GUIDANCE ON DRAFT INTELLIGENCE AND NATIONAL

S E C R E T STATE 026759 SIPDIS SIPDIS E.O. 12958: DECL: 02/26/2032 TAGS: IZ MOPS PGOV PTER SUBJECT: GUIDANCE ON DRAFT INTELLIGENCE AND NATIONAL SECURITY LAW REF: BAGHDAD 240 Classified By: NEA DAS Lawrence Butler. Reasons: 1.4 (b),(c),and (d). ¶1. SUMMARY: (C) A review by representatives of several agencies indicates some areas of confusion and potential problems with Iraq's draft Intelligence and National Security Law. These issues include unclear definitions, ill-defined parameters of responsibility, and overly-restrictive regulations on intelligence collection. END SUMMARY ¶2. (SBU) In response to reftel, Washington offers the following comments on the draft Intelligence and National Security Law (INSL). ¶3. (S) This law fails to define or even regulate the State Ministry of National Security (SMNS) which could evolve into an arbitrary secret police force, even working at cross-purposes with other institutions. The SMNS needs to be properly regulated and not modeled on the MOIS. The present draft appears suited to the individual who holds the NSA position and the political interests of the party currently controlling the SMNS. There needs to be clear separation between the person of the NSA and the functions assigned to the office. As a policy organization, the NSA should be treated separately. A single individual would have difficulty performing the roles of both the NSA and the Director of National Intelligence which is how the Iraqi NSA is described in Section 2 (Chapter 1, Articles 11-13 and Chapter 2, Articles 18-24). ¶4. (SBU) Article 1 "Definitions" is problematic in several areas. The law requires clarification between a "controlled" and an "uncontrolled" source (paragraph 1, subparagraph c) as it applies to a detainee being interrogated. There is also inconsistency in defining "counter-intelligence" (paragraph 4) and "foreign intelligence" (paragraph 16): the latter uses the same language as our National Security Act ("foreign governments or elements thereof, foreign organizations or foreign persons, or international terrorist activities) while paragraph 4 uses a different formulation ("foreign power" or "foreign person" with paragraph 17 defining "foreign power" to include a foreign group engaged in international terrorism). In addition, the terms "counter-espionage" (paragraph 7) and "counter-sabotage" (paragraph 8) both use the inappropriate word "repression" in reference to combating entities engaged in such activities - although that term may just be a mistranslation. "Intelligence" (paragraph 20) should not b e defined as a product of both human AND technical collection. The definition of "national intelligence" (paragraph 25) as "integrated departmental intelligence" that "transcends the exclusive competence of a single department or agency" is unclear but seems similar to our statutory definition of National Intelligence which could be substituted for clarity. Finally, the definition of "special operations" (paragraph 36) is exclusively military and perhaps ill-suited to an intelligence statute nor does it appear anywhere else in the document; more useful might be our definition of "covert action" from the National Security Act of 1947 (which also includes an oversight requirement). ¶5. (SBU) Section 1 "Intelligence and National Security Institutions" contains an area needing clarification. While Article 5 prohibits members of the Iraqi intelligence community from having arrest and detention powers, this should be a higher policy determination. In fact, the law is overly repetitive on this issue, prohibiting arrest and detention in articles relative to specific ministries as well. ¶6. (SBU) Several issues may be translating or editing errors. The law gives two contradicting paragraphs describing the appointment of the Director General of Foreign Intelligence Relationships (Section 2, Chapter 2, Article 32). The second of the two paragraphs is the preferable method (appointed by the Prime Minister on the recommendation of the National Security Advisory or NSA and the Iraqi National Intelligence Service Chief) because of the role of the INIS Chief in foreign liaison (bilateral and multilateral) relationships. Article 35, paragraph 3 then refers to SCOs (Security Clearance Offices) which are not described until later (Article 38). We recommend rewriting Article 35 as follows: "In accordance with Article 38, the INIS, NIIA, and DGIS shall have Security Clearance Offices (SCOs) to suspend or revoke(." Finally, Articles 61-64 should be moved up to fall under Chapter 3, Third Section ("National Information and Investigation Agency") which they define. ¶7. (S) Section 4, First part entitled "Judicial Warrants" (Articles 84-92) stipulates that no intelligence agency may, under any circumstance, conduct electronic surveillance in Iraq without a warrant. This is far more restrictive than U.S. law and makes no provision for emergency situations or consensual surveillance. As a practical matter, the U.S. has used its liaison relationship with foreign countries in the past to conduct activities such as surveillance without going through the warrant process. Softening the language of this section would provide for this relationship without the threat of liaison intelligence officers facing judicial punishment for cooperating with U.S. counterparts. Article 85, for example, permanently bans interception of communication between an individual and his legal counsel unless the latter has terrorist involvement and an Iraqi FISA court issues a warrant - but the law gives no grounds or standards of proof for issuing the warrant. Article 86 prohibits interception of p rotected communication during transmission but the broad ban does not define "protected" and could block a liaison officer's willingness to assist us conduct operations in Iraq (such as spying on foreign nationals in the country). The grounds for issuing a warrant are especially narrow (it must be an issue of Iraqi national security) which may present us with difficulty if we seek liaison intelligence assistance in conducting surveillance on entities not deemed a threat by the GoI (such as Iranian nationals in Iraq). ¶8. (SBU) The draft INSL fails to provide parameters to delineate responsibilities of the INIS and the National Information and Investigation Agency (which appears to be an Iraqi FBI). Both are given the missions to counter terrorism, sabotage, and espionage. Clear definitions and separations of their roles will ensure that such operations and activities of both organizations are appropriately coordinated in order to ensure that the most effective use is made of resources and that appropriate account is taken of the risk of collection. This draft also lacks an equivalent of our National Security Act's Title VI (Protection of Certain National Security Information; Protection of Identities of Certain United States Undercover Intelligence Officers, Agents, Informants, and Sources),Sections 601-606 (50 U.S.C. 421-426). It also needs an INIS counterpart of Title VII (Protection of Operational Files of the Central Intelligence Agency),Sec. 701 (50 U.S.C. 431). We recommend that this law be reviewed by Iraqi c onstitutional law experts from all backgrounds - Islamist and non-religious, Arab and Kurd - before being submitted to the CoR if possible. This would encourage the start of a much-needed national security bar. RICE