PLANS FOR ADDRESSING THE DE-BA'ATHIFICATION ISSUE

C O N F I D E N T I A L BAGHDAD 000113

SIPDIS

E.O. 12958: DECL: 07/17/2020
TAGS: PGOV PREL IZ
SUBJECT: PLANS FOR ADDRESSING THE DE-BA'ATHIFICATION ISSUE

REF: BAGHDAD 0109

Classified By: Acting DCM Gary A. Grappo, for reasons 1.4 (b) and (d).


1. (C) SUMMARY: The Embassy, in close coordination with
UNAMI, is pressing PM Maliki, President Talabani, Speaker
Samarrai'e, former PM Allawi, and other key leaders to secure
political agreement to defer vetting of candidates until
after the March 7 election, with the time between now and
then used to appoint a new Accountability and Justice
Commission (AJC),as called for in the 2008
de-Ba'athification law, and to establish a transparent
process. The Ambassador told Speaker Samarrai'e January 17
that, given the current trajectory, the USG may not be able
to declare the March 7 elections credible and legitimate;
Ambassador will deliver the same message to other leaders.
The Ambassador and SRSG Melkert agreed January 16 that it
would not be wise to leave the decision to the ad hoc
judicial panels that have been set up to hear complaints
(reftel),as the judges will not be able to handle 500
appeals in the short amount of time available. Calls by
VPOTUS to Maliki, Talabani, and Samarrai'e would
significantly complement this strategy. Suggested talking
points at para 10; these are the same points being deployed
by Ambassador. If necessary, we should consider having the
Department or the White House issue a statement expressing
our concerns about the process, and the impact it could have
on the legitimacy and credibility of the electoral process.
END SUMMARY.

VET THE WINNERS APPROACH
--------------


2. (C) The Embassy, working closely with UNAMI, is making a
concerted push -- especially in the coming three days -- to
secure political agreement on a way forward that will address
the challenges posed by the dubious de-Ba'athifcation process
that has led to the disqualification of some 500 candidates
(out of some 6500). The way forward requires agreement to
defer vetting of candidates until after the March 7 election,
with the time between now and then used to appoint a new
Accountability and Justice Commission (AJC),as called for in
the 2008 de-Ba'athification law, and to establish a
transparent process. The Ambassador told Speaker Samarrai'e
January 17, who requested the meeting to discuss the
de-Ba'athification issue, that if Iraqi leaders do not
correct the current trajectory, in which Chalabi and his
supporters were making a mockery of the electoral process,
the USG might not be able to declare the March 7 elections
credible and legitimate. The Ambassador will repeat this
message with PM Maliki, President Talabani and other key
political leaders. Emboffs will reinforce points in meetings
with senior Iraqi authorities.


3. (C) This strategy requires a layered effort, with the
Embassy and UNAMI working in tandem, bolstered by calls from
the Vice President to key players who can influence the
process. We believe the best approach is to work for
provisional certification of candidates by the Independent
High Electoral Commission (IHEC),and with de-Ba'athification
vetting to be done post-election, only for winning
candidates. This would be done before the candidates are
sworn in and seated. The Ambassador and SRSG Melkert agreed
January 16 that it would not be wise to leave the decision to
the ad hoc judicial panels that have been set up to hear
complaints (reftel),as the judges will not be able to handle
the up to 500 appeals in the short amount of time available.
Moreover, they may be unwilling to step into a heated
political issue by overturning significant numbers of the
IHEC-endorsed AJC findings.

Q

4. (C) We are also aware that Iraqi political factions have
begun intense rounds of discussions to find a political
solution to this problem in order to allow for greater
transparency and permit candidates to remain on the ballot.
These solutions may involve a pre-election solution option.
The afternoon of January 17, the Ambassador told ISCI leaders
Ammar al-Hakim, who is also anxious to resolve the issue and
avoid inflaming sectarian emotions, that we are willing to
consider such approaches, provided they are transparent and
ensure due process (details septel). The Ambassador also
spoke with President Talabani today and will meet with KRG
President Barzani January 18 in Erbil to build consensus.

