DETAINEE RELEASES: BALANCING SECURITY WITH

S E C R E T SECTION 01 OF 03 BAGHDAD 000884

SIPDIS

E.O. 12958: DECL: 03/30/2019
TAGS: PHUM KJUS PGOV IZ
SUBJECT: DETAINEE RELEASES: BALANCING SECURITY WITH
HUMANITARIAN OBLIGATIONS

REF: A. 08 BAGHDAD 3947

B. BAGHDAD 358

C. 08 BAGHDAD 2837

D. BAGHDAD 149

Classified By: PMIN Robert Ford for Reasons 1.4 (d).


1. (S) Summary: Aside from its compelling humanitarian
aspects, the detainee issues continues to be a serious
obstacle hindering nation-wide political accommodation. The
GOI has a legitimate interest in safeguarding its citizens
and establishing control throughout the country's cities and
rural areas. It also needs to show that it is maintaining a
balance between security concerns and maintaining a fair and
even-handed approach toward law enforcement. Not
surprisingly, detainees held in American facilities also are
a sensitive issue politically. As part of the Security
Agreement, the USG and GOI established a Joint Sub-Committee
(JSC) on detainees to facilitate bilateral cooperation on
Coalition Forces-held detainees and to establish a legal
mechanism for the transfer of wanted detainees from USG to
GOI custody (ref A). Although releases and transfers have
begun in earnest under this system, many Sunni Arab leaders
have expressed concern that former detainees are either being
immediately rearrested or subsequently detained solely
because they had been in USG custody. There is little if any
support system in place to help former detainees reintegrate
into society and jobs are often difficult for them to find.
Meanwhile, the GOI has expressed a clear preference for
moving slowly on releases and continually presses the USG to
turn over all detainees to GOI custody.


2. (S) While considerable attention has been centered on
USG detainee releases, there are also problems with detainee
populations in GOI facilities. Despite more than 7,500
amnesty releases in 2008 and steady processing of cases, the
net GOI-held detainee population has increased (ref B). Many
detainees remain behind bars long after receiving valid
release orders, in large part due to delays in verifying that
the released has no other outstanding warrants. The lack of
a national warrants database continues to hinder the release
process. Judicial "throughput" remains a serious problem at
many facilities, primarily due to a lack of Investigative
Judges (IJ) and intimidation felt by local judges. The
steady influx of new detainees from ongoing operations adds
to the detainee population at a greater rate than pending
cases can be investigated and tried. It is not uncommon for
detainees to wait months and sometimes years before their
case is heard by an IJ. GOI operations, e.g., last fall's
"Operation Benevolent Diyala," are often perceived as
targeting or singling out Sunnis, and contribute to
perceptions that the government has a sectarian agenda (ref
C). End Summary.

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Detainee Processing Procedures
--------------


3. (S) Coalition Forces (CF) released 18,600 detainees in
2008 and currently hold approximately 12,500 individuals.
Under the Security Agreement, all CF-held detainees will be
either released or transferred to GOI custody by the end of
2009 (ref D). The Joint Sub-Committee (JSC) on detainees,
co-chaired by MNF-I and the Ministry of Interior (MOI),has
met twice and established a mutually agreed upon a release
process. On the first of each month, Task Force 134 (TF134)
provides a list of up to 1,500 detainees proposed for release
the following month. The GOI then has 30 days to review the
files of those on the list. Following this initial 30-day
period, unless the GOI designates an individual as a "person
of interest" or notifies TF134 that an outstanding warrant
Qof interest" or notifies TF134 that an outstanding warrant
exists, each detainee on the list will be released. Should
the GOI notify TF 134 that a warrant exists or designate
someone as a "person of interest," it will then have 45 days
to produce a valid warrant for the individual. (Note: This
was increased from 30 days during the first Detainee JSC
meeting on February 21. End Note.)


