DETENTION OF DIYALA SUNNI ARAB PROVINCIAL GOVERNMENT

UNCLAS SECTION 01 OF 03 BAGHDAD 000544

JUSTICE PASS TO JOHN EULER

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PHUM PGOV SOCI
SUBJECT: DETENTION OF DIYALA SUNNI ARAB PROVINCIAL GOVERNMENT
OFFICIAL

REF BAGHDAD 64


1. (SBU) SUMMARY: The circumstances surrounding the arrest and
subsequent five month detention of a high-ranking government
official in Diyala Province, Dr. Hussein al-Zubaydi, raise questions
as to whether it is politically motivated. A Sunni Arab provincial
council member, Dr. Hussein was arrested in late August 2008 during
a violent raid by an Iraqi Special Forces (ISF) Unit that reports
directly to the Prime Minister of Iraq. While he has not been
mistreated in custody, Dr. Hussein has not yet been tried and has
apparently been denied access to his attorney. He believes the
charges against him are political in nature. Various U.S. overtures
have been made to gather information and urge the Iraqis to follow
applicable law and afford fair treatment to Dr. Hussein. End
Summary.


The Official at the Center of the Controversy



2. (U) Dr. Hussein al-Zubaydi was the head of the security
committee of the Diyala Provincial Council, and a member of the
Iraqi Islamic Party (IIP),ONE of Iraq's largest Sunni political
factions. Dr. Hussein, along with the Provincial Governor, was a
strong supporter of the Diyala Sons of Iraq (SoI).


The Raid and Arrest



3. (U) According to press accounts, on August 20, 2008, in a
midnight raid, the Prime Minister's ISF Unit kicked down the doors
of the Diyala provincial governmentheadquarters, killed the
Governor's secretary, and then beat and arrested Dr. Hussein. After
exiting the provincial compound with Dr. Hussein in tow, the
soldiers engaged in a firefight with local police, resulting in
several injuries.



Criticism of the Arrest



4. (SBU) Dr. Hussein's arrest was widely criticized in media
accounts as being politically motivated. "There is no evidence
against him; we think this arrest is related to electoral politics,"
Ammar Wajih, an IIP leader, told the New York Times in January. In
August, a Diyala Shia politician, Hadi Abdullah al-Tamimi, told the
Washington Post: "What they did was a gross violation of the local
government authority and a breach of all values and good conduct."
Finally, in January, Multi-National Force - Iraq (MNF-I) was
informed by an aide to Vice-President Hashimi that Dr. Hussein "is
in poor HEALTH and being denied legal representation."


5. (SBU) U.S. personnel at the Diyala Provincial Reconstruction Team
(PRT) worked cooperatively with Dr. Hussein, and ONE PRT member
called him a "critical factor" in the Diyala SoI movement, adding
that Dr. Hussein has been denied counsel and "due process."
According to the Diyala PRT Team Leader, Dr.Hussein was also widely
regarded as ONE of the IIP's top strategists for the January 31
provincial election, and his arrest may fit a pattern; 85 political
activists or workers for the IIP were also arrested around the time
period of Dr. Hussein's arrest.


Investigation of Raid Never Takes Place



6. (SBU) In response to the wave of criticism of the midnight raid
in Diyala, Prime Minister Maliki publicly ordered a committee to be
formed under the direction of the Ministry of the Interior (MOI) to
investigate the incident. In January - four months after the Prime
Minister's order to investigate - the Embassy liaison to the MOI was
tasked to determine the status of the investigation. After checking
with the highest levels of the MOI, the liaison reported back that
he could find no evidence that an investigation ever occurred, and
indeed he could find no evidence that a committee was ever formed.


Investigation of Dr. Hussein Continues


Q

7. (SBU) Dr. Hussein's case is being investigated by the Karkh
Central Criminal Court - Iraq. On December 31, 2008, Embassy
representatives from the Justice Attache's Office met with Judge
Fayek Zidan, the Chief Investigative Judge of that court. Judge
Fayek confirmed that the case is currently pending before his court
and is in the investigative stage. Specifically, the case is

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assigned to Investigative
Judge Dhia al-Kinani, and Dr. Hussein is being held "on a terrorism
charge."
Judge Fayek said that "people have complained against Dr. Hussein"
and added that the evidence collected in the investigation,
includes, generally: statements by complainants/witnesses and
"informants/secret witnesses."


8. (SBU) Judge Fayek added that Dr. Hussein was being represented by
three defense lawyers. The two defense lawyers are Abd al Kader
al-Qavsy and Shuket al-Samarai. Judge Fayek said that these defense
lawyers brought in defense witnesses to give statements to
Investigative Judge Dhia. The Embassy representatives told Judge
Fayek that the United States wanted to see a fair and legal
determination based upon the evidence in the case. Judge Fayek
agreed and said that it should be handled the way "a physician
diagnoses a patient".

No Torture but No Trial or Visitation with Counsel


9. (SBU) After meeting with Judge Fayek, Justice Attache personnel
sought to determine where Dr. Hussein was being detained and assess
the conditions of detention. They received information that the
detainee was held at a detention facility in the International Zone
(IZ detention facility) known to hold prisoners from the ISF Unit
that reports directly to the Prime Minister . Upon visiting the
facility they were told that Dr. Hussein was not there.


10. (SBU) After the unsuccessful attempt to see Dr. Hussein,
Justice Attache personnel partnered with the Federal Bureau of
Investigation (FBI). They met with U.S. Special Forces personnel who
confirmed that Dr. Hussein was, in fact, at the IZ detention
facility, and identified a US Military contractor who monitored the
condition of detainees. The contractor agreed to attempt to see Dr.
Hussein.


11. (SBU) On January 29, the contractor visited Dr. Hussein at the
IZ detention facility. According to the contractor, Dr. Hussein
said that around midnight on August 20, 2008 he was arrested by the
Prime Minister's ISF Unit at his office at the Diyala Provincial
Council. Dr. Hussein said he was held for a week in Diyala, and
then transferred to the IZ detention facility on August 26, 2008.
Dr. Hussein confirmed the information from Judge Fayek that
Investigative Judge Dhia was assigned to his case. Dr. Hussein added
that he saw the Judge ONE week after coming to the IZ detention
facility and saw him again two additional times after that, the last
time being two months ago. Dr. Hussein said he has never been to the
Karkh Central Criminal Court.


12. (SBU) Dr. Hussein also said that an advisor to the Prime
Minister's Counterterrorism Bureau (CTB) threatened him and told a
soldier to torture him to get a confession, but the soldier never
followed that directive and Dr. Hussein has never been mistreated
while in custody. Dr. Hussein said he was told that there was an
arrest warrant for him for being a member of Al Qaeda in Iraq (AQI),
but added that these charges are false, contending that he worked
for the Coalition in Diyala against AQI. Dr. Hussein believes the
charges are political in nature, as a Sunni Arab (reftel). (NOTE:
Many Sunni Arabs in Diyala believe that Dr. Hussein's and other
Sunni Arabs' arrests were part of the central Government of Iraq's
"Glad Tidings of Benevolence" or "Benevolent Diyala" security
operation in the late summer and fall of last year. They further
believe that the operation was directed specifically at Sunni Arab
leaders in the province. END NOTE) Dr. Hussein confirmed the
information from Judge Fayek that Shuket al-Samarai is his lawyer,
Qinformation from Judge Fayek that Shuket al-Samarai is his lawyer,
and said that he "has no opportunity to meet with him."

Joint Embassy MNF-I Letter to Prime Minister


13. (SBU) On February 1, the Ambassador and MNF-I Commanding
General sent a joint letter to the Prime Minister expressing concern
about Dr. Hussein's condition "and the allegations regarding the
denial of his right to counsel."

Outreach by PRT to Dr. Hussein Ally


14. (SBU) On February 10, a U.S. liaison for the Diyala PRT met
with Hisham Ali Khalaf, a friend and political ally of Dr. Hussein.
Hashim was in close contact with Dr. Hussein's legal team, including
lead attorney Shuket al-Samarai. Hisham stated that al-Samari was
the only attorney who has had any contact with Dr. Hussein, and
Hisham "was only aware of ONE extremely brief meeting between Dr.
Hussein and his lawyer and that was many months ago."


15. (SBU) In his February 10 conversation with the Diyala liaison,
Hisham "stated in unequivocal terms that this was a politically
motivated arrest" that "was meant to sideline him from participating
in the most recent provincial elections." Hisham further complained

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that Dr. Hussein has been denied his rights under Iraqi law to
access to counsel and timelines for setting hearings. (NOTE: Article
19(fourth) of the Iraqi Constitution provides that "The right to a
defense shall be sacred and guaranteed in all phases of
investigation and trial." END NOTE)


16. (SBU) Embassy Baghdad will continue to follow Dr. Hussein's
case and work to obtain due process under Iraqi law for him.

BUTENIS


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