PUBLICATION OF LIST DELAYED
--------------


5. (C) This "vetting the winners" approach is also favored
by SRSG Melkert and the UNAMI Elections Assistance Team,
although they caution that the time-frame for implementing
such an approach is extremely limited. IHEC plans to publish
in local newspapers the names of the 500 candidates it is
de-certifying, possibly as soon as January 18. This is in
accordance with IHEC's laws and regulations. At the end of
that three days, the clock starts ticking for appeals, with
candidates allotted three additional days to notify IHEC of
their desire to appeal the decision. Melkert cautioned the
Ambassador in a January 16 meeting that IHEC has no stomach
at all for resisting the Accountability and Justice (AJC)
de-Ba'athification recommendations, with the more moderate
commissioners "deathly afraid" of accusations of supporting
Ba'athism if they try to offer any alternative to a simple
rubber-stamping of the AJC's findings on candidates. In
another sign of IHEC's susceptibility to political pressure,
we learned that IHEC had sent the list to newspapers on
January 16 for publication the next morning, but then pulled
publication at the last minute late January 16 at the
instruction of PM Maliki and the AJC. UNAMI believes the
list was pulled to make substantive as well as clerical
changes. We assess that the decision may also be an initial
response to the strong expressions of concern by the Embassy
and UNAMI. Late January 17, IHEC again asked papers to delay
publication, saying a new list would be provided the next
day, which would mean publication on January 19.

DEPLOYING POINTS TO COMPEL GOI LEADERS TO TAKE ACTION
-------------- --------------


6. (C) In the first of the Ambassador's series of
engagements with senior leaders, he told Speaker Samarrai'e
January 17 in clear, strong terms that the USG does not
support the current plan to decertify 500 candidates in a
questionable process that could inflame sectarian tensions.
It was a long, difficult meeting with some tough exchanges
but Samarrai'e began near the end of the meeting to move
toward the USG position supporting a "vet the winners"
approach. He inquired pointedly about which other political
leaders the Ambassador had seen or planned to see. He also
pleaded at several points for the USG not to walk away from
Iraq's democratic process, but to help Iraq fix any
procedural irregularities. The Ambassador reassured the
Speaker of unambiguous U.S. support for democracy in Iraq but
also repeatedly underscored that the current runaway process
risked undermining public confidence in the elections and
possibly provoking sectarian violence.

POSSIBLE VP CALLS TO FOLLOW UP
--------------


7. (C) Calls from VPOTUS to PM Maliki, President Talabani,
and Speaker Samarrai'e would strongly complement this
strategy. We will also be recommending that Ayatollah
Sistani underscore to Maliki and others the need to address
the situation. Following a meeting January 16 with the
Ambassador, former PM Allawi told the Ambassador January 17
that he had asked Egyptian President Mubarak to weigh in with
the PM. If necessary, we should consider having the
Department or the White House issue a statement expressing
our concerns about the process, and the impact it could have
on the legitimacy and credibility of the electoral process.
This is a step that UNAMI's Melkert is reticent to take at
this point, saying he does not want to escalate to far too
fast, but may be willing to reconsider depending on
developments over the next 48 hours.

