates. The PC appointed one of
their members, Saber al-Esawi, to take office as the new
Mayor, and asked then-Prime Minister Ja'afari to bless this
decision. The PC waited nearly three months for Ja'afari to
even acknowledge their actions; in the meantime Tahan
continued serving as both Governor and Mayor of Baghdad.
While acting according to CPA law, the PC still needed to
respect previous Iraqi law that said that the Council of
Ministers must approve all appointments to the position of
Mayor of Baghdad. In October, the Council of Ministers
approved the 'temporary' appointment of Mayor Saber al-Esawi;
he has waited until April of 2007 to receive official
confirmation (and the lifetime pension that comes with being
a minister).

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Streamlining bureaucracy, or pursuing a sectarian agenda?
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9. (C) The PC also recently subsumed the City Council's
suburban equivalent, the Regional Council. By majority vote
of the Shia-dominated Provincial Council, the largely Sunni
Regional Council was incorporated into the committee
structure of the PC. This power struggle may have been less
dramatic than the fight over the Amanat, but leaders of the
Regional Council suffered similar intimidation as the PC
expanded its authority over their activities. According to
their original charter of 2004, the Regional Council had the
authority to deal directly with the MMPW to fix service
issues for the outlying communities. ISCI and
Sadrist-affiliated leaders of the PC, again citing Order 71
(and backing this claim up with militia intimidation),
assumed this authority for themselves. Members of the
Regional Council were previously paid their salaries directly
from the MMPW, now the PC receives and distributes those
funds. The Sunni members of the Regional Council claim
sectarian prejudice when they are not paid on time; Shia PC
members claim that bureaucratic inefficiency is to blame.


10. (C) Members of the PC tell PRToff that they recognize
that their actions in absorbing the Regional Council may
appear sectarian, but they are struggling to bring some
efficiency to local government. They note that the new
committee chairman who is responsible for working with the
councils of the outlying suburbs is a Sunni. In fact, Subhy
al-Meshadani is the only Sunni Arab on the Baghdad Provincial
Council; elected in 2005 to represent the Communist Party.

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Shia control raises questions about inequality
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11. (C) In April 2007, the Amanat added a new service
district to Baghdad, dividing the majority Shia district of 9
Nissan (also known as 'New Baghdad') into two districts, each
served by a separate municipality office. This follows the
addition of a number of other service districts since 2003.
The Amanat creates new districts in order to improve service
provision to areas experiencing population growth. It just
so happens that every new service district proposed by the
Shia-dominated Provincial Council and approved by the
Shia-dominated Amanat serves a Shia-majority section of the
city.


12. (C) The Shia population of Baghdad is growing, so there
is some merit to these additions as legitimate urban
development. Shia leaders also claim that these new changes
merely reflect the Amanat finally rectifying the injustice of
poor services that the Shia received under Saddam.


13. (C) Some local Sunni leaders say that the Shia-dominated
government is completely sectarian and offer evidence to back
their claims. A Sunni member of the Adhamiya District
Council saw the Amanat split his service district into two;
he claims that when the Director General (DG) of the new
district opened his office in the Shia-majority neighborhood
of Shaab, he took Adhamiya's trucks and equipment with him.
The DG of the old Sunni-majority section of Adhamiya finds it
increasingly difficult to get the support he needs from the
Amanat.

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Extremists seize control through legal and illegal methods
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14. (C) Many residents and local leaders say the Office of
the Martyr Sadr (OMS) and Jaysh al-Mahdi (JAM) have seized
control of nearly every office of government service delivery
in Baghdad through intimidation, extortion and assassination.
They also use elections, appointments, hirings and firings.
Using both legal and illegal methods, Sadrists have expanded
their influence throughout Baghdad's local, provincial and
national government institutions.


15. (C) After dissolving the City Council and asserting
their authority over the Amanat, the Provincial Council
placed several of their own members into leadership positions
at the Amanat, replacing key technocrats with partisan
politicians. PC member Saber al-Esawi (ISCI) became Mayor of
Baghdad. Naeem Aboub al-Kaby (Sadrist) became Deputy Mayor
for Municipalities, the second-highest position in the
Amanat. Another PC member, Atiyah al-Ugaily (ISCI) took the
Deputy Mayor for Administration position. These appointments
represent the political power-sharing arrangement between
ISCI and the Sadrists, the two most potent forces in Baghdad
-- each a political party with a militia wing.


16. (C) This power-sharing arrangement is not static.
Nearly everyone in Baghdad admits that Sadrists are achieving
the upper-hand in their rivalry with ISCI and their Badr
militia compatriots. ISCI leaders at the PC state their
concern that Sadrists will beat them at the polls during the
next election. Even Governor Tahan, a former Badr commander,
told PRToff that the Sadrists are expanding their influence
over politics in Baghdad. Many provincial leaders tell
PRToff that Deputy Mayor Naeem al-Kaby (the Sadrist) is the
one actually running Baghdad, not Mayor Saber al-Esawi (the
ISCI member).

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Sadrists within the system use it to their advantage
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17. (C) Deputy Mayor al-Kaby rose rapidly from a minor
municipal employee in Sadr City to one of the most
influential positions in the entire government of Iraq. He
also personifies one of the fundamental dilemmas facing USG
efforts. As Deputy Mayor, he is extremely influential in
making sure projects are approved and services provided; he
has been cooperative with PRT, USAID and MNF reconstruction
and development efforts. As a high-ranking Sadrist with
connections to OMS and JAM, it is believed by many that he
uses his position to advance a sectarian agenda and enrich
himself.


18. (C) Local council members in Adhamiya (Sunni district),
Kadhamiya (Shia district) and Karkh (mixed district) told
PRToff on separate occasions that al-Kaby ensures that every
contract tendered by the Amanat is reviewed by OMS, allowing
the Sadrists to take a cut. Al-Kaby is responsible for the
hiring and firing of DGs across the city; an incredibly
powerful way to express favoritism and patronage to his
Sadrist colleagues, or to remove political opponents.
According to the reports of several technical officials at
the Amanat, numerous members of the Provincial Council, many
local council members, and a number of local national
contacts, it is widely asserted that al-Kaby is responsible
for entrenching Sadrist domination at the Amanat; through
that domination Sadrists wield immense control over the
provision, or denial, of essential services to every resident
in Baghdad.

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Control of services means opportunity for criminality
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19. (C) Sadr City council members told PRToff that JAM
seized control of local fuel distribution offices in their
district through intimidation and extortion; the profits from
the sale of fuel at black market prices are incredibly
lucrative for the Sadrists. Gaining a foothold in the Social
Affairs Ministry allows JAM to generate revenue through
fraudulent claims. Ministry of Health (MoH) offices provide
an opportunity for JAM to channel medicine onto the black
market. Current MoH DGs in Baghdad are appointees of the
former minister, a Sadrist.


20. (C) JAM charges fees to market vendors, and collects
money from shoppers who park in the lots near those markets.
According to many sources, JAM demands 'protection money'
from business owners in many neighborhoods. The licensing of
vendors and the conduct of markets in the city of Baghdad has
traditionally fallen under the authority of the Amanat. With
a Sadrist able to wield 'official' power at that institution,
it is not surprising that 'unofficial' colleagues are
permitted to work around the fringes of that institution's
jurisdiction with impunity.


21. (C) In each of these instances, Sadrists either gained
access to these government offices through legitimate methods
like an appointment or an election, or they seized control
through skullduggery. Sometimes a combination is used.
Members of the Sadr City district council told PRToff that at
a recent meeting to select a new chairman, JAM militants were
present to ensure that everyone voted to keep the current
chairman, Abd al-Hassan al-Jibara in office. After JAM
militants took over the fuel distribution office of the
district -- by physically threatening some of the workers,
and by paying others to stay at home -- Chairman al-Kaby
provided District Council badges to these thugs, making them
official 'employees' of the DAC.

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Crossing a boundary into militia territory
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22. (C) Local officials working in an uncertain legal and
political environment often run into obstacles when
performing their duties. Karadah district council member
Nashat al-Husseini was murdered for doing his. Al-Husseini
(Shia) was a long-time member of the Karadah council and
chairman of its Security Committee. With a vague mandate, he
sought to improve coordination between his council and the
local units of the Iraqi Police and look into cases of
corruption. He ran afoul of JAM elements within those units,
according to several other council members, and was targeted
for assassination. This was not a sectarian killing; he was
killed merely because he trying to exert the institutional
authority of his council.

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Comment: Preventing violence by laying down the law
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23. (C) COMMENT: Unresolved legal issues produce
institutional conflict; in the absence of a clear,
enforceable governing framework the political elements that
dominate governing institutions turn to extra-legal methods
to acquire resources, provide services to favored
constituents, and expand their influence over weaker
institutions. The draft Provincial Powers Law now being
considered by the Parliament may address some of these
structural issues. However, committed political leaders will
also have to be willing to stand up against the entrenched
extremists who benefit the current ambiguity.

CROCKER