4. (S) Since the establishment of these procedures on
January 1, CF have postponed the release of 21 detainees due
to the existence of valid warrants and continue to hold 121
individuals identified by the GOI as "persons of interest"
due to intelligence indicating they have engaged in criminal
insurgent activity. If the GOI is not able to produce valid
warrants, each detainee will be released by CF. If a warrant
is produced, the detainee will be transferred to GOI custody
pursuant to Article 22 of the Security Agreement. (Note: To
date, no detainees have been transferred to the GOI based on
a warrant or detention order. This is primarily because
detainees do not want to be transferred to GOI custody and
wish to remain in USG custody as long as possible, and we
will not transfer detainees to overcrowded prisons. The GOI

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criticized this policy in the third Detainee JSC on March 28
and promised that overcrowding problems will soon be fixed in
prisons. End Note). All detainees are released near to
their point of capture, in coordination with the CF
battle-space commander and in cooperation with GOI officials.
If a detainee fears his life will be in danger if he is
released at the point of capture, CF coordinates with the
Ministry of Human Rights to release him at another location.


5. (S) According to the U.S. plan for releases, only
low-threat detainees so far have been proposed for release.
Most of these will be set free prior to July 1. At the same
time as these releases, TF134 is also working on the files of
the medium- and high-threat detainees and will soon provide
intelligence assessments of the this group of approximately
5,000 detainees to Iraqi Technical Teams (ITTs). These GOI
teams will review the intelligence files with U.S. military
intelligence personnel in order to obtain as much evidence as
possible to warrant Iraqi criminal charges and arrest
warrants against this higher-threat group and place them in
GOI custody. Both sides wish to transfer as many of the 5,000
detainees to GOI custody as possible because they are viewed
as a continued threat to Iraqi security. A total of 60
intelligence, judicial and law enforcement specialists have
been selected by the GOI to participate on the ITTs.


6. (S) Finally, there are 2,500 detainees classified by CF
as "high threat." These come in two classes: dangerous
radicals (leaders of Iraqi-based terrorist organizations) and
enduring security threats (members of international terrorist
organizations who have the capacity to engage in activities
abroad). All of these will undergo GOI judicial review, as
will all 138 third country nationals. Detainees with valid
detention orders will be transferred to GOI custody by
December, at which time all USG-run detention facilities
possibly will be shut down or handed over to the GOI.

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GOI Detainee Issues
--------------


7. (S) While much attention has been focused on detainees
in USG custody and the process by which they will be either
released or transferred to GOI facilities, GOI detention
facilities continue to suffer from significant problems that
are not being addressed. According to the Ministry of Human
Rights, approximately 12,000 individuals with valid amnesty
release orders and thousands of additional detainees with
valid judicial release orders remain in GOI custody. For
example, of the 828 detainees held in the three facilities
that comprise the Ministry of Defense's (MOD's) Ninewa
Operations Command, Kindi, Kisik and Kazlani, 277 have been
issued valid release orders. Despite repeated directives
from the MOD's general counsel, commanders at these
facilities refuse to free such detainees. Releases are also
held up due to an antiquated warrants check process required
before a detainee is released. Iman Naji, the MOD's Director
of Human Rights, told us that it would take the direct
intervention of Prime Minister Maliki to get these prisoners
released.


8. (S) Case processing is a problem at many MOI, Ministry
of Justice (MOJ),MOD and Ministry of Labor and Social
Affairs (responsible for juveniles) pre-trial detention
centers. Upwards of 15,000 pre-trial detainees spend weeks,
months and, in some cases, years before they are brought
before an IJ to have their case heard. This is due primarily
to an insufficient number of IJs and poor security conditions
that leave judges open to intimidation. In addition, the
Qthat leave judges open to intimidation. In addition, the
constant influx of new detainees from operations continues to
outpace the ability of judges to investigate and adjudicate
cases. Even at the MOJ's largest unit, the Rusafa Prison
Complex, which boasts a strong USG presence and a robust
legal clinic that has served over 8,000 people since May
2008, many detainees languish for long periods of time before
their case is brought to trial. PMIN visited the legal
clinic at Rusafa with emboffs on March 23. The Iraqi lawyer
who directs it told us that while there are fewer cases of
prisoners waiting years for hearings, there still are some
(he declined to give a number but he was confident the number
was less than in 2004 or 2005).

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Sunni Concerns
--------------


9. (S) The vast majority of detainees, both those held by
the USG and by the GOI, are Sunni Arab. Many of our Sunni
Arab interlocutors, from members of parliament to civil
society leaders, view the issue through a distinctly
sectarian lens. On CF releases, they are primarily critical
of the method by which detainees are released from custody.

BAGHDAD 00000884 003 OF 003


Coalition Forces liaise with local GOI officials, and often
the area IP commander, to apprise them of any releases taking
place in their regions. Some Sunni leaders are concerned
that individuals are immediately rearrested by the IP,
usually for no reason other than having previously been in
USG custody. Hassan Deghan al-Janabi, a Sunni member of
parliament on the Detainee Affairs Committee, has told us
March 17 that his committee "works well" with the GOI, but he
said fears that released detainees will be rearrested have
led many former CF-held detainees to move away from their
homes after they are released.


10. (C) One case that explains the Sunni Arab concern is
that of 48 men formerly held by the Coalition Forces who were
mistakenly turned over to the Iraqi Police in Ninewa in
January 2009. The Iraqi security forces had no arrest
warrant for the men but took custody of them anyway. Since
then the men have remained in Iraqi detention. PMIN raised
the case with Deputy Interior Minister Ayden on the margins
of the March 28 SA Detainee Issues Committee meeting. Ayden
knew about the case and acknowledged that the Iraqi
authorities had not had arrest warrants. He said the
Interior Ministry has written to the Ninewa Operations
Command explaining that the men should be released. Aydin
said he hoped to have news before the next Committee meeting
April 4.


11. (S) Sunni leaders have also expressed concern over the
lack of support provided to newly released detainees. Sheikh
Mahmoud Ali Ahmed al-Falahi, the Director of the Sunni
Endowment's Human Rights Office, told PolOff March 29 that he
receives "hundreds" of calls each week from former detainees
having difficulty finding steady employment. The GOI is "not
very helpful" in this regard, and he is worried that these
individuals pose "easy recruiting targets" for terrorist
organizations such as Al Qaeda in Iraq.


12. (S) Of perhaps even greater alarm to our Sunni contacts
are the targeted "sweeps" conducted by Iraqi Security Forces
in various parts of the country (ref C). While the GOI
claims that these are undertaken for security purposes, the
disproportionately large number of Sunnis arrested during
these operations leads many in the Sunni community to see
sectarian or political motives underlying them. Just as a
majority of those arrested in operations such as "Benevolent
Diyala" were Sunni Arab, so too are an outsized number
prisoners languishing in GOI facilities. Some of our
contacts have alleged a sectarian bias behind the length of
time that detainees are forced to wait before an IJ will
review their case.

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Comment
--------------


13. (S) Aside from its compelling humanitarian aspects, the
detainee issues continues to be a serious obstacle hindering
nation-wide political accommodation. The GOI has a
legitimate interest in safeguarding its citizens and
establishing control throughout the country's cities and
rural areas. It also needs to show that it is maintaining a
balance between security concerns and maintaining a fair and
even-handed approach toward law enforcement. This means it
must explain more often why it arrests persons, especially
prominent community figures. It also must address more
openly charges of sectarian bias, especially in locales like
Diyala where the composition of those arrested is so
unbalanced. (In Diyala's case, Sunni Arabs represent a much
larger percentage of those arrested than Shi'a even though
there has been killing on both sides.) As CF gradually
disengages from the issue, a larger burden will fall upon the
Qdisengages from the issue, a larger burden will fall upon the
GOI to maintain a nonsectarian approach to arrest and
imprisonment. His Da'wa party successfully ran on a "law and
order" platform during January's provincial elections, and it
is a good bet that Prime Minister Maliki will keep taking
measures which portray him as security focused, especially as
we look down the road toward national elections slated for
late 2009. The Maliki government's stance on detainees, and
willingness to take into account Sunni Arab concerns, may
provide a glimpse of what is to come.
BUTENIS