SOME UNAMI PROCEDURAL FIXES
--------------


8. (C) In tandem with the "post-election vetting" proposal,
UNAMI is also shopping two procedural "fixes" that could
repair some of the worst damage, although neither would
reduce significantly the total numbers of candidates
disqualified. They are useful fallbacks, however, given the
narrow three-day window for getting a "vetting the winners"
Qnarrow three-day window for getting a "vetting the winners"
approach adopted at IHEC. The first involves pressing IHEC
(and their political masters) not to disqualify "incumbents"
(ministers, COR members, and those who stood for election --
and vetting -- in the 2005 national elections or the January
2009 provincial elections). This would likely "save" only 16
candidates, but those saved would include the significant
ones, including Saleh al-Mutlaq. (NOTE: MinDef Abd al-Qadir
al-Mufriji's name has been removed from the most recent,
i.e., January 16 evening, version of the list that the AJC
sent to IHEC. END NOTE)


9. (C) UNAMI also plans to keep the pressure on IHEC to act
in a very restricted way on the second AJC letter signed by
Chalabi, which listed 11 entities (parties) to be
de-certified. If implemented in a limited way, which is the
way IHEC is leaning, this would involve eliminating 11
Secretaries Generals of the entities (if all are candidates,
which is not clear) and striking the names of those parties
from the ballot. But members of these entities could still
run as members of the larger coalition. There is significant
support on IHEC for this approach, given explicit wording in
IHEC law giving it the exclusive authority to certify
"entities," but the ISCI-Da'wa commissioners, who have led
the de-Ba'athification charge, are not that enthusiastic,
according to Melkert. The AJC was initially pressing for a
much more ambitious implementation, which could have involved
the dis-qualification of another 1,600 candidates, although
the mounting political pressure seems to have forced them off
this position.

ALLAWI CALLS CHALABI AN IRANIAN AGENT
--------------


9. (C) Allawi told the Ambassador January 16 that he
believes Chalabi and his deputy Ali Faisal al-Lami are acting
under instructions from Iran (see septel). He said the
de-Ba'athification effort was not only aimed at eliminating
anti-Iranian Iraqis, but also intended to break Allawi's
Iraqiyya coalition (announced January 16).

POINTS TO BE DEPLOYED
--------------


10. (C) Points to be deployed for the calls and meetings:

-- USG is deeply concerned about the decision by IHEC to
accept the list of 500 names of candidates recommended for
disqualification by the Accountability and Justice
Commission.

-- This is a dangerous step that raises serious questions
about the Iraqi government's commitment and ability to hold
credible and legitimate elections on March 7.

-- We are specifically concerned about:

- the lack of transparency and due process;
- the standing and statutory authority of the
Accountability and Justice commission;
- the existence and type of evidence the commission used
to disqualify candidates;
- the clear conflicts of interests involving Chalabi and
al-Lami, who are themselves candidates and known as acting in
concert with Iranian wishes; and
- the presumption of guilt for candidates on the list.

-- The two appeals processes will not be able to do a
credible job of evaluating all these cases. The AJC appeals
route will take too long (up to 90 days) and relies on an
untested appeals panel.

-- The IHEC route, going through the Electoral Judicial
Panel, is faster, but cannot possibly handle the up to 500
appeals in a credible manner. The caseload is too
overwhelming. Moreover, IHEC is under pressure to finalize
the list of candidates within the next few days in order to
be able to print ballots in time for March 7.

-- The AJC determination and IHEC's decision to accept it are
undermining the possibility of credible legitimate elections.

-- Moreover, there is a real threat that this
disqualification will spark a boycott of the elections and
re-ignite sectarian conflict that will take us back, not
forward.

-- We need to find a way to address this now.

-- IHEC should provisionally certify the candidates now, and
then "vet the winning candidates" BEFORE they are seated.
This will allow the electoral process to move forward in a
credible and legitimate manner and would be consistent with
the principle that defendants are innocent until proven
guilty, not the other way around.

-- This gives the COR time to appoint a new Accountability
and Justice Commission and strengthen its procedures to
ensure more transparency and fairness.

-- You need to be aware that the USG is closely evaluating
whether we will be able to certify that these elections are
fair, legitimate, and inclusive, given the lack of
transparency, arbitrary decision-making, and conflicts of
interest apparent in these actions.

-- We are at a critical juncture in Iraq's history. These
elections are too serious for Iraq's future to allow such
disruptions to undermine Iraq's democratic progress.
